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HomeMy WebLinkAbout101104p NOTICE OF THE REGULAR SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL TIME: 6:30 P.M. - REGULAR SESSION WHEN: THURSDAY, NOVEMBER 4, 2010 WHERE: FOUNTAIN HILLS COUNCIL CHAMBERS 16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ PROCEDURE FOR ADDRESSING THE COUNCIL Anyone wishing to speak before the Council must fill out a speaker’s card and submit it to the Town Clerk prior to Council discussion of that Agenda item. Speaker Cards are located in the Council Chamber Lobby and near the Clerk’s position on the dais. Speakers will be called in the order in which the speaker cards were received either by the Clerk or the Mayor. At that time, speakers should stand and approach the podium. Speakers are asked to state their name prior to commenting and to direct their comments to the Presiding Officer and not to individual Councilmembers. Speakers’ statements should not be repetitive. If a speaker chooses not to speak when called, the speaker will be deemed to have waived his or her opportunity to speak on the matter. Speakers may not (i) reserve a portion of their time for a later time or (ii) transfer any portion of their time to another speaker. If there is a Public Hearing, please submit the speaker card to speak to that issue during the Public Hearing. Individual speakers will be allowed three contiguous minutes to address the Council. Time limits may be waived by (i) discretion of the Town Manager upon request by the speaker not less than 24 hours prior to a Meeting, (ii) consensus of the Council at Meeting or (iii) the Mayor either prior to or during a Meeting. Please be respectful when making your comments. If you do not comply with these rules, you will be asked to leave. Mayor Jay T. Schlum Vice Mayor Dennis Brown Councilmember Tait D. Elkie Councilmember Dennis Contino Councilmember Cassie Hansen Councilmember Ginny Dickey Councilmember Henry Leger Z:\Council Packets\2010\R11-4-10\101104A.docx Last printed 10/28/2010 4:44 PM Page 2 of 3 AGENDA  CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Jay T. Schlum  INVOCATION – Mayor Jay T. Schlum  ROLL CALL – Mayor Jay T. Schlum  MAYOR’S REPORT i) Recognition of service to the Town of Fountain Hills by Captain John Kleinheinz of the Maricopa County Sheriff’s Office. ii) Introduction of Captain Joe Rodriquez as the new Commander of District 7 by Maricopa County Sheriff Joe Arpaio. iii) Introduction of Mitchell S. Eisenberg as the Town’s new Municipal Court Judge. iv) Proclamation declaring “Red Shirt Fridays” in the Town of Fountain Hills. v) Recognition of the Take Pride Committee and Town staff for their organization and participation in Take Pride Day on October 23, 2010.  SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS i) None. CALL TO THE PUBLIC Pursuant to A.R.S. §38-431-01(G), public comment is permitted (not required) on matters not listed on the agenda. Any such comment (i) must be within the jurisdiction of the Council and (ii) is subject to reasonable time, place, and manner restrictions. The Council will not discuss or take legal action on matters raised during “Call to the Public” unless the matters are properly noticed for discussion and legal action. At the conclusion of the call to the public, individual Councilmembers may (i) respond to criticism, (ii) ask staff to review a matter or (iii) ask that the matter be placed on a future Council agenda. CONSENT AGENDA 1. CONSIDERATION of approving the TOWN COUNCIL MEETING MINUTES from October 7 and 12, 2010. 2. CONSIDERATION of approving a LIQUOR LICENSE APPLICATION submitted by Matilde Salazar, owner of Terra Nostra Italian Restaurant, located at 13014 N. Saguaro Boulevard, Suite #101, Fountain Hills, AZ. This is for a series 12 license (Restaurant). 3. CONSIDERATION of RESOLUTION 2010- 39, abandoning whatever right, title, or interest the Town has in the certain slope, public utility and drainage easements located at the northerly and westerly property lines of Plat 201-A, Block 1, Lot 8 (and a portion of Parcel B) (11824 N. Oasis Dr.) as recorded in Book 150 of Maps, page 32, records of Maricopa County, Arizona. EA2010-05 (DiNaso) 4. CONSIDERATION of RESOLUTION 2010-33, a request from MCO Properties to change the private street name of E. Golden Eagle Boulevard within the Eagles Nest gated subdivision (i.e. from the Eagles Nest Gate to Desert Tortoise Trail), to E. Mountain Parkway. 5. CONSIDERATION of a UTILITY DISTURBANCE PERMIT to allow a utility trench and installation within a non-disturbance area at 15535 Firerock Country Club Drive. Case #UDP2010-01. Z:\Council Packets\2010\R11-4-10\101104A.docx Last printed 10/28/2010 4:44 PM Page 3 of 3 6. CONSIDERATION of approving the PURCHASE AGREEMENT between the Town of Fountain Hills and Gen-Tech for diesel fueled standby generators in the amount of $52,497.58. REGULAR AGENDA 7. CONSIDERATION of RESOLUTION 2010-28, declaring as a public record that certain document filed with the Town Clerk and entitled the “Town of Fountain Hills Solid Waste Disposal and Recycling Regulations.” 8. CONSIDERATION of ORDINANCE 10-08, adopting the “Town of Fountain Hills Solid Waste Disposal and Recycling Regulations” by reference and amending the Fountain Hills Town Code, Chapter 10, Health and Sanitation, relating to solid waste disposal and recycling. 9. CONSIDERATION of the CONTRACT with Allied Waste Transportation, Inc., d/b/a/ Allied Waste Services of Phoenix relating to solid waste, disposal, and recycling services. 10. COUNCIL DISCUSSION/DIRECTION to the Town Manager. Items listed below are related only to the propriety of (i) placing such items on a future agenda for action or (ii) directing staff to conduct further research and report back to the Council: A. None. 11. SUMMARY of COUNCIL REQUESTS and REPORT ON RECENT ACTIVITIES by the Town Manager. 12. ADJOURNMENT. DATED this 27th day of October 2010. Bevelyn J. Bender, Town Clerk The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 480-816-5100 (voice) or 1-800-367-8939 (TDD) 48 hours prior to the meeting to request a reasonable accommodation to participate in this meeting or to obtain agenda information in large print format. Supporting documentation and staff reports furnished the Council with this agenda are available for review in the Clerk’s office. TOWN OF FOUNTAIN HILLS TOWN COUNCIL AGENDA ACTION FORM Meeting Date: 11/4/2010 Meeting Type: Regular Session Agenda Type: Consent Submitting Department: Administration Staff Contact Information: BevelynJ. Bender,Town Clerk; 480-816-5115; bbender@fh.az.gov Strategic Priority: Civic Responsibility Council Goal: Provide Citimis Opportunities lo Improve Lives : CONSIDERATION of approving the TOWN COUNCIL MEETING MINUTES from October 7 and 12,2010. Applicant: NA Applicant Contact Information: NA Property Location: NA Related Ordinance, Policy or Guiding Principle: A.R.S. §38-431.01 Staff Summary (background): The intent of approving previous meeting minutes is to ensure an accurate account of the discussion arul action thai took place al thai meeting for archival purposes. Approved minutes are placed on the Town's website in compliance with stale law. Risk Analysis (options or alietnatives with implications): NA Fiscal Impact (iniiial and ongoing costs; budget status): NA Budget Reference (page number): NA Funding Source: NA II Multiple Funds utilized, list here; Budgeted; if No, attach Budget Adjustment Form: C Imom.-an item. Recommendation(s) by Board(s) or Commission(s): NA Staff Recommendations): Approve List Attachment(s): None SUGGESTED MOTION (f« Council use): Move to approve the consent agenda. Prepared by: V Bevelyn Bender, Town Clerk 10/25/2010 Richard L. Davis. Town Manager 10/26/2010 Page 1 of 1 TOWN OF FOUNTAIN HILLS TOWN COUNCIL AGENDA ACTION FORM Meeting Date: 11/4/2010 Meeting Type: Regular Agenda Type: Consent Submitting Department: Administration Staff Contact Information: JulieGhetti, Deputy Town Manager. 480-816-5113, jghetti@fh.az.gov Strategic Priority: Not applicable Council Goal: Noi applicable REQUEST TO COUNCIL: CONSIDERATION of approving a LIQUOR LICENSE APPLICATION submitted by Matitde Salazar, Owner of Terra Nostra Italian Restaurant located at 13014 N. Saguaro Blvd., Suite #101, Fountain Hills, AZ. This is for a series 12 license (Restaurant). Applicant: Matilde Salazar Applicant Contact Information: (480) 375-0987 Property Location: 13014 N. Saguaro Blvd., Suite #101, Fountain Hills, AZ 85268 Related Ordinance, Policy or Guiding Principle: A.R.S. Title 4/Alcoholic Beverages (4-205.02) and Title I9/Chapter I Staff Summary (background): The purpose of this item is to obtain Council's recommendation regarding a Mqnor license application submitted by Maiilde Salazar, Owner of Terra Nostia Italian Restaurant for submission to the Arizona Department of Liquor. The application was reviewed by staff for compliance with Town ordinances. Staff recommends approval of this liquor license application as submitted. Risk Analysis (options or alternatives with implications): N/A Fiscal Impact (a) initial and ongoing costs; b) budget status, and c) reference budget line item): N/A Budget Reference: N/A Funding Source: N/A Budgeted; if No, attach Budget Adjustment Form: N/A Recommendation(s) by Board(s) or Commission(s): N/A Staff Recommendation(s): Approve Attachment(s): Front page of ilie application and staffs' recommendation SUGGESTED MOTION: Move lo approve the consent agenda Submitted by: Approved: Or. Julie Gh *ti. Deputy Town Manager 10/26/2010 Richard L. Davis, Town Manager Date Page 1 of 1 TOWN OF FOUNTAIN HILLS OFFICE OF TOWN CLERK INTER OFFICE MEMO Attached is a Liquor License Application for review submitted by Matilde Salazar, Owner, for Terra Nostra Italian Restaurant located at 13014 N. Saguaro Blvd., Suite #101, Fountain Hills, AZ 85268. This is for a Type 12, Restaurant License. Please review the application and electronically return the departmental recommendation no later than 12:00 p.m. on October 20. 2010, indicating staffs recommendation for approval (with or without stipulations) or denial in the space below and return this form to Catherine Sanders. If staffs recommendation is to deny or there are stipulations for approval, please attach a memo that specifies the reasoning and the memo will be forwarded on to the Town Council for their consideration of this application. Applicant: Matilde Salazar Date(s) of Event: Not Applicable Date Application Received: 09/28/10 Town Council Agenda Date: 11/04/10 STAFF REVIEW AND RECOMMENDATION: *Attach report for denial or any recommendation requiring stipulations. Name of staff who reviewed application Does the business have a current business license? Yes Business License #Acct # 266 BL # 2696 Effective period 04/01/10 to 03/31/11 Does the business name match database? Yes Do owners and/or officers listed on the application match the database? Yes Does the mailing match the database? Yes Does the business address match the database? Yes Redacted TOWN OF FOUNTAIN HILLS TOWN COUNCIL AGENDA ACTION FORM Meeting Date: 11/4/2010 Meeting Type: Regular Session Agenda Type: Consent Submitting Department: Development Services Staff Contact Information: Randy L. Harrel, Town Engineer (480) 816-5112; rharrel@fh.az.gov Council Goal: Strategic Values: Not Applicable (NA) Not Applicable (NA) REQUEST TO COUNCIL (Agenda Language): CONSIDERATION of RESOLUTION 2010-39, abandoning whatever right, title, or interest the Town has in the certain slope, public utility and drainage easements located at the northerly and westerly property lines of Plat 201-A, Block I, Lot 8 (and a portion of Parcel B) (11824 N. Oasis Dr.) as recorded in Book 150 of Maps, page 32, records of Maricopa County, Arizona. EA2010-05 (DiNaso) Applicant: Karen M. DiNaso Applicant Contact Information: 6102 Brittney Lane, Tinley Park, IL. 60477; 312-653-5758; kmdinaso@comcast. net Property Location: 11824 N. Oasis Drive Related Ordinance, Policy or Guiding Principle: Not applicable. Staff Summary (background): This item on the Town Council's agenda is a proposal to abandon the 10'-wide Public Utility and Drainage Easement located at the westerly property line of Lot 8; and to abandon the Slope, Public Utility and Drainage Easement located at the southerly 15' width of the platted portion of Parcel B adjoining Lot 8 (which was deeded together with Lot 8, and lies at the northerly property line of Lot 8); all as shown in Exhibit A. The 15-wide portion of the adjacent Parcel B was deeded along with Lot 8 to the present owners in 1985, prior to the Town's incorporation. (See attached deed.) A portion of the existing building appears to straddle the property line between Lot 8 and the owned portion of Parcel B. The Town would have required the property line setback to be maintained, regardless of whether the same owner currently owned both properties; and the Town does not allow un-platted, legal description splits of platted parcels, as was done of Parcel B. But, we are aware that Maricopa County would have allowed both of those to occur in 1985, when this building was constructed (prior to the Town's incorporation). This is not an issue for this abandonment. But, it should be noted that the two separate properties could be a future issue to many foreseeable future building permit applications, such as for a building addition, driveway, or swimming pool not meeting the required setback from the Lot 8 -Parcel B property line; if the building area exceeds the allowable lot coverage for Lot 8; or for condominiumization of the two existing duplex units. A lot join re-plat would be needed to Page 1 of 2 resolve any of these issues. (Note, however, that the Town would allow a fence to enclose the property perimeter, in any case.) All affected utility companies have been notified of this abandonment proposal and have approved the proposed abandonment of these public utility easements. The Development Services Department has reviewed the site to ascertain any drainage issues in addition to the Town's general interest in the easement. It is the professional opinion of the Development Services Dept. that there is no need for theTown to retain the drainage easement proposed to be abandoned, with the understanding that certain lots within this subdivision are subject to lot-to-lot drainage runoff. The property owners of Lot 8 (and the applicable portion of Parcel B) are required to pass the developed flows generated by the upstream lots across their property. The slope easement on the owned portion of Parcel B is also proposed to be abandoned. In general, the Town only requires a slope easement where the right to cut or fill a slope in the future is needed by someone other than the property owner, or where someone other than the property owner needs/wants to have the right to maintain the slope face. Since neither of these situations apply in this case, the Town has no objection to abandonment of this slope easement. Risk Analysis (options or alternatives with implications): Not applicable. Fiscal Impact (initial and ongoing costs; budget status): Not applicable. Budget Reference (page number): Not applicable. Funding Source: NA If Multiple Funds utilized, list here: Budgeted; if No, attach Budget Adjustment Form: NA Recommendation(s) by Board(s) or Commission{s): NA Staff Recommendation(s): Staff recommends approval of Resolution 2010-39, List Attachments): Resolution, Exhibit A map; Aerial Photo Map; Copy of deed (for Lot 8 and a portion of Parcel B) SUGGESTED MOTION {foi Council uscj: Move to approve the abandonment of the public utility and drainage easement at Plat 201-A, Block 1, Lot 8; and abandonment of the slope, public utility and drainage easement in a portion of the southerly 15'of Plat 201-A, Block 1. Parcel B, adjacent to Lot 8. Prepared by: I Randy Hartel. Town Engineer 10/25/2010 Director's Paul Mood. Dcvtlopmenl Serflcos Director iff. S/2010 Apprq> 10/25/2010 Richard L Bavis. Town manager ['age 2 or 2 RESOLUTION 2010-39 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, ABANDONING WHATEVER RIGHT, TITLE, OR INTEREST IT HAS IN THE PUBLIC UTILITY AND DRAINAGE EASEMENT AT THE NORTHWESTERLY PROPERTY LINE OF PLAT 201-A, LOT 8; AND IN A PORTION OF THE PUBLIC UTILITY, DRAINAGE, AND SLOPE EASEMENT LOCATED IN THE SOUTHEASTERLY PORTION OF PLAT 201-A, PARCEL A; BOTH FOUNTAIN HILLS, ARIZONA, AS RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF MARICOPA COUNTY, ARIZONA, RECORDED IN BOOK 150 OF MAPS, PAGE 32 WHEREAS, the Mayor and Council of the Town of Fountain Hills (the "Town Council"), as the governing body of real property located in the Town of Fountain Hills (the "Town"), may require the dedication of public streets, sewer, water, drainage, and other utility easements or rights-of-way within any proposed subdivision; and WHEREAS, the Town Council has the authority to accept or reject offers of dedication of private property by easement, deed, subdivision, plat or other lawful means; and WHEREAS, all present utility companies have received notification of the proposed abandonment. NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, as follows: SECTION 1. That the certain Public Utility and Drainage Easement, located at the northwesterly property line of Plat 201-A, Lot 8; and the Public Utility, Drainage, and Slope Easement located in the southeasterly portion of Plat 201-A, Parcel B; both in Fountain Hills, as recorded the Office of the County Recorder of Maricopa County, Arizona, Book 150 of Maps, Page 32, and as more particularly described in Exhibit A, attached hereto and incorporated herein by reference, are hereby declared to be abandoned by the Town. Certain lots within this subdivision are subject to lot-to-lot drainage runoff. The property owner is required to pass the developed flows generated by the upstream lots across their property. SECTION 2. That this Resolution is one of abandonment and disclaimer by the Town solely for the purpose of removing any potential cloud on the title to said property and that the Town in no way attempts to affect the rights of any private party to oppose the abandonment or assert any right resulting there from or existing previous to any action by the Town. PASSED AND ADOPTED BY the Mayor and Council of the Town of Fountain Hills, November 4, 2010. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: Jay T. Schlum, Mayor Bevelyn J. Bender, Town Clerk REVIEWED BY: APPROVED AS TO FORM: Richard L. Davis, Town Manager Andrew J. McGuire, Town Attorney TOWN OF FOUNTAIN HILLS EASEMENT ABANDONMENT EXHIBIT "A" PLAT 201-A BLOCK 1; LOT 8 AND A PORTION OF PARCEL B ABANDON 10'J P.U.E. & D.E. N 28*3518 E 15.00' ABANDON 15' P.U.E., D.E.& SLOPE EASEMENT BLOCK 1 LOT 8 OASIS OR SCALE: T = 30' DATE: 10-19-10 19850315810 2 Unofficial Document W+1S OF ARIZONk COUNTY OF I heieby certify rtiai ih« <rithtn intinmau ■n DOCKET and indti< al the requcal ol T'TLE INSURANCE COMPA Vitr.cu my hand and oil •hen fccordctl. mad lo: Charles R. Dinaso and Michelle A Michael J. and Karen Marfe Dinasi 14626 N. Yerba Bueni, IC (COURTESY RECORDrKG-m TITLE LIABILITY) COURTESV MINNESOTA li'.U NO TITLE CO coaiidnuoa of T« DoOan. <ai other rahaMc aasrfttaiooi, I or •». SARA FRC6APANE. a single wosan J. 01 NASO and KAREN MARIE DI NASO, husband and wife, as joint tenants with right of survivorship as to an undivided one-half interest; and CHARLES R. DI HASO and MICHELLE A. 01 NASO, husband and wife, as joint tenants with right of survivorship as to an undivided one half interest a« as tcoaaa ia cceinaa andaol a» comnnnmy property eawc tan ai ioiat toaaatt ndi ra i»oa«nr i*uwuj a da Covuy ol „ Maricopa rajM ei tonrnonkip. IB* foOamat tf«cr*cd LCGAL DESCRIPTION AnACHED IN EXHIBIT "A" HERETO AND HAW A PART HEREOF: THIS DEED EXEMPT FROM AFFIDAVIT OF LEGAL VALUE REQUIREMENTS PURSUANT TO A.R.S. 42-1614-B9. SUBJECT TO: Ctncn* u««. auennmu. mtnratioai ia palate and aD iklkmt aad inukuxu at m»j appear of Moid. say, aaasbfaoca. Ucn. cmcaaau. eaa- Aod I o> •» do oanun itm wk aaamn aM gam »bcom«Mi. tubtea lo ifea matuti ai»wc an tank. The tnauo ky uaniaa da actqeam Mow rndiaxz ibek anaaon n tcmaw turf pram a joiM laaau Mh Ite i«kl at *~-—I asi ai cmiuwwuly i«opnty or at uaaMi ia o ' Sara Fregapane ueco^did acf<ciftL records Or MArtCOi* COUNOf. WZOWA 52» Michael J. Oi Naso and Karen Marie Di Naso Charles R. OiNaso and Michelle A. Di Naso 19850315810 2 I ESCROW 04-414,036 85 315810 LEGAL DESCRIPTION EXHIBIT "A- Lot 8, Block 1 of FOUNTAIN HILLS ARIZONA FINAL PLAf HO. 201-A. according to Book 150 of Haps, page 3?, records of Maricopa County, Arizona. EXCEPT all minerals as reserved unto the United States of Aaerica in Patent of said land recorded February 28. 1956 in Docket 1833. page 426, records of Maricopa County, Arizona. EXCEPT all oil, gases and other hydrocarbon substances, coal, stone, metals, minerals, fossils and fertilizers of every name and description; TOGETHER with all uranium, thorium, or any other Material which is or may be determined to be peculiarly essential to the production of fissionable materials, whether or not of commercial value. EXCEPT all gas, coal and minerals whatsoever, already found or which may hereafter be found in or under said land. EXCEPT ell underground water in, under or flowing through said land and water rights appurtenant thereto. T06FTHFR with that portion of Parcel "B°, as shown on Fountain Hills Final Plat No. 201-A, according to Book ISO of Maps, page 32, records of Naricopa County, Arizona, aore particularly described as follows: BEGINNING at the Northwest corner of Lot 8, as shown on said Final Plat, said point being common with Lot 10; thence N&ttiiffl degrees 35 Minutes 18 seconds East, 15.00 feet; thence South 61 degrees <u minutes 01 seconds East, 172.40 feet to a point being on the Westerly right of way of Oasis Drive; thence South 19 degrees 30 minutes 00 seconds West along said right of way. 15.19 feet; thence North 61 degrees 20 minutes 01 seconds West, along the North line of said Lot 8, 174.80 feet to the point of beginning. TOWN OF FOUNTAIN HILLS TOWN COUNCIL AGENDA ACTION FORM Meeting Date: 11/4/2010 Meeting Type: Regular Session Agenda Type: Consent Submitting Department: Development Services Staff Contact Information: Randy L. Harrel, Town Engineer Tele: (480)816-5112; E-mail: rharrel@fh.az.gov Council Goal: Strategic Values: Public Safety, Health Welfare Not Applicable (NA) REQUEST TO COUNCIL (Agenda Language): CONSIDERATION of RESOLUTION 2010-33 a request from MCO Properties to change the private street name of E. Golden Eagle Blvd. within the Eagles Nest gated subdivision (i.e. from the Eagles Nest Gate to Desert Tortoise Trail), to E. Mountain Parkway. Applicant: MCO Properties Applicant Contact Information: Francisco Lopez/Project Manager Property Location: Eagles Nest Related Ordinance, Policy or Guiding Principle: Resolution 2006-08; Naming Policy Staff Summary (background): For marketing and clarity reasons, MCO Properties has requested to change the street name of their main entry street within the Eagles Nest subdivision, from its current Golden Eagle Blvd. name to Mountain Parkway, for the roadway segment from the Eagles Nest Gate to Desert Tortoise Trail (where the roadway currently changes to the Mountain Parkway name). This street name change is in accordance with the Town's Naming Policy (Resolution 2006-08). During the original master platting of this subdivision, Staff had rejected MCO's proposed Golden Eagle Blvd.- Mountain Parkway street name change location (the gate house), due to street numbering concerns for future houses. (Mountain Parkway has north street numbering. But, east of Desert Tortoise Trail, although addresses on Mountain Parkway would get larger, the roadway doubles back southerley, which could have lead to confusion as to house locations within the Town's address grid system. Staff believed that the appropriate point for the street name change was at a far northerly street intersection on this roadway. And, since the public trail easements into McDowell Mountain Park branched off of this roadway at the Desert Tortoise Trail intersection, that intersection had been selected as the logical name change location.) However, the individual subdivisions have now all been platted along this roadway segment, and their lots have been given addresses by the Town. There is actually only residential lot (and no utility boxes, structures, or other addressed entitites) whose address will be affected by this name change. MCO/ Eagles Nest Community Association is communicating with that property owner regarding this name change (and they are being copied on this Action Form.) So, Staff has no objection to MCO's request for this street segment being Mountain Parkway. Page 1 of 2 The Town's trailhead parking lot area, the Eagles Nest Clubhouse, and the Eagle's Nest Gate House will still have their Golden Eagle addresses, since they lie east of the proposed name change location (the Eagles Nest gate). MCO will bear the physical costs of implementing this street name change -primarily changing out the street name signs, and any other costs, if applicable. Risk Analysis (options or alternatives with implications): MCO believes that this street name change will significantly reduce the confusion that their sales and subdivision maintenance operations have encountered. Fiscal Impact (initial and ongoing costs; budget status): Minimal, some staff time initially. Budget Reference (page number): N/A Funding Source: NA If Multiple Funds utilized, list here: Budgeted; if No, attach Budget Adjustment Form: NA Recommendation(s) by Board(s) or Commission(s): NA Staff Recommendation(s): Approve List Attachment(s): Resolution 2010-33 MCO Request Letter Map SUGGESTED MOTION (for council use): Move to approve changing a private street name from its current name of E. Golden Eagle Blvd. (from the Eagles Nest Gate to Desert Tortoise Drive), to E. Mountain Parkway. Randy Harrel, Town Engineer 10/25/2010 Director's. Paul Mood, Development Services Director 10/25/2010 Apprc Richard I Sfiffs' "&mi 10/26/2010 Page 2 of2 1356706.1 RESOLUTION NO. 2010-33 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, APPROVING A STREET NAME CHANGE FROM GOLDEN EAGLE BOULEVARD TO MOUNTAIN PARKWAY FOR THE SEGMENT OF ROADWAY FROM THE EAGLES NEST GATE TO DESERT TORTOISE TRAIL. WHEREAS, the Town of Fountain Hills (the “Town”) has determined that it is appropriate and proper to change the name of Golden Eagle Boulevard to Mountain Parkway for that segment of roadway in the Eagles Nest subdivision from the Eagles Nest gate to Desert Tortoise Trail, at which point the roadway currently changes to the Mountain Parkway name; and WHEREAS, the Town has determined that the change in street name will more appropriately reflect and support the continuity of the developed area. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. The segment of the roadway from the Eagles Nest gate to Desert Tortoise Trail is hereby renamed from Golden Eagle Boulevard to Mountain Parkway. SECTION 2. The Mayor, the Town Manager, the Town Clerk and the Town Attorney are hereby authorized and directed to take all steps and to execute all documents necessary to carry out the purpose and intent of this Resolution. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, November 7, 2010. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: Jay T. Schlum, Mayor Bevelyn J. Bender, Town Clerk REVIEWED BY: APPROVED AS TO FORM: Richard L. Davis, Town Manager Andrew J. McGuire, Town Attorney 3-05-10 P 01 :31 RCVD MCO PROPERTIES August 2, 2010 Mr. Randy Harrel, P.E., R.L.S. Town Engineer Town of Fountain Hills 16705 E. Avenue of the Fountains Fountain Hills, AZ 85268 Re. Eagles Nest-Request for Street Name Change Dear Randy: Per our conversation of July 27,2010 regarding MCO'S request to change the Street Name of Golden Eagle Blvd. to Mountain Parkway between the Gate House and Desert Tortoise Trail. • MCO will bear the cost of changing the street name signs. • The Development Services Department will notify all the property owners and other affected people. • A request will be put on the Council Agenda for discussion and approval, Town Engineer will prepare a staff report. If approved: • The Development Services Department will notify all government entities and utilities of the name change. • The Development Services Department will revise Town engineering database, Platted Properties database, Building permits database. • MCO will change the street name signs. • Gate house will keeo the SP.me. address. ■> Sincerj Francisco J. Lopez 'roject Manager CC: Paul Mood Development Services Director I.")I>L'O N. S.i;:ii.im lltiiilcvai-il. #"JOIt KmiiMin I lills. :\Z N.VJoM P ■4NII.,N.V.')niiO F -KSM..S7.7. I t>77 mhii|wo|>i ■ . 1440B PROPOSED STREET NAME CHANGE mSm. WmmSM PROPOSED PRIVATE STREET NAME CHANGE PORTION OF £. GOLDEN EAGLE BLVp E, MOUNTAIN MUmAV STREtT N/>M^ CHANGED ey this smrET name change LOTUNE H1CHT OF WAY CEHTOtUHt EASEUEHT ABAND. EAStWENT CONTOUR 2([ S 1-Dft SUBJECT HOUSE 00000 A^ FT /■: 5CJUJ"1 I* -1MJ" USUAL PrtOTQ OIOIT; 11/oa T0POCSAP3CAL UAP 9/91 JTI4A R_0O0 THiS T(PO/A£KlA!. MAFV'NG 15 SUITABLE F5« CENEBAL PLANNING PURPOSES, UUI SHOULD NOT BE USED FOF) CITilCN. TOWN OF FOUNTAIN HILLS TOWN COUNCIL AGENDA ACTION FORM Meeting Date: 11/4/2010 Meeting Type: Regular Session Agenda Type: Regular Submitting Department: Development Services Staff Contact Information: Bob Rodgers, Senior Planner <rrodgers@fh.az.gov> (480) 816 -5138 Council Goal: Strategic Values: Environmental Stewardship Promote Civility, Neighborliness Cooperation REQUEST TO COUNCIL (Agenda Language): CONSIDERATION of a UTILITY DISTURBANCE PERMIT to allow a utility trench and installation within a non- disturbance area at 15535 Firerock Country Club Drive. Case "UDP20IO-01 Applicant: Dennis Brown for Bryan Segedi Applicant Contact Information: Dennis Brown, Echelon Fine Homebuilders, (480) 816-1244 Property Location: 15535 Firerock Country Club Drive, Fountain Hills, AZ 85268 Related Ordinance, Policy or Guiding Principle: Subdivision Ordinance Section 5.Q4.B.1.b. -Hillside Disturbance. Limited Exemptions Staff Summary (background): The applicant proposes to disturb approximately 500 square feet of protected non-disturbance area in order to install utility lines to a home currently under construction. The installation will consist of a 10' wide x 50" long trench being dug from the existing utility locations near the curb to the home. Once the utilities are laid in and connected, the trench will be backfilled. These activities are all being scheduled to occur during one work day. The alternative routing location along the street right-of-way is already being used by other utility lines which service other houses on the street and could be problematic if a trench is required to be dug in that location. Section 5.04.B.I.b. of the Subdivision Ordinance requires that any utility lines, or any other public improvement activities needed for the development of utility lines and associated equipment which is outside of disturbance caused by other development activities, may be exempted from the disturbance requirements upon administrative staff review AND approval of a "Utility Disturbance Permit" by the Town Council. Staff has performed the administrative review of the proposal as required. Under the provisions of the ordinance, Utility Disturbance Permits may only be issued if the administrative review finds [hat the proposal is in conformance with the following conditions: 1. The Community Development Director or designee shall find that the proposed disturbance is necessary. STAFF: The applicant has presented evidence that the proposed utility trench is logically located to minimize the area of disturbance and not interfere with previously existing utilities for other nearby homes. Staff believes that this requirement is met. ul3 2. The Community Development Director or designee shall approve a re-vegetation and landscaping plan which shall be completed within a specified time frame and made a condition of the Utility Disturbance Permit. STAFF: Any area disturbed as a result of this permit shall be re-vegetated to match the surrounding topography prior to a Certificate of Occupancy being issued for the house. The applicant has been informed of this requirement and agrees. Staff believes therefore that this requirement is met 3. The Community Development Director or designee shall determine the method, if any, of covering open trenches during non-working hours. STAFF: The trench will not remain open during non-working hours. The applicant will install the utility lines and backfill in the same day. Staff believes that closing the trench in the same day meets this requirement. 4. The Community Development Director or designee shall specify the expiration date of the Utility Disturbance Permit STAFF: A condition of the Utility Disturbance Permit is that it is valid for only 30 days from the date of Town Council approval to allow for contractor scheduling. Staff believes that this condition meets this requirement. 5. Utility Disturbance Permits are project-speciHc and property-specific and are non-transferable. STAFF: This Utility Disturbance Permit shall be valid only for the utility trench and installation described in this staff report and any attached documents. Staff believes that this requirement is met. 6. The Community Development Director or designee may, at his sole discretion, include any other reasonable condition he feels is necessary to ensure public safety and convenience. STAFF: The following additional conditions apply: a. The disturbance location shall be clearly staked, roped, and flagged prior to any trenching activity b. The maximum width of the allowed disturbance under this permit shall be 10' c. The trench shall not be left unattended while open. d. Any disturbed area shall be re-vegetated to match the surrounding topography prior to a Certificate of Occupancy being issued. 7. Any violations of the conditions of a Utility Disturbance Permit shall render the permit void. STAFF: The applicant has been informed of this requirement and agrees. Staff believes that this requirement is met. Risk Analysis (options or alternatives with implications): Approval of the Utility Disturbance Permit will allow the applicant to install utilities to a new house using a shorter trench through protected non-disturbance areas which would be re-vegetated back to a natural state after construction. Denial of the Utility Disturbance Permit will require that the applicant provide the utility connections to the new house via a somewhat longer route along the right-of-way and into the lot through previously disturbed areas. Fiscal Impact (initial and ongoing costs; budget status): N/A Budget Reference (page number): N/A Funding Source: N/A Page 2 of3 Budgeted; if No, attach Budget Adjustment Form: N/A Recommendation(s) by Board{s) or Commission(s): N/A Staff Recomtnendation(s): Staff recommends that the Town Council approve the Utility Disturbance Permit subject to the conditions outlined in requirement #6 in this staff report. List Attachments): 1. Application 2. Applicant's Narrative 3. Site Plan 4. Site Photos {4} SUGGESTED MOTION {for council use): Move to APPROVE the Utility Disturbance Permit for 15535 Firerock Country Club Drive to allow a utility trench and installation within a non-disturbance area subject to the stipulations outlined in the staff report. Case #UDP2010-01 Prepared by: gers, Senior Planner 10/25/2010 Director's Approval: Paul Mood, Development Services Director 10/25/2010 Approved: Richard L. Davis, Town Manager 10/26/2010 Page 3 of3 DO Not write in this sh .ce -official use only Filing Date Accepted p Fee Accepted^! Case T^ The Town of Fountain Hills Planning & Zoning Division -APPLICATION PROJECT NAME / NATURE OF PROJECT: ?/J)iD LEGAL DESCRIPTION: Plat Name Fire K-o.cK- PROPERTY ADDRESS: / S"S~ PARCEL SIZE (Acres) *± y Block _ Or, Lot n NUMBER OF UNITS PROPOSED / EXISTING ZONING /Q/-35H Sf Ph ASSESSOR PARCEL NUMBER ' TRACTS ' U- PROPOSED ZONING Applicant Mrs. Day Phone State: Zip: Email: Day Phone Ms. Address: City: State: Zip: If application is being submitted by someone other than the owner of the property under consideration, the section beio w must be completed. n ,--, i SIGNATURE OF OWNER l>^y-y~ J^/i-z/.l, DATE I O-IH ~/ O I HEREBY AUTHORIZE htt^j ' \rt\JLs itPrwf Subscribed and sworn before me this _ _ day of / //- V i Public /' My Commission Expires f (—' TO FILE THIS APPLICATION. — 20 //) - 2O _£*_ Application -Revised 100701 Page 2 of 6 OFFICIAL SEAL SUSAN MONFELI NOTARV PUBLIC -Slate Of Arizona MARICOPA COUNTY My Comm. Expires Oct. 20,2011 Case File Number ZdW 2OI0-OI October 19,2010 RE: Lot 1-19 utility extension Bob Rogers, Senior Planner I am requesting a permit to extend the electrical, gas, phone and cable TV from the exiting location to the side of the house. This will require passing through a 50 foot long, 10 foot wide area of Natural Open Space. 1 would take the utilities down the Right of Way, but the Right of Way has been utilized for all of the utility service lines for the house just west of ours. Please see the photographs of the existing landscape. When the project is completed, we will re-vegetate the disturbed area to it natural appearance. Thinks for your consideration, v toner •1 Kti "" ■■: _■-.'._ ; ■ EL. 1617.30 DISTURBANCE WTh CHAIN ■&>J%> LINK FENCEVf^et 5OEH WANHOtE BU EL lgSS.« MV. EL ISK.02 CMS IV IRANSTOSMtR POUER CABLE STRAP LCAfiLE TV PIPE TELEPHONE =O«H C*BLt PVC PH -FO-ND 1/2" H£BAH UDP2010-01 -Bryan Segedi 15535 Firerock CC Drive Firerock, Blk I, Lot 1 1st Submittal -10-20-2010 I. \ i _1 UDP2010-01 -Bryan Segedi 15535 FirerockCC Drive Firerock, Blk I, Lot 1 1st Submittal -10-20-2010 al '/■■ t UDP2010-01 -Bryan Segedi 15535 Firerock CC Drive Firerock, Blk I, Lot 1 IstSubmittal-10-20-2010 I > iv. -V V U ■ ■ »v^ '*'■'. ■ ■>'■/ UDP2010-01 -Bryan Segedi 15535 Firerock CC Drive Firerock, Blk I, Lot 1 IstSubmittal-10-20-2010 ; : < TOWN OF FOUNTAIN HILLS TOWN COUNCIL AGENDA ACTION FORM Meeting Date: 11/4/2010 Meeting Type: Regular Session Agenda Type: Consent Submitting Department: Fire Department Staff Contact Information: Scott LaGreca, Fire Chief, slagreca@fh.az.gov Strategic Priority: Not Applicable (NA) Council Goal: Not Applicable (NA) REQUEST TO COUNCIL (Agenda Language): Consideration of approving the Purchase Agreement between the Town of Fountain Hills and Gen-Tech for diesel fueled standby generators in the amount of $52,497.58. Applicant: Mike Koveikis and Randy Roberts Applicant Contact Information: mkoveikis® fh.az.gov and rroberts@fh.az.gov Property Location: Fire Stations 1 & 2 Related Ordinance, Policy or Guiding Principle: Invitation to Bid, Solicitaion Number: 111001 Staff Summary (background): The Town of Fountain Hills submitted grant application to the Department of Homeland Security under the FY2009 Assistance to Firefighters Grant Proram. The Town application was approved by FEMA on May 7, 2010. The project submitted is to replace the existing 15kw standby generator at Fire Station 1 with an 80kw generator; and add a new 50kw generator at Fire Station 2 which does not currently have a standby generator. This project is 90% funded by FEMA ($59,400) with a 10% Town match ($6,600) throgh the Capital Projects Fund. This project will provide 100% emergency back-up power for each Fire Station which is not currenetly avaiable. Solicitation No. 111001 for Diesel Fueled Standby Generators was posted on the Town's website on September 27, 2010. The solicitation was also published in the Arizona Business Gazette on September 20th and October 7th as well as in the Fountain Hills Times on October 6th and 13th. Bids were due on October 18, 2010. The Town received the following responsive bids: 1. Gen-Tech $52,497.58 2. WW Grainger, Inc. $54,537.21 3. Titan Power, Inc.: $59,868.91 4. Lighting Power Electric Industries $72,487.00 5. Hurricane Solutions $73,741.00 6. Valley Wide Electric Co. $124,848.00 The total project cost is estimated at $66,000 and will include the construction of new concrete pads for the generators.electrical conduit and wiring as required. Staff will continue to coordinate the design and Page 1 012 construction of the generator pads and electrical conduits and follow the Town's procurement policies as required. Risk Analysis {options or alternatives with implications]: NA Fiscal Impact (initial and ongoing costs; budget status): NA Budget Reference (page number): 350 Funding Source: Grant Fund it Multiple Funds utilized, list here: 9Qc/o ($59,400) FEMA Grant, 10% ($6,600) Town Capital Projects Fund match Budgeted; if No, attach Budget Adjustment Form: Y [X] N □ Recommendation(s) by Board(s) or Commission(s): Staff Recommendation(s): Approval List Attachment(s): Bid Spread Sheet; Award letter and Purchase agreement Between the Town of Fountain Mills and Gen-Tech SUGGESTED MOTION (for Council use): Move to approve the Purchase Agreement between the Town of Fountain Hills and the lowest bidder, Gen-Tech, for the purchase of diesel fueled standby generators in the amount of $52,497.58. Prepared by: NA 10/26/2010 Director's Approval: Paul Mood, Development Services Director 10/26/2010 Approved:! " 'at, Richard L. bavis.^Town Manager 10/26/2010 Pace 2 of 2 TOWN OF FOUNTAIN HILLS FACILITIES DEPARTMENT IFB No. 111001 OFFER The undersigned (the "Bidder") hereby offers this Bid (the "Offer") and certifies that Bidder has read, understands and agrees to fully comply with all terms and conditions as set forth in this Contract (as defined below), and any amendments thereto, together with all Specifications, Exhibits and other documents included as part of this Contract. BY SIGNING THIS PAGE THE SUBMITTING BIDDER CERTIFIES THAT BIDDER HAS REVIEWED THIS CONTRACT AND ALL CORRESPONDING IFB TERMS AND CONDITIONS AND AGREES TO BE CONTRACTUALLY BOUND BY THEM. Arizona Transaction (Sales) Privilege Tax License Number: fYl -?>M ^ Federal Employer Identification Number Contractor Name Address City State Zip Code For Clarification of this Bid contact: Name: Telephone: Facsimile: kO3A Email: \\n\rfrVf a j Title ACCEPTANCE OF OFFER AND NOTICE OF AWARD (FOR TOWN OF FOUNTAIN HILLS USE ONLY) Effective Date: Contract No. Official File: TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation Richard L. Davis, Town Manager ATTEST: Bevelyn J. Bender, Town Clerk APPROVED AS TO FORM: Andrew J. McGuire, Town Attorney 13331932 TOWN OF FOUNTAIN HILLS FACILITIES DEPARTMENT 1FB No. 111001 ARTICLE 1 -DEFINITIONS For purposes of this Invitation for Bids, the following definitions shall apply: "Bid" or "Offer" means a responsive bid or quotation submitted by a Bidder in response to this IFB. "Bid Deadline" means the date and time set forth on the cover of this IFB for the Town Clerk to be in actual possession of the scaled Bids. "Bid Opening" means the date and time set forth on the cover of this IFB for opening of sealed bids. "Bidder" means any person or firm submitting a competitive Bid in response to this IFB. "Days" means calendar days unless otherwise specified. "Confidential Information" means that portion of a Bid, proposal, Offer, specification or protest that contains information that the person submitting the information believes should be withheld, provided (i) such person submits a written statement advising the Town of this fact at the time of the submission and (ii) the information shall be so identified wherever it appears. "Contract" means, collectively, the (i) the Offer, (ii) Article I -Definitions, (iii) Article II -Bid Process; Bid Award, (iv) Article III -General Terms & Conditions, (v) Article IV -Special Conditions, if any, (vi) the Specifications, attached hereto as Exhibit A. (vii) the Price Sheet, attached hereto as Exhibit B, (viii) the Licenses; DBE/WBE Status Sheet, if any, attached hereto as Exhibit C. (ix) References, attached hereto as Exhibit D. (x) Acknowledgement of Addenda Received attached hereto as Exhibit E. (xi) the Notice of Award, (xii) the Notice to Proceed or Purchase Order(s), (xiii) any approved Change Order or Amendment, (xiv) the Contractor's Certificates of Insurance and a copy of the Declarations Page(s) of the insurance policies and (xv) Bid, Performance and Payment Bonds, if any. "Contractor" means the individual, partnership, or corporation who has submitted a Bid in response to this IFB and who, as a result of the competitive bidding process, is awarded a contract for Materials or Services by the Town. "Invitation for Bids" or "IFB" means this request by the Town for participation in the competitive bidding process according to all documents, including those attached or incorporated herein by reference, utilized for soliciting Bids for the Materials and/or Services in compliance with the Town's Procurement Code. "Materials" means any personal property, including equipment, materials and supplies provided by the Contractor in conjunction with the Contract and shall include, in addition to materials incorporated in the Project, equipment and other material used and/or consumed in the performance of Services or Work. "Multiple Award" means an award of an indefinite quantity contract for one or more similar products, commodities or services to more than one Bidder. "Price" means the total expenditure for a defined quantity of a commodity or service. "Procurement Agent" means the Town Manager or authorized designcc. "Procurement Code" means the Town of Fountain Hills Procurement Code, as amended from time to time. "Procurement Representative" or "Department Representative" means a Town employee who has specifically been designated to act as a contact person to the Bidders and/or Contractor, and who is responsible for monitoring and overseeing the Contractor's performance under the Contract. 1333193.2 TOWN OF FOUNTAIN HILLS FACILITIES DEPARTMENT IFB No. 111001 "Project" means the purpose and work described as set forth in Section 2.1 of this IFB. "Services" means the furnishing of labor, time or effort by a Contractor, not involving the delivery of a specific end product other than reports which are merely incidental to the required performance and as further defined in the Contract. This term does not include "professional and technical services" as defined in the Procurement Code. "Specification" means any description of the physical characteristics, functional characteristics, or the nature of a commodity, product, supply or services. The term may include a description of any requirements for inspecting, testing, or preparing a supply or service item for delivery. "Subcontractor" means those persons or groups of persons having a direct contract with the Contractor to perform a portion of the Work and those who furnish Materials according to the plans and/or Specifications required by this Contract. "Town" means the Town of Fountain Hills, an Arizona municipal corporation. "Work" means all labor, materials and equipment incorporated or to be incorporated in the Project that are necessary to accomplish the services required by this Contract. ARTICLE II -BID PROCESS: BID AWARD 2.1 Purpose/Scope of Work. The purpose of this IFB is to establish pricing and to secure a qualified vendor to provide: (A) one 80 kW Single Phase Generator Set & 600A Automatic Transfer Switch ("Generator #1) and (B) one 50kW 3 Phase Generator Set and 400A Automatic Transfer Switch ("Generator #2") (collectively, the "Materials") as more particularly described in the Specifications, attached hereto as Exhibit A. 2.2 Authority: Amendment of IFB. This IFB and resultant Contract is issued under the authority of the Town. No alteration hereof may be made without the express written approval of the Town in the form of an official IFB or Contract amendment. Any attempt to alter this IFB/Contract without such approval is subject to the legal and contractual remedies available to the Town including, but not limited to, Contract cancellation and suspension and/or debarment of the Bidder or Contractor. 2.3 Preparation/Submission of Bid. Bidders are invited to participate in the competitive bidding process for the Materials specified in this IFB. Bidders shall review their Bid submissions to ensure the following requirements are met. A. Irregular/Non-responsive Bids. The Town will consider as "irregular" or "non- responsive" and may reject any Bid not prepared and submitted in accordance with the IFB and the Specifications, or any Bid lacking sufficient information to enable the Town to make a reasonable determination of compliance to the specifications outlined in the Specifications. Unauthorized exceptions, conditions, limitations, or provisions shall be cause for rejection. Bids may be deemed non-responsive at any time during the evaluation process if, in the sole opinion of the Town: 1. Didder does not meet the minimum required skill, experience or requirements to perform the Work or provide the Services. 2. Bidder has a past record of failing to fully perform or fulfill contractual obligations. 3. Bidder cannot demonstrate financial stability. 1333193.2 TOWN OF FOUNTAIN HILLS FACILITIES DEPARTMENT IFB No. 111001 4. Bid submission contains false, inaccurate or misleading statements that, in the opinion of the Town Manager or authorized designee, is intended to mislead the Town in its evaluation of the Bid. C. Specification Minimums. Bidders are reminded that the Specifications stated in this IFB are the minimum levels required and that Bids submitted must be for products that meet or exceed the minimum level of all features specifically listed in this IFB. Bids offering less than the minimums specified are not responsive and should not be submitted. It shall be the Bidder's responsibility to carefully examine each item listed in the Specifications. Bidders shall provide complete manufacturers' descriptive literature regarding the Materials. Literature shall be sufficient in detail in order to allow full and fair evaluation of the Offer. D. Required Submittal. Bidders shall provide one complete, fully executed original of this IFB, signed in ink by a person authorized to bind the Bidder, together with all completed, required attachments as specified below, to be considered a responsive Bid: 1. Offer 2. Price Sheet 3. Licenses; /DBE & MBE Status 4. References 5. Acknowledgement for each Addendum received, if any E. Bidder Responsibilities. All Bidders shall (1) examine the entire Bid package, (2) seek clarification of any item or requirement that may not be clear, (3) check all responses for accuracy before submitting a Bid and (4) submit the entire, completed Bid package by the official Bid Deadline. Late Bids shall not be considered. Bids not submitted with an original, signed Offer page by a person authorized to bind the Bidder shall be considered non-responsive Bids. Negligence in preparing a Bid confers no right of withdrawal after the Bid Opening. F. Sealed Bids. All Bids shall be sealed and clearly marked with the IFB title and number on the lower left hand corner of the mailing envelope. A return address must also appear on the outside of the sealed Bid. G. Address. All Bids shall be directed to the following address: Town Clerk, 16705 East Avenue of the Fountains, Fountain Hills, Arizona, 85268, or hand-delivered to the Town Clerk's office. H. Bid Forms. All Bids shall be on the forms provided in this IFB. It is permissible to copy these forms if required. Telegraphic (facsimile), electronic (email) or mailgram Bids will not be considered. I. Modifications. Erasures, interlineations, or other modifications in the Bid shall be initialed in original ink by the authorized person signing the Bid. J. Withdrawal. At any time prior to the specified Bid Opening, a Bidder (or designated representative) may amend or withdraw its Bid. Facsimile, electronic (email) or mailgram Bid amendments or withdrawals will not be considered. No Bid shall be altered, amended or withdrawn after the specified Bid Deadline unless otherwise permitted pursuant to the Town Procurement Code. K. Prices. Bid prices shall be submitted on a per unit basis by line item, when applicable. In the event of a disparity between the unit price and extended price, the unit price shall prevail unless obviously in error. 1333193.2 TOWN OF FOUNTAIN HILLS FACILITIES DEPARTMENT IFB No. 111001 2.4 Inquiries: Interpretation of Scope of Work: Specifications. A. Inquiries. Any question related to the IFB, including any part of the Specifications, Scope of Work or other Contract documents, shall be directed to the Department Representative or Procurement Representative whose name appears on the cover page of this IFB. Questions shall be submitted in writing by the date indicated on the cover page of this IFB; the Town will not respond to any questions submitted later than the Final Date for Inquiries. The Bidder submitting such inquiry will be responsible for its prompt delivery to the Town. Any correspondence related to the IFB shall refer to the title and number, page and paragraph. However, the Bidder shall not place the IFB number and title on the outside of any envelope containing questions, because such an envelope may be identified as a sealed Bid and may not be opened until the Bid Opening. Any interpretations or corrections of the proposed Contract documents will be made only by addenda duly approved and issued by the Town. The Town will not be responsible for any other explanations or interpretations of the Contract documents. B. Addenda. It shall be the Bidder's responsibility to check for addenda issued to this IFB. Any addendum issued by the Town with respect to this IFB will be available at: Fountain Hills Town Hall, 16705 East Avenue of the Fountains, Fountain Hills, Arizona 85268 C. Approval of Substitutions. The materials, products, and equipment described in this Contract establish a standard or required function, dimension, appearance and quality to be met by any proposed substitution. No substitute will be considered unless written request for approval has been received by the Town or its representative at least ten days prior to the Bid Deadline. Each such request shall include the name of the material or equipment for which it is to be substituted and a complete description of the proposed substitute, including any drawings, performance and test data and any other information necessary for evaluation of the substitute. If a substitute is approved, the approval shall be by written addendum to the Contract. Contractor shall not rely upon approvals made in any other manner. D. Use of Equals. When the Specifications for materials, articles, products and equipment include the phrase "or equal," Contractor may bid upon and use materials, articles, products and equipment which will perform equally the duties imposed by the general design. The Procurement Representative will have the final approval of all materials, articles, products and equipment proposed to be used as an "equal." No such "equal" shall be purchased or installed without prior written approval from the Procurement Representative. Approvals for "equals" before Bid Opening may be requested in writing to the Procurement Representative for approval. Requests must be received at least ten days prior to the Bid Deadline. The request shall state the name of the material, article, product or equipment for which the item is sought to be considered and equal and a complete description of the proposed equal including any drawings, performance and test data and any other information necessary for approval of the equal. All approvals of equals shall be issued in the form of written addendum to this Contract. E. Proposal Quantities. It is expressly understood and agreed by the parties hereto that the quantities of the various classes of Materials to be furnished under this Contract, which have been estimated as stated in the Bidders' Offer, are only approximate and are to be used solely for the purpose of comparing, on a consistent basis, the Bidders' Offers for this Contract. The Contractor further agrees that the Town shall not be held responsible if any of the quantities shall be found to be incorrect and the Contractor will not make any claim for damages or for loss of profits because of a difference between the quantities of the various classes of Material as estimated and the Materials actually provided. If any error, omission or misstatement is found to occur in the estimated quantities, the same shall not (1) invalidate this Contract or the whole or any part of the Specifications in accordance herewith and for the prices herein agreed upon and fixed therefore, (2) excuse Contractor from any of the obligations or liabilities hereunder or (3) entitle Contractor to any damage or compensation except as may be provided in this Contract. 1333193.2 TOWN OF FOUNTAIN HILLS FACILITIES DEPARTMENT IFB No. II1001 2.5 Prospective Bidders' Conference. A prospective bidders' conference may be held. If scheduled, the date and time of this conference will be indicated on the cover page of this IFB. This conference may be designated as mandatory or non-mandatory on the cover of this IFB. Bids shall not be accepted from Bidders who do not attend a mandatory prospective bidders' conference. Bidders are strongly encouraged to attend those prospective bidder's conferences designated as non-mandatory. The purpose of this conference will be to clarify the contents of this IFB in order to prevent any misunderstanding of the Town's requirements. Any doubt as to the requirements of this IFB or any apparent omission or discrepancy should be presented to the Town at this conference. The Town will then determine if any action is necessary and may issue a written amendment or addendum to the IFB. Oral statements or instructions will not constitute an amendment or addendum to this IFB. 2.6 New Materials. All Materials to be utilized by the Contractor and included in the Bid shall be new, unless otherwise stated in the Specifications. 2.7 Pricing. All Materials shall be provided at the prices as set forth in the Price Sheet attached as Exhibit B. 2.8 Payment: Discounts. Any Bid that requires payment in less than 30 calendar days shall not be considered. Payment discounts of 30 calendar days or less will be deducted from the Bid Price in determining the low Bid. However, the Town shall be entitled to take advantage of any payment discount offered, provided payment is made within the discount period. Payment discounts shall be indicated on Price Sheet. 2.9 Taxes. The Town is exempt from Federal Excise Tax, including the Federal Transportation Tax. Sales tax, if any, shall be indicated as a separate item. It is the sole responsibility of the Bidder to determine any applicable State tax rates and calculate the Bid accordingly. Failure to accurately tabulate and applicable taxes may result in a determination that a Bid is non-responsive. The Bidder shall not rely on, and shall independently verify, any tax information provided by the Town. 2.10 Federal Funding. It is the responsibility of the Bidder to verify with the Department Representative if federal wage rates other federal requirements apply to the Work (the "Federal Requirements"). It is also the responsibility of the Bidder to incorporate any necessary amounts in the Bid to accommodate for required federal record keeping, necessary pay structures or other matters related to the Federal Requirements. 2.11 Cost of Bid/Proposal Preparation. Bids submitted for consideration should be prepared simply and economically, providing adequate information in a straightforward and concise manner. The Town does not reimburse the cost of developing, presenting or providing any response to this solicitation; the Bidder is responsible for all costs incurred in responding to this IFB. All materials and documents submitted in response to this IFB become the property of the Town and will not be returned. 2.12 Public Record. All Bids shall become the property of the Town and shall become a matter of public record available for review subsequent to the award notification, in accordance with the Town's Procurement Code. 2.13 Confidential Information. If a Bidder believes that a Bid, Specification, Scope of Work, or protest contains information that should be withheld from the public record, a statement advising the Procurement Representative of this fact shall accompany the submission and the information shall be identified. The information identified by the Bidder as confidential shall not be disclosed until the Procurement Representative makes a written determination. The Procurement Representative shall review the statement and information and shall determine in writing whether the information shall be withheld. If the Procurement Representative determines to disclose the information, the Procurement Representative shall inform the Bidder in writing of such determination. 1333193.2 TOWN OF FOUNTAIN HILLS FACILITIES DEPARTMENT IFB No. 111001 2.14 Vendor Licensing and Registration. Prior to the award of the Contract, the successful Bidder shall (A) be licensed with the Arizona Corporation Commission to do business in Arizona and (B) have a completed Request for Vendor Number on file with the Town Financial Services Department. The Bidder shall provide licensure information with the Bid. Corporations and partnerships shall be able to provide a Certificate of Good Standing from the Arizona Corporation Commission. 2.15 Certification. By submitting a Bid, the Bidder certifies: A. No Collusion. The submission of the Bid did not involve collusion or other anti competitive practices. B. No Discrimination. It shall not discriminate against any employee or applicant for employment in violation of Federal Executive Order 11456. C. No Gratuity. It has not given, offered to give, nor intends to give at any time hereafter, any economic opportunity, future employment, gift, loan, gratuity, special discount, trip favor or service to a Town employee, officer, agent or elected official in connection with the submitted Bid or a resultant Contract. In the event that the resultant Contract is cancelled pursuant to this provision, the Town shall be entitled, in addition to any other rights and remedies, to recover and withhold from the Contractor an amount equal to 150% of the gratuity. D. Financial Stability. It is financially stable, solvent and has adequate cash reserves to meet all financial obligations including any potential costs resulting from an award of the Agreement. E. No Signature/False Statement. Failure to sign the Bid, or signing it with a false statement, shall void the submitted Bid and any resulting Contract and the Bidder may be debarred from further bidding in the Town. 2.16 Award of Contract. A. Multiple Award. The Town may, at its sole discretion, accept Bidder's Offer as part of a Multiple Award. B. Line Item Option. Unless the Bidder's Offer states otherwise, or unless specifically provided within this Contract, the Town reserves the right to award by individual line item, by group of line items, or as a total, whichever is deemed most advantageous to the Town. The Town's flexibility with respect to the method of award also includes any items bid as alternates, which may be accepted or rejected, in whole or in part, at the Town's sole discretion. C. Evaluation. The evaluation of this Bid will be based on, but not limited to, the following: (1) compliance with Specifications, (2) Price, including alternates, if any and (3) Bidder qualifications to provide the Materials. D. Defects. Notwithstanding any other provision of this IFB, the Town expressly reserves the right to: (1) waive any immaterial defect or informality, (2) reject any or all Bids or portions thereof and (3) reissue an IFB. E. Offer. A Bid is a binding offer to contract with the Town based upon the terms, conditions and specifications contained in this IFB and the Bidder's responsive Bid, unless any of the terms, conditions, or specifications is modified by a written addendum or contract amendment. Bids become binding Contracts when the Acceptance of Offer and Notice of Award is executed in writing by the Town. Bidder Offers shall be valid and irrevocable for 90 days after the Bid Opening. 1333193.2 TOWN OF FOUNTAIN HILLS FACILITIES DEPARTMENT IFB No. 111001 F. Protests. Any Bidder may protest this IFB issued by the Town, the proposed award of a Contract, or the actual award of a Contract. All protests will be considered in accordance with the Town Procurement Code. ARTICLE HI -GENERAL TERMS AND CONDITIONS 3.1 Term. This Contract shall be effective from the date it is fully executed by the Town and remain in full force and effect for one year thereafter, unless terminated as otherwise provided herein. 3.2 Compensation. The Town shall pay the Contractor as set forth in the Price Sheet. The Contractor shall not commence any billable work or provide any Materials under this Contract until the Contractor receives an executed purchase order from the Town. 3.3 Payments. The Contractor will be paid on the basis of invoices submitted following acceptance of the Materials. All invoices shall document and itemize all Materials delivered and shall include the purchase order number authorizing the transaction to the Town Accounts Payable address indicated on the face of the purchase order, unless otherwise specified. All transportation charges must be prepaid by the Contractor. If invoice is subject to a cash discount, the discount period will be calculated from the date of receipt of the claim or the Materials, whichever is later. 3.4 Documents. All documents prepared and submitted to the Town pursuant to this Contract shall be the property of the Town. 3.5 Contractor Personnel. Contractor shall provide adequate, experienced personnel, capable of and devoted to the successful completion and delivery of services or Materials required pursuant to this Contract. 3.6 Deliveries. Time is of the essence for all orders placed under this Contract. Therefore delivery shall be made within 45 days of purchase order to: Generator #1 Fire Station 1 16426 East Palisades Boulevard Fountain Hills, Arizona 85268 Generator #2 Fire Station 2 16821 Saguaro Boulevard Fountain Hills, Arizona 85268 Product documentation required by Section 3.15 shall be delivered to the Town upon delivery of the Materials. Delivery shall not be considered complete until the Town is in receipt of the manuals. Contractor shall retain title and control of all materials and Materials until they are delivered and the Town has accepted delivery. All risk of transportation and all related charges shall be the responsibility of the Contractor. All claims for visible or concealed damage shall be filed by the Contractor. The Town will notify the Contractor promptly of any damaged Materials and shall assist the Contractor in arranging for inspection. The Town reserves the right to cancel and reject the Materials upon default by Contractor in time, rate or manner of delivery. The Town also reserves the right to refuse shipments made in advance of any scheduled delivery date appearing on the purchase order. 3.7 Quantity. The quantity of Materials ordered must not be exceeded or reduced without the Town Procurement Representative's permission in writing except in conformity with acknowledged industry tolerances. 3.8 Specification changes. The Town shall have the right, by a written change order, to make changes in the Materials to be furnished by the Contractor. If such changes cause an increase or decrease in the 1333193.2 TOWN OF FOUNTAIN HILLS FACILITIES DEPARTMENT IFB No. 111001 amount due under the purchase order, or in the time required for its performance, an acceptable adjustment shall be made and the purchase order shall be modified in writing accordingly. Any agreement for adjustment must be asserted in writing within ten days from when the change is ordered. Nothing in this Contract shall relieve the Contractor from proceeding without delay in the performance of the purchase order as changed. 3.9 F.O.B. Unless otherwise agreed to in writing, signed by the Town Manager or designee, all delivery terms are FOB Destination and are to be prepaid. All other freight charges are to be prepaid and charged on the invoice. If a cash discount is not permitted on freight charges, then specific notation of this must be shown on the invoice. 3.10 Packing. No extra charges shall be made for packaging or packing material unless authority is expressly incorporated in this Contract. Contractor shall be responsible for safe packing which must conform to the requirement of carrier's tariffs. All shipments must carry the correct quantity, product identification, purchase order number, receiving address and product department plainly marked on all packages. Cars or trucks must be loaded to minimum weight requirements to assure lowest rate unless otherwise specified or shipper will be charged with excess freight that the Town is required to pay. 3.11 Performance Warranty. All Materials supplied under this Specification shall be fully guaranteed by the Contractor for a minimum period of two years from the date of acceptance by the Town (or such longer period as may be provided under warranties for vehicles). Any defects in design, workmanship or materials that would result in non-compliance with Contract Specifications shall be fully corrected by the Contractor (including parts and labor) without cost to the Town. Contractor further agrees to execute any special guarantees as provided by the Contract or by law. Contactor shall require similar guarantees from all of its vendors or its subcontractors. Contractor shall include a complete and exclusive statement of the product warranty. 3.12 Price Warranty. Contractor shall give the Town the benefit of any price reductions before actual time of shipment, except that should the Procurement Representative of the Town permit shipment to be made prior to specified shipping date that the Town shall have advantage of any price reduction before specified shipping date. 3.13 Inspection: Acceptance. All Materials are subject to final inspection and acceptance by the Town. Materials failing to conform to the Specifications of this Contract will be held at Contractor's risk and may be returned to the Contractor. If so returned, all costs are the responsibility of the Contractor. Upon discovery of a non-conforming material or services, the Town may elect to do any or all of the following by written notice to the Contractor: (A) waive the non-conformance; (B) stop the work immediately; or (C) bring material or service into compliance and withhold the cost of same from any payments due to the Contractor. 3.14 Waiver. Waiver by the Town of a condition in any shipment shall not be considered a waiver of (1) any other terms of this Contract or (2) that condition for subsequent shipments. 3.15 Product Documentation. Two copies of books, manuals or CD's when possible, shall accompany each unit and provide complete and comprehensive information on all Materials, components and accessories, as supplied to comply with the Specifications. If changes, modifications, additions or alterations of any kind are made on the Materials, the Contractor shall provide blueprints, line drawings and descriptive text sufficient to allow one of average skill in general mechanics to diagnose, repair and maintain the Materials and all components. On Materials assembled from manufactured components, parts manuals shall show the manufacturer of each part and all cross-referencing between the Contractor and the manufacturers. The Town shall have the right to reproduce any equipment/product documentation for Town educational purposes only. 3.16 Product Discontinuance. In the event that a product or model is discontinued by the manufacturer, the Town at its sole discretion may allow the Contractor to provide a substitute for the 1333193.2 TOWN OF FOUNTAIN HILLS FACILITIES DEPARTMENT IFB No. 111001 discontinued item. The Contractor shall request permission to substitute a new product or model and provide the following: (A) a formal announcement from the manufacturer that the product or model has been discontinued, (B) documentation from the manufacturer that names the replacement product or model, (C) documentation that provides clear and convincing evidence that the replacement meets or exceeds all specifications required by the original solicitation, (D) documentation that provides clear and convincing evidence that the replacement will be compatible with all the functions or uses of the discontinued product or model and (E) documentation confirming that the price for the replacement is the same as or less than the discontinued product or model. 3.17 No Replacement of Defective Tender. Every tender of Materials shall fully comply with all provisions of the Contract. If a tender is made which does not fully conform, this shall constitute a breach of the Contract as a whole. 3.18 Shipment Under Reservation Prohibited. Contractor is not authorized to ship Materials under reservation and no tender of a bill of lading will operate as a tender of the materials. 3.19 Liens. All Materials shall be free of all liens and, if the Town requests, a formal release of all liens shall be delivered to the Town. 3.20 Right to Assurance. Whenever one party to this Contract in good faith has reason to question the other party's intent to perform it may demand that the other party give a written assurance of its intent to perform. In the event that a demand is made and no written assurance is given within five days, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 3.21 Records and Audit Rights. Contractor's and its Subcontractor's books, records, correspondence, accounting procedures and practices, and any other supporting evidence relating to this Contract, including the papers of any Contractor and its Subcontractors' employees who perform any work or services pursuant to this Contract to ensure that the Contractor and its Subcontractor are complying with the warranty under Section 3.22 below (all the foregoing hereinafter referred to as "Records"), shall be open to inspection and subject to audit and/or reproduction during normal working hours by the Town, to the extent necessary to adequately permit (1) evaluation and verification of any invoices, payments or claims based on Contractor's and its Subcontractor's actual costs (including direct and indirect costs and overhead allocations) incurred, or units expended directly in the performance of work under this Contract and (2) evaluation of the Contractor's and its Subcontractor's compliance with the Arizona employer sanctions laws referenced in Section 3.22 below. To the extent necessary for the Town to audit Records as set forth in this subsection, Contractor and its Subcontractors hereby waive any rights to keep such Records confidential. For the purpose of evaluating or verifying such actual or claimed costs or units expended, the Town shall have access to said Records from the effective date of this Contract for the duration of the work and until three years after the date of final payment by the Town to Contractor pursuant to this Contract its Subcontractor facilities, and shall be provided adequate and appropriate workspace, in order to conduct audits in compliance with the provisions of this Section. The Town shall give Contractor or its Subcontractors reasonable advance notice of intended audits. Contractor shall require its Subcontractors to comply with the provisions of this Section by insertion of the requirements hereof in any subcontract pursuant to this Contract. 3.22 E-verifv Requirements. To the extent applicable under ARIZ. Rev. Stat. § 41-4401, the Contractor and its Subcontractors warrant compliance with all federal immigration laws and regulations that relate to their employees and compliance with the E-verify requirements under Ariz. Rev. Stat.§ 23-214(A). Contractor's or its Subcontractor's failure to comply with such warranty shall be deemed a material breach of this Contract and may result in the termination of this Contract by the Town. 3.23 Scrutinized Business Operations. Pursuant to ARIZ. Rev. Stat. §§ 35-391.06 and 35-393.06, the Contractor certifies that it docs not have a scrutinized business operation in Sudan or Iran. For the purpose 1333193.2 TOWN OF FOUNTAIN HILLS FACILITIES DEPARTMENT IFB No. 111001 of this Section the term "scrutinized business operations" shall have the meanings set forth in Ariz. Rev. Stat. § 35-391 or and 35-393, as applicable. If the Town determines that the Contractor submitted a false certification, the Town may impose remedies as provided by law including terminating this Contract pursuant to Section 3.31 below. 3.24 Right to Inspect Plant. The Town may, at reasonable times, inspect the part of the plant or place of business of the Contractor or Subcontractor that is related to the performance of this Contract. 3.25 Patents and Copyrights. All services, information, computer program elements, reports and other deliverables, which may be patented or copyrighted and created under this Contract are the property of the Town and shall not be used or released by the Contractor or any other person except with the prior written permission of the Town. 3.26 Advertising. Contractor shall not advertise or publish information concerning this Contract without prior, written consent of the Town. 3.27 Licenses: Materials. Contractor shall maintain in current status all federal, state and local licenses and permits required for the operation of the business conducted by the Contractor. The Town has no obligation to provide Contractor, its employees or subcontractors any business registrations or licenses required to perform the specific services set forth in this Contract. The Town has no obligation to provide tools, equipment or material to Contractor. 3.28 Indemnification. To the fullest extent permitted by law, the Contractor shall indemnify, defend and hold harmless the Town and each council member, officer, employee or agent thereof (the Town and any such person being herein called an "Indemnified Party"), for, from and against any and all losses, claims, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees, court costs and the costs of appellate proceedings) to which any such Indemnified Party may become subject, under any theory of liability whatsoever ("Claims"), insofar as such Claims (or actions in respect thereof) relate to, arise out of, or are caused by or based upon the negligent acts, intentional misconduct, errors, mistakes or omissions, in connection with the work or services of the Contractor, its officers, employees, agents, or any tier of subcontractor in the performance of this Contract. The amount and type of insurance coverage requirements set forth below will in no way be construed as limiting the scope of the indemnity in this Section. 3.29 Insurance. A. General. 1. Insurer Qualifications. Without limiting any obligations or liabilities of Contractor, Contractor shall purchase and maintain, at its own expense, hereinafter stipulated minimum insurance with insurance companies duly licensed by the State of Arizona with an AM Best, Inc. rating of A-or above with policies and forms satisfactory to the Town. Failure to maintain insurance as specified herein may result in termination of this Contract at the Town's option. 2. No Representation of Coverage Adequacy. By requiring insurance herein, the Town does not represent that coverage and limits will be adequate to protect Contractor. The Town reserves the right to review any and all of the insurance policies and/or endorsements cited in this Contract but has no obligation to do so. Failure to demand such evidence of full compliance with the insurance requirements set forth in this Contract or failure to identify any insurance deficiency shall not relieve Contractor from, nor be construed or deemed a waiver of, its obligation to maintain the required insurance at all times during the performance of this Contract. 3. Additional Insured. [INTENTIONALLY OMITTED] 1333193.2 10 TOWN OF FOUNTAIN HILLS FACILITIES DEPARTMENT IFB No. 111001 4. Coverage Term. All insurance required herein shall be maintained in full force and effect until all work or services required to be performed under the terms of this Contract are satisfactorily performed, completed and formally accepted by the Town, unless specified otherwise in this Contract. 5. Primary Insurance. Contractor's insurance shall be primary insurance with respect to performance of this Contract and in the protection of the Town as an Additional Insured. 6. Waiver. All policies, except for Professional Liability, including Workers' Compensation insurance, shall contain a waiver of rights of recovery (subrogation) against the Town, its agents, representatives, officials, officers and employees for any claims arising out of the work or services of Contractor. Contractor shall arrange to have such subrogation waivers incorporated into each policy via formal written endorsement thereto. 7. Policy Deductibles and/or Self-Insured Retentions. The policies set forth in these requirements may provide coverage that contains deductibles or self-insured retention amounts. Such deductibles or self-insured retention shall not be applicable with respect to the policy limits provided to the Town. Contractor shall be solely responsible for any such deductible or self-insured retention amount. 8. Use of Subcontractors. If any work under this Contract is subcontracted in any way, Contractor shall execute written agreement with Subcontractor containing the indemnification provisions set forth in this subsection and insurance requirements set forth herein protecting the Town and Contractor. Contractor shall be responsible for executing the agreement with Subcontractor and obtaining certificates of insurance verifying the insurance requirements. 9. Evidence of Insurance. Prior to commencing any work or services under this Contract, Contractor will provide the Town with suitable evidence of insurance in the form of certificates of insurance and a copy of the declaration page(s) of the insurance policies as required by this Contract, issued by Contractor's insurance insurer(s) as evidence that policies are placed with acceptable insurers as specified herein and provide the required coverages, conditions and limits of coverage specified in this Contract and that such coverage and provisions are in full force and effect. Confidential information such as the policy premium may be redacted from the declaration page(s) of each insurance policy, provided that such redactions do not alter any of the information required by this Contract. The Town shall reasonably rely upon the certificates of insurance and declaration page(s) of the insurance policies as evidence of coverage but such acceptance and reliance shall not waive or alter in any way the insurance requirements or obligations of this Contract. In the event any insurance policy required by this Contract is written on a "claims made" basis, coverage shall extend for two years past completion of the Services and the Town's acceptance of the Contractor's work or services and as evidenced by annual certificates of insurance. If any of the policies required by this Contract expire during the life of this Contract, it shall be Contractor's responsibility to forward renewal certificates and declaration page(s) to the Town 30 days prior to the expiration date. All certificates of insurance and declarations required by this Contract shall be identified by referencing this Contract. A S25.00 administrative fee shall be assessed for all certificates or declarations received without a reference to this Contract. Additionally, certificates of insurance and declaration page(s) of the insurance policies submitted without referencing a contract number will be subject to rejection and may be returned or discarded. Certificates of insurance and declaration page(s) shall specifically include the following provisions: a. The Town, its agents, representatives, officers, directors, officials and employees are Additional Insureds as follows: 1333193.2 11 TOWN OF FOUNTAIN HILLS FACILITIES DEPARTMENT IFB No. 111001 (i) Commercial General Liability • Under Insurance Services Office, Inc., ("ISO") Form CG 20 10 03 97 or equivalent. (ii) Auto Liability -Under ISO Form CA 20 48 or equivalent, (iii) Excess Liability -Follow Form to underlying insurance. b. Contractor's insurance shall be primary insurance as respects performance of the Contract. c. All policies, except for Professional Liability, including Workers' Compensation, waive rights of recovery (subrogation) against Town, its agents, representatives, officers, officials and employees for any claims arising out of Work or Services performed by Contractor under this Contract. d. A 30-day advance notice cancellation provision. If ACORD certificate of insurance form is used, the phrases in the cancellation provision "endeavor to" and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives" shall be deleted. Certificate forms other than ACORD form shall have similar restrictive language deleted. B. Required Insurance Coverage. 1. Commercial General Liability. Contractor shall maintain "occurrence" form Commercial General Liability insurance with an unimpaired limit of not less than SI,000,000 for each occurrence, 52,000,000 Products and Completed Operations Annual Aggregate and a S2,000,000 General Aggregate Limit. The policy shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury. Coverage under the policy will be at least as broad as ISO policy form CG 00 010 93 or equivalent thereof, including but not limited to, separation of insured's clause. To the fullest extent allowed by law, for claims arising out of the performance of this Contract, the Town, its agents, representatives, officers, officials and employees shall be cited as an Additional Insured under ISO, Commercial General Liability Additional Insured Endorsement form CG 20 10 03 97, or equivalent, which shall read "Who is an Insured (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of "your work for that insured by or for you." If any Excess insurance is utilized to fulfill the requirements of this subsection, such Excess insurance shall be "follow form" equal or broader in coverage scope than underlying insurance. 2. Vehicle Liability. Contractor shall maintain Business Automobile Liability insurance with a limit of S1,000,000 each occurrence on Contractor's owned, hired and non-owned vehicles assigned to or used in the performance of the Contractor's work or services under this Contract. Coverage will be at least as broad as ISO coverage code "1" "any auto" policy form CA 00 01 12 93 or equivalent thereof. To the fullest extent allowed by law, for claims arising out of the performance of this Contract, the Town, its agents, representatives, officers, directors, officials and employees shall be cited as an Additional Insured under ISO Business Auto policy Designated Insured Endorsement form CA 20 48 or equivalent. If any Excess insurance is utilized to fulfill the requirements of this subsection, such Excess insurance shall be "follow form" equal or broader in coverage scope than underlying insurance. 3. Professional Liability. [INTENTIONALLY OMITTED] 4. Workers' Compensation Insurance. Contractor shall maintain Workers' Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction 1333193.2 12 TOWN OF FOUNTAIN HILLS FACILITIES DEPARTMENT IFBNo. 111001 over Contractor's employees engaged in the performance of work or services under this Contract and shall also maintain Employers Liability Insurance of not less than $500,000 for each accident, S500,000 disease for each employee and SI,000,000 disease policy limit. C. Cancellation and Expiration Notice. Insurance required herein shall not expire, be canceled, or materially changed without 30 days' prior written notice to the Town. 3.30 Applicable Law: Venue. In the performance of this Contract, Contractor shall abide by and conform to any and all laws of the United States, State of Arizona and Town of Fountain Hills, including but not limited to, federal and state executive orders providing for equal employment and procurement opportunities, the Federal Occupational Safety and Health Act and any other federal or state laws applicable to this Contract. This Contract shall be governed by the laws of the State of Arizona and suit pertaining to this Contract may be brought only in courts in Maricopa County, Arizona. 3.31 Termination: Cancellation. A. For Town's Convenience. This Contract is for the convenience of the Town and, as such, may be terminated without cause after receipt by Contractor of written notice by the Town. Upon termination for convenience, Contractor shall be paid for all undisputed services performed to the termination date. B. For Cause. This Contract may be terminated by either party upon 30 days' written notice should the other party fail to substantially perform in accordance with this Contract's terms, through no fault of the party initiating the termination. In the event of such termination for cause, payment shall be made by the Town to the Contractor for the undisputed portion of its fee due as of the termination date. C. Due to Work Stoppage. This Contract may be terminated by the Town upon 30 days' written notice to Contractor in the event that the services are permanently abandoned. In the event of such termination due to work stoppage, payment shall be made by the Town to the Contractor for the undisputed portion of its fee due as of the termination date. D. Conflict of Interest. This Contract is subject to the provisions of ARIZ. Rev. Stat. § 38-511. The Town may cancel this Contract without penalty or further obligations by the Town or any of its departments or agencies if any person significantly involved in initiating, negotiating, securing, drafting or creating this Contract on behalf of the Town or any of its departments or agencies is, at any time while the Contract or any extension of the Contract is in effect, an employee of any other party to the Contract in any capacity or a Contractor to any other party of the Contract with respect to the subject matter of the Contract. E. Gratuities. The Town may, by written notice to the Contractor, cancel this Contract if it is found by the Town that gratuities, in the form of economic opportunity, future employment, entertainment, gifts or otherwise, were offered or given by the Contractor or any agent or representative of the Contractor to any officer, agent or employee of the Town for the purpose of securing this Contract. In the event this Contract is cancelled by the Town pursuant to this provision, the Town shall be entitled, in addition to any other rights and remedies, to recover or withhold from the Contractor an amount equal to 150% of the gratuity. 3.32 Miscellaneous. A. Independent Contractor. The Contractor acknowledges and agrees that all Materials provided under this Contract are being provided as an independent contractor, not as an employee or agent of the Town. Contractor, its employees and subcontractors are not entitled to workers' compensation benefits from the Town. The Town does not have the authority to supervise or control the actual work of Contractor, its employees or subcontractors. Contractor is neither prohibited from entering into other contracts nor prohibited 1333193.2 13 TOWN OF FOUNTAIN HILLS FACILITIES DEPARTMENT IFB No. 111001 from practicing its profession elsewhere. Town and Contractor do not intend to nor will they combine business operations under this Contract. B. Laws and Reflations. The Contractor shall keep fully informed and shall at all times during the performance of its duties under this Contract ensure that it and any person for whom the Contractor is responsible remains in compliance with all rules, regulations, ordinances, statutes or laws affecting the services, including the following: (1) existing and future Town and County ordinances and regulations, (2) existing and future state and federal laws, (3) existing and future Occupational Safety and Health Administration ("OSHA") standards and (4) Arizona employer sanctions provisions. C. Amendments. This Contract may be modified only by a written amendment signed by persons duly authorized to enter into contracts on behalf of the Town and the Contractor. D. Provisions Required by Law. Each and every provision of law and any clause required by law to be in the Contract will be read and enforced as though it were included herein and, if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the application of either party, the Contract will promptly be physically amended to make such insertion or correction. E. Severabilitv. The provisions of this Contract are severable to the extent that any provision or application held to be invalid by a Court of competent jurisdiction shall not affect any other provision or application of the Contract which may remain in effect without the invalid provision or application. F. Relationship of the Parties. It is clearly understood that each party will act in its individual capacity and not as an agent, employee, partner, joint venturer, or associate of the other. An employee or agent of one party shall not be deemed or construed to be the employee or agent of the other for any purpose whatsoever. The Contractor is advised that taxes or Social Security payments will not be withheld from any Town payments issued hereunder and Contractor agrees to be fully and solely responsible for the payment of such taxes or any other tax applicable to this Contract. G. Entire Agreement: Interpretation; Parol Evidence. This Contract represents the entire agreement of the parties with respect to its subject matter, and all previous agreements, whether oral or written, entered into prior to this Contract are hereby revoked and superseded by this Contract. No representations, warranties, inducements or oral agreements have been made by any of the parties except as expressly set forth herein, or in any other contemporaneous written agreement executed for the purposes of carrying out the provisions of this Contract. This Contract shall be construed and interpreted according to its plain meaning, and no presumption shall be deemed to apply in favor of, or against the party drafting the Contract. The parties acknowledge and agree that each has had the opportunity to seek and utilize legal counsel in the drafting of, review of, and entry into this Contract. H. Assignment. No right or interest in this Contract shall be assigned by Contractor without prior, written permission of the Town signed by the Town Manager and no delegation of any duty of Contractor shall be made without prior, written permission of the Town signed by the Town Manager. Any attempted assignment or delegation by Contractor in violation of this provision shall be a breach of this Contract by Contractor. I. Subcontracts. No subcontract shall be entered into by the Contractor with any other party to furnish any of the material or services specified herein without the prior written approval of the Town. The Contractor is responsible for performance under this Contract whether or not subcontractors are used. J. Rights and Remedies. No provision in this Contract shall be construed, expressly or by implication, as waiver by the Town of any existing or future right and/or remedy available by law in the event of any claim of default or breach of this Contract. The failure of the Town to insist upon the strict performance of any term or condition of this Contract or to exercise or delay the exercise of any right or remedy provided in this 1333193.2 14 TOWN OF FOUNTAIN HILLS FACILITIES DEPARTMENT IFB No. 111001 Contract, or by law, or the Town's acceptance of and payment for services, shall not release the Contractor from any responsibilities or obligations imposed by this Contract or by law, and shall not be deemed a waiver of any right of the Town to insist upon the strict performance of this Contract. K. Attorneys' Fees. In the event either party brings any action for any relief, declaratory or otherwise, arising out of this Contract or on account of any breach or default hereof, the prevailing party shall be entitled to receive from the other party reasonable attorneys' fees and reasonable costs and expenses, determined by the court sitting without a jury, which shall be deemed to have accrued on the commencement of such action and shall be enforced whether or not such action is prosecuted through judgment. L. Offset. 1. Offset for Damages. In addition to all other remedies at law or equity, the Town may offset from any money due to the Contractor any amounts Contractor owes to the Town for damages resulting from breach or deficiencies in performance or breach of any obligation under this Contract. 2. Offset for Delinquent Fees or Taxes. The Town may offset from any money due to the Contractor any amounts Contractor owes to the Town for delinquent fees, transaction privilege taxes and property taxes, including any interest or penalties. M. Notices and Requests. Any notice or other communication required or permitted to be given under this Contract shall be in writing and shall be deemed to have been duly given if (1) delivered to the party at the address set forth below, (2) deposited in the U.S. Mail, registered or certified, return receipt requested, to the address set forth below, (3) given to a recognized and reputable overnight delivery service, to the address set forth below or (4) delivered by facsimile transmission to the number set forth below: If to the Town: Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 Facsimile: 480-837-3145 Attn: Richard L. Davis, Town Manager With copy to: GUST ROSENFELD, P.L.C. One East Washington Street, Suite 1600 Phoenix, Arizona 85004-2553 Facsimile: 602-254-4878 Attn: Andrew J. McGuire, Esq. If to Contractor: Facsimile:, Attn: or at such other address, and to the attention of such other person or officer, as any party may designate in writing by notice duly given pursuant to this section. Notices shall be deemed received (1) when delivered to the party, (2) three business days after being placed in the U.S. Mail, properly addressed, with sufficient postage, (3) the following business day after being given to a recognized overnight delivery service, with the person giving the notice paying all required charges and instructing the delivery service to deliver on the following business day, or (4) when received by facsimile transmission during the normal business hours of the recipient. If a copy of a notice is also given to a party's counsel or other recipient, the provisions above governing the date on which a notice is deemed to have been received by a party shall mean and refer to the date 1333193.2 15 TOWN OF FOUNTAIN HILLS FACILITIES DEPARTMENT IFB No. 111001 on which the party, and not its counsel or other recipient to which a copy of the notice may be sent, is deemed to have received the notice. N. Confidentiality of Records. The Contractor shall establish and maintain procedures and controls that are acceptable to the Town for the purpose of ensuring that information contained in its records or obtained from the Town or from others in carrying out its obligations under this Contract shall not be used or disclosed by it, its agents, officers, or employees, except as required to perform Contractor's duties under this Contract. Persons requesting such information should be referred to the Town. Contractor also agrees that any information pertaining to individual persons shall not be divulged other than to employees or officers of Contractor as needed for the performance of duties under this Contract. O. Conflicting Terms. In the event of a conflict between the IFB, the Contractor's response to the IFB, the Specifications, the Price Sheet and this Contract, the terms of this Contract shall govern. P. Non-Exclusive Contract. This Contract is entered into with the understanding and agreement that it is for the sole convenience of the Town of Fountain Hills. The Town reserves the right to obtain like goods and services from another source when necessary. Q. Cooperative Purchasing. This Contract shall be for the use of the Town. In addition, specific eligible political subdivisions and nonprofit educational or public health institutions may also participate, at their discretion and with the agreement of the awarded Contract. In order to participate in this Contract, a political subdivision or nonprofit educational or public health institution must agree to the terms and conditions in the solicitation and the Contractor must be in agreement with the cooperative transaction. Any orders placed to the successful Contractor will be placed by the specific agencies participating in this purchase. Payment for purchases made under this Contract will be the sole responsibility of each participating agency. The Town shall not be responsible for any disputes arising out of transactions made by others. 1333193.2 16 EXHIBIT A TO INVITATION FOR BID NO. 111001 [Specifications] See following pages. 1333193.2 SPECIFICATIONS DIESEL FUELED STANDBY GENERATORS Specifications -Generator #1 Packaged generator set rated 80kW standby, Single Phase, 120/240V, 6OH2, and 1.0 Power Factor Must be EPA Certified Must be made in USA Must be UL Listed Must be built to NEMA, ASTM, and NFPA Standards Eiastomeric vibration isolation between engine/generator and mounting rails Pad type vibration isolation pads for field installation under mounting rails Four cycle, water cooled diesel fueled engine Jacket water heater, 1500W, 240VAC 12V DC electric starting with battery charging alternator Gel Cell 12V battery 12V DC automatic battery charger, 10A, 120V AC with: 1. DC ammeter 2. DC voltmeter 3. Automatic equalizer system 4. Fused AC input and DC output Programmable automatic start/stop engine control and monitoring system with: 1. AC voltage 13. Current Time and Date 2. DC amperage 14. Transfer switch status 3. Kilowatts 15, Service reminders 4. Power Factor 16. Trending 5. Reactive power (kVAR) 17. Fault history (alarm log) 6. Oil pressure 7. Water temperature 8. Water level 9. Fuel pressure 10. Engine speed 11. Battery voltage 12. Alternator frequency Built in PLC for special applications Audible alarm for fault condition Emergency Stop Pushbutton Programmable engine control and monitoring module including: Manual off, auto switch Four LED's to indicate: 1. Not in Auto 2. Alarm Active 3. Generator Running 4. Generator Ready Communications via RS232, RS485 or optional modem Shutdowns with indications for: 1. Overvoltage 2. Over-speed 3. Low oil pressure 4. High coolant temperature 5. Low coolant level 1333193.2 A-l Specifications • Generator #1 Programmable weekly exerciser Digital voltage regulator Isochronous governor controller Waterproof electrical connectors Remote annunciator panel Mainline circuit breaker installed-600A, UL listed Level 1 sound attenuated weather protective enclosure Exhaust silencer with SS flex connector and rain cap-installed Minimum 28 hour run time sub base fuel tank with: 1. UL142 listed-double wall construction 2. Emergency vent 3. Fuel Level gauge 4. Leak detection alarm 5. Low fuel level alarm 6. 1/2" NPT fuel supply and return connections 7. 2" NPT fuel fill with cap 8. 4" NPT for emergency vent 9. 3/8" NPT drain (plugged) 10. Electrical stub-up area Automatic Transfer Switch rated and equipped as follows: 1. 600A 2 Pole, Single Phase, 120/240V, 60Hz 2. Nema 3R enclosure with hinged door and key-locking handle 3. Single coil design, electrically operated and mechanically held 4. Weekly exerciser 7 day programmable 5. SPDT auxiliary contacts -One normal source, one emergency source 6. Silver plated or silver alloy main contacts 7. Conformal coating on all printed circuit boards 8. Switch position indicating lights -Normal, Emergency, and Standby Operating 9. Three position switch -Fast Test, Auto, and Normal Test 10. Lugged for: a. Switch Terminal = 2 x 1/0 to 500 MCM b. Neutral Bar = 6 x #6 to 500 MCM or 1 x #6 to 350 MCM c. Ground Lug = 1 x #6 to 350 MCM 11. WC Rating: 42 Kaic, circuit breaker rated 750 Amps Max 200 Kaic, Class L or T current limiting fuses, rated 800 Amps Max CPU microprocessor logic control with in-phase monitor: Adjustable utility Voltage dropout, pickup and line interrupt Engine minimum run -adjustable Engine warm-up -adjustable Return to utility -adjustable Engine Cool-down -adjustable Standby voltage -adjustable Standby frequency -adjustable Time delay neutral -adjustable Transfer on exercise -On/Off Switch Warm-up timer bypass -On/Off Switch Time delay neutral bypass -On/Off Switch In-phase Monitor -On/Off Switch 1333193.2 A-2 Specifications -Generator #1 Door mounted control switches UL1008 listed and CSA certified Two (2) sets operation, maintenance, repair, and parts manuals UL2200 Certification on Generator Set Startup services and testing after installation Onsite operation and maintenance training Two (2) year/2000 hour factory warranty Notes and Clarifications: Unless otherwise stated 1. Delivery, unloading, setting unit on existing pad will be provided by winning bidder. 2. Initial fill of diesel will be provided by The Town of Fountain Hills. 3. Terms: Net 30 from delivery date. 1333193.2 A-3 Specifications -Generator #2 Packaged generator set rated 50kW standby, 3 Phase, 120/208V, 60Hz, and 1.0 Power Factor Must be EPA Certified Must be made in USA Must be UL Listed Must be built to NEMA, ASTM, and NFPA Standards Elastomeric vibration isolation between engine/generator and mounting rails Pad type vibration isolation pads for field installation under mounting rails Four cycle, water cooled diesel fueled engine Jacket water heater, 1500W, 240VAC 12V DC electric starting with battery charging alternator Gel Cell 12V battery 12V DC automatic battery charger, 10A, 120V AC with: 1. DC ammeter 2. DC voltmeter 3. Automatic equalizer system 4. Fused AC input and DC output Programmable automatic start/stop engine control and monitoring system with: Two 4 line x 20 displays to monitor and display 1. AC voltage 13. Current Time and Date 2. DC amperage 14. Transfer switch status 3. Kilowatts 15. Service reminders 4. Power Factor 16. Trending 5. Reactive power (kVAR) 17. Fault history (alarm log) 6. Oil pressure 7. Water temperature 8. Water level 9. Fuel pressure 10. Engine speed 11. Battery voltage 12. Alternator frequency Built in PLC for special applications Audible alarm for fault condition Emergency Stop Pushbutton Programmable engine control and monitoring module including: Manual off, auto switch Four LED's to indicate: 1. Not in Auto 2. Alarm Active 3. Generator Running 4. Generator Ready Communications via RS232, RS485 or optional modem Shutdowns with indications for: A-4 Specifications -Generator #2 Digital voltage regulator Isochronous governor controller Waterproof electrical connectors Remote annunciator panel Mainline circuit breaker installed-400A, UL listed Level 1 sound attenuated weather protective enclosure Exhaust silencer with SS flex connector and rain cap-installed Minimum 28 hour run time sub base fuel tank with: 1. UL142 listed-double wall construction 2. Emergency vent 3. Fuel Level gauge 4. Leak detection alarm 5. Low fuel level alarm 6. 1/2" NPT fuel supply and return connections 7. 2" NPT fuel fill with cap 8. 4" NPT for emergency vent 9. 3/8" NPT drain (plugged) 10. Electrical stub-up area Automatic Transfer Switch rated and equipped as follows: 1. 400A 3 Pole, 3 Phase, 120/240V, 60Hz 2. Nema 3R enclosure with hinged door and key-locking handle 3. Single coil design, electrically operated and mechanically held 4. Weekly exerciser 7 day programmable 5. SPDT auxiliary contacts -One normal source, one emergency source 6. Silver plated or silver alloy main contacts 7. Conformal coating on all printed circuit boards 8. Switch position indicating lights -Normal, Emergency, and Standby Operating 9. Three position switch -Fast Test, Auto, and Normal Test 10. Lugged for: a. Switch Terminal = 3x1/0 to 250 MCM b. Neutral Bar = 4 x #1 to 600 MCM or 2 x 1/0 to 250 MCM c. Ground Lug = 1 x #6 to 350 MCM 11. WC Rating: 35 Kaic, circuit breaker rated 600 Amps Max 200 Kaic, Class J or T current limiting fuses, rated 600 Amps Max CPU microprocessor logic control with in-phase monitor: Adjustable utility Voltage dropout, pickup and line interrupt Engine minimum run -adjustable Engine warm-up -adjustable Return to utility -adjustable Engine Cool-down -adjustable Standby voltage -adjustable Standby frequency -adjustable Time delay neutral -adjustable Transfer on exercise -On/Off Switch Warm-up timer bypass -On/Off Switch Time delay neutral bypass -On/Off Switch In-phase Monitor -On/Off Switch Door mounted control switches 1333193.2 A-5 Specifications -Generator tf 2 UL1008 listed and CSA certified Two (2) sets operation, maintenance, repair, and parts manuals UL2200 Certification on Generator Set Startup services and testing after installation Onsite operation and maintenance training Two (2) year/2000 hour factory warranty Notes and Clarifications: Unless otherwise stated 1. Delivery, unloading, setting unit on existing pad will be provided by winning bidder. 2. Initial fill of diesel will be provided by The Town of Fountain Hills. 3. Terms: Net 30 from delivery date. 1333193.2 A-6 EXHIBIT B TO INVITATION FOR BID NO. 111001 [Price Sheet] See following page. 1333193.2 PRICE SHEET DIESEL FUELED STANDBY GENERATORS B-l LICENSE; DBE/WBE STATUS DIESEL FUELED STANDBY GENERATORS Attach a copy of your Business License to your bid submittal. * Business License must be cither a Town of Fountain Hills Privilege Tax Business License or an Arizona Transaction Tax (sales) Privilege Tax License Has your firm been certified by any jurisdiction in. Arizona as a minority or woman owned business enterprise? Yes , No V . If yes, please provide details and documentation of the certification. 1333193.2 C-l ARIZONA DEPARTMENT OF REVENUE LICENSE & REGISTRATION SECTION 1600 WEST MONROE PHOENIX. ARIZONA 85007-2650 JONS!" il '.tl'JU;:'. R f P A )•>. i; A :! V i I •. 1 •i NC'T I |. c -iUiRE i. :i.i;f;M".i;:i:::s-; to noi :i:fy -f •, L'MftNi.-.!.: if; r-r-;C>L '■ i>- 71 IF M-J OW HAhD.' FiCFNSFF. \'.S HFRFtiY LICENSI-D CO CuNDUCf DUSTf-IFUS, IN IMF MAM?-: OF IHF. LICENSEE MAfiFD AN.V.i VHE AMW-IoS oHU^ti). UPf.JN 'I I IF rOivJ/iITTOM THAI IIV. ("HALL FA i" 'i!1'. 1 AX ACCRUING ''.' t! I!:! i"<Rl /.UNA D!::!'AR I'MFN f Or RFMfr'UF. iJf-TiFR PPOViSIUrJo 0!' AR5 "I Fl I E ««2, i'i !.■: ■ i F!' <>, ART] f.IF I, ISSUED TO 1 !■( i •;-; I. !(:.<:.{ :\:>\. >'.-<Wrl MOT Ul.r I RANSi blRni:..':! !i-\Uh iJc-ti:. Pli ■rRAN<;;n:.R!::i:::i!i h-:o?i ome pi ,'■,;.,!•: ig ^nu'iin-r. ofAtuit Ti-|l-OFPARUii-'NT Oi" RI-Vt.NLIf. !.F BU^J-H^S'.-.' IS (■.'»'i •!' 'N TJUSIHESS, CHANG!: .IN 'lu'iDF Ni-ittb. f CKu:u^(JE i N Lulhi or !F ihfri: :rs ;". ■'"h^n."'.i: in ounlr'jiiip. 1; a i t ARJVOMA GFNi::RATi"l': TFCHr-'OL < >' V i.NC- r/n ,'.!*.■ I ..'t)]-ln f-Ff^FRA i Hi".1 i"i I'HNOLvii'jY ALL communication! and Roporu MUST REFER toihii LICENSE NO. Pl-.i";r f'| ' . .' ■ >'.■! V., i V ••'(■■' EFFECTIVE DATE PRINT DATE \ DOR 87026 (1/88) tii SI EXHIBIT D TO INVITATION FORBID NO. 111001 [References] See following page. 1333193.2 REFERENCES DIESEL FUELED STANDBY GENERATORS Provide the following information for three (3) clients for whom Bidder has provided materials or services of similar size and scope with the past (36) months. These references will be checked, so make sure all information is accurate and current. Failure to provide three (3) accurate or suitable references may result in disqualification. Company: Address hill i\ 5 City/State/Zip Code "ffWiOf B 7_ KTfDr2*f) \ Contact: 'J^CO^X' V>lhl+e. Telephone Number: Vj)O <> " 5\S<^-" CH Date of Contract Initiation: QufXl \<r-fT lcXf DOO H \ 2. Company: Address City/State/Zip Code HTflX ^ T\*7 comae: Telephone Number: vOOol MHM^ * tPH" / ' Date of Contract Initiation: \&\ \ ' w I < 3. Company: aJ • de^Srto City/State/Zip Code Contact: Telephone Number: Date of Contract Initiation itiation: I I &H 1333193.2 D-l CERTIFICATE OF LIABILITY INSURANCE DATE (M.WDWYYYY) 10/26/2010 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If tho certificate holder Is an ADDITIONAL INSURED, tho poHcy(les) must be endoreod. If SUBROGATION IS WAIVED, subject to the terms and conditions of tho policy, cortaln policies may require an endorsement. A statement on this certificate does not confor rights to the certificate holder In lieu of such endorsements). PRODUCER Lovitt 4 Touchc' P. O. Box 649B5 Phoenix AZ 85082 Inc -Phoenix INSURED Arizona Generator Technology, GEN-TECH; GEN-TECH of Nevada; 7901 N. 70th Avenue Glexidale AZ 85303 Inc. d.b.a. KPTP09, IXC T , , „ Lenore Marnhall lin«rahall«lovitt-touch^,ijom CUSTOMER ID »:OKHTB-1 INSURER(S) AFf ORDWO COVERAGE INSURERA:VALLEY FORGR INSURANCE CO lHSURERB:CONTIKENTAr. CASUALTY COMPANY ■USURER C:NATTONAL PIRK INS CO IWSURERD: INSURBRe: INSURER P: 20508 20443 20893 ACORD 25 (2009/09) & 1988-2009 ACORD CORPORATION. All rights reserved. Tho ACORD name and logo are registered marks of ACORD At work for you SCF Premier Insurance Company Certificate of Insurance Certificate Mailed To: Name of Insured: TOWN OF FOUNTAIN HILLS 16705 E. AVENUE OF THE FOUNTAINS FOUNTAIN HILLS AZ 85268 Arizona Generator Technology Inc/Gen-Tech 7901 N 70th Ave Glendale AZ 85303 Date Issued: Certificate Number: Policy Number: Origin Date: Expiration Date: Liability Limits: 10/27/2010 482 P10564 06/27/1990 06/01/2011 1000/1000/1000 (000 Omitted) Proof of Coverage Description of Operations ELEC APPAR-INSTAL/REPAIR. MACHINERY DEALERS-NOC-STORE OR YARD Job Number: Location: Will be renewed for the next policy period unless we are otherwise directed by our policy holder.' This Certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage afforded by the policy listed hereon. This is to certify a workers' compensation policy has been issued to the insured listed hereon and is in force for the period referenced. Certificate Issued To: Town of Fountain Hills 16705 E. Avenue of the Fountains Fountain Hills AZ 85268 Authorized Representative 61-31CV.O01/2GG006 G-140331-B (Ed. 01/09) Policy Nuinber C 4026288679 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED -OWNERS, LESSEES OR CONTRACTORS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE (OPTIONAL) Name of Additional Insured Person(s) Or Organizations (As required by written contract/agreement per Paragraph A. below.) Location(s) of Covered Operations (As per the written contract/agreement, provided the location is within the "coverage territory" of this Coverage Part.) (Coverage under this endorsement Is not affected by an entry or lack of entry in the Schedule above.) A. Section II • Who Is An Insured is amended to include as an additional insured any person(s) or organization(s), including any person or organization shown in the Schedule above, whom you are required to add as an additional insured on this Coverage Part under a written contract or written agreement, provided: 5 a. The written contract or written agreement was I executed prior to: I 1. The "bodily injury" or "property damage"; or j 2. The offense that caused the "personal and I advertising injury" for which the additional insured seeks coverage under this Coverage Part; and b. The written contract or written agreement pertains =j to your ongoing operations or "your work" for the = additional insured(s). 55 B. The insurance provided to the additional insured is s limited as follows: |H 1. The person or organization is an additional as insured only with respect to liability for "bodily S3 injury," "property damage," or "personal and =• advertising injury" caused in whole or in part by: ss a. Your acts or omissions; or s b. The acts or omissions of those acting on your behalf in the performance of your ongoing operations for the additional insured(s) or c. "Your work" that is included in the "products- completed operations hazard" and performed for the additional insured, but only if this Coverage Part provides such coverage, and only if the written contract or written agreement requires you to provide the additional insured such coverage. 2. However, we will not provide the additional insured any broader coverage or any higher limit of insurance than the least of those: a. Required by the written contract or written agreement; b. Described in B.1. above; or c. Afforded to you under this policy. 3. This insurance is excess of all other insurance available to the additional insured, whether primary, excess, contingent or on any other basis, unless the written contract or agreement requires this insurance to be primary. In that event, this insurance will be primary relative to insurance which covers the additional insured as a named insured. We will not require contribution from such insurance if the written contract or written agreement also requires that this insurance be non-contributory. But with respect to all other insurance under which the additional insured G-140331-B (Ed. 01/09) Includes copyrighted material of Insurance Services Office, Inc., with its permission Page 1 of 2 G-140331-B (Ed. 01/09) qualifies as an insured or additional insured, this insurance will be excess. 4. The insurance provided to the additional insured terminates when your operations for the additional insured are complete. But if the written contract or written agreement specifies a date until which this insurance must apply, then this insurance terminates: a. On the date specified in the written contract or written agreement; or b. When this policy expires or is cancelled, whichever occurs first C. With respect to the insurance afforded to the additional insured, the following additional exclusions apply. This insurance does not apply to: 1. "Bodily injury," "property damage," or "personal and advertising injury" arising out of the rendering of, or the failure to render, any professional architectural, engineering, or surveying services, including: a. The preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; and b. Supervisory, inspection, architectural or engineering activities. 2. "Bodily injury," "property damage," or "personal and advertising injury" arising out of any premises or work for which the additional insured is specifically listed as an additional insured on another endorsement attached to this Coverage Part. D. SECTION IV -COMMERCIAL GENERAL LIABILITY CONDITIONS is amended as follows: 1. The Duties In The Event of Occurrence, Offense, Claim or Suit condition is amended to add the following additional conditions applicable to the additional insured: An additional insured under this endorsement will as soon as practicable: (1) Give us written notice of an "occurrence" or an offense which may result in a claim or "suit" under this insurance, and of any claim or "suit" that does result; (2) Tender the defense and indemnity of any claim or "suit" to any other insurer or self insurer whose policy or program applies to a loss we cover under this Coverage Part; (3) Except as provided in Paragraph B.3 of this endorsement, agree to make available any other insurance the additional insured has for a loss we cover under this Coverage Part; and (4) Send us copies of all legal papers received, and otherwise cooperate with us in the investigation, defense, or settlement of the claim or "suiL" We have no duty to defend or indemnify an additional insured under this endorsement until we receive from the additional insured written notice of a claim or "suit." 2. With respect only to the insurance provided by this endorsement, the first sentence of Paragraph 4.a. of the Other Insurance Condition is deleted and replaced with the following: 4. Other Insurance a. Primary Insurance This insurance is primary and non- contributory except when rendered excess by this endorsement, or when Paragraph b. below applies. E. The provisions of the written contract or written agreement do not in any way broaden or amend this Coverage Part. G-140331-B (Ed. 01/09) Includes copyrighted material of Insurance Services Office, Inc., with its permission Page 2 of 2 POLICY NUMBER-C 4026288679 COMMERCIAL GENERAL LIABILITY CG 24 04 05 09 WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE Name Of Person Or Organization: See G-56015-B (ed 11-91) Information required to complete this Schedule, if not shown above, will be shown in the Declarations. The following is added to Paragraph 8. Transfer Of Rights Of Recovery Against Others To Us of Section IV-Conditions: We waive any right of recovery we may have against the person or organization shown in the Schedule above because of payments we make for injury or damage arising out of your ongoing operations or "your work" done under a contract with that person or organization and included in the "products-completed operations hazard." This waiver applies only to the person or organization shown in the Schedule above. CG 24 04 05 09 Copyright, Insurance Services Office, Inc., 2008 Page 1 of 1 POLICY NUMBER C 4026288679 INSURED NAME AND ADDRESS ARIZONA GENERATOR TECHNOLOGY 7901 NORTH 70TH AVE GLENDALE, AZ 85303-1300 POLICY CHANGES WAIVER OF SUBROGATION This Change Endorsement changes the Policy. Please read it carefully. This Change Endorsement is a part of your Policy and takes effect on the effective date of your Policy, unless another effective date is shown. CG 24 04 SCHEDULE Name of Person or Organization: Any person or organization with whom you have agreed in writing in a contract or agreement to waive any right of recovery against such person or organization, but only if the contract or agreement: 1. Is in effect or becomes effective during the term of this policy; and 2. Was executed prior to loss. Chabmtn et the Board G-56015-B (ED. 11/91) Sseroury G-147167-B99 (Ed. 12/06) Policy Number C 4026288679 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. GENERAL LIABILITY EXTENSION ENDORSEMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART Coverage afforded under this extension of coverage endorsement does not apply to any person or organization covered as an additional insured on any other endorsement now or hereafter attached to this Coverage Part. 1. ADDITIONAL INSURED -BLANKET VENDORS WHO IS AN INSURED (Section II) is amended to include as an additional insured any person or organization (referred to betow as vendor) with whom you agreed, because of a written contract or agreement to provide insurance, but only with respect to "bodily injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business, subject to the following additional exclusions: 1. The insurance afforded the vendor does not apply to: a. "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; b. Any express warranty unauthorized by you; c. Any physical or chemical change in the product made intentionally by the vendor; d. Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container, e. Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; f. Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; g. Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; or G-147167-B99 (Ed. 12/06) h. "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omission or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (1) The exceptions contained in Subparagraphs d. or f.; or (2) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. 2. This insurance does not apply to any insured person or organization, from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. 3. This provision 1. does not apply to any vendor included as an insured by an endorsement issued by us and made a part of this Coverage Part. 4. This provision 1. does not apply if "bodily injury" or "property damage" included within the "products-completed operations hazard" is excluded either by the provisions of the Coverage Part or by endorsement. 2. MISCELLANEOUS ADDITIONAL INSUREDS WHO IS AN INSURED (Section il) is amended to include as an insured any person or organization (called additional insured) described in paragraphs 2.a. through 2.g. below whom you are required to add as an additional insured on this policy under a written contract or agreement but the written contract or agreement must be: 1. Currently in effect or becoming effective during the term of this policy; and 2. Executed prior to the "bodily injury," "property damage" or "personal injury and advertising injury," but Only the following persons or organizations are additional insureds under this endorsement and Page 1 of 6 G-147167-B99 (Ed. 12/06) coverage provided to such additional insureds is limited as provided herein: a. State or Political Subdivisions A state or political subdivision subject to the following provisions: (1) This insurance applies only with respect to the following hazards for which the state or political subdivision has issued a permit in connection with premises you own, rent, or control and to which this insurance applies: (a) The existence, maintenance, repair, construction, erection, or removal of advertising signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, hoistaway openings, sidewalk vaults, street banners, or decorations and similar exposures; or (b) The construction, erection, or removal of elevators; or (2) This insurance applies only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. This insurance does not apply to "bodily injury," "property damage" or "personal and advertising injury" arising out of operations performed for the state or municipality. b. Controlling Interest Any persons or organizations with a controlling interest in you but only with respect to their liability arising out of: (1) Their financial control of you; or (2) Premises they own, maintain or control while you lease or occupy these premises. This insurance does not apply to structural alterations, new construction and demolition operations performed by or for such additional insured. c. Managers or Lessors of Premises A manager or lessor of premises but only with respect to liability arising out of the ownership, maintenance or use of that specific part of the premises leased to you and subject to the following additional exclusions: G-147167-B99 (Ed. 12/06) This insurance does not apply to: (1) Any "occurrence" which takes place after you cease to be a tenant in that premises; or (2) Structural alterations, new construction or demolition operations performed by or on behalf of such additional insured. d. Mortgagee, Assignee or Receiver A mortgagee, assignee or receiver but only with respect to their liability as mortgagee, assignee, or receiver and arising out of the ownership, maintenance, or use of a premises by you. This insurance does not apply to structural alterations, new construction or demolition operations performed by or for such additional insured. e. Owners/Other Interests -Land is Leased An owner or other interest from whom land has been leased by you but only with respect to liability arising out of the ownership, maintenance or use of that specific part of the land leased to you and subject to the following additional exclusions: This insurance does not apply to: (1) Any "occurrence" which takes place after you cease to lease that land; or (2) Structural alterations, new construction or demolition operations performed by or on behalf of such additional insured. f. Co-owner of insured Premises A co-owner of a premises co-owned by you and covered under this insurance but only with respect to the co-owners liability as co-owner of such premises. g. Lessor of Equipment Any person or organization from whom you lease equipment. Such person or organization are insureds only with respect to their liability arising out of the maintenance, operation or use by you of equipment leased to you by such person or organization. A person's or organization's status as an insured under this endorsement ends when their written contract or agreement with you for such leased equipment ends. Page 2 of6 G-147167-B99 (Ed. 12/06) With respect to the insurance afforded these additional insureds, the following additional exclusions apply: This insurance does not apply: (1) To any "occurrence" which takes place after the equipment lease expires; or (2) To "bodily injury," "property damage," or "personal and advertising injury" arising out of the sole negligence of such additional insured. Any insurance provided to an additional insured designated under paragraphs a. through g. above does not apply to "bodily injury" or "property damage" included within the "products-completed operations hazard." As respects the coverage provided under this endorsement, Paragraph 4.b. SECTION IV - COMMERCIAL GENERAL LIABILITY CONDITIONS is deleted and replaced with the following: 4. Other Insurance b. Excess Insurance This insurance is excess over: Any other insurance naming the additional insured as an insured whether primary, excess, contingent or on any other basis unless a written contract or agreement specifically requires that this insurance be either primary or primary and nonconlributing. Where required by written contract or agreement, we will consider any other insurance maintained by the additional insured for injury or damage covered by this endorsement to be excess and rtoncontributing with this insurance. 3. NEWLY FORMED OR ACQUIRED ORGANIZATIONS Paragraph 3.a. of Section II -Who Is An Insured is __ deleted and replaced by the following: =§ Coverage under this provision is afforded only until the = end of the policy period or the next anniversary of this « policy's effective date after you acquire or form the §| organization, whichever is earlier. H 4. JOINT VENTURES / PARTNERSHIP / LIMITED H LIABILITY COMPANY COVERAGE H A. The following is added to Section II -Who Is An = Insured: = 4. You are an Insured when you had an interest s== in a joint venture, partnership or limited liability company which terminated or ended prior to or during this policy period but only to the extent of your interest in such joint venture, partnership or limited liability company. This coverage does not apply: a. Prior to the termination date of any joint venture, partnership or limited liability company; or b. If there is other valid and collectible insurance purchased specifically to insure the partnership, joint venture or limited liability company. B. The last paragraph of Section II -Who Is An Insured is deleted and replaced by the following: Except as provided in 4. above, no person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations. 5. PARTNERSHIP OR JOINT VENTURES Paragraph 1.b. of Section II -Who Is An Insured is deleted and replaced by the following: b. A partnership (including a limited liability partnership) or joint venture, you are an insured. Your members, your partners, and their spouses are also insureds, but only with respect to the conduct of your business. 6. EMPLOYEES AS INSUREDS -HEALTH CARE SERVICES For other than a physician, paragraph 2.a(1)(d) of Section II -Who Is An Insured does not apply with respect to professional health care services provided in the course of employment by you. 7. SUPPLEMENTARY PAYMENTS A. Under Section I -Supplementary Payments - Coverages A and B, Paragraph 1.b., the limit of $250 shown for the cost of bail bonds is replaced by $2,500: B. In Paragraph 1.d., the limit of $250 shown for daily loss of earnings is replaced by $1,000. 8. MEDICAL PAYMENTS A. Paragraph 7. Medical Expense Limit, of Section III -Limits of Insurance is deleted and replaced by the following: 7. Subject to 5. above (the Each Occurrence Limit), the Medical Expense Limit is the most we will pay under Section -I -Coverage C for all medical expenses because of "bodily injury" sustained by any one person. The Medical Expense Limit is the greater of. G-147167-B99 (Ed. 12/06) Page 3 of6 G-147167-B99 (Ed. 12/06) (1) $15,000; or (2) The amount shown in the Declarations for Medical Expense Limit. B. This provision 8. (Medical Payments) does not apply if Section I -Coverage C Medical Payments is excluded either by the provisions of the Coverage Part or by endorsement. C. Paragraph 1 .a.(3)(2) of Section I -Coverage C - Medical Payments, is replaced by the following: The expenses are incurred and reported to us within three years of the date of the accident; and 9. NON-OWNED WATERCRAFT Under Section I -Coverage A -Bodily Injury and Property Damage, Exclusion 2.g., subparagraph (2) is deleted and replaced by the following. (2) A watercraft you do not own that is: (a) Less than 55 feet long; and (b) Not being used to carry persons or property for a charge. 10. NON-OWNED AIRCRAFT Exclusion 2.g. of Section I -Coverage A -Bodily Injury and Property Damage, does not apply to an aircraft you do not own, provided that: 1. The pilot in command holds a currently effective certificate issued by the duly constituted authority of the United States of America or Canada, designating that person as a commercial or airline transport pilot; 2. It is rented with a trained, paid crew; and 3. It does not transport persons or cargo for a charge. 11. LEGAL LIABILITY -DAMAGE TO PREMISES A. Under Section I -Coverage A -Bodily Injury and Property Damage 2. Exclusions, Exclusion j. is replaced by the following. "Property damage" to: (1) Property you own, rent, or occupy, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another's property; (2) Premises you sell, give away or abandon, if the "property damage" B. arises out of any part of those premises; (3) Property loaned to you; (4) Personal property in the care, custody or control of the insured; (5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the "property damage" arises out of those operations; or (6) That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it Paragraph (2) of this exclusion does not apply if the premises are "your work" and were never occupied, rented or held for rental by you. Paragraphs (1), (3) and (4) of this exclusion do not apply to "property damage" (other than damage by fire) to premises: (1) rented to you; (2) temporarily occupied by you with the permission of the owner, or (3) to the contents of premises rented to you for a period of 7 or fewer consecutive days. A separate limit of insurance applies to Damage To Premises Rented To You as described in Section III -Limits Of Insurance. Paragraphs (3), (4), (5) and (6) of this exclusion do not apply to liability assumed under a sidetrack agreement. Paragraph (6) of this exclusion does not apply to "property damage" included in the "products-completed operations hazard." Under Section I -Coverage A -Bodily Injury and Property Damage the last paragraph of 2. Exclusions is deleted and replaced by the following. Exclusions c. through n. do not apply to damage by fire to premises while rented to you or temporarily occupied by you with permission of the owner or to the contents of premises rented to you for a period of 7 or fewer consecutive days. G-147167-B99 (Ed. 12/06) Page 4 of 6 G-147167-B99 (Ed. 12/06) A separate limit of insurance applies to this coverage as described in Section III -Limits Of Insurance. C. Paragraph 6. Damage To Premises Rented To You Limit of Section III -Limits Of insurance is replaced by the following: 6. Subject to 5. above, (the Each Occurrence Limit), the Damage To Premises Rented To You Limit is the most we will pay under Section -I -Coverage A for damages because of "property damage" to any one premises while rented to you or temporarily occupied by you with the permission of the owner, including contents of such premises rented to you for a period of 7 or fewer consecutive days. The Damage To Premises Rented To You Limit is the greater of: a. $200,000; or b. The Damage To Premises Rented To You Limit shown in the Declarations. D. Paragraph 4.b.(1)(b) of Section IV -Commercial General Liability Conditions is deleted and replaced by the following: (b) That is property insurance for premises rented to you or temporarily occupied by you with the permission of the owner; or E. This provision 11. (LEGAL LIABILITY - DAMAGE TO PREMISES) does not apply if Damage To Premises Rented To You Liability under Section I -Coverage A is excluded either by the provisions of the Coverage Part or by endorsement. 12. BROAD KNOWLEDGE OF OCCURRENCE The following is added to paragraph 2. of Section IV - Commercial General Liability Conditions -Duties in The Event of Occurrence, Offense, Claim or Suit: You must give us or our authorized representative notice of an "occurrence," offense, claim, or "suit" only when the "occurrence," offense, claim or "suit" is known to: (1) You, if you are an individual; (2) A partner, if you are a partnership; (3) An executive officer or the employee designated by you to give such notice, if you are a corporation; or (4) A manager, if you are a limited liability company. 13. NOTICE OF OCCURRENCE The following is added to paragraph 2. of Section IV - Commercial General Liability Conditions -Duties in The Event of Occurrence, Offense Claim or Suit: Your rights under this Coverage Part will not be prejudiced if you fail to give us notice of an "occurrence," offense, claim or "suif' and that failure is solely due to your reasonable belief that the "bodily injury" or "property damage" is not covered under this Coverage Part. However, you shall give written notice of this "occurrence," offense, claim or "suit" to us as soon as you are aware that this insurance may apply to such "occurrence," offense claim or "suit." 14. UNINTENTIONAL HAZARDS FAILURE TO DISCLOSE Based on our reliance on your representations as to existing hazards, if unintentionally you should fail to disclose atl such hazards at the inception date of your policy, we will not deny coverage under this Coverage Part because of such failure. 15. EXPANDED PERSONAL AND ADVERTISING INJURY A. The following is added to Section V -Definitions, the definition of "personal and advertising injury": h. Discrimination or humiliation that results in injury to the feelings or reputation of a natural person, but only if such discrimination or humiliation is: (1) Not done intentionally by or at the direction of: (a) The insured; or (b) Any "executive officer," director, stockholder, partner, member or manager (if you are a limited liability company) of the insured; and (2) Not directly or indirectly related to the employment, prospective employment, past employment or termination of employment of any person or persons by any insured. B. Exclusions of Section I -Coverage B -Personal and Advertising Injury Liability is amended to include the following: p. Discrimination Relating To Room, Dwelling or Premises Caused by discrimination directly or indirectly related to the sale, rental, lease or sub-lease or prospective sale, rental, lease or sub-lease of any room, dwelling or premises by or at the direction of any insured. G-147167-B99 (Ed. 12/06) Page 5 of 6 G-147167-B99 {Ed. 12/06) q. Fines Or Penalties Fines or penalties levied or imposed by a governmental entity because of discrimination. C. This provision 15. (EXPANDED PERSONAL AND ADVERTISING INJURY COVERAGE) does not apply to discrimination or humiliation committed in the states of New York or Ohio. Also, EXPANDED PERSONAL AND ADVERTISING INJURY COVERAGE does not apply to policies issued in the states of New York or Ohio. D. This provision 15. (EXPANDED PERSONAL AND ADVERTISING INJURY COVERAGE) does not apply if Section I -Coverage B -Personal And Advertising Injury Liability is excluded either by the provisions of the Coverage Part or by endorsement. 16. BODILY INJURY Section V -Definitions, the definition of "bodily injury" is changed to read: "Bodily injury" means bodily injury, sickness or disease sustained by a person, including death, humiliation, shock, mental anguish or mental injury by that person at any time which results as a consequence of the bodily injury, sickness or disease. 17. EXPECTED OR INTENDED INJURY Exclusion a. of Section I -Coverage A -Bodily Injury and Property Damage Liability is replaced by the following: a. "Bodily injury" or "property damage" expected or intended from the standpoint of the insured. This exclusion does not apply to "bodily injury" or "property damage" resulting from the use of reasonable force to protect persons or property. 18. LIBERALIZATION CLAUSE If we adopt a change in our forms or rules which would broaden coverage under this endorsement without an additional premium charge, your policy will automatically provide the additional coverages as of the date the revision is effective in your state. 19. PROPERTY DAMAGE - ELEVATORS With respect to Exclusions of Section I -Coverage A, paragraphs (3), (4) and (6) of Exclusion j. and Exclusion k. do not apply to the use of elevators. The insurance afforded by this provision 19. is excess over any valid and collectible property insurance (including any deductible) available to the insured, and the Other Insurance Condition is changed accordingly. G-147167-B99 (Ed. 12/06) Page 6 of 6 POLICY NUMBER: C 4026288679 COMMERCIAL GENERAL LIABILITY CG 25 03 05 09 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED CONSTRUCTION PROJECT(S) GENERAL AGGREGATE LIMIT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Designated Construction Project(s): Each of your construction projects located away from premises owned by or rented to you Information required to complete this Schedule, if not shown above, will be shown in the Declarations. I A. For all sums which the insured becomes legally obligated to pay as damages caused by "occurrences" under Section I -Coverage A, and for all medical expenses caused by accidents under Section I -Coverage C, which can be attributed only to ongoing operations at a single designated construction project shown in the Schedule above: 1. A separate Designated Construction Project General Aggregate Limit applies to each designated construction project, and that limit is equal to the amount of the General Aggregate Limit shown in the Declarations. 2. The Designated Construction Project General Aggregate Limit is the most we will pay for the sum of all damages under Coverage A, except damages because of "bodily injury" or "property damage" included in the "products-completed operations hazard," and for medical expenses under Coverage C regardless of the number of. a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits." 3. Any payments made under Coverage A for damages or under Coverage C for medical expenses shall reduce the Designated Construction Project General Aggregate Limit for that designated construction project. Such payments shall not reduce the General Aggregate Limit shown in the Declarations nor shall they reduce any other Designated Construction Project General Aggregate Limit for any other designated construction project shown in the Schedule above. 4. The limits shown in the Declarations for Each Occurrence, Damage To Premises Rented To You and Medical Expense continue to apply. However, instead of being subject to the General Aggregate Limit shown in the Declarations, such limits will be subject to the applicable Designated Construction Project General Aggregate Limit. CG 25 03 05 09 Copyright, Insurance Services Office, Inc., 2008 Page 1 of 2 B. For all sums which the insured becomes legally obligated to pay as damages caused by "occurrences" under Section I -Coverage A, and for all medical expenses caused by accidents under Section I -Coverage C, which cannot be attributed only to ongoing operations at a single designated construction project shown in the Schedule above: 1. Any payments made under Coverage A for damages or under Coverage C for medical expenses shall reduce the amount available under the General Aggregate Limit or the Products-completed Operations Aggregate Limit, whichever is applicable; and 2. Such payments shall not reduce any Designated Construction Project General Aggregate Limit C. When coverage for liability arising out of the "products-completed operations hazard" is provided, any payments for damages because of "bodily injury" or "property damage" included in the "products-completed operations hazard" will reduce the Products-completed Operations Aggregate Limit and not reduce the General Aggregate Limit nor the Designated Construction Project General Aggregate Limit D. If the applicable designated construction project has been abandoned, delayed, or abandoned and then restarted, or if the authorized contracting parties deviate from plans, blueprints, designs, specifications or timetables, the project will still be deemed to be the same construction project. E. The provisions of Section III -Limits Of Insurance not otherwise modified by this endorsement shall continue to apply as stipulated. Page 2 of 2 Copyright, Insurance Services Office, Inc., 2008 CG 25 03 OS 09 POLICY NUMBER: C4 02 6288 696 COMMERCIAL AUTO CA 20 48 02 99 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED INSURED This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM GARAGE COVERAGE FORM MOTOR CARRIER COVERAGE FORM TRUCKERS COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by this endorsement. This endorsement identifies personfs) or organization(s) who are "insureds" under the Who Is An Insured Provision of the Coverage Form. This endorsement does not alter coverage provided in the Coverage Form This endorsement changes the policy effective on the inception date of the policy unless another date is indicated below. d.b.a. Gen-Tech SCHEDULE Name of Pcrson(s) or Organization(s): "Any person or organization which is required to be named as a result of a written contract or agreement with You." (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to the endorsement.) Eacli person or organization shown in the Schedule is an "insured" for Liability Coverage, but only to the extent that person or organization qualifies as an "insured" under the Who Is An Insured Provision contained in Section n of the Coverage Form. CA 20 48 02 99 Copyright, Insurance Services Office, Inc., 1998 Page 1 of 1 TOWN OF FOUNTAIN HILLS TOWN COUNCIL AGENDA ACTION FORM Meeting Date: 11/4/2010 Meeting Type: Regular Session Agenda Type: Regular Submitting Department: Development Services Staff Contact Information: Richard L. Davis, Town Manager, 480-816-5107, rdavis@fh.az.gov Strategic Values: Council Goal: Maintain/Improve Community infrastructure Improve/Preserve Public Improvements REQUEST TO COUNCIL (Agenda Language): CONSIDERATION of RESOLUTION 2010-28, declaring as a public- record ihal certain document tiled with the Town Clerk and entitled the "Town of Fountain Hills Solid Waste Disposal and Recycling Regulations." CONSIDERATION of ORDINANCE 10-08, adopting the "Town of Fountain Hills Solid Waste Disposal and Recycling Regulations" by reference and amending ilie Fountain Mills Town Code. Chapter 10, Health and Sanitation, relating to solid waste disposal and recycling. Applicant: Applicant Contact Information: Property Location: Related Ordinance, Policy or Guiding Principle: Staff Summary (background): Under Council direction, staff prepared an Request for Proposals specific lo the consolidation of trash services within Fountain Hills. The process followed an extensive schedule of public and staff meetings. The products of this process is a proposed code amendment enacting a consolidated trash service initiative and corresponding agreement with the proposed contractor. At the Council meeting on October 21, 2010, the Town Manager presented a supplementary report, analysis, and recommendation. Subsequent to the Council meeting, the attached letter of clarification was received from Recycle Bank. Risk Analysis (options or alternatives with implications): Fiscal Impact (initial and ongoing costs; budget status): Budget Reference (page number): Funding Source: NA If Multiple Funds utilized, list here: Budgeted; if No, attach Budget Adjustment Form: na Recommendation(s) by Board(s) or Commission(s): NA Staff Recommendation(s): Approve. Page 1 ol 2 List Attach me nt(s): Resolution 2010-28; Ordinance 10-08; Letter from Recycle Bank dated October 25 2010. SUGGESTED MOTION (lor Council use): MOVE to declare as a public record that certain document filed with the Town Clerk and entitled the "Town of Fountain Hills Solid Waste Disposal and Recycling Regulations. MOVE to adopt the 'Town of Fountain Hills Solid Waste Disposal and Recycling Regulations" by reference and amend the Fountain Hills Town Code, Chapter 10, Health and Sanitation, relating to solid waste disposal and recycling. Pro pa rod by: NA Director's Approval: 10/26/2010 ;ni item. 10/26/2010 ApprotfSd: Ricliatd L. Davis, 1 own Manager 10/26/2010 Page 2 of 2 RESOLUTION NO. 2010-28 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, DECLARING AS A PUBLIC RECORD THAT CERTAIN DOCUMENT FILED WITH THE TOWN CLERK AND ENTITLED THE "TOWN OF FOUNTAIN HILLS SOLID WASTE DISPOSAL AND RECYCLING REGULATIONS." BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. That certain document entitled the "Town of Fountain Hills Solid Waste Disposal and Recycling Regulations" of which three copies are on file in the office of the Town Clerk and open for public inspection during normal business hours, is hereby declared to be a public record, and said copies are ordered to remain on file with the Town Clerk. PASSED AND ADOPTED BY the Mayor and Council of the Town of Fountain Hills, Arizona, November 4, 2010. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: Jay T. Schlum, Mayor Bevelyn J. Bender, Town Clerk REVIEWED BY: APPROVED AS TO FORM: Richard L. Davis, Town Manager Andrew J. McGuire, Town Attorney 1350580.1 1346277.6 TOWN OF FOUNTAIN HILLS SOLID WASTE DISPOSAL AND RECYCLING REGULATIONS 1346277.6 ARTICLE 10-1 SOLID WASTE DISPOSAL AND RECYCLING DIVISION 1 Generally 10-1-1 Purpose and Scope 10-1-2 Definitions 10-1-3 Collection Services Mandatory; Exemption 10-1-4 Collection Services Generally 10-1-5 Access to Premises Serviced by Town 10-1-6 Spilling of Refuse during Transport 10-1-7 Dumping of Refuse 10-1-8 Use of Another’s Containers 10-1-9 Tampering with Container and Contents 10-1-10 Resident Responsibilities Generally 10-1-11 Hazardous Waste and Special Refuse 10-1-12 Hours of Collection 10-1-13 State and Local Authority 10-1-14 Inspections and Container Violations 10-1-15 Violations and Citations DIVISION 2 Residential Collection and Disposal Service 10-1-20 Town has Exclusive Right to Collect Refuse 10-1-21 Collection Service Required 10-1-22 Preparation of Refuse for Collection 10-1-23 Container Damage or Loss 10-1-24 Placement of Collection Containers 10-1-25 Frequency of Residential Solid Waste Collection DIVISION 3 Commercial and Private Haulers - Reserved DIVISION 1 GENERALLY Section 10-1-1 Purpose and Scope. The purpose of this Article is to protect the health and safety of the citizens of the Town and to protect the environment by establishing minimum standards for the storage, collection, treatment, transportation, processing and disposal of Solid Waste and Recyclables. Section 10-1-2 Definitions. The following words, terms and phrases, when used in this Article, shall have the meanings ascribed to them in this Section, except where the context clearly indicates a different meaning. “Alley” means a public passageway affording a secondary means of access to abutting property for utility, emergency and Solid Waste vehicles. 1346277.6 2 “Ashes” means all residue from the burning of any combustible material, but does not include ashes from medical waste, Hazardous Waste or special waste. “Bulk Trash” means all manmade materials that are bulky or cumbersome such as washers, hot water heaters and other appliances, sofas, tables, beds and other large household furniture, yard waste and other Refuse items which by size, shape or quantity will not fit into a residential roll- out container. “Collection Container” means a Solid Waste Cart, a Recycling Cart, and/or a Green Waste Cart. “Collection Employee” means any individual employed by the Town for the purpose of effectuating the provisions of this Article. “Collection Services” means curb-side pick up of Solid Waste, Recyclable Materials and Green Waste. “Commingle” means to blend or cause to blend together. “Commercial Solid Waste Generator” means any Person owning, leasing, managing, renting or occupying any business, home-based business, industrial or commercial building, or construction site, which generates Refuse, Solid Waste or Recyclables. “Construction Waste” means all waste building materials and rubble resulting from construction, remodeling, repair and demolition operations on commercial, institutional and industrial establishments, Dwelling Units, garages, pavements, streets, Alleys, trenches, ditches, underground utilities, excavations and other structures. Construction waste includes but is not limited to rocks, debris, dirt, brick, fill, plaster, and all types of scrap building materials, including but not limited to lumber scraps, shingles, plaster, brick, stone and concrete. “Contaminate” means to spoil, pollute or make unclean so as to make something unfit for use. “Customer” means, and includes, any entity, property owner, manager, agent, tenant or occupant of a property within the Town. “Director” means the Town of Fountain Hills Development Services Department Director or his authorized designee. If the Town does not have a Development Services Director, the Town Manager or authorized designee shall be the Director. “Dwelling Unit” means any building or structure used solely as a family domicile, including single-family and multifamily units, apartments, Townhouses, condominiums, rooming houses and boarding houses, and manufactured homes. 1346277.6 3 “Garbage” means all putrescible wastes, except sewer and body wastes, including all organic wastes prepared for or intended to be used as food or which have resulted from the preparation of food, including all such substances from public and private establishments and residences. “Green Waste Cart” means a receptacle with wheels with a capacity of up to approximately 96 gallons designed or intended to be mechanically dumped into a load-packer type garbage truck for the collection of yard waste from Residential Service Units. “Hazardous Waste” means any discarded material hazardous by reason of its pathological, explosive, flammable, radiological, corrosive, reactive, or toxic nature. The term shall mean any material that can cause damage or injury to property or Persons. Hazardous waste includes but is not limited to any chemical, compound, mixture, substance, product or other material which is a hazardous waste pursuant to ARIZ. REV. STAT. § 49-921 as may be amended from time to time, or Code of Federal Regulations, Part 261. “Licensed Solid Waste Contractor” means any Person, firm or entity holding a license issued by the Town that permits the Licensed Solid Waste Collector to operate within the Town for the purpose of providing Solid Waste Collection Services to Commercial Solid Waste Generators. “Medical Sharps” means discarded sharps used in human or animal care, medical research, or clinical laboratories. This includes hypodermic needles, syringes, pipettes, scalpel blades, blood vials, needles attached to tubing, broken and unbroken glassware, and slides and coverslips. The term medical sharps shall have the same definition as set forth in the Arizona Administrative Code R18-13-1401 as may be amended from time to time. “Medical Waste” means any Solid Waste that is generated in the diagnosis, treatment, or immunization of a human being or animal or in any research relating to that diagnosis, treatment or immunization, or in the production or testing of biologicals, and includes discarded drugs, but does not include hazardous wastes as defined in ARIZ. REV. STAT. § 49-921 other than conditionally exempt small quantity generator waste, and shall have the same meaning as set forth in ARIZ. REV. STAT. § 49-701 as may be amended from time to time. “Notice” means a written instrument served by the Town in one of the following manners, with time commencing from date of mailing, serving, filing or recording: 1. By the use of United States certified mail to the last known address of the Person to whom it is required to be given. 2. By personal service upon the Person or his lawful representative. “Person” means any individual, corporation, partnership, company, firm, association, society or other entity of any legal form. “Premises” means land, buildings, or other structures, or parts thereof. 1346277.6 4 “Recyclable Material or Recyclables” means any Solid Waste separated from other Solid Waste for the purpose of being recycled. Recyclables may include, but are not limited to metals, plastics, glass, cardboard and paper. “Recycling” means the process of collecting, separating, cleansing, treating and reconstituting post-consumer materials that would otherwise become Solid Waste and returning them to the economic stream in the form of raw material for reconstituted products. “Recycling Cart” means a receptacle with wheels with a capacity of up to approximately 96 gallons designed or intended to be mechanically dumped into a loader-packer type garbage truck for the Collection of Recyclables from Residential Service Units and special events. “Refuse” means “Solid Waste.” “Residential Service Unit” means a Dwelling Unit for which Collection Services may be provided utilizing individual Collection Containers for each Dwelling Unit and which is not part of a multifamily residential building for which Solid Waste and Recyclables are collected in dumpsters. “Solid Waste” means all wastes and materials discarded. Solid Waste includes but is not limited to Bulk Waste, Construction Waste, Garbage, Hazardous Waste, Medical Sharps, Medical Waste, Trash and Yard Waste. “Solid Waste Cart” means a receptacle with wheels with a capacity of up to approximately 96 gallons designed or intended to be mechanically dumped into a loader-packer type garbage truck for the Collection of Residential Solid Waste. “Solid Waste Collection Services” means the collection and disposal, including the cost of landfills, and other disposal technology required to dispose of Solid Waste and the collection, sorting, sale and disposal of Recyclable Materials. “Town-Supplied Containers” means those Collection Containers supplied to Residential Service Units by the Town or its contractor, whether or not the cost of the container was paid for by the Town. “Trash” means rubbish, waste, debris and all other nonputrescible wastes. “Yard Waste” means brush, grass and vegetation clippings, weeds, twigs, leaves, limbs, branches and trunks from trees, palm fronds and general yard, garden and tree rubbish and waste materials. Section 10-1-3 Collection Services Mandatory; Exemption. A. Except as specifically set forth in this Section, not later than July 1, 2011 and continuing thereafter, every Residential Service Unit within the Town’s corporate limits shall be provided with Solid Waste Collection Services, Recyclable Materials Collection Services 1346277.6 5 and Green Waste Collection Services by the Town through a contract with a third party, and the resident thereon shall pay the cost of such Collection Services. B. This Section shall not apply to a model home complex not used as a Dwelling Unit. C. Upon determination of eligibility by the Town Manager or authorized designee, the July 1, 2011 deadline set forth in Subsection 10-1-3(A) above shall not apply to homes that have contracts in place which were entered into prior to December 1, 2010 and which do not expire prior to July 1, 2011. If deemed eligible, the date upon which Subsection 10-1-3 will be come effective for each such home shall be the date of expiration for that contract, subject to Subsection 10-1-3(D) below. To be eligible for delayed implementation as set forth in this Subsection 10-1-3(C), a homeowner or homeowner’s association, as the case may be, must provide a fully-executed and valid copy of the contract to the Town Manager or designee not later than February 1, 2011. D. Notwithstanding Subsection 10-1-3(C) above, in no event shall the delayed implementation date for Collection Services be extended beyond July 1, 2013. Section 10-1-4 Collection Services Generally. A. For newly constructed Residential Service Units, Town Collection Services shall commence upon the date the Dwelling Unit is first occupied. B. The Town shall provide, through its contractor, the appropriate Collection Containers for all Residential Service Units serviced by the Town’s collection system for the accumulation, storage and collection of all Solid Waste and Recyclables. Where a residence with curbside collection requests or is required to maintain more than one Solid Waste Cart, an additional amount may be charged for each additional container. C. The Town reserves the right to deny Collection Services for Refuse that the Director or authorized designee determines to be hazardous, and to require the Customer to properly dispose of it by other means. Section 10-1-5 Access to Premises Serviced by Town. A. The owner or occupant of property shall ensure the Town has convenient access at all times on collection days to Town Solid Waste Collection Containers placed out for Collection Services. B. It is unlawful to park, maintain or allow any vehicle or any other kind of obstruction within 15 feet of a Collection Container placed out for Collection Service. C. It is unlawful to close or obstruct any street, Alley, right-of-way, route or loading area interfering with the normal operations of Collection Service. 1346277.6 6 D. The owner or occupant of property shall maintain drives, driveways, easements and Collection Container enclosures in a manner adequate to prevent collection vehicles and drivers from injury or damage in performing their work. E. Areas serviced from easements or driveways will be at the discretion of the Town and subject to the ability to safely access and service the Collection Containers without backing more than 50 feet. F. The owner or occupant of property shall trim trees or shrubbery on his property and in the adjacent right-of-way or easement, so that the trees or shrubbery do not interfere with the free movement of collection vehicles and do not obstruct the vision of collection vehicle drivers in performing their work. G. Containers shall be placed for collection out of the drive lanes at the edge of the pavement for the street. The Town may require Collection Containers to be placed in alternate locations if necessary for public safety. Section 10-1-6 Spilling of Refuse during Transport. A. It is unlawful for any Person to haul, or cause to be hauled, on or along any public street, right-of-way or Alley in the Town, any Refuse or Recyclables unless such material is contained in the vehicle or receptacle in a manner that prevents the contents from falling out, leaking or spilling, and prevents obnoxious odor from escaping. If any Refuse or Recyclables fall out, leak or spill, such Person shall immediately clean up the Refuse, Recyclables or liquid. B. Failure to properly secure a load and any covering of the load to prevent the covering or load from becoming loose, detached or in any manner a hazard to other users of the road way may be prosecuted as a violation of ARIZ. REV. STAT. § 28-1098 as may be amended from time to time. Section 10-1-7 Dumping of Refuse. It is unlawful for any Person to place or cause to be placed any Refuse or Recyclables upon any public or private property within the Town, except as specifically permitted in this Article. Section 10-1-8 Use of Another’s Containers. It is unlawful for any Person to deposit, or cause to be deposited, any Refuse or Recyclables in any Collection Container not assigned to that Person by the Town or its contractor, or a licensed Solid Waste contractor providing Collection Services to property other than Residential Service Units. Section 10-1-9 Tampering with Container and Contents. It is unlawful for any Person: 1346277.6 7 1. To tip over or damage any Collection Container. 2. To place decals, markings, or paint on a Collection Container. 3. To remove Refuse from a Recycling Cart, Solid Waste Cart, Green Waste Cart or any other Refuse container other than those assigned to the Person. 4. To climb into a Recycling Cart, Solid Waste Cart, Green Waste Cart or any other Refuse container. 5. To use a Collection Container or Collection Container lid for something other than its intended purpose. Section 10-1-10 Resident Responsibilities Generally. Every Person, owner, tenant, Customer or occupant receiving Collection Services shall: 1. Provide for the collection, control and disposition of Refuse in or upon any and all premises owned, leased or occupied by or for them. 2. Cooperate with such agents or agencies as may be provided by law for the collection, control and disposition of Refuse. 3. Maintain and keep clean the Alley adjacent to the Premises owned, leased or occupied by or for them and the area surrounding their Collection Containers free from Refuse and other health hazards. 4. Place or cause to be placed all Refuse and uncontained Recyclables accumulated on the Premises, owned, leased or occupied by or for them in the appropriate Collection Containers; provided that it shall only be a violation subject to penalty as set forth in this Article for the Customer or occupant to place Solid Waste in a Recycling Cart. 5. Keep lids for Collection Containers down in a closed position at all times in order to prevent flies, except when a Collection Container is being filled, emptied or cleaned. 6. Maintain Collection Containers of sufficient number to accommodate the Refuse and Recycling disposal needs of such residence, Premises or establishment, as determined by the Director or authorized designee. 7. Maintain Collection Containers in good repair and in sanitary condition, free of any markings or decals not placed on the Collection Containers by the Town or its contractor. Collection Containers that have become unserviceable due to ordinary wear-and-tear will be replaced by the Town’s Contractor, at no cost to the 1346277.6 8 Customer. The Town or its contractor shall provide Notice in the manner set forth in Section 10-1-14 that a Container (a) has been determined to be no longer serviceable through conditions other than ordinary wear and tear or (b) is being maintained in an unsanitary condition. If Collection Containers supplied by Town or its contractor require cleaning, painting or refurbishing for reasons other than ordinary wear-and-tear, the cost of such work shall be charged to the Customer. Section 10-1-11 Hazardous Waste and Special Refuse. A. No person shall deposit or cause to be deposited in any Collection Container, anything which will be dangerous or hazardous to the collection equipment or a threat to the health, safety and welfare of the Collection Employees or general public. B. Hazardous Waste shall be placed in an appropriate, closed container and plainly and properly marked in accordance with applicable law and industry standards. The Director shall be notified and shall instruct the Customer as to disposal options for such waste. C. Explosives such as arms, ammunition, war souvenirs or explosive items or powder of any kind and highly flammable materials shall not be placed in any Collection Container. Persons shall dispose of these items after calling the Town’s law enforcement agency for directions and disposal options. D. Acids, caustics and rapid oxidizers, including chemicals used in swimming pools, shall not be disposed of in Collection Containers. Persons shall dispose of such chemicals after calling the Director for containment instructions and disposal options. E. Warm or hot coals or Ashes shall not be placed in any Collection Container. F. Dead small animals may be placed in plastic bags, tied and placed in a Solid Waste Cart. Dead livestock shall not be placed in a Collection Container and shall be disposed of separately by the owner. G. Dead small animals in the public right-of-way will be removed and disposed of by calling the Town’s Public Works Division. H. Medical Sharps may be placed with other Refuse for collection, but must be properly contained in a sealed, puncture-resistant container and clearly labeled as such. I. Lead acid batteries, such as automobile or other vehicle batteries, shall not be disposed of in Collection Containers. Persons shall dispose of such waste after calling the Director for disposal and Recycling options. J. Waste soil, sand, concrete, masonry block, rock and similar materials shall not be placed in a Collection Container, shall be disposed of separately by the owner, tenant or occupant of the Premises (and not by the Town) and shall not be stored or placed in the public right-of-way. 1346277.6 9 K. Except as permitted in Subsection 10-1-22(B)(6), debris resulting from the construction, reconstruction, demolition, or repair of Premises shall not be placed with other Refuse for collection but shall be disposed of directly by the contractor or by the Person owning, occupying, or leasing the Premises wherein such debris is accumulated. All such wastes shall be removed promptly and shall not be stored in any location where it may be blown or otherwise dispersed beyond the construction site. Section 10-1-12 Hours of Collection. It is unlawful to provide Solid Waste Collection Services between the hours of 7:00 p.m. and 6:00 a.m., unless approved in advance, in writing, by the Director. Section 10-1-13 State and Local Authority. Nothing in this Article shall be construed to infringe or supplant the authority of the State or the Maricopa County Environmental Services Division exercised pursuant to the laws of the State. Section 10-1-14 Inspections and Container Violations. A. Provisions shall be made for regulated inspections by the Town or its designee to secure compliance with this Article. A minimum of 25% of the single-family Recycling Carts shall be inspected each year, and a log of such inspections shall be kept. B. Notice of Collection Container violations shall be given by tagging the Collection Container with a tag or label with the violations indicated on the tag or label, or by delivering a Notice in person or by mail to the owner or occupant. If action necessary to remedy the violation is not taken within ten days, the Director may remove the Collection Container and dispose of its contents at the responsible party’s expense. Section 10-1-15 Violations and Citations. A. Any violation of or failure to do or perform any act required by this Article constitutes a civil offense. B. The owners, occupants, Customers and authorized agents of property in violation of this Article may be held individually and jointly responsible for the violation, the prescribed civil penalties and for abating the violation. C. Any violation of this Article is declared to be a public nuisance, and instead of, or in addition to, any civil and/or criminal enforcement measure authorized by this Section, may be enjoined or restrained by the Town as other nuisances are abated under authority of the State law. D. Notice of violation. 1346277.6 10 1. The Town shall seek voluntary compliance with the provisions of this Section before issuing a civil citation or criminal complaint, as applicable. This shall include a written Notice of violation given to the responsible party for the property. 2. A Notice of violation may be issued by the Town Manager or authorized designee. 3. The Notice of violation shall set forth the nature of the violation, the action required to come into compliance with this Article, the time period provided to come into compliance, and the person at the Town to contact for further information. 4. The Town shall use reasonable efforts to ensure that Notices of violation are received by the responsible party; provided, however, failure of the responsible party to receive a Notice of violation shall not preclude the subsequent issuance of a civil citation or criminal complaint, as applicable. 5. Nothing in this Section shall prevent the Town from taking immediate action to protect the public from an imminent hazard to health or safety as otherwise provided by law. E. Civil citations. 1. Unless otherwise designated as a criminal offense in this Section, if a violation continues past the compliance time set forth in the Notice of violation, a civil citation may be issued to the Person responsible for the violation. 2. A civil citation may be issued by the Town Manager or authorized designee. 3. The citation shall include the date of the violation, the location of the property and a reference to the section(s) violated. 4. The citation shall direct the defendant to pay the fine imposed pursuant to Subsection 10-1-15(F) or appear in the Fountain Hills Municipal Court within ten days of the issuance of the citation. 5. The citation shall provide notice that if the defendant fails to pay the fine or appear in the Fountain Hills Municipal Court as directed, a default judgment will be entered in the amount of the fine designated on the citation for the violation. In addition, a default fee may be imposed for failure to appear. 6. Service of the citation may be accomplished and will be deemed proper and complete by any of the following methods: a. Hand delivering the citation to the defendant. 1346277.6 11 b. Mailing a copy of the citation by certified or registered mail, return receipt requested, to the defendant’s last known address. c. Any means allowed by the Arizona Rules of Civil Procedure for the Superior Court. F. Civil Penalties. 1. A Person convicted of a violation of this Article, other than Subsections 10-1-6, 10-1-7 or 10-1-11, shall be punishable by a base fine of not more than $500. 2. Any defendant that fails to pay the fine or appear in the Fountain Hills Municipal Court as directed by a citation issued pursuant to this Section, or who fails to appear at the time and place set for trial of a matter arising under this Section, shall be subject to an additional default fee in an amount established by the Fountain Hills Municipal Court. 3. Any judgments issued by the Fountain Hills Municipal Court shall be subject to all surcharges and fees imposed by State law in addition to the base civil fines required by this Section. 4. Judgments shall be collected in the same manner as any other civil judgment as provided by law. G. Criminal penalties. A Person convicted of a violation of Subsections 10-1-6, 10-1-7 or 10-1-11 is guilty of a Class 1 Misdemeanor, punishable by term of not more than six months in jail and a base fine of not more than $2,500. H. The penalties set forth in this Section 10-1-15 shall be in addition to any penalty that may be assessed pursuant to State Law or the Maricopa County Environmental Health Code. Section 10-1-16 – 10-1-19 Reserved. DIVISION 2 RESIDENTIAL COLLECTION AND DISPOSAL SERVICE Section 10-1-20 Town has Exclusive Right to Collect Refuse. The Town and its duly authorized agents, servants or employees have the exclusive right to collect Refuse and Recyclables from Residential Service Units within the Town, except as provided in State law. Section 10-1-21 Collection Services Required. No Customer in possession of any Residential Service Unit within the Town shall avoid or refuse to accept the Refuse disposal service or Recyclable Material service provided by the Town, and 1346277.6 12 any such avoidance or refusal shall not exempt such Customer from the payment of charges for such services. Section 10-1-22 Preparation of Refuse for Collection. A. The Town or its contractor will only collect Refuse that is properly prepared for pick up. B. Refuse shall be prepared for pick up as follows: 1. Collection Containers shall be used for curbside collection of residential Refuse. 2. Garbage must be drained of liquids and shall be placed in plastic bags and tied before being placed in Solid Waste Carts. 3. Refuse shall be placed in Solid Waste Carts Only, except for yard waste as set forth in Subsection 10-1-22(B)(5) below. All boxes, cartons, and crates shall be collapsed before being placed in Collection Containers. Also, large boxes and cartons shall be cut up before being placed in the Collection Containers. 4. The Town’s regular Collection Service will collect only the Refuse that is contained in the Refuse containers supplied by the Town or its contractor. 5. Residential Customers may dispose of Yard Waste in Solid Waste Carts as long as there is room for the regular Refuse and such material does not interfere with the emptying of the Solid Waste Cart in any way. Yard Waste may also be disposed of in a Green Waste Cart, which shall be available (for an additional fee), to the Customer upon request. 6. Residential Customers may dispose of small amounts of building material (less than 1/2 of the volume of the Solid Waste Cart), except concrete or masonry, provided it is placed in the residential Customer’s Solid Waste Cart. 7. The contents of an individual Solid Waste Cart shall not exceed 200 pounds. 8. All garbage shall be bagged and securely tied. 9. Wastes from small animals, pets, or livestock shall be placed in a bag, securely tied and then placed in the Solid Waste Cart. 10. Lids for Solid Waste Carts must be kept down in a closed position at all times in order to prevent flies, except when a container is being filled, emptied or cleaned. C. Recyclables shall be prepared for pick up as follows: 1. Recyclables must be reasonably clean, empty, dry and loose, and shall not be bagged or put in sealed box when placed in Recycling Carts. 1346277.6 13 2. Only Recyclables may be placed in Recycling Carts. Large boxes and cartons shall be cut up or collapsed before being placed in Recycling Carts. 3. Recycling Collection Service will collect only Recyclables contained in the Recycling Carts. 4. Shredded paper must be in a clear plastic bag when placed in Recycling Carts. D. Bulk Trash shall be prepared for pick up as follows: 1. Bulk Trash is collected an on-call basis only, for an additional fee. 2. A pile up to four feet by four feet by eight feet of Bulk Trash shall be considered a single load of Bulk Trash and shall be subject to a fee for collection. Larger amounts shall be subject to additional fees. 3. All brush, tree limbs and cuttings included in the Bulk Trash shall not exceed five feet in length and 12 inches in diameter. 4. Bulk Trash shall be placed on private property within plain view as seen from the public right-of-way for pick up no earlier than the day immediately preceding the designated collection day. 5. Items must be placed parallel to the street adjacent to the owner’s property line for collection. 6. Bulk Trash may not be placed on sidewalks, curbing or public right-of-way in any manner as to interfere with or be hazardous to pedestrians or vehicles, or with any mechanized Collection vehicle in such a manner as to interfere with its being emptied. 7. Appliances, air conditioners and other items that involve freon gases are not accepted as part of normal Bulk Trash service. 8. Items not accepted for collection will be left. The following are unacceptable materials: Disposable or unwanted material resulting from construction, repair or demolition of the Premises; large auto parts; tires; used oil; rocks, soil-like and concrete materials; unbagged leaves and grass clippings; and vegetation over five feet in length and 12 inches in diameter. These items must be disposed of at a landfill by the owner, lessee or occupant, or by an alternative service, such as roll- off containers. 9. Century plants, cacti and similar plants hazardous to Collection Employees shall be contained in cardboard boxes with a total weight not to exceed 60 pounds per box. 1346277.6 14 Section 10-1-23 Container Damage or Loss. Each Town-supplied Collection Container shall be assigned to the property or Premises and not to the owner or occupant of the property or Premises. No Person who occupies any property or Premises to which a Collection Container has been assigned may remove the Collection Container from the assigned property or Premises for any reason. The Town shall not be responsible for damage or loss of a Collection Container, and in the event of damage other than ordinary wear and tear of such container, the Person who occupies the property or Premises to which a Collection Container has been assigned may be charged for such damage or loss, at the option of Director. The Town or its contractor, as applicable, will replace Collection Containers that fail due to ordinary wear and tear. Section 10-1-24 Placement of Collection Containers. A. Collection Containers shall be placed in the street at the curb line or edge of pavement, as applicable. A minimum separation of three feet is required between Collection Containers. B. Collection Containers shall not be placed for collection before 6:00 p.m. of the day preceding regular collection and shall be removed from the curb by 6:00 a.m. of the day after collection. C. All Collection Containers shall be stored between collection days so as to not be visible from the street or public rights-of-way. Section 10-1-25 Frequency of Residential Solid Waste Collection. A. The days and hours of Solid Waste, Green Waste and Recyclable Materials collection shall be established by the Director or authorized designee. B. Regular Solid Waste service shall be supplied once a week (or twice a week if optional service is selected by the customer) to all Residential Service Units. Where more than one Solid Waste Cart is maintained for a single Residential Service Unit, all containers will be serviced on the same day. C. Regular Recycling Service shall be supplied once a week for all Residential Service Units. Where more than one Recycling Cart is maintained for a single Residential Service Unit, all containers will be serviced on the same day. D. Regular Green Waste Collection Service shall be supplied once a week, on the same day as regular Recycling Service, to all Residential Service Units that have requested such services at an additional fee. Where more than one Green Waste Cart is maintained for a single Residential Service Unit, all containers will be serviced on the same day. Sections 10-1-26 – 10-1-29 Reserved. 1346277.6 15 DIVISION 3 COMMERCIAL AND PRIVATE HAULERS Reserved. ORDINANCE NO. 10-08 AN ORDINANCE OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, ADOPTING THE "TOWN OF FOUNTAIN HILLS SOLID WASTE DISPOSAL AND RECYCLING REGULATIONS" BY REFERENCE AND AMENDING THE FOUNTAIN HILLS TOWN CODE, CHAPTER 10, HEALTH AND SANITATION, RELATING TO SOLID WASTE DISPOSAL AND RECYCLING. WHEREAS, the Mayor and Council of the Town of Fountain Hills (the "Town Council") desire to accomplish the adopted Town Council goal of creating a town-wide curbside recycling program covering the corporate limits of the Town of Fountain Hills (the "Town"); and WHEREAS, the Town Council has determined that it is in the Town's best interests to unify solid waste collection and recycling into a single hauler system to reduce the heavy truck traffic on Town streets, reduce vehicle emissions and enhance public safety; and WHEREAS, the Town Council has determined that the its goals can best be accomplished by the Town taking responsibility for residential curbside solid waste collection and recycling; and WHEREAS, certain amendments to the Town Code are necessary to carry out the Town Council's desire to implement a solid waste collection and recycling program. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA as follows: SECTION 1. The foregoing recitals are incorporated as if fully set forth herein. SECTION 2. The document known as the "Town of Fountain Hills Solid Waste Disposal and Recycling Regulations" (the "Solid Waste Regulations"), three copies of which are on file in the office of the Town Clerk, which document was made a public record by Resolution No. 2010-28 of the Town of Fountain Hills, Arizona, is hereby referred to, adopted and made a part hereof as if fully set out in this Ordinance. SECTION 3. The Fountain Hills Town Code Chapter 10 (Health and Sanitation), is hereby amended by deleting Article 10-1 (Methods of Garbage and Trash Removal) in its entirety and replacing it with the Solid Waste Regulations. SECTION 4. Any person who fails to comply with any provision of the Solid Waste Regulations shall be subject to civil and criminal penalties as set forth in Section 10-1-15 therein, including civil penalties of not less than $500. Criminal penalties shall constitute a class one misdemeanor, punishable by a fine not to exceed $2,500.00 or by imprisonment for a period not to exceed six months, or by both such fine and imprisonment. Each day that a violation continues shall be a separate offense. 1350713.1 SECTION 5. If any provision or any portion of any provision of this Ordinance is for any reason held to be unconstitutional or otherwise unenforceable by a court of competent jurisdiction, such provision or portion thereof shall be deemed separate, distinct and independent of the remaining provisions of this Ordinance and shall be severed therefrom without affecting the validity of the remaining portions of this Ordinance. SECTION 6. The Mayor, the Town Manager, the Town Clerk and the Town Attorney are hereby authorized and directed to take all steps and execute all documents necessary to carry out the purpose and intent of this Ordinance. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Arizona, November 4,2010. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: Jay T. Schlum, Mayor Bevelyn J. Bender, Town Clerk REVIEWED BY: APPROVED AS TO FORM: Richard L. Davis, Town Manager Andrew J. McGuire, Town Attorney I35O7I3.I TOWN OF FOUNTAIN HILLS TOWN COUNCIL AGENDA ACTION FORM Meeting Date: 11/4/2010 Meeting Type: Regular Session Agenda Type: Regular Submitting Department: Development Services Staff Contact Information: Raymond Rees (480) 816-5180 rrees@fh.az.gov Strategic Values: Council Goal: Maintain/Improve Community Infrastructure Improve/Preserve Public Improvements REQUEST TO COUNCIL (Agenda Language): CONSIDERATION of the CONTRACT with Allied Waste Transportation, Inc., d/b/a/ Allied Waste Services of Phoenix relating to solid waste, disposal, and recycling services. Applicant: NA Applicant Contact Information: NA Property Location: NA Related Ordinance, Policy or Guiding Principle: NA Staff Summary (background): On October 21, 2010, Staff presented the proposed contract to Council for discussion with the intent of bringing it back for approval on the November 4, 2010 meeting. The Town Attorney and Allied Waste have discussed Council's comments made at the October 21, 2010 meeting and have incorporated the changes into the attached contract. Risk Analysis (options or alternatives with implications): NA Fiscal Impact (initial and ongoing costs; budget status): NA Budget Reference (page number): NA Funding Source: NA If Multiple Funds utilized, list here: NA Budgeted; if No, attach Budget Adjustment Form: na Recommendation(s) by Board(s) or Commission(s): NA Staff Recommendation(s): Staff recomends the approval of the contract with Allied Waste Transportation, Inc., d/b/a/ Allied Waste Services of Phoenix List Attachment(s): Solid Waste Service Agreement between the Town of Fountain Hills and Allied Waste Transportation, Inc., d/b/a/ Allied Waste Services of Phoenix SUGGESTED MOTION (tor council use): Move to approve the contract with Allied Waste Transportation, Inc., d/b/a/ Allied Waste Services of Phoenix relating to solid waste, disposal, and recycling services. Page 1 ol 2 PreparefiTjy: Bfiyn^bnd/lees, Siorm Wale/Pnvir. Planner 10/26/2010 Director'si Paul Mood, Development Services Director 10/26/2010 Approved^ Richard L Davis, TowrfManager 10/26/2010 2 ol' 2 BID TABULATIONS Allied Waste 14 58 30 119 15 120 356 Waste Management 14 60 30 120 15 74 313 Best Choice Systems 15 46 28 117 10 85 301 Right Away Disposal 14 31 13 111 15 75 259 Chapter 1 Chapter 3 Chapter 2 Chapter 4 Chapter 5 Aggregate ScoreChapter 6 Chapter 1 -General Information Chapter 2 -Experience & Qualifications Chapter 3 -Financial Chapter 4 -Method of Approach Chapter 5 –Billing Chapter 6 -Cost Information Total Points Possible 25 50100 200 25 200 600 BID TABULATIONS Allied Waste $11.44 $11.44 $12.49 $12.49 Waste Management $17.29 $17.29 $26.67 $25.81 Best Choice Systems No Bid $15.63 No Bid $17.23 Right Away Disposal $15.75 $15.75 $18.00 $17.00 Same day collection w/recycling Different day collection w/recycling Same day Collection w/o recycling Different day collection w/o recycling BID TABULATIONS -ADDENDUM 3 Allied Waste $16.46 Waste Management $33.40 Best Choice Systems No Bid Right Away Disposal $26.75 This bid reflects two collection days per week for solid waste with one collection day for recycling conducted on the same day as one of the solid waste collection days. CONTRACT HIGHLIGHTS Base Service $11.44/Month* (1 trash, 1 recycle, on same day) Optional Service $16.46/Month* (1 trash, 1 recycle, on same day; 2nd trash on different day) Price fixed until 2014; 5%max annual increase after 2014 *TOTAL COST TO CUSTOMER, INCLUDING APPLICABLE TAXES RecycleBank Axel Newe 104 Nesbitt Court Folsom, CA 95630 (916)899-9849 October 25, 2010 Richard Davis City Manager Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 Re: Clarification of Statements Made by RecycleBank during October 2l" City Council Meeting Dear Mr. Davis: On behalf of RecycieBank, I would like to kindly offer further clarification of statements I made during the October 21sl City Council meeting in Fountain Hills. RecycleBank is optimized for Fountain Hills and would be most effectively administered by a single hauler. RecycleBank relies an hauler partners to enable our program through the use of specific assets, technology and practices which capture and transmit residential recycling data. While I acknowledged on the October 2l" Council Meeting that it is conceivable to work through multiple haulers to administer the program, this is not a recommended practice. Nearly all of our programs throughout the United States are implemented by single hauler implementation partners in any given geographical area. RecycleBank partners with haulers that deliver superior service and demonstrate strong dedication to the administration and management of our program. Among all other companies, Republic Services is the most experienced provider of RecycleBank and has unparalleled familiarity with all aspects of our award winning program. RecycleBank and Republic Services currently work in partnership across 15 States and reward nearly 300,000 households for residential recycling, creating significant economic and environmental value for municipalities, residents and local merchants. While RecycleBank is an important component of multiple haulers' proposals to the Town of Fountain Hills, it is important to note that our relationship with Republic Services is exceptional as Republic Services has the most experience and qualifications delivering RecycleBank to communities, and has made the use of our program part of their national offering. I thank you for the opportunity to clarify the statements I made on October 21i[ and appreciate your consideration of RecycleBank for the Town of Fountain Hills. Since reV K LA Axel Newe West Region Vice President and General Manager RecycleBank cc: Raymond Rees REWARDS/FOR PEOPLE &PLANET ■'■""" '■ ■ "-.;■..■■■ . . ■ ■ ■ . . 1346193.10 SOLID WASTE SERVICES AGREEMENT BETWEEN TOWN OF FOUNTAIN HILLS AND ALLIED WASTE TRANSPORTATION, INC. D/B/A ALLIED WASTE SERVICES OF PHOENIX THIS SOLID WASTE SERVICES AGREEMENT (this “Agreement”) is made on November 4, 2010 (the “Effective Date”) by and between the Town of Fountain Hills, an Arizona municipal corporation (the “Town”) and Allied Waste Transportation Inc., a Delaware corporation d/b/a Allied Waste Services of Phoenix (the “Contractor”). RECITALS A. The Town issued a Request For Proposals, “Solid Waste Services (PZ2010-001)” (the “RFP”), a copy of which is attached hereto as Exhibit A and incorporated herein by reference, seeking proposals from vendors for residential curbside solid waste collection and disposal services, bulk waste collection and disposal services, residential recycling services, green waste services, Town facility solid waste services, Town facility recycling services and special event solid waste and recycling services within the corporate limits of the Town of Fountain Hills (the “Services”). B. The Contractor submitted a proposal in response to the RFP (the “Proposal”), which is attached hereto as Exhibit B and incorporated herein by reference, and the Town desires to enter into an Agreement with the Contractor for the Services. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by reference, the following mutual covenants and conditions, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Town and the Contractor hereby agree as follows: 1. Definitions. As used herein, and notwithstanding any other contrary definition given these terms under Arizona law, the parties hereto specifically agree that the terms defined below shall, for the purpose of this Agreement, have the meanings as set forth in this Section. The words “shall,” “will” and “must” are always mandatory and not merely discretionary. The word “may” indicates something that is not mandatory but permissible. When not inconsistent with the context, words in the plural shall include the singular and vice versa, words importing persons shall include firms and corporations, words in the present tense shall include the future and use of the masculine gender shall include the feminine gender. The terms “herein,” “hereunder,” “hereby,” “hereto,” “hereof” and any similar terms, shall refer to this Agreement; the term “heretofore” shall mean before the date of adoption of this Agreement; and the term “hereafter” shall mean after the initial date of adoption of this Agreement. 1.1 “Backdoor” means a location at the front, side or rear of a Residential Service Unit acceptable to both the Resident and Contractor as the location for Residential Collection Service. If an appropriate location cannot be agreed upon, the Contract Administrator shall designate the location for Residential Collection Service. 1346193.10 2 1.2 “Bulk Waste” means Solid Waste composed of materials not easily containerized in a Solid Waste Cart or Recycling Cart such as, but not limited to, Green Waste, furniture, cardboard and large appliances. 1.3 “Bulk Waste Collection Services” means Collection of Bulk Waste and delivery to the Disposal Facility or the Recycling Facility by the Contractor. 1.4 “Bulk Waste Services” means Bulk Waste Collection Services and the disposal of Bulk Waste at the Disposal Facility or recycling of Bulk Waste at the Recycling Facility. 1.5 “Business Day” means any day, Monday through Friday, from 5:00 AM, Local Time to 5:00 PM, Local Time. 1.6 “Cart” means a Recycling Cart, a Solid Waste Cart or a Green Waste Cart, as applicable. 1.7 “Council” means the Mayor and Town Council of the Town of Fountain Hills, Arizona. 1.8 “Collection” means the act of picking up Solid Waste or Bulk Waste from Residential Units and delivery of the Solid Waste or Bulk Waste to the Disposal Facility. Collection shall also mean the act of picking up Program Recyclables from Residential Units or Town Facilities and delivery of the Program Recyclables to the Recycling Facility. 1.9 “Collection Service” means Residential Solid Waste Collection Services, Residential Bulk Waste Collection Services, Residential Recycling Collection Services, Residential Green Waste Collection Services, Town Facility Solid Waste Collection Services, Town Facility Recycling Collection Services, Special Event Solid Waste Collection Services and Special Event Recycling Collection Services. 1.10 “Commencement Date” means the earliest date the Contractor shall commence the Collection Services in accordance with this Agreement and pursuant to the phase-in schedule set forth in Exhibit D, attached hereto and incorporated herein by reference. 1.11 “Construction Debris” means solid waste derived from the construction, repair or remodeling of buildings or other structures. 1.12 “Construction and Demolition Waste” shall include Construction Debris and Demolition Debris. 1.13 “Contamination” means the existence of any material or substance on or contained in Recyclable Materials that would result in failure to meet Recovered Material specifications. 1.14 “Contract Administrator” means the Town Manager of the Town, or his designee or designees, who shall represent the Town in the administration and supervision of this Agreement. 1346193.10 3 1.15 “Container” means any metal or plastic container, with a capacity of approximately 300 gallons designed to or intended to be mechanically dumped into a loader-packer type garbage truck and used for Town Facility Recycling Services. All such Containers must be clearly marked in a manner as approved by the Town. 1.16 “Demolition Debris” means solid waste derived from the demolition of buildings or other structures. 1.17 “Disposal Facility” means a facility, area of land or excavation in which Solid Waste and Bulk Waste are placed for permanent disposal. Disposal Facility does not include a land application unit, surface impoundment, injection well, compost pile or waste pile or an area containing ash from the on-site combustion of coal that does not contain household waste, household hazardous waste or conditionally exempt small quantity generator waste. 1.18 “Disposal Services” means the disposal of Solid Waste and Bulk Waste by the Contractor. 1.19 “Expiration Date” means November 3, 2015 at 11:59 PM, Local Time. 1.20 “Green Waste” means organic yard waste, including but not limited to, grass clippings, tree trimmings, brush clippings, and other similar material. 1.21 “Green Waste Cart” means a receptacle with wheels with a capacity of up to approximately 96 gallons designed or intended to be mechanically dumped into a load-packer type garbage truck and approved by the Town Manager or authorized designee for the Collection of Green Waste from Residential Service Units. All Green Waste Carts shall be green in color and clearly distinguishable from Solid Waste Carts. 1.22 “Hazardous Waste” means solid waste as described in 40 Code of Federal Regulations part 261, as amended. 1.23 “Local Time” means the time in Phoenix, Arizona. 1.24 “Materials Acceptance Protocol (MAP)” means the document which identifies the types and standards for the Recyclable Materials which are to be collected and processed under this Agreement. The MAP is attached hereto as Exhibit E and incorporated herein by reference. 1.25 “Missed Block” shall mean, as determined by three or more customers on a block, that each customer deems that her/his respective properly-prepared Cart that was set out at the Collection location on the scheduled Collection day was not picked up by the Contractor. 1.26 “Missed Collection” shall mean, as determined by the customer, a properly prepared Cart that was set out at the Collection location on the scheduled Collection day that was not picked up by the Contractor. 1346193.10 4 1.27 “Multiple Day Collection” means collection of one Solid Waste Cart on two days per week in addition to the collection of one Recycling Cart on the same day as one of the Solid Waste Cart collection days. 1.28 “Nonprogram Recyclable” means any Recyclable Materials, excluding Program Recyclables, delivered to the Recycling Facility. 1.29 “Nonprogram User” means any generator of Nonprogram Recyclables. 1.30 “Non-recyclable Waste” means the portion of Solid Waste, exclusive of Hazardous Waste, that is not Program Recyclables. 1.31 “Person” means an individual, corporation, company, association, partnership, unit of local government, state agency, Federal agency, or other legal entity. 1.32 “Process”, “Processed” or “Processing” means the separation, sorting, crushing, baling, shredding, flattening or other treatment of Program Recyclables into Recovered Materials. 1.33 “Processing Fee” means the per ton fee for receipt and processing of Program Recyclables. 1.34 “Program Recyclables” means the Recyclable Materials as defined in the MAP originating from sources within the Town which are collected single stream and delivered by the Contractor or self haulers, delivered to the Recycling Facility, and processed and marketed by the Recycling Facility. 1.35 “Recovered Material(s)” means Recyclable Materials which have been processed at the Recycling Facility to market specifications. 1.36 “Recyclable Materials” means those materials which are capable of being recycled and which would otherwise be processed or disposed of as Solid Waste. 1.37 “Recyclable Materials Collection Services” means the provision of Residential Recycling Collection Service, Town Facility Recycling Collection Service and Special Event Recycling Collection Service by the Contractor. 1.38 “Recycling” means any process by which materials which would otherwise become Solid Waste are collected, separated, or processed and reused or returned to use in the form of raw materials or products. 1.39 “Recycling Cart” means a receptacle with wheels with a capacity of up to approximately 96 gallons designed or intended to be mechanically dumped into a loader-packer type garbage truck and approved by the Town Manager for the Collection of Program Recyclables from Residential Service Units, Town Facilities and special events. All such Recycling Carts shall be blue in color and must be clearly marked in a manner as approved by the Town Manager or authorized designee. 1346193.10 5 1.40 “Recycling Facility” means a Solid Waste Facility that is owned, operated or used for the storage, treatment or processing of Recyclable Materials and that handles wastes that have a significant adverse effect on the environment. 1.41 “Recycling Services” means the Collection of Recyclable Materials by the Contractor from Residential Service Units and Town Facilities in the Town, delivery of Recyclable Materials to Recycling Facility, and processing and marketing of Recyclable Materials at the Recycling Facility. 1.42 “Rejects” means material other than Residue, such as Non-recyclable Waste or materials other than those defined in the MAP, which is delivered with Recyclable Materials and which shall be handled and accounted for separately from Recyclable Materials and Residue. 1.43 “Residential Bulk Waste” means Bulk Waste that is generated and disposed of at a Residential Service Unit. 1.44 “Residential Bulk Waste Collection Service” means the Collection of Bulk Waste by the Contractor from Residential Service Units and the delivery of the Bulk Waste to the Disposal Facility or Recycling Facility. 1.45 “Residential Green Waste Service” means the Collection of Green Waste by the Contractor from Residential Service Units and the delivery of Green Waste to a green Waste processing facility. 1.46 “Residential Recyclable Materials” means any Recyclable Materials that is generated from Residential Service Units, not including Construction and Demolition Waste or Hazardous Waste. 1.47 “Residential Recycling Collection Services” means the Collection of Recyclable Materials by the Contractor from Residential Service Units and the delivery of the Recyclable Materials to the Recycling Facility. 1.48 “Residential Recycling Services” means the Collection of Recyclable Materials by the Contractor from Residential Service Units, delivery of the Recyclable Materials to the Recycling Facility and processing and marketing of the Recyclable Materials at the Recycling Facility. 1.49 “Residential Services” means Residential Solid Waste Services, Residential Bulk Waste Collection Services, Residential Green Waste Services and Residential Recycling Services. 1.50 “Residential Service Unit” mean residential dwellings and establishments identified by the Town to receive Residential Services from the Contractor and utilizing (i) a Solid Waste Cart for the accumulation and set-out of Residential Solid Waste and (ii) a Recycling Cart for the accumulation and set-out of Residential Recyclable Materials. Town, at its sole discretion, may add or delete Residential Units. 1346193.10 6 1.51 “Residential Solid Waste” means any garbage, Green Waste or rubbish that is generated from Residential Service Units, not including Construction and Demolition Waste or Hazardous Waste. 1.52 “Residential Solid Waste Collection Services” means the Collection of Solid Waste by the Contractor from Residential Service Units and delivery of the Solid Waste to the Disposal Facility. 1.53 “Residential Solid Waste Services” means the Collection of Solid Waste by the Contractor from Residential Service Units, delivery of the Solid Waste to the Disposal Facility, and disposal of the Solid Waste at the Disposal Facility. 1.54 “Residue” means that portion of the Recyclable Materials accepted by the Contractor which is not converted to Recovered Materials due to spoilage, breakage, contamination and/or transportation or processing inefficiencies, other than Rejects. 1.55 “Residue Allowance” means that portion of incoming Program Recyclables defined as Residue and shall not exceed the overall annual Residue Allowance of 15%. 1.56 “Scavenging” means the unauthorized removal of Recyclable Material after the generators thereof divest control physically or as a matter of appropriate law, rule or regulation. 1.57 “Solid Waste” means any garbage, trash, rubbish, waste tire, refuse, and other discarded material, including solid, liquid, semisolid or contained gaseous material unless otherwise excluded by the Arizona Revised Statutes. 1.58 “Solid Waste Cart” means a receptacle with wheels with a capacity of up to approximately 96 gallons designed or intended to be mechanically dumped into a loader-packer type garbage truck and approved by the Town Manager for the Collection of Residential Solid Waste. All such Solid Waste Carts must be clearly marked in a manner as approved by the Town Manager or authorized designee. 1.59 “Solid Waste Facility” means a transfer facility and any site owned, operated or utilized by any person for the storage, processing, treatment or disposal of solid waste, conditionally exempt small quantity generator waste or household hazardous waste unless otherwise excluded by Arizona Revised Statutes. 1.60 “Special Event Solid Waste Collection Services” means the Collection of Solid Waste by the Contractor from special events as requested by the Town and delivery of the Solid Waste to the Disposal Facility. 1.61 “Special Event Recycling Collection Services” means the Collection of Recyclable Materials from special events as requested by the Town via Containers or Recycling Carts and delivery to the Recycling Facility by the Contractor. 1.62 “Source Separated Materials” means materials that are separated by material type by the generator. 1346193.10 7 1.63 “State” means the State of Arizona. 1.64 “Ton” means a unit of weight equal to 2,000 pounds. 1.65 “Town Facility” means any Town-owned or operated facility designated by the Town for Town Facility Recycling Services. The Town has the sole authority to add or eliminate Town Facilities. 1.66 “Town Facility Recycling Collection Services” means the Collection of Recyclable Materials from Town Facilities via Containers or Recycling Carts and delivery to the Recycling Facility by the Contractor. 1.67 “Town Facility Solid Waste Collection Services” means the Collection of Solid Waste by the Contractor from a Town Facility and delivery of the Solid Waste to the Disposal Facility. 1.68 “Town Revenue Rate” means the minimum payment by Contractor to Town per ton of Program Recyclables received at the Recycling Facility. 2. Representations. 2.1 Relationship of the Parties. It is clearly understood that each party will act in its individual capacity and not as an agent, employee, partner, joint venturer, or associate of the other. An employee or agent of one party shall not be deemed or construed to be the employee or agent of the other for any purpose whatsoever. The Contractor is advised that taxes or Social Security payments will not be withheld from any Town payments issued hereunder and Contractor agrees to be fully and solely responsible for the payment of such taxes or any other tax applicable to this Agreement. 2.2 Representations by Town. The Town represents to the Contractor that the Town is duly organized and existing in good standing under the laws of the State and is duly qualified and authorized to carry on the governmental functions and operations as contemplated by this Agreement. The Town further represents that the person signing on its behalf has been properly authorized and empowered to enter into this Agreement. The Town acknowledges that it has read this Agreement, understands it, and agrees to be bound by it. 2.3 Representations by Contractor. The Contractor represents to the Town that at the time of execution of this Agreement: A. Authority. The Contractor is duly qualified and in good standing to do business in the State and is duly qualified and in good standing to do business wherever necessary to carry on the business and operations contemplated by this Agreement. The Contractor further represents that the person signing on its behalf has been properly authorized and empowered to enter this Agreement. The Contractor further acknowledges that it has read this Agreement, understands it, and agrees to be bound by it. B. Recyclable Materials Processing. The Contractor has entered into a contract for Recyclable Materials processing and marketing services, a true and correct copy 1346193.10 8 of which is attached hereto as Exhibit F and incorporated herein by reference, for the Initial Term and Renewal Terms (as defined in Section 3 below). C. Solid Waste Disposal. The Contractor has entered into a contract for Disposal Services, attached hereto as Exhibit G and incorporated herein by reference, for the Initial Term and Renewal Terms. D. Licenses; Materials. The Contractor has obtained all applicable environmental and other governmental permits, licenses, permits and authorizations that are (1) necessary for providing the Services and (2) required to be issued under Federal, State, local law, regulation, rule or ordinance. Contractor shall maintain in current status all Federal, State and local licenses, permits and authorizations required for the operation of the business conducted by the Contractor. The Town has no obligation to provide Contractor, its employees or subcontractors any business registrations or licenses required to perform the specific services set forth in this Agreement. The Town has no obligation to provide tools, equipment or material to Consultant. E. Insurance/Bonds. The Contractor has obtained and submitted to the Town (1) certificates of insurance for all required insurance coverages specified in this Agreement and (2) documentation of performance bond as required by this Agreement. F. No legal Action Pending. To the best of the Contractor’s knowledge, there is no action, suit or proceeding, at law or equity, before or by any court or government authority, pending or threatened against the Contractor, wherein an unfavorable decision, ruling or finding would materially adversely affect the performance by the Contractor of its obligation hereunder or the other transactions contemplated hereby, or which, in any way, would adversely affect the validity or enforceability of this Agreement, or any other contract or instrument entered into by the Contractor in connection with the transactions contemplated hereby. Contractor agrees that it shall take all steps necessary to ensure that the representations set forth in this Section 2.3 shall remain true and correct for the entire Term of this Agreement. 3. Term of Agreement. 3.1 Initial Term. Unless sooner terminated in accordance with the provisions in this Agreement, the term of this Agreement shall commence on the Effective Date and shall continue in effect until the Expiration Date (the “Initial Term”). 3.2 Option to Renew. After the Initial Term, Town shall have the option to request renewal of this Agreement for up to three additional one-year terms (each, a “Renewal Term”). The Initial Term and any Renewal Terms shall be collectively referred to herein as the “Term.” To exercise its option, Town shall provide written notice to Contractor (each, and “Option Notice”) not later than 60 calendar days preceding the scheduled Expiration Date of the then-current Term. The Contractor shall, within 15 calendar days following receipt of the Town’s Option Notice, either accept or reject the Town’s request. If the Contractor fails to accept or reject the Town’s renewal request within 15 days following receipt of the Town’s Option Notice, the Contractor shall be deemed to have consented to renewal of the Agreement for one year. This provision in no way 1346193.10 9 limits the Town’s right to terminate this Agreement at any time during the Term pursuant to the provisions in this Agreement. 4. Solid Waste Services, Bulk Waste Services and Recycling Services. The Contractor shall begin providing the services set forth in this Section on their respective Commencement Dates, as determined by the phase-in schedule included on Exhibit D, and the Contractor shall change rates for such services not greater than as set forth on Exhibit C. 4.1 Solid Waste. A. Residential Solid Waste Services. Contractor shall collect, once per week on a scheduled day, all Solid Waste Carts from each Residential Service Unit in the Town. Contractor shall deliver the Residential Solid Waste collected to the Disposal Facility and dispose of the Residential Solid Waste at the Disposal Facility. Upon the receipt of a request from a Customer, Contractor shall provide additional Solid Waste Cart collection, Multiple Day Collection and/or non-collection day Collection Services. B. Residential Bulk Waste Services. Contractor shall provide an on-call, fee-for-service process for collecting residential bulk waste of up to six cubic yards from each Residential Service Unit in the Town. Contractor shall also hold, not less than two times each year, on days chosen by the Town, Town-wide bulk waste drop-off events at not less than three locations as selected by the Town. Contractor shall deliver the Bulk Waste collected to the Recycling Facility or the Disposal Facility. If the Bulk Waste is delivered to the Recycling Facility, Contractor shall process and market the Bulk Waste at the Recycling Facility. If the Bulk Waste is delivered to the Disposal Facility, Contractor shall dispose of the Residential Solid Waste at the Disposal Facility. Upon the receipt of a written work order from the Town, Contractor shall provide additional Bulk Waste Collection Services. C. Town Facility Solid Waste Services. Contractor shall collect, not less than once per week, all Solid Waste in Solid Waste Carts or Containers at Town Facilities shown in the table below: Table 4.1 Town Facilities Address Container Size Frequency Town Civic Center 13001 La Montana 8 YD Twice per week Streets Department 17137 Falcon Dr. 6 YD Twice per week Fountain Park 13000 Saguaro Blvd. 8 YD Once per week Four Peaks Park 17300 Calaveras Ave. 6 YD Once per week Golden Eagle Park 14725 Golden Eagle 4 YD(1); 6 YD(2) Once per week Desert Vista Park 11800 Desert Vista 6 YD Once per week. D. Special Event Solid Waste Services. Upon request of the Town, the Contractor shall deliver Solid Waste Carts or containers to the site of a special event and shall collect and dispose of Solid Waste collected in such Solid Waste Carts or Containers. 1346193.10 10 4.2 Recycling. A. Residential Recycling Services. Contractor shall collect, once per week on a scheduled day, all Program Recyclables via single stream in a Residential Recycling Cart from each Residential Service Unit in the Town. Contractor shall deliver the Program Recyclables collected to the Recycling Facility. In addition, Contractor shall process and market the Program Recyclables delivered to the Recycling Facility. B. Town Facility Recycling Collection. Contractor shall collect, on a frequency solely decided by the Town, all Program Recyclables from each Town Facility listed in Table 4.1 above. Contractor shall deliver the Program Recyclables collected to the Recycling Facility. In addition, Contractor shall process and market the Program Recyclables delivered to the Recycling Facility. C. Special Events Recycling Collection. Upon request of the Town, Contractor shall deliver Recycling Carts to the site of a special event and shall collect and process all Program Recyclables collected by such Recycling Carts, the frequency of which shall be at the Town’s sole discretion. D. Neighborhood Recycling Drop-off Services. Contractor shall be solely responsible for providing single stream Collection, Processing and Marketing of Recyclable Materials generated and disposed of at the Neighborhood Recycling Drop-off Sites. The Town shall have the sole authority in determining the frequency of Collection for each Neighborhood Recycling Drop-off Sites. Table 4.2 – Neighborhood Recycling Drop-off Service Site Neighborhood Recycling Drop-off Service Site Address Town Civic Center 13001 N. La Montana Drive E. Disposal Prohibited. The Contractor shall be prohibited from (1) disposal of and/or landfilling of any Program Recyclables accepted or processed at the Recycling Facility or (2) marketing Program Recyclables to markets that the Contractor knows or reasonably should have anticipated will dispose of and/or landfill the Program Recyclables, except when approved in writing by the Town. 4.3 Residential Green Waste Collection. Contractor shall collect, once per week on a scheduled day, all Green Waste via Residential Green Waste Cart from each Residential service Unit in the Town that has selected the green waste option and has agreed to pay the additional cost of same. Contractor shall deliver all Green Waste collected from Green Waste Carts at Residential service Units to a Green Waste processing facility. 4.4 Backdoor Collection Services. Contractor shall provide Backdoor Collection Services for Residential Solid Waste and Recyclable Materials from Residential Service Units if all adult occupants residing therein are handicapped, or due to age or verified physical limitations, cannot safely move Carts and if a request for Backdoor Collection Services has been made to and approved by the Contractor. In the event that a Customer makes a request to a representative of the 1346193.10 11 Town for Backdoor Collection Services, the Town’s sole responsibility shall be to provide notice of such request to the Contractor. No additional monies shall be due to the Contractor for the provision of Backdoor Collection Services. Contractor shall provide Backdoor Collection Services on the same scheduled Collection day that Collection Services would otherwise be provided to the Residential Service Unit. 4.5 Manner of Providing Services. Unless otherwise stated in this Agreement, the Contractor shall be solely responsible for all aspects of the management, operations and maintenance and equipment relating to the Services including, but not limited to, the following: A. Rejected Loads. Transportation and disposal of Rejected Loads (as defined in subsection 5.2 below) at the Recycling Facility to the Disposal Facility. B. Residue and Rejects. Transportation and disposal of Residue and Rejects at the Recycling Facility to the Disposal Facility. C. Recovered Materials. The shipping and marketing of Recovered Materials processed at the Recycling Facility. D. Records. The maintenance of complete and accurate records and the provision of reports to the Town in accordance with the requirements of this Agreement. E. Maintenance. The preventive maintenance, maintenance and repair of systems and equipment including vehicles, buildings, grounds and other equipment. F. Clean-up. The prevention and clean-up of litter, spillage, dust and odor as set-forth in this Agreement. G. Personnel. The recruitment, hiring and training of all managerial, supervisory and operating personnel providing the Services. H. Carts. Cart maintenance and delivery of new Solid Waste Carts, Recycling Carts and Green Waste Carts, as applicable, once the program begins. Contractor shall also be solely responsible for Storage of unused Carts. 4.6 Part-Time Residents. Contractor shall provide each Residential Unit the opportunity to annually stop service temporarily for a period of up to six continuous months upon notification by the resident. 5. Inspection of Loads and Rejected Loads. 5.1 Contractor’s Right to Inspect Loads. The Contractor may inspect each delivery of Program Recyclables prior to and upon their discharge at the Recycling Facility for consistency with the MAP. 5.2 Unacceptable Loads. Contractor may not designate a load as an unacceptable load for any reason other than those identified in this Section. Prior to departure from the Recycling 1346193.10 12 Facility of the vehicle delivering Recyclable Materials to the Recycling Facility, Contractor may designate a load as a “Rejected Load” for the following reasons: A. Excessive Non-Recyclable Waste. A load of Program Recyclables contains more than 15% Non-recyclable Waste by weight. B. Public Health Danger. A load of Program Recyclables presents a substantial endangerment, such as disease or death, to the public or employee health or safety. C. Hazardous Waste. A load contains Hazardous Waste that cannot be easily separated from acceptable materials. 5.3 Procedure upon Rejection of Load. A. Notice of Rejected Load. If the Contractor designates a load as a Rejected Load for the reasons set forth in subsections 5.2(A) and (B) above, Contractor must immediately provide written notice to the Town, including the reason the load was designated a Rejected Load. If Contractor fails to provide notice in accordance with this subsection, Contractor shall accept the load. B. Right to Inspect Rejected Loads. Upon receipt of the notice by the Town in accordance with subsection 5.3(A) above, Contractor shall retain the Rejected Load for an additional 24 hours to allow the Town a right to inspect the load. The Town may waive the right to inspect the load. Failure to inspect the load within 24 hours of receipt of notice shall be deemed a waiver of the right to inspect the load. C. Dispute or Acceptance of Designation as Rejected Load. If the Town inspects the load, the Town may dispute or accept the designation as a Rejected Load. If the Town disputes the rejection of the load for the reasons set forth in 5.2(A) or (B) above, the Contract Administrator’s decision as to whether the load will or will not be accepted shall be final and conclusive. If the load is not deemed a Rejected Load by the Contract Administrator, the Contractor shall accept and process the load as long as it does not contain Hazardous Waste (which is covered by Section 5.4 below). D. Costs for Rejected Loads not due to Hazardous Waste. Contractor shall, at its sole expense, pay for transportation and disposal costs of Rejected Loads for the reasons set forth in subsections 5.2(A) and (B) above. 5.4 Procedure upon Rejection of Load due to Hazardous Waste. If Contractor discovers Hazardous Waste before collecting it, Contractor may refuse to collect the entire Recycling Cart or Solid Waste Cart of waste. In such situations, Contractor shall contact the generator of such waste to remove and dispose of it properly. If any Hazardous Waste is not discovered by Contractor before it is collected, Contractor may, in its sole discretion, (A) remove, transport and dispose of such Hazardous Waste at a location authorized to accept such Hazardous Waste in accordance with all applicable laws and (B) charge the depositor or generator of such Hazardous Waste all direct and indirect costs incurred due to removal, remediation, handling, transportation, delivery and disposal of 1346193.10 13 such Hazardous Waste. The Town shall provide all reasonable assistance to Contractor to conduct an investigation to determine the identity of the depositor or generator of the Hazardous Waste. 6. Handling of Rejects and Residue. 6.1 Handling of Rejects. The Contractor shall segregate and store all Rejects and shall notify the Town prior to their removal for disposal to permit the Town’s inspection thereof. The Town shall have the right to inspect such Rejects within 24 hours of notification and to make its own determination as to whether such materials are in fact Rejects, as defined herein. Contractor shall, at its sole expense, pay for transportation and disposal costs of Rejects. 6.2 Handling of Residue. Contractor shall be solely responsible for ensuring that Residue which is culled from Program Recyclables accepted by Contractor or which is the result of processing activity shall not exceed the overall annual Residue Allowance of 15%. If the residue exceeds the Residue Allowance, Town may assess liquidated damages in accordance with Section 18 of this Agreement. Contractor, at is sole expense, shall bear costs of transporting and disposal of all Residue. 7. Collection and Processing Equipment. 7.1 Collection Services Vehicles. A. Appearance of Collection Services Vehicles. Contractor shall paint all Collection Service vehicles uniformly with the name of Contractor, customer service office telephone number and the unique identification number of the vehicle in letters not less than six inches high on each side and the rear of the vehicle. All Collection Services vehicles shall be uniquely numbered and a record kept of the vehicle to which each number is assigned. No advertising shall be permitted on vehicles, except for events sponsored by the Town, which shall be advertised on request of the Town. B. Age of Collection Services Vehicles. Contractor shall provide all Collection Services pursuant to this Agreement with Collection vehicles less than seven years of age. The average age for the Collection vehicles to be used for performance of Collection Services provided pursuant to this Agreement shall not exceed three years of age. 7.2 Collection Services Carts. Town shall have the sole decision in determining the appearance of the Carts. A. Purchase and Initial Distribution of Carts. The Contractor, at its sole cost, shall purchase all Carts required for the provision of Collection Services pursuant to this Agreement. In addition, the Contractor, at its sole cost, shall deliver one Solid Waste Cart, one Recycling Cart and one Green Waste Cart (for Residential Service Units choosing the optional Green Waste Service) to each Residential Service Unit prior to the Commencement Date, unless instructed otherwise by the Town. The Contractor shall attach a program introduction notice to each Cart delivered. B. Subsequent Distribution, Maintenance and Storage. After the initial distribution of Carts, Contractor, at its sole cost, shall deliver Cart(s) to a Residential Service 1346193.10 14 Unit within two business days of the request by the Town. Contractor shall attach a program introduction notice to each Cart delivered. C. Cart Care and Maintenance. Contractor’s employees shall take care to prevent damage to Carts by unnecessarily rough treatment. Contractor shall be solely responsible for Cart maintenance. D. Reserve Carts. Contractor shall maintain a minimum of 15 Solid Waste Carts, 15 Recycling Carts and 15 Green Waste Carts at a secure location within the corporate limits of the Town to ensure that extra or replacement Carts can be expeditiously provided upon the request of the Town. E. Replacement of Carts. Upon notification to Contractor by the Town or a customer that a Cart has been lost, destroyed, stolen or that it has been damaged beyond repair, Contractor shall purchase, if necessary, and deliver a replacement Cart to such customer within two business days. At the expense of the Contractor, each Residential Service Unit shall be entitled to unlimited replacements of destroyed or damaged beyond repair Cart(s) for the life of the Agreement at no cost to the Town or the customer if determined by the Contract Administrator or authorized designee that such destruction or damage was caused by the Contractor or Contractor’s employees or equipment. For additional replacements beyond those as provided in this Agreement or for Carts purchased by written authorization of the Town Manager, Town shall reimburse Contractor the purchase cost paid by Contractor for the Cart. 7.3 Collection and Processing Equipment, Excluding Carts. A. Purchase, Operation and Maintenance. Unless otherwise stated in this Agreement, Contractor shall be solely responsible for all costs of purchasing, operating and maintaining Collection and processing equipment for the Term of this Agreement. Town, at its sole discretion, shall determine whether the Contractor is or is not properly maintaining the Collection and processing equipment. If the Town determines the Contractor is not properly maintaining the Collection and/or processing equipment, Contractor shall replace such equipment in accordance with this Agreement and Town may assess liquidated damages in accordance with Section 18 of this Agreement. B. Replacement. Unless otherwise stated in this Agreement, Contractor shall be solely responsible for the replacement of Collection and processing equipment if such equipment is lost, stolen or damaged beyond normal wear and tear. If Contractor or Town determines that Collection and/or processing equipment requires replacement, Contractor shall replace such equipment within 14 calendar days with comparable equipment. Contractor shall be responsible to make the appearance of the replacement equipment in adherence with the requirements of this Section. 7.4 Ownership. A. Collection Services Equipment other than Carts and Containers. Ownership of Collection Services Equipment other than Carts shall rest with Contractor. 1346193.10 15 B. Carts and Containers. Ownership of Carts and containers shall rest with the Contractor during and after the term of the Agreement. 7.5 Disposal Facility and Recycling Facility Equipment. The Disposal Facility, Recycling Facility and any other processing center used to perform the Services shall be equipped with adequately sized truck scales and computerized record-keeping systems for weighing and recording all incoming and outgoing delivery vehicles and vehicles transporting Recyclable Materials to markets. The Recycling Facility shall be capable of recording the type of Recyclable Materials received for each incoming truck. Additionally, the Recycling Facility shall be capable of recording the weights of each type of Recyclable Material which are shipped. Contractor shall separately weigh, record and tabulate each load from Town. 8. Personnel. Contractor shall assign a qualified person or persons who will be charge of its operations within the Town and authorized to make decisions on Contractor’s behalf and shall provide the name, office telephone number, mobile phone number, email address and facsimile number of Contractor’s representatives and key personnel to the Contract Administrator. Contractor agrees that the Town shall have 24 hour access to said representative via a non-toll call from the corporate limits of the Town. Such records shall be updated as personnel or contact information changes. In addition, Contractor shall adhere to the following requirements: 8.1 Key Personnel. Contractor shall provide adequate, experienced personnel, capable of and devoted to the successful completion of the Services to be performed under this Agreement. Contractor agrees to assign specific individuals to key positions. Contractor agrees that, upon commencement of the Services to be performed under this Agreement, key personnel shall not be removed or replaced without written notice to the Town, which Contractor will endeavor to make prior to the removal or replacement of such key personnel. If key personnel are not available to perform the Services for a continuous period exceeding 30 calendar days, or are expected to devote substantially less effort to the Services than initially anticipated, Contractor shall immediately notify the Town of same and shall, subject to the concurrence of the Town, replace such personnel with personnel of substantially equal or superior ability and qualifications. If deemed qualified, the Contractor is encouraged to hire Town residents to fill vacant positions at all levels. 8.2 Uniforms. Contractor shall furnish each employee involved in the performance of this Contract with a uniform and safety vest, shirt or jacket which clearly displays the name of Contractor. Such uniforms and safety equipment shall make the employee readily visible to other motorists. Contractor’s employees shall wear complete uniforms and safety vest, shirt or jacket at all times. 8.3 Safety Training. Contractor shall provide regularly scheduled, on-going operating and safety training for all employees. In addition, Contractor’s employees shall be trained to perform their duties to maximize the Town’s recycling rate, minimize contamination and promote recycling at all times. Such meetings shall be mandatory for all Collection and supervisory personnel and held not less than once per month. All temporary and newly hired permanent Collection personnel and supervisory employees must receive comprehensive safety and operational training prior to working on the Collection vehicles or performing duties under this Agreement. Training manuals and schedules shall be maintained at the local office of Contractor and available for review at any time by Contract Administrator. 1346193.10 16 8.4 General Training. All employees involved in the performance of this Agreement including office and all Collection personnel, must be provided adequate training before and during their employment with the Contractor. This training shall familiarize employees with the required duties and standards of performance, specific requirement on routes to which they will be assigned, teach the route layouts previously established and approved and provide necessary knowledge to eliminate delays and Missed Collections. All supervisory and Collection employees must be provided equipment and supplies prior to and during the performance of their duties. All Collection, administrative, supervisory and customer service personnel must receive customer service training prior to and during the time they are employed by the Contractor. 8.5 Contact with Others. Contractor’s employees shall treat all customers, co- workers, Town employees and any individual with whom they come in contact in the performance of their duties in a polite and courteous manner. Rudeness, belligerence and the use of profanity are strictly prohibited. The Town reserves the right to direct Contractor to remove any employee who violates this policy from providing services to the Town, pursuant to this Agreement. 8.6 Compliance with Laws. In performance of Collection Services, Contractor’s employees must adhere to applicable municipal, Town, State and Federal laws. Town reserves the right to make a complaint regarding any employee of the Contractor who violates any provision herein, or who is wanton, negligent or discourteous in the performance of his/her duties. The Town may recommend appropriate action be taken by the Contractor and may require the Contractor to remove any unacceptable employee, as determined by the Town, from service to the Town. 9. Hours of Operation and Holidays. Contractor shall not make any changes to the hours of operation as provided in this Section without the prior, written approval of the Contract Administrator. 9.1 Residential Collection Services. Excluding Holidays (as defined in subsection 9.7 below), Contractor shall provide Residential Collection Services from Monday through Thursday, 6:00 AM, Local Time to 5:00 PM, Local Time. Residential Collection Services that fall on a Holiday shall be collected as set forth in Section 9.7 below. 9.2 Town Facility Recycling Services. Excluding Holidays, Contractor shall provide Town Facility Recycling Services from Monday through Thursday, 6:00 AM, Local Time to 5:00 PM, Local Time. Town Facility Recycling Services that fall on a Holiday shall be collected on the following day. 9.3 Town Facility Solid Waste Services. Excluding Holidays, Contractor shall provide Town Facility Solid Waste Services from Monday through Thursday, 6:00 AM, Local Time to 5:00 PM, Local Time. Town Facility Solid Waste Services that fall on a Holiday shall be collected on the following day. 9.4 Extension of Collection Services Hours of Operation. If the Contractor determines that the Collection Services will not be completed by 5:00 PM, Local Time on the scheduled Collection day, the Contractor shall notify the Town by 3:00 PM, Local Time and request an extension of the Collection hours. The Contractor shall inform the Town of the areas not completed, the reason for non-completion and the expected time of completion. The Town must approve any extension of hours of operation. 1346193.10 17 9.5 Disposal Facility. Excluding holidays as defined in subsection 9.7 below, Contractor shall maintain, or cause its provider to maintain, the Disposal Facility open and available to receive Solid Waste seven days per week between 7:00 AM, Local Time to 6:00 PM, Local Time. 9.6 Recycling Facility. Excluding Holidays, Contractor shall maintain or cause its provider to maintain the Recycling Facility open and available to receive Program Recyclables seven days per week between 7:00 AM, Local Time to 6:00 PM, Local Time. 9.7 Holidays. The Town, at its sole discretion, may add or delete holidays. If the Town elects to add or delete holidays, the Town will provide the Contractor notice in accordance with the provisions of this Agreement. If a holiday occurs on a scheduled Collection day, Contractor shall perform the scheduled Collection for the holiday and the remainder of the week ending on Friday on the next calendar day after the scheduled Collection day. For purposes of this Agreement, “Holidays” shall include the following: A. New Year’s Day B. Independence Day C. Thanksgiving Day D. Christmas Day 10. Customer Service Complaints; Billing. Contractor and Contractor’s employees understand that customer service is of great importance to the Town. Contractor and its employees will work diligently to provide high quality customer services to the Town and all customers. 10.1 Customer Service Complaint Resolution Procedure. All customer service complaints shall initially be directed to the Contractor. The Contractor will generate an electronic work order outlining all legitimate complaints received. The work order will contain (A) date and time of call, (B) customer name, address and phone number and (C) type of complaint. A copy of the work order will then be electronically submitted to the Town, including a schedule for resolution. The Contractor will resolve each customer complaint in a timely manner as set forth below: A. Same Day Request. If the complaint is a Missed Collection or Missed Block, Contractor shall pick up the Missed Collection or Missed Block on that same day if the complaint is received by the Contractor prior to 11:00 AM, Local Time. B. Next Day Request. If the complaint is a Missed Collection or Missed Block, Contractor shall pick up the Missed Collection or Missed Block before 5:00 PM, Local Time on the next calendar day if the complaint is received by the Contractor after 11:00 AM, Local Time. C. Other Complaints. If the complaint other than a Missed Collection or Missed Block, Contractor shall resolve the complaint within 24 hours of written notice of such complaint to Contractor. 1346193.10 18 10.2 Work Order Reporting. Upon resolution of the customer complaint, Contractor will close the work order and resubmit it to the Town. The closed work order will include (A) Contractor’s determination as to legitimacy of the complaint, (B) the date, time and action taken to resolve complaint and (C) the name of responsible contact at Contractor’s location regarding the complaint. 11. Damage to Property. The Contractor shall take all necessary precautions to protect public and private property during the performance of this Contract. Except for reasonable wear and tear, the Contractor shall repair or replace any private or public property that is damaged by the Contractor. Such property damages shall be addressed for repair or replacement, at no charge to the property owner, within 48 hours with property of the same or equivalent value at the time of the damage. If the Contractor fails to address the repair or replacement of damaged property within 48 hours, the Town may, but shall not be obligated to, repair or replace such damaged property and the cost of doing so (A) shall be paid by the Contractor to the Town within 30 days of receipt of demand therefore or (B) may be deducted by the Town from only amounts owing to the Contractor. 12. Spillage and Leakage, Litter, Dust and Odor. 12.1 Spillage and Leakage. Contractor shall clean up any spilled or blowing materials as well as fluids spilled or leaked from Contractor’s vehicles by the Contractor, Contractor’s employees or authorized person or entity providing service to the Contractor. During transport, all materials shall be contained, covered and enclosed so that leaking, spilling and blowing of materials does not occur. Contractor shall perform all cleanups within two hours of the spillage or leakage. 12.2 Litter. If Contractor operates the Disposal Facility, the Recycling Facility or the processing facility for Green Waste, the Contractor shall be required to pick up any and all litter (including any glass spillage) which blows or falls from the Disposal Facility, Recycling Facility or Green Waste facility onto the site or adjoining or surrounding property by the end of each workday or by the end of the first shift, if operated for more than ten hours per day. All on-site parking areas and roadways shall be swept at least once per month. 12.3 Dust and Odor. If Contractor operates the Disposal Facility, the Recycling Facility or Green Waste facility the Disposal Facility, Recycling Facility and Green Waste facility shall be operated to prevent the escape of dust and odors. The Contractor shall routinely clean the tip floor and the process and storage areas. 13. Recordkeeping, Reporting, Audited Financial Statements and Reporting Format. 13.1 Recordkeeping. The Contractor shall create, maintain and make available records as defined in, and required by, all applicable local, State and Federal laws, rules and regulations and any reports as are reasonably necessary to: A. Deliveries. Document Program Recyclables deliveries, Residential Solid Waste deliveries, time delivered to Recycling Facility, time delivered to Disposal Facility, tonnage of material delivered, Rejected Loads by date collected and other information as requested by Contract Administrator (a monthly summary shall also be submitted to the Town). 1346193.10 19 B. Missed Collections; Problem Set-out. Document Missed Collections, Late Set-outs and Improper Set-outs on a daily basis including the address, time and date for each and the reason, photograph and notice for Improper Set-outs (a monthly summary shall also be submitted to the Town). C. Recovered Material. Document Recovered Material from Program Recyclables tons marketed by commodity, entity marketed to, price paid by the end market and other information as requested by Contract Administrator (a monthly and annual summary shall also be submitted to the Town). D. Program Recyclables. For Program Recyclables, document incoming tonnages, residue tonnages, rejects tonnages, hazardous waste tonnages, marketed tonnages by commodity and inventory tonnages by commodity. Contractor shall provide an explanation if incoming tonnages does not equal the total of rejects tonnages, hazardous waste tonnages, marketed tonnages by commodity and inventory tonnages by commodity (a monthly and annual summary shall also be submitted to the Town). E. Hazardous Waste. Document Hazardous Waste including the source, tonnage, date received, disposal facility and other information as requested by Contract Administrator (a monthly and annual summary shall also be submitted to the Town). F. Other Regulatory Documents. Such other documents and reports as the Town may reasonably require to verify compliance with the Agreement or to meet the Town’s reporting requirements with the State (a monthly and annual summary shall also be submitted to the Town). G. Residue; Rejects. Document Residue and Rejects separately including tonnage, description of material, source of material (i.e. Program Recyclables, Nonprogram Recyclables, hauler, etc.), disposition and other information as requested by Contract Administrator (a monthly and annual summary shall also be submitted to the Town). H. Recovered Materials Marketing. Report the activities to research, investigate and develop new markets for Recovered Materials (a monthly and annual summary shall also be submitted to the Town). I. Availability of Documents. All of Contractor’s records shall be available to Town and its representatives at reasonable times and places throughout the term of this Agreement and for a period of five years after last or final payment. 13.2 Reporting. A. Initial Reports. 1. Transition Plan. The Contractor shall provide a transition plan 90 calendar days prior to Commencement Date. This plan shall detail transition to the Contractor providing Solid Waste Service, Bulk Waste Service, Recycling Service and 1346193.10 20 Residential Green Waste Service. This transition plan will be submitted for approval by the Contract Administrator. 2. Processing and Marketing Plan. The Contractor shall provide a processing and marketing plan 90 calendar days prior to Commencement Date. This plan shall detail the processing and marketing of all Program Recyclables and Recyclable Materials at the site. This processing and marketing plan will be submitted for approval by the Contract Administrator. 3. Hazardous Waste Contingency Plan. The Contractor shall provide a Hazardous Waste contingency plan, 30 calendar days prior to the Commencement Date, to the Contract Administrator and to the Town’s Risk Manager. This plan shall detail what actions shall be taken by the Contractor upon discovery of Hazardous Waste. This contingency plan will be reviewed by the Contract Administrator. The plan shall include a copy of a signed contract(s) with a permitted Hazardous Waste transporter(s) to handle any Hazardous Waste discovered. The plan must comply with all State and Federal regulations regarding the handling of Hazardous Waste. Non-conformance with any State or Federal regulation shall cause rejection of the plan. This Hazardous Waste contingency plan will be submitted for approval by the Contract Administrator. B. Monthly Reports. Contractor shall submit all monthly reports required by this Agreement to the Town Manager or authorized designee within seven calendar days following the end of each calendar month. C. Annual Reports. Contractor shall submit all annual reports required by this Agreement to the Towns Manager or authorized designee within 30 calendar days following the end of the Town’s fiscal year. 13.3 Audited Financial Statements. The Contractor will be required to submit audited financial statements prepared by an external accounting firm within 90 calendar days of the end of the Contractor’s fiscal year end. The audited financial statements may be issued by either the Contractor, or by Republic Services, Inc. In the event Contractor is acquired, the Contractor shall notify the Town of the transfer in ownership, whereupon the Town shall have the option to require that the audited financial statements be submitted by the acquiring entity. The Contractor has provided a performance bond by Republic Services, Inc., a copy of which is attached hereto and incorporated herein as Exhibit H. In the event Contractor is acquired, the Town shall have the option to require that the acquiring entity provide a performance bond in a form acceptable to the Town Attorney. The financial basis records shall be kept in accordance with generally accepted accounting principles. 13.4 Report Format. Within 14 days after the Commencement Date, the Contractor will be required to submit to the Town for its approval the format and sample contents of the records to be maintained and the reports to be generated in fulfillment of the requirements of the Agreement. Contractor shall submit all reports in electronic format approved by the Town and in hard copy. 1346193.10 21 14. Customer List, Billing and Collections, Payment and Annual Adjustments. 14.1 Customer List. On or prior to Effective Date, the Town shall provide Contractor with a Residential Service Unit customer list and a Town Facility customer list. Regardless of the customer list, Contractor shall provide Collection Services to all Residential Services Units in accordance with this Agreement. 14.2 Billing and Collection. A. Solid Waste, Bulk Waste, Recycling and Disposal Services. The Contractor shall bill Residential Service Units for Residential Solid Waste, Bulk Waste, Recycling Services and Residential Green Waste Services in accordance with the rate structure established on Forms 5 and 8 respectively, attached hereto as a part of Exhibit C and as may subsequently be adjusted as set forth in this Agreement. 1. Understandable Bills. Bills will be clear, concise and understandable. Bills must be fully itemized, clearly delineating all activity during the billing period, including optional charges, rebates and credits. 2. Uniform Billing. Contractor shall bill all Residential Service Units in a uniform, non-discriminatory manner, regardless of level of service. Payment shall be due no sooner than the 15th day of each billing period, and the due date shall be listed on each bill. Bills shall be mailed no later than the first day of the billing period. Contractor shall provide a process to accept payments from a homeowners’ association or its authorized representative for Service Units within that homeowners’ association. 3. Customer Dispute. In case of a bill dispute, the Contractor must respond to a written complaint from a resident within 15 days. 4. Refunds. Refund checks will be issued promptly, but no later than the next billing cycle following resolution of the request or 30 days, whichever is earlier. Credits for service will be issued no later than the next billing cycle following the determination that a credit is warranted. 5. Individual Rights. Contractor shall not deny service, deny access, or otherwise discriminate against citizens on the basis of race, color, religion, national origin, sex, age, or disability. Contractor shall comply at all times with all other applicable federal, state, and local laws and regulations, and as amended from time to time, relating to nondiscrimination. 6. Equal Opportunity. Contractor shall strictly adhere to applicable equal employment opportunity requirements of federal, state, and local regulations as amended from time to time. 7. Protection of Privacy. a. At the time of delivery of the Carts to a Residential Service Unit and at least once a year thereafter, Contractor shall provide notice in the form of 1346193.10 22 a separate, written statement to each Residential Service Unit that clearly and conspicuously informs the occupant of: (1) The nature of personally identifiable information collected or to be collected and the nature of the use of such information. (2) The nature, frequency, and purpose of any disclosure which may be made of such information, including any identification of the types of persons to whom the disclosure may be made. (3) The period during which such information will be maintained by the Contractor. (4) The times and place at which the Customer may have access to such information in accordance with subsection 14.2(A)(7)(e) below. (5) The limitations provided by this Section with respect to the collection and disclosure of information by Contractor and the right of the Customer to enforce such limitations. b. For purposes of the subsection, the term “personally identifiable information” does not include any record aggregate data which does not identify particular persons. c. Except as provided in herein, Contractor shall not disclose personally identifiable information concerning any customer without the prior written or electronic consent of the customer concerned. d. Contractor may disclose such information if the disclosure is: (1) Necessary to render, or conduct a legitimate business activity related to Services provided by the Contractor to the customer. (2) Made pursuant to a court order authorizing such disclosure, if the customer is notified of such order by the person to whom the order is directed. e. A customer shall be provided, free of charge, access to all personally identifiable information regarding that customer which is collected and maintained by Contractor. Such information shall be made available to the customer at reasonable times and at a convenient place designated by Contractor. A customer shall be provided reasonable opportunity to correct any error in such information. f. Contractor shall destroy personally identifiable information if the information is no longer necessary for the purpose for which it was 1346193.10 23 collected and there are no pending request or orders for access to such information under subsection 14.2(A)(7)(e) or pursuant to a court order. 8. Contractor shall establish a procedure for addressing delinquent accounts and shall be solely responsible for courteous resolution of any collection matters. The Contractor shall be permitted to remove the Solid Waste Cart, Recycling Cart and Green Waste Cart from any Residential Service Unit for which fees for service have become delinquent by more than 60 days after the first notice of delinquency by the Contractor to the customer. The Contractor shall not receive any payment from the Town on account of excessive delinquencies. B. Recycling Facilities Processing and Marketing Services. Contractor shall submit a monthly bill on or before the 15th day of each month to the Town for all services performed during the immediate prior calendar month. Contractor shall ensure that each bill (1) describes services provided to the Town, (2) includes all charges for the prior month, and (3) includes any other information the Town requests. Contractor shall bill Town in accordance with the Rate Structure established on Form 5 and as may subsequently be adjusted as set forth in this Agreement. 14.3 Town Payment to Contractor. A. Town Facility Solid Waste Collection Services. Town shall pay Contractor for Town Facility Solid Waste Collection Services at the rates set forth on Form 6.1 in an amount equal to the Town’s authorized Town Facility Solid Waste Collection Services minus any disputed amounts and minus any liquidated damages. B. Town Facility Recycling Collection Services. Town shall pay Contractor for Town Facility Recycling Collection Services at the rates set forth on Form 6.2 in an amount equal to Town’s authorized Town Facility Recycling Collection Services minus any disputed amounts and minus any liquidated damages. 14.4 Payment for Variance; Inspections. For the duration of this Agreement, Contractor shall be solely responsible for the costs associated with the request for and issuance of a variance by the Maricopa County Environmental Services Division with respect to services to be provided pursuant to this Agreement. Contractor shall also be responsible for conducting any inspections required as a condition upon the Town’s variance. Contractor shall provide the Town with (A) quarterly reports detailing the inspections completed and (B) other such information or reports as may be requested by the Town from time to time to comply with the requirements of the variance. 14.5 Annual Rate Adjustments. All costs proposed in Forms 5, 6, 7 and 8 (inclusive) shall remain fixed from the execution of this Agreement through June 30, 2014. On July 1, 2014 and every July 1st thereafter during the Term of this Agreement, all cost of Collection Services, excluding costs associated with Carts, costs associated with Containers, costs of disposal and costs of processing and marketing, shall be adjusted, increased or decreased, according to this Section. The annual adjustment shall be a composite of two indices, 85% of which will be the Consumer Price Index – All Urban Consumers, CUUSA429SA0, CWUSA429SA0, Not Seasonally Adjusted, Area: Phoenix-Mesa, Item: All items (“CPI”) and 15 % of which will be the Diesel Fuel 1346193.10 24 price index by the United States Department of Energy (the “DOE”). The Diesel Fuel adjustment shall be based on the most recent price as of May 1st of the then-current year as compared to the same price as calculated one year ago for Diesel Fuel (cents per Gallon), U.S. The CPI adjustment shall be calculated by comparing the index as of July 1st of the then-current year with the same index as it existed on May 1st of the prior year. Example: Assume that the CPI-All Urban Consumers, CUUSA429SA0, CWUSA429SA0, Not Seasonally Adjusted, Area: Phoenix-Mesa, Item: All items for the first half of 2010 is 105.5 and the first half of 2011 is 110.5. Assume that the Diesel Fuel price index by the DOE for Diesel Fuel (cents per Gallon), U.S. in 2011 is 308.5 and change from a year ago was –21.5. The calculation is as follows: 110.5-105.5 105.5 x .85 = 4.03% then 308.5-(308.5-(-21.5)) (308.5-(-21.5)) x .15 = -0.98% then 4.03% + -0.98% = 3.05% annual rate adjustment Notwithstanding the result of the calculation for the composite indices, in no event shall the cumulative rate adjustment (the CPI plus the Diesel Fuel price index by the DOE) exceed 5% per year. 15. Public Education Activities. Contractor shall provide the following services associated with public education notices at no cost to the Town or the customer. Contractor will at no time place public education notices inside customers’ mailboxes. Contractor shall not distribute any public education notices to Residential Service Units within the Service Area without written approval from Contract Administrator. 15.1 Distribution of Program Introduction Notice. Contractor shall distribute, at Contractor’s own expense, a program introduction notice for each Residential Service Unit for which Contractor delivers a Cart. The program introduction notice shall be delivered to each Residential Service Unit twice before Collection begins. Contractor shall deliver the first notice via first class mail not later than 60 days prior to the Commencement Date. Thereafter, Contractor shall attach a program introduction notice via a non-adhesive means to each Cart delivered to a customer or picked up by a customer at the Contractor’s office. 15.2 Development, Printing and Distribution of Improper Set-out Notice. Contractor shall develop, print and distribute, at Contractor’s own expense, an improper set-out notice. The improper set-out notice shall be approved by the Town and shall include one original with two copies. The improper set-out notice shall include (A) the date (B) reason for non-Collection and (C) Contractor’s customer service telephone number and (D) any other information the Town requests. Contractor shall attach the original improper set-out notice via a non-adhesive means to the handle of the Cart. Contractor shall take a digital photo of set-out that receives an improper set-out notice. Contractor shall maintain copies of improper set-out notices and digital photos in a format that enables Contractor to immediately retrieve a requested notice or photo by address. Contractor shall provide a monthly report of improper set-out notices as set forth in this Agreement. 1346193.10 25 16. Ownership of Solid Waste and Program Recyclables. Title to Solid Waste, including Bulk Waste, shall pass to the Contractor once the Contractor takes possession of the materials at the Residential Service Unit. Title to Program Recyclables shall remain with the Town until the Recyclable Materials are processed and sold. The risk of loss to the Recyclable Materials shall pass to Contractor at the time they are picked up by the Contractor. After the risk of loss passes to Contractor, if any Recyclable Materials are lost, damaged or scavenged, Contractor shall be liable to the Town for that sum of funds that would have been paid to the Town in accordance with the provisions of this Agreement. Title to and liability for Hazardous Waste shall at no time pass to the Town or to Contractor, and shall, at all times, remain with the generator of the Hazardous Waste. 17. Addition and Deletion of Recyclable Materials. The Town reserves the right to add or delete other Program Recyclables to the program or delete Recyclable Materials from the program if the contracting parties agree it is economically and technically feasible. Additional fees, if any, for recovery of additional Recoverable Materials may be negotiated and implemented as a change in service fee in an amendment to this Agreement. 18. Liquidated Damages. Contractor understands that if Contractor does not timely perform its obligations pursuant to the terms of this Agreement, Town will suffer damages which are difficult to determine and adequately specify. The acts or omissions set forth in this Section 18 shall be considered a breach of the Contract. The Contractor shall be liable for liquidated damages amount(s) upon determination of the Town that performance has not occurred consistent with the provisions of the Agreement. The Town shall notify the Contractor in writing or electronically of each act or omission in this Agreement reported to or discovered by the Town. It shall be the duty of the Contractor to take whatever steps or action may be necessary to remedy the cause of the complaint. The Contractor agrees, in addition to any other remedies available to the Town, that the Town may deduct the full amount of any damages from any payment due to the Contractor. The remedy available to the Town under this paragraph shall be in addition to all other remedies which the Town may have under law or at equity. 18.1 Missed Collection. $25 for each Missed Collection above two misses per Collection day, to be assessed at the end of each Collection month. A Missed Collection occurs when (A) a resident reports that their material was set at the curb by 6:00 AM, Local Time and was not collected (B) the address was not reported by the Contractor as a late set-out or an improper set- out. Contractor may dispute the designation as a Missed Collection to the Contract Administrator. In the case of a dispute, the Contract Administrator’s determination shall be final as to whether a set- out is a Missed Collection. 18.2 Missed Block. $250 for each incident of the Contractor failing to pick up material on a block. A Missed Block occurs when one side of a street between cross streets or an entire cul-de-sac where residents from at least three households on that street report that they had their material out before 6:00 AM, Local Time the material was not picked up, the material was properly sorted and the address was not reported by the Contractor as a late set-out. Contractor may dispute the designation as a Missed Block to the Contract Administrator. In the case of a dispute, the Contract Administrator’s determination shall be final as to whether a block is a Missed Block. 18.3 Less than Majority Collected. $2,500 for each incident for failure to complete a majority (50%) of the Collections on a given day. 1346193.10 26 18.4 Failed Spill Clean-up. $250 for each incident for failure to clean up material spilled or littered by Contractor within six hours of verbal or written notification. 18.5 Failed Vehicle Maintenance. $100 for each incident for failure to maintain vehicle in manner which prevents nuisances such as leaky seals or hydraulics. 18.6 Failed Correction of Missed Collection. $250 for each incident for failure or neglect to collect materials from a Missed Collection location within the amount of time specified in this Agreement. 18.7 Failed Cart Maintenance. $100 for each incident for failure to maintain Carts or Containers in proper working order ten days after notice has been provided by the Town. 18.8 Fail to Timely Complete Reports. $250 for each incident for failure to timely provide a complete monthly or annual report. 18.9 Failure to Return Carts. $100 for each incident for failure to return Carts or Containers to their original locations after collection. For the purposes of this subsection, “original location” shall mean within ten feet of the location at which the Cart was placed immediately prior to the Contractor picking it up for service. Contractor shall not be penalized for any Carts returned to their original location which are subsequently moved by a third party. 18.10 Failure to Provide Updated Maps. $50 per day for each day beyond 30 days after change in routing for failure to provide updated route maps to Town after change in routing. 18.11 Failure to leave Education Tag. $100 for each incident for failure to leave an education tag when material that is inappropriately prepared is not collected. 18.12 Failure to Label. $100 for each incident for distributing Carts without labels that include text and graphics depicting what materials may be placed in the containers. 18.13 Failed Customer Complaint Response. $100 per Business Day thereafter per incident for failure to respond to any customer complaint received by the close of the following Business Day. 18.14 Failure to Document Customer Complaints. $50 per Business Day thereafter per incident for failure to provide the Town with the required resolved customer complaint documentation. 18.15 Failure to Accept Materials. $3,000 for each day for failure to be able to accept materials on any day after the date upon which service begins on which materials are to be collected. 18.16 Failed Reject Handling. $500 for each occurrence for failure to handle Rejects in accordance with this Agreement. 1346193.10 27 18.17 Failure to meet Residue Allowance. For Failure to meet annual Residue Allowance in accordance with this Agreement: (A) $500 for 0.01% to 5.00% over the Residue Allowance; (B) $1,000 for 5.01% to 10.00% over the Residue Allowance; (C) $1,500 for each 10.01% to 15.00% over the Residue Allowance; (D) $2,000 for 15.01% to 20.00% over the Residue Allowance; and (E) $2,500 for 20.01% or more over the Residue Allowance. Exceptions: For the purposes of this Agreement, the Contractor shall not be deemed to be liable for penalties where its inability to perform Collection Service is the result of conditions of Force Majeure as set forth in Section 25 of this Agreement, inclement weather severe enough that trucks cannot safely take Collections, provided however, that the Contractor shall obtain the approval for the delay from the Town prior to 3:00 PM, Local Time of the scheduled Collection day. 19. Payment Withheld. In addition to express provisions elsewhere contained in this Agreement, Town may withhold from any payment otherwise due the Contractor such amount as determined necessary to protect the Town’s interests on account of: (i) Unsatisfactory progress of the work not caused by condition beyond Contractor’s control; (ii) Defective work not corrected; (iii) Contractor’s failure to carry out instructions or orders of the Town or its representative; (iv) A reasonable doubt that the Agreement can be completed for the balance then unpaid; (v) Execution of work not in accordance with the Agreement; (vi) Claim filed by or against Contractor or reasonable evidence indicating problem filing of claims; (vii) Failure of Contractor to make payments to any subcontractor for material or labor; (viii) Damage to another contractor; (ix) Unsafe working conditions allowed to persist by Contractor; (x) Failure of Contractor to provide required reports and other reports as required by Town; (xi) Use of any subcontractors without the Town’s prior, written approval; or (xii) Failure of Contractor to provide accurate invoices and supporting data as describe elsewhere in this agreement. When the foregoing defaults have been cured, payment shall be made for amounts withheld because of them and the Town shall never be liable for interest on any delayed or late payment. The Town’s right to withhold payments under this Section will be reasonable in light of the nature of the claims and the amount of available insurance and performance bonds pursuant to this Agreement. 20. Performance Guaranty. Contractor shall furnish the Town with a Performance Bond covering faithful performance of this Agreement. The bond shall be submitted within 45 days following the Effective Date, but in no event later than the Commencement Date. The Bond shall be in an amount not less than annual value of this Agreement and in the form approved by the Town Attorney. The term of the Bond shall be not less than one year beginning on the Commencement Date. The Contractor shall furnish the Town with a renewal of the Bond for an additional term of not less than one year from the expiration date of the Bond then in effect for each year this Agreement is in effect. The renewal of the Bond shall be submitted at least 30 days prior to the expiration date of the Bond then in effect. Notwithstanding the foregoing, the Surety shall not be obligated to renew the Performance Bond for any successive year. Non-renewal shall not be construed as a default by the Contractor under the bond and shall not be actionable under any bond provided. The Performance Bond shall be limited to one and only one surety which shall be issued by a Surety Company authorized to do business in the State of Arizona and have A.M. Best rating of “A” or better and the “T” Underwriting limitation is not exceeded by this Bond. 21. Taxes. Contractor shall be responsible for and shall pay all sales, consumer, use and other taxes. When equipment, materials or supplies generally taxable to the Contractor are eligible 1346193.10 28 for a tax exemption due to the nature of the item, Contractor shall assist Town in applying for and obtaining such tax credits and exemptions which shall be paid or credited to Town. 22. Compliance with Laws and Regulations. The Contractor shall keep fully informed and shall at all times during the performance of its duties under this Agreement ensure that it and any person for whom the Contractor is responsible remains in compliance with all rules, regulations, ordinances, statutes or laws affecting the Services including the following: (i) existing and future Town and County ordinances and regulations, (ii) existing and future State and Federal laws, (iii) existing and future Occupational Safety and Health Administration (“OSHA”) standards, (iv) applicable laws, statutes, codes, rules and regulations related to or prohibiting discrimination in employment in the performance of its work under this Agreement and (v) requirements as established by the Congress of the United States in the Fair Labor Standards Act, as amended from time to time. 23. Town Inspection Rights. 23.1 Town’s Right to Inspect Records, Books, Data and Documents. The Town or any of its duly authorized representatives shall have access, within 24 hours of notification, to all books, records, data and documents of the Contractor related to the services provided under this Agreement for inspection and audit, at Town’s expense. Additionally, the Contractor shall give the Town written notice of any other professional relationships it enters into with the Town or any of its agencies or component units during the period of this Agreement. 23.2 Town’s Rights to Inspect Facilities and Equipment. The Town or any of its duly authorized representatives shall have access, within 24 hours of notification, to inspect Contractor’s facilities, including the Disposal Facility and Recycling Facility if operated by the Contractor, and equipment and perform such inspections, as Town deems reasonably necessary, to determine whether the services required to be provided by Contractor under this Agreement conform to the terms hereof and/or the terms of this Agreement. Town shall conduct the inspection of facilities and equipment during hours of operation. Contractor shall make available to Town all reasonable facilities and assistance to facilitate the performance of inspections by Town’s representatives. 24. Dispute Resolution. 24.1 Interpretation of Agreement. Except as provided otherwise in this Agreement and to the extent permitted by law, the Contract Administrator shall be responsible for interpreting this Agreement to resolve disputes that may arise hereunder. The parties agree that any decision rendered by the Contract Administrator in connection with such matters shall be final and binding upon Contractor, the customer and the Town. 24.2 Definition of Claim. As used herein “claim” means a written demand or assertion by one of the parties seeking, as a legal right, the payment of money, adjustment or interpretation of the Agreement terms, or other relief, arising under or relating to this Agreement. A voucher, invoice, or request for payment that is not in dispute when submitted is not a claim under this subsection. However, where the submission is subsequently not acted upon in a reasonable time, or disputed either as to liability or amount, it may be converted to a claim for the purpose of this subsection. A claim by the Contractor shall be made in writing and submitted to the Contract Administrator. When a controversy cannot be resolved by mutual agreement, the Contractor shall 1346193.10 29 submit a written request for final decision to the Contract Administrator. The written request shall set forth all the facts surrounding the controversy. 24.3 Process for Dispute Resolution. In connection with any claim under this clause, the Contractor, at the discretion of the Contract Administrator, may be afforded an opportunity to be heard and to offer evidence in support of its claim. The Contract Administrator shall render a written decision on all claims within 30 Business Days of receipt of the Contractor’s written claim, unless the Contract Administrator determines that a longer period is necessary to resolve the claim. The decision shall be furnished to the Contractor by certified mail, return receipt requested, or by any other method that provides evidence of receipt. If a decision is not issued within 30 calendar days, the Contract Administrator shall notify the Contractor of the time within which a decision shall be rendered and the reasons for such time extension. Except as set forth below, the Contract Administrator’s decision shall be final and conclusive; provided, however, that Contractor may, at its option, initiate litigation in Maricopa County, Arizona within 120 days if Contractor does not agree with the Contract Administrator’s decision. Pending resolution of a claim, the Contractor shall proceed diligently with the performance of the Agreement in accordance with subsection 24.4 below. 24.4 Operations during Dispute. In the event that any dispute arises between Town and Contractor relating to this Agreement performance or compensation hereunder, Contractor shall continue to render service and receive compensation in full compliance with all terms and conditions of this Agreement as interpreted, in good faith, by the Town, regardless of such dispute. The Contractor expressly recognizes the paramount right and duty of Town to provide adequate services to its residents and further agrees, in consideration of the execution of this Agreement, that in the event of such a dispute, if any, it will not seek injunctive relief in any court without first negotiating with Town in good faith for an adjustment on the matter or matters in dispute and, upon failure of said negotiations to resolve the dispute shall present the matter to mediation in the courts of Arizona. If mediation fails, Contractor shall present the matter to a court in Arizona. Notwithstanding the other provisions in this subsection, Town reserves the right to terminate this Agreement at any time whenever the service provided by Contractor fails to meet reasonable standards of the trade, after Town provides written notice to Contractor pursuant to Section 28 of this Agreement. Upon termination, Town may call the performance bond and apply the cash and surety bond for the cost of service in excess of that charged to Town by the firm engaged for the balance of the Agreement period. 25. Force Majeure. Except for any payment obligation by either party, if the Town or Contractor is unable to perform or is delayed in its performance of any of its obligations under this Agreement by reason of any event of force majeure, such inability or delay shall be excused at any time during which compliance therewith is prevented by such event and during such period thereafter as may be reasonably necessary for the Town or Contractor to correct the adverse effect of such event of force majeure. An event of “Force Majeure” shall mean the following events or circumstances to the extent that they delay the Town or Contractor from performing any of its obligations (other than payment obligations) under this Agreement: acts of God, tornadoes, hurricanes, floods, sinkholes, fires and explosions (except those caused by negligence of Contractor, its agents and assigns), landslides, earthquakes, epidemics, quarantine, pestilence and extremely abnormal and excessively inclement weather, acts of public enemy, acts of war, terrorism, effects of nuclear radiation, blockades, insurrection, riots, civil disturbances or national or international calamities, suspension, termination or interruption of utilities necessary to the operation of either the 1346193.10 30 Disposal Facility or the Recycling Facility. In order to be entitled to the benefit of this Section, a party claiming an event of Force Majeure shall be required to give prompt written notice to the other party specifying in detail the event of Force Majeure and shall further be required to use its best efforts to cure the event of Force Majeure. 26. Indemnification. To the fullest extent permitted by law, the Contractor, as Indemnitor, shall indemnify, defend and hold Town, its officers, officials, employees, agents and volunteers (“Indemnitees”) harmless for, from and against any and all liability, claims, losses, suits, actions, damages and expenses (including court costs, reasonable attorneys fees, and costs of claim processing, investigation and litigation (collectively “Claims”) for any personal injury, bodily injury, loss of life or loss or damage to property or any violation of any Federal, state or local law or ordinance or other cause related to or arising out of Contractor’s performance of its obligations pursuant to the terms of this Agreement, caused, in whole or in part by the negligent or intentional acts or omissions of Contractors, its owners, officers, directors, employees, subcontractors or agents in the performance of this Agreement. This indemnity includes any claim or amount arising out of or recovered under the Workers Compensation Law or arising out of the failure of Indemnitor to conform to any Federal, state or local law, statute, ordinance, rule, regulation or court decree. It is the specific intention of the parties that the Indemnitee shall, in all instances except for Claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be indemnified by Indemnitor from and against any and all Claims. It is agreed that Contractor will be responsible for primary loss investigation defense and judgment costs where this indemnification is applicable. The amount and type of insurance coverage requirements set forth below will in no way be construed as limiting the scope of the indemnity in this Section. 27. Insurance. 27.1 General. A. Insurer Qualifications. Without limiting any obligations or liabilities of Contractor, Contractor shall purchase and maintain, at its own expense, hereinafter stipulated minimum insurance with insurance companies duly licensed or authorized by the State of Arizona with an AM Best, Inc. rating of A- or above. Failure to maintain insurance as specified herein may result in termination of this Agreement at the Town’s option. B. No Representation of Coverage Adequacy. By requiring insurance herein, the Town does not represent that coverage and limits will be adequate to protect Contractor. C. Additional Insured. All insurance coverage and self-insured retention or deductible portions, except Workers’ Compensation insurance and Professional Liability insurance, if applicable, shall name, to the fullest extent permitted by law for claims arising out of Contractor’s performance of this Agreement, the Town, its agents, representatives, officers, directors, officials and employees as Additional Insured as specified under the respective coverage sections of this Agreement. D. Coverage Term. All insurance required herein shall be maintained in full force and effect until all work or services required to be performed under the terms of 1346193.10 31 this Agreement are satisfactorily performed and completed, unless specified otherwise in this Agreement. E. Primary Insurance. Contractor’s insurance shall be primary insurance with respect to performance of this Agreement and in the protection of the Town as an Additional Insured as set forth above in Section 27.1(C). F. Waiver. All policies, except for Professional Liability and Workers’ Compensation insurance, shall contain a waiver of rights of recovery (subrogation) against the Town, its agents, representatives, officials, officers and employees for any claims arising out of the work or services of Contractor. Contractor shall arrange to have such subrogation waivers incorporated into each policy via formal written endorsement thereto. G. Policy Deductibles and/or Self-Insured Retentions. The policies set forth in these requirements may provide coverage that contains deductibles or self-insured retention amounts. Contractor shall be solely responsible for any such deductible or self- insured retention amount. H. Use of Subcontractors. If any work under this Agreement is subcontracted in any way, Contractor shall execute written agreements with its subcontractors containing the indemnification provisions set forth in this Section and insurance requirements set forth herein protecting the Town and Contractor. Contractor shall be responsible for executing any agreements with its subcontractors and obtaining certificates of insurance verifying the insurance requirements. I. Evidence of Insurance. Prior to commencing any work or services under this Agreement, Contractor will provide the Town with suitable evidence of insurance in the form of certificates of insurance and a copy of the declaration page(s) of the insurance policies as required by this Agreement, issued by Contractor’s insurance insurer(s) as evidence that policies are placed with acceptable insurers as specified herein and provide the required coverages, conditions and limits of coverage specified in this Agreement and that such coverage and provisions are in full force and effect. Confidential information such as the policy premium may be redacted from the declaration page(s) of each insurance policy, provided that such redactions do not alter any of the information required by this Agreement. The Town shall reasonably rely upon the certificates of insurance and declaration page(s) of the insurance policies as evidence of coverage but such acceptance and reliance shall not waive or alter in any way the insurance requirements or obligations of this Agreement. In the event any insurance policy required by this Agreement is written on a “claims made” basis, coverage shall extend for two years past completion of the Services and the Town’s acceptance of the Contractor’s work or services and as evidenced by annual certificates of insurance. If any of the policies required by this Agreement expire during the life of this Agreement, it shall be Contractor’s responsibility to forward renewal certificates and declaration page(s) to the Town 30 days prior to the expiration date. All certificates of insurance and declarations required by this Agreement shall be identified by referencing the RFP number and title or this Agreement. Additionally, certificates of insurance and declaration page(s) of the insurance policies submitted without referencing the appropriate RFP number and title or reference to this Agreement, as applicable, will be subject to 1346193.10 32 rejection and may be returned or discarded. Certificates of insurance and declaration page(s) shall specifically include the following provisions: 1. The Town, its agents, representatives, officers, directors, officials and employees are Additional Insureds as follows: a. Commercial General Liability - Under Insurance Services Office, Inc., (“ISO”) Form CG 20 10 03 97 or equivalent. b. Auto Liability - Under ISO Form CA 20 48 or equivalent. c. Excess Liability - Follow Form to underlying insurance. 2. Contractor’s insurance shall be primary insurance as respects Contractor’s performance of the Agreement. 3. All policies, except for Professional Liability and Workers’ Compensation, waive rights of recovery (subrogation) against Town, its agents, representatives, officers, officials and employees for any claims arising out of work or services performed by Contractor under this Agreement. 4. A 30-day advance notice cancellation provision. If ACORD certificate of insurance form is used, the phrases in the cancellation provision “endeavor to” and “but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives” shall be deleted. Certificate forms other than ACORD form shall have similar restrictive language deleted. 27.2 Required Insurance Coverage. A. Commercial General Liability. Contractor shall maintain “occurrence” form Commercial General Liability insurance with an unimpaired limit of not less than $3,000,000 for each occurrence, $5,000,000 Products and Completed Operations Annual Aggregate and a $5,000,000 General Aggregate Limit. The policy shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury. Coverage under the policy will be at least as broad as ISO policy form CG 00 010 93 or equivalent thereof, including but not limited to, separation of insured’s clause. To the fullest extent allowed by law, for claims arising out of the performance of this Agreement, the Town, its agents, representatives, officers, officials and employees shall be cited as an Additional Insured under ISO, Commercial General Liability Additional Insured Endorsement form CG 20 10 03 97, or equivalent, which shall read “Who is an Insured (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of “your work” for that insured by or for you.” If any Excess insurance is utilized to fulfill the requirements of this subsection, such Excess insurance shall be “follow form” equal or broader in coverage scope than underlying insurance. 1346193.10 33 B. Vehicle Liability. Contractor shall maintain Business Automobile Liability insurance with a limit of $2,000,000 each occurrence on Contractor’s owned, hired and non-owned vehicles assigned to or used in the performance of the Contractor’s work or services under this Agreement. Coverage will be at least as broad as ISO coverage code “1” “any auto” policy form CA 00 01 12 93 or equivalent thereof. To the fullest extent allowed by law, for claims arising out of the performance of this Agreement, the Town, its agents, representatives, officers, directors, officials and employees shall be cited as an Additional Insured under ISO Business Auto policy Designated Insured Endorsement form CA 20 48 or equivalent. If any Excess insurance is utilized to fulfill the requirements of this subsection, such Excess insurance shall be “follow form” equal or broader in coverage scope than underlying insurance. C. Professional Liability. [Intentionally deleted]. D. Workers’ Compensation Insurance. Contractor shall maintain Workers’ Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction over Contractor’s employees engaged in the performance of work or services under this Agreement and shall also maintain Employers Liability Insurance of not less than $500,000 for each accident, $500,000 disease for each employee and $1,000,000 disease policy limit. 27.3 Cancellation and Expiration Notice. Insurance required herein shall not expire, be canceled, or materially change without 30 calendar days’ prior, written notice to the Town. 28. Termination; Cancellation. 28.1 By the Town for Cause. In the event there should occur any Material Breach or Material Default in the performance of any covenant or obligation of Contractor which has not been remedied within 30 days after receipt of written notice from the Town specifying such breach or default (or such longer period of time as is reasonably necessary to cure any such breach or default which is not capable of being cured within 30 days, provided that the Contractor has undertaken the cure within such 30 days and proceeds diligently thereafter to cure in an expeditious manner; provided further that such cure period shall not exceed 90 days), the Town, may if such breach or default is continuing, terminate this Agreement upon written notice to the Contractor. The following events shall, without limitation, constitute a Material Breach or a Material Default by Contractor for purposes of this Section: (i) contractor shall abandon as hereinafter defined, the performance of Collection Services for a period of five consecutive calendar days unless caused by event of Force Majeure. As used herein, the term “abandon” shall refer to voluntary cessation of performance of Collection Service or operation of the Disposal Facility or Recycling Facility; (ii) the failure of Contractor to process Program Recyclables for a period of five consecutive calendar days at any time after the Commencement Date; (iii) if the Contractor’s hazardous substance contingency plan as required by this Agreement hereof shall fail to comply with all Federal and State regulations regarding the handling of hazardous waste; (iv) the failure of Contractor to pay amounts owed to the Town under the terms of this Agreement within 14 calendar days after such amounts become finally due and payable; (v) if Contractor shall be not paying its debts when they become due; shall have filed, or consented by answer or otherwise to the following against it of, a petition for relief or reorganization and bankruptcy or insolvency law of any jurisdiction; shall make an assignment for the benefit of its creditors in lieu of taking advantage of any such bankruptcy or insolvency law; shall 1346193.10 34 consent to the appointment of custodian, receiver, trustee or other officer with similar powers with respect to any substantial part of its property; shall be adjudicated insolvent or shall take corporate action for the purpose of any of the forgoing; and (vi) the default by Contractor with respect to any obligation to any third party pertaining to the Contractor or to Collection Services, which may permit any third party, either immediately or following notice and/or the passage of time to accelerate the maturity of any obligation of the Contractor, to assume control of the Contractor or take possession of or to transfer or caused to be transferred to any third party any portion of the assets of the Contractor, but only if such default materially interferes with or prevents Contractor’s performance under the terms of this Agreement. A. Failure to Cure. If the Contractor shall fail to cure its Breach or Default as specified in this Section, the Town may terminate this Agreement upon ten days written notice. In such case, the Contractor shall not be entitled to receive further payment for services rendered from the effective date of the notice of termination. B. Notice of Termination. Upon receipt of Notice of Termination, Contractor shall promptly discontinue all affected work unless the Notice of Termination directs otherwise, deliver or otherwise make available to Town all data, drawings, specifications, reports, estimates, summaries, such other information as may have been required under the terms of Agreement whether completed or in process. C. Town’s Right to Mitigate. In addition, Town may enter into a separate contract for the completion of the Agreement, according to its terms and provisions, or use such other methods as in Town’s sole opinion shall be required for the completion of the Agreement. All damages, costs and charges incurred by Town, together with the cost of completing the terms and provisions of the Agreement, shall be deducted from any monies due or which may become due to Contractor. In case the damages and expenses so incurred by Town shall exceed the unpaid balance, then Contractor shall be liable and shall pay to Town the amount of such excess. D. Contractor Not in Breach. If after Notice of Termination it is determined for any reason that Contractor was not in Breach or Default, then the rights and obligations of the Town and the Contractor shall be the same as if the Notice of Termination had not been issued pursuant to the termination for cause clause as set forth in paragraph 1 of this Section. 28.2 For Town’s Convenience. This Agreement is for the convenience of the Town and, as such, may be terminated without cause 120 days after receipt by Contractor of written notice by the Town. In such instance, an adjustment shall be made to the Contractor for the reasonable costs of the work performed through the date of termination. Termination costs do not include lost profits, consequential damages, delay damages, unabsorbed or under absorbed overhead of the Contractor or its subcontractors and/or failure to include termination for convenience clause into its subcontracts and material purchase orders shall not expose the Town to liability for lost profits in conjunction with a termination for convenience settlement or equitable adjustment. Contractor expressly waives any claims for lost profit or consequential damages, delay damages, or indirect costs which may arise from the Town’s election to terminate this contract in whole or in part for its convenience. 1346193.10 35 28.3 Due to Work Stoppage. This Agreement may be terminated by the Town upon 30 days’ written notice to Contractor in the event that the Services are permanently abandoned. In the event of such termination due to work stoppage, payment shall be made by the Town to the Contractor for the undisputed portion of its fee due as of the termination date. 28.4 Conflict of Interest. This Agreement is subject to the provisions of ARIZ. REV. STAT. § 38-511. The Town may cancel this Agreement without penalty or further obligations by the Town or any of its departments or agencies if any person significantly involved in initiating, negotiating, securing, drafting or creating this Agreement on behalf of the Town or any of its departments or agencies is, at any time while the Agreement or any extension of the Agreement is in effect, an employee of any other party to the Agreement in any Town or a consultant to any other party of the Agreement with respect to the subject matter of the Agreement. 28.5 Gratuities. The Town may, by written notice to the Contractor, cancel this Agreement if it is found by the Town that gratuities, in the form of economic opportunity, future employment, entertainment, gifts or otherwise, were offered or given by the Contractor or any agent or representative of the Contractor to any officer, agent or employee of the Town for the purpose of securing this Agreement. In the event this Agreement is cancelled by the Town pursuant to this provision, the Town shall be entitled, in addition to any other rights and remedies, to recover or withhold from the Contractor an amount equal to 150% of the gratuity. 28.6 Agreement Subject to Appropriation. The provisions of this Agreement for payment of funds by the Town shall be effective when funds are appropriated for purposes of this Agreement and are actually available for payment. The Town shall be the sole judge and authority in determining the availability of funds under this Agreement and the Town shall keep the Contractor fully informed as to the availability of funds for the Agreement. The obligation of the Town to make any payment pursuant to this Agreement is a current expense of the Town, payable exclusively from such annual appropriations and is not a general obligation or indebtedness of the Town. If the Town Council fails to appropriate money sufficient to pay the amounts as set forth in this Agreement during any immediately succeeding fiscal year, this Agreement shall terminate at the end of then- current fiscal year and the Town and the Contractor shall relieved of any subsequent obligation under this Agreement. 28.7 By Contractor For Cause. In the event there should occur any Material Breach or Material Default in the performance of any covenant or obligation of Town which has not been remedied within 30 days after receipt of written notice from the Contractor specifying such breach or default (or such longer period of time as is reasonably necessary to cure any such breach or default which is not capable of being cured within 30 days, provided that the Town has undertaken the cure within such 30 days and proceeds diligently thereafter to cure in an expeditious manner), the Contractor, may if such breach or default is continuing, terminate this Agreement upon written notice to the Town. The following events shall, without limitation, constitute a Material Breach or a Material Default by Town for purposes of this Section: (i) The failure of Town to pay amounts owed to the Contractor under the terms of this Agreement within 45 days after such amounts become finally due and payable or (ii) If Town shall have filed, or consented by answer or otherwise to the following against it of, a petition for relief or reorganization and bankruptcy or insolvency law of any jurisdiction; shall make an assignment for the benefit of its creditors in lieu of taking advantage of any such bankruptcy or insolvency law; shall consent to the appointment of custodian, receiver, 1346193.10 36 trustee or other officer with similar powers with respect to any substantial part of its property; shall be adjudicated insolvent or shall take official action for the purpose of any of the foregoing. A. Failure to Cure. If Town shall fail to cure its Breach or Default as specified in subsection 28.7 hereof, the Contractor may terminate this Agreement upon ten days written notice. In such case, the Town shall not be entitled to receive further payment from the Contractor from the effective date of the Notice of Termination. B. Damages. All damages, costs and charges incurred by Contractor, together with the cost of completing the terms and provisions of the Agreement, shall be deducted from any monies due or which may become due to Town. In case the damages and expenses so incurred by Contractor shall exceed the unpaid balance, then Town shall be liable and shall pay to Contractor the amount of such excess. 29. Miscellaneous. 29.1 Survival. Any rights either party may have in the event it terminates this Agreement pursuant to the terms hereof shall survive such termination. 29.2 Joint Preparation. The preparation of this Agreement has been a joint effort of the parties and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties than the other. 29.3 Further Assurance. Contractor and Town agree to execute, acknowledge and deliver and cause to be done, executed, acknowledged and delivered all such further documents and perform such acts as shall reasonably be requested of it in order to carry out this Agreement and give effect hereto. Accordingly, without in any manner limiting the specific rights and obligations set forth in this Agreement, the parties declare their intention to cooperate with each other in effecting the terms of this Agreement. 29.4 Time of the Essence. For purposes herein, the parties agree that time shall be of the essence of this Agreement and the representations and warranties made are all material and of the essence of this Agreement. 29.5 Captions and Section Headings. Captions and section headings contained in this Agreement are for convenience and reference only and in no way define, describe, extend, or limit the scope or intent of this Agreement, nor the intent of any provision hereof. 29.6 No Waiver. No waiver of any provision in this Agreement shall be effective unless it is in writing, signed by the party against whom it is asserted and any such written waiver shall only be applicable to the specific instance to which it relates and shall not be deemed to be a continuing or future waiver. 29.7 Exhibits. All Exhibits attached hereto contain additional terms of this Agreement and are incorporated into this Agreement by reference. 29.8 Independent Contractor. The Contractor acknowledges and agrees that the Services provided under this Agreement are being provided as an independent contractor, not as an 1346193.10 37 employee or agent of the Town. Contractor, its employees and subcontractors are not entitled to workers’ compensation benefits from the Town. The Town does not have the authority to supervise or control the actual work of Contractor, its employees or subcontractors. The Contractor and not the Town, shall determine the time of its performance of the services provided under this Agreement so long as Contractor meets the requirements of its agreed scope of work. Contractor is neither prohibited from entering into other contracts nor prohibited from practicing its profession elsewhere. Town and Contractor do not intend to nor will they combine business operations under this Agreement. 29.9 Amendments. This Agreement may be modified only by a written amendment signed by persons duly authorized to enter into contracts on behalf of the Town and the Contractor. 29.10 Provisions Required by Law. Each and every provision of law and any clause required by law to be in the Agreement will be read and enforced as though it were included herein and, if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the application of either party, the Agreement will promptly be physically amended to make such insertion or correction. 29.11 Severability. In the event that any provision of this Agreement shall, for any reason, be determined to be invalid, illegal, or unenforceable in any respect by a Court of competent jurisdiction, the parties hereto shall negotiate in good faith and agree to such amendments, modifications, or supplements of or to this Agreement or such other appropriate actions as shall, to the maximum extent practicable in light of such determination, implement and give effect to the intentions of the parties as reflected herein and the other provisions of this Agreement shall, as so amended, modified, or supplemented, or otherwise affected by such action remain in full force and effect. 29.12 Entire Agreement; Interpretation; Parol Evidence. This Agreement represents the entire agreement of the parties with respect to its subject matter and all previous agreements, whether oral or written, entered into prior to this Agreement are hereby revoked and superseded by this Agreement. No representations, warranties, inducements or oral agreements have been made by any of the parties except as expressly set forth herein, or in any other contemporaneous written agreement executed for the purposes of carrying out the provisions of this Agreement. This Agreement shall be construed and interpreted according to its plain meaning and no presumption shall be deemed to apply in favor of, or against the party drafting the Agreement. The parties acknowledge and agree that each has had the opportunity to seek and utilize legal counsel in the drafting of, review of and entry into this Agreement. 29.13 Assignment. No right or interest in this Agreement shall be assigned by Contractor without prior, written permission of the Town signed by the Town Manager and no delegation of any duty of Contractor shall be made without prior, written permission of the Town signed by the Town Manager. Any attempted assignment or delegation by Contractor in violation of this provision shall be a breach of this Agreement by Contractor. This Agreement and the rights and obligation contained herein shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 1346193.10 38 29.14 Subcontracts. This Agreement and any permits required for performance of the Agreement may not be assigned, subcontracted, conveyed, or otherwise disposed of without the prior, written approval of the Town, which will not be unreasonably withheld. No such assignment or subcontracting shall relieve Contractor of its liability under this Agreement. In the event Contractor elects to use any subcontractors, this does not relieve Contractor from any prime responsibility of full and complete satisfactory and acceptable performance under any awarded Agreement. However, the Agreement may be assigned for the purpose of financing after notification of the terms of such assignment to the Town Manager or authorized designee. 29.15 Rights and Remedies. No provision in this Agreement shall be construed, expressly or by implication, as waiver by the Town of any existing or future right and/or remedy available by law in the event of any claim of default or breach of this Agreement. The failure of the Town to insist upon the strict performance of any term or condition of this Agreement or to exercise or delay the exercise of any right or remedy provided in this Agreement, or by law, or the Town’s acceptance of and payment for services, shall not release the Contractor from any responsibilities or obligations imposed by this Agreement or by law and shall not be deemed a waiver of any right of the Town to insist upon the strict performance of this Agreement. 29.16 Attorneys’ Fees. In the event either party brings any action for any relief, declaratory or otherwise, arising out of this Agreement or on account of any breach or default hereof, the prevailing party shall be entitled to receive from the other party reasonable attorneys’ fees and reasonable costs and expenses, determined by the court sitting without a jury, which shall be deemed to have accrued on the commencement of such action and shall be enforced whether or not such action is prosecuted through judgment. 29.17 Liens. All materials or services shall be free of all liens and, if the Town requests, a formal release of all liens shall be delivered to the Town. 29.18 Offset. A. Offset for Damages. In addition to all other remedies at law or equity, the Town may offset from any money due to the Contractor any amounts Contractor owes to the Town for damages resulting from breach or deficiencies in performance or breach of any obligation under this Agreement. B. Offset for Delinquent Fees or Taxes. The Town may offset from any money due to the Contractor any amounts Contractor owes to the Town for delinquent fees, transaction privilege taxes and property taxes, including any interest or penalties. 29.19 Notices and Requests. Unless a specific time frame for notice is otherwise specifically set forth in this Agreement (including, but not limited to Subsections 5.3, 5.4, 6.1, 9.4, 23.1, 25 and 29.21), any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (A) delivered to the party at the address set forth below, (B) deposited in the U.S. Mail, registered or certified, return receipt requested, to the address set forth below, (C) given to a recognized and reputable overnight delivery service, to the address set forth below or (D) delivered by facsimile transmission to the number set forth below: 1346193.10 39 If to the Town: Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 Facsimile: (480) 816-0100 Attn: Richard L. Davis, Town Manager With copy to: GUST ROSENFELD, P.L.C. One East Washington Street, Suite 1600 Phoenix, Arizona 85004-2327 Facsimile: (602) 340-1538 Attn: Andrew J. McGuire, Esq. If to Contractor: Allied Waste Services of Phoenix 4811 West Lower Buckeye Road Phoenix, Arizona 85043 Facsimile: 602-237-2641 Attn: Mark Creswell With a copy to: Republic Services, Inc. 18500 N. Allied Way Phoenix, Arizona 85054 Facsimile: (480) 718-4274 Attn: Vice President, Deputy General Counsel - Western Operations or at such other address and to the attention of such other person or officer, as any party may designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed received (A) when delivered to the party, (B) three Business Days after being placed in the U.S. Mail, properly addressed, with sufficient postage, (C) the following Business Day after being given to a recognized overnight delivery service, with the person giving the notice paying all required charges and instructing the delivery service to deliver on the following Business Day, or (D) when received by facsimile transmission during the normal business hours of the recipient. If a copy of a notice is also given to a party’s counsel or other recipient, the provisions above governing the date on which a notice is deemed to have been received by a party shall mean and refer to the date on which the party and not its counsel or other recipient to which a copy of the notice may be sent, is deemed to have received the notice. 29.20 Confidentiality of Records. The Contractor shall establish and maintain procedures and controls that are acceptable to the Town for the purpose of ensuring that information contained in its records or obtained from the Town or from others in carrying out its obligations under this Agreement shall not be used or disclosed by it, its agents, officers, or employees, except as required to perform Contractor’s duties under this Agreement. Persons requesting such information should be referred to the Town. Contractor also agrees that any information pertaining to individual persons shall not be divulged other than to employees or officers of Contractor as needed for the performance of duties under this Agreement. 29.21 Records and Audit Rights. Contractor’s and its subcontractor’s books, records, correspondence, accounting procedures and practices and any other supporting evidence 1346193.10 40 relating to this Agreement, including the papers of any Contractor and its subcontractors’ employees who perform any work or Services pursuant to this Agreement to ensure that the Contractor and its subcontractors are complying with the warranty under subsection 29.22 below (all the foregoing hereinafter referred to as “Records”), shall be open to inspection and subject to audit and/or reproduction during normal working hours by the Town, to the extent necessary to adequately permit (A) evaluation and verification of any invoices, payments or claims based on Contractor’s and its subcontractors’ actual costs (including direct and indirect costs and overhead allocations) incurred, or units expended directly in the performance of work under this Agreement and (B) evaluation of the Contractor’s and its subcontractors’ compliance with the Arizona employer sanctions laws referenced in subsection 29.22 below. To the extent necessary for the Town to audit Records as set forth in this subsection, Contractor and its subcontractors hereby waive any rights to keep such Records confidential. For the purpose of evaluating or verifying such actual or claimed costs or units expended, the Town shall have access to said Records, even if located at its subcontractors’ facilities, from the effective date of this Agreement for the duration of the work and until three years after the date of final payment by the Town to Contractor pursuant to this Agreement. Contractor and its subcontractors shall provide the Town with adequate and appropriate workspace so that the Town can conduct audits in compliance with the provisions of this subsection. The Town shall give Contractor or its subcontractors reasonable advance notice of intended audits. Contractor shall require its subcontractors to comply with the provisions of this subsection by insertion of the requirements hereof in any subcontract pursuant to this Agreement. 29.22 E-verify Requirements. To the extent applicable under ARIZ. REV. STAT. § 41-4401, the Contractor and its subcontractors warrant compliance with all Federal immigration laws and regulations that relate to their employees and compliance with the E-verify requirements under ARIZ. REV. STAT. § 23-214(A). Contractor’s or its subcontractor’s failure to comply with such warranty shall be deemed a material breach of this Agreement and may result in the termination of this Agreement by the Town. 29.23 Scrutinized Business Operations. Pursuant to ARIZ. REV. STAT. §§ 35-391.06 and 35-393.06, the Contractor certifies that it does not have scrutinized business operations in Sudan or Iran. For the purpose of this subsection the term “scrutinized business operations” shall have the meanings set forth in ARIZ. REV. STAT. § 35-391 or 35-393, as applicable. If the Town determines that the Contractor submitted a false certification, the Town may impose remedies as provided by law including terminating this Agreement pursuant to subsection 28.1 above. 29.24 Conflicting Terms. In the event of any inconsistency, conflict or ambiguity among the Agreement, the Scope of Work, the Fee Proposal, the RFP and the Contractor’s Proposal, the documents shall govern in the order listed herein. 29.25 Applicable Law; Venue. This Agreement shall be governed by the laws of the State of Arizona and suit pertaining to this Agreement may be brought only in courts in the State of Arizona, Maricopa County. [SIGNATURES ON FOLLOWING PAGE] 1346193.10 41 IN WITNESS WHEREOF, the parties hereto have executed this instrument as of the date and year first set forth above. “Town” “Contractor” TOWN OF FOUNTAIN HILLS, an Arizona ALLIED WASTE TRANSPORTATION, INC, municipal corporation a Delaware corporation d/b/a Allied Waste Services of Phoenix By: Jay T. Schlum, Mayor Stephen Meyer, Area President ATTEST: Bevelyn J. Bender, Town Clerk 1346193.10 42 (ACKNOWLEDGEMENTS) STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) This instrument was acknowledged before me on , 2010, by Jay T. Schlum, the Mayor of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, on behalf of the Town of Fountain Hills. Notary Public in and for the State of Arizona My Commission Expires: STATE OF ) ) ss. COUNTY OF ) This instrument was acknowledged before me on , 2010, by Stephen Meyer as Area President of ALLIED WASTE TRANSPORTATION, INC., a Delaware corporation d/b/a ALLIED WASTE SERVICES OF PHOENIX, on behalf of the corporation. Notary Public in and for the State of My Commission Expires: 1346193.10 EXHIBIT A TO SOLID WASTE SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND ALLIED WASTE TRANSPORTATION, INC. D/B/A ALLIED WASTE SERVICES OF PHOENIX [RFP] See following pages. 1089903.7 REQUEST FOR PROPOSALS FOR SOLID WASTE SERVICES Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 SOLICITATION INFORMATION AND SELECTION SCHEDULE Solicitation Number: PZ2010-001 Release Date: April 7, 2010 Advertisement Dates: April 7, 2010 – Fountain Hills Times April 8, 2010 – Arizona Business Gazette Final Date for Inquiries May 20, 2010 MANDATORY Pre-Submittal Conference: May 6, 2010 3:00 p.m. (local time, Phoenix, Arizona) Council Chambers 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 Due Date and Time: June 9, 2010 3:00 p.m. (local time, Phoenix, Arizona) Town Representatives: Raymond Rees rrees@fh.az.gov 480-816-5180 Richard Turner rturner@fh.az.gov 480-816-5191 1089903.7 i Table of Contents Section A Page I. RFP Process, Award of Agreement A-1 II. Proposal Format; Scoring A-5 III. Oral Interviews; Scoring A-13 IV. Award of Agreement A-14 V. Forms A-15 Section B Draft Solid Waste Services Agreement B-1 1089903.7 SECTION A RFP Process 1089903.7 A-1 I. RFP PROCESS 1.1 Purpose. The Town of Fountain Hills (the “Town”) is issuing this Request for Proposals (this “RFP”) seeking proposals (each a “Proposal”) from qualified entities (each a “Proposer”) with demonstrated experience and qualifications to provide curbside solid waste collection and disposal services, bulk waste collection and disposal services, recycling services and green waste services within the corporate limits of the Town (the “Services”), as more particularly set forth below and described in the sample Solid Waste Services Agreement attached hereto and incorporated herein by reference. The Town will accept competitive sealed Proposals for the Services. The Town specifically reserves the right to award a contract for any portion of the Services, and Proposals must indicate the rate for Solid Waste Services both with and without recycling included. 1.2. Estimated Service Units. The estimated service units contained in this section represents, to the best of the Town’s knowledge, the estimated number of service units to be served under the terms of the Agreement. However, the number of service units to which Services are to be provided under the Agreement, are approximate and do not constitute a guarantee by the Town as to the exact number or category of service units to be served. A. Residential Service Units. The Town estimates the total Residential Service Units in the Town that may be provided Residential Solid Waste Services, Residential Recycling Services and Residential Green Waste Services to be approximately 12,000. The Town’s estimates are not meant to be exact and no warranties or guaranties of any number customers or specific schedule for adding or subtracting customers is given. The Town may, in its sole discretion, change the numbers of customers to be served and the schedule for adding (or subtracting) customers and may expand or reduce service as the Town deems appropriate. B. Grandfathered Areas. In order to minimize disruption to existing solid waste contracts between homeowner’s associations and their residents, some areas within the Town may be provided service at a later date. The Town shall provide the Contractor with written notification of the areas affected and the schedule for commencement of service for those areas to the Contractor not later than 60 days following the Effective Date, which information shall be included on the phase in schedule set forth in Exhibit E. 1.3 Preparation/Submission of Proposal. Proposers are invited to participate in the competitive selection process for the Services outlined in this RFP. Responding parties shall review their Proposal submissions to ensure the following requirements are met. A. Irregular or Non-responsive Proposals. The Town shall consider as “irregular” or “non-responsive” and reject any Proposal not prepared and submitted in accordance with this RFP, or any Proposal lacking sufficient information to enable the Town to make a reasonable determination of compliance to the minimum qualifications. Unauthorized conditions, limitations, or provisions shall be cause for rejection. B. Submittal Quantities. Interested parties must submit one (1) original and seven (7) copies (eight (8) total submittals) of the Proposal. In addition, interested parties must submit one (1) original copy of the Proposal on a CD-ROM (or electronic media approved by 1089903.7 A-2 the Town) in printable Adobe or Microsoft Word format (or other format approved by the Town). Failure to adhere to the submittal quantity criteria shall result in the Proposal being considered non-responsive. C. Required Submittal. The Proposal shall be submitted with a cover letter with an original ink signature by a person authorized to bind the Proposer. Proposals submitted without a cover letter with an original ink signature by a person authorized to bind the Proposer shall be considered non-responsive. The Proposal shall be a maximum of fifteen (15) pages to address the Proposal criteria (excluding resumes, the required Forms and safety and health evaluations, but including the materials necessary to address project understanding, general information, organizational chart, photos, tables, graphs and diagrams). Each page side (maximum 8 1/2” x 11”) with criteria information shall be counted. A cover, a back, a table of contents and tabs may be used and shall not be included in the page count, unless they include additional project-specific information or Proposal criteria responses. The minimum allowable font for the Proposal is 11 pt. Failure to adhere to the page limit and size criteria and font shall size result in the Proposal being considered non-responsive. Telegraphic (facsimile), electronic (e-mail) or mailgram Proposals will not be considered. D. Proposer’s Responsibilities. All Proposers shall (A) examine the entire RFP, (B) seek clarification of any item or requirement that may not be clear, (C) check all responses for accuracy before submitting a Proposal and (D) submit the entire Proposal by the Proposal Due Date and Time. Late Proposals will not be considered. A Proposer submitting a late Proposal shall be so notified. Negligence in preparing a Proposal confers no right of withdrawal after the Proposal Due Date and Time. Each Proposer shall make its own examination, investigation and research regarding the proper method of performing the Services, including all conditions affecting the work to be done, the labor, equipment and materials and the quantity of the work to be performed. The Proposer agrees that it has satisfied itself by Proposer’s own investigation and research regarding all of such conditions and that Proposer’s conclusion to enter into the Agreement and execution of the Agreement is based upon such investigation and research and that Proposer shall make no claim against the Town because of any of the estimates, statements or interpretations made by any officer or agent of the Town which may prove to be erroneous in any respect. E. Sealed Submittals. All Proposals shall be sealed and clearly marked with the RFP number and title, Solid Waste Services (PZ2010-001), on the lower left hand corner of the mailing envelope. A return address must also appear on the outside of the sealed Proposal. The Town is not responsible for the pre-opening of, post-opening of, or the failure to open, any Proposals not properly addressed or identified. F. Pricing. The Proposer shall submit the same number of copies of the Pricing as described in subsection 1.3(B) above in a separate, sealed envelope enclosed with the Proposer’s Proposal. Pricing shall be inclusive of all of the Services and shall be detailed in the cost forms required to be submitted in conjunction with a Proposal. G. Delivery/Mailing Address. All Proposals shall be directed to the following address: Town Clerk, 16705 East Avenue of the Fountains, Fountain Hills, Arizona, 1089903.7 A-3 85268, or hand-delivered to the Town Clerk’s office by the Proposal Due Date and Time indicated on the cover page of this RFP. H. Pricing Errors. In case of error in the extension of prices in the Proposal, the unit price shall govern. Periods of time, stated as number of days, shall be calendar days. I. Proposal Irrevocable. In order to allow for an adequate evaluation, the Town requires the Proposal to be valid and irrevocable for 180 days after the Due Date and Time of this RFP. J. Amendment/Withdrawal of Proposal. At any time prior to the specified Proposal Due Date and Time, a Proposer (or designated representative) may amend or withdraw its Proposal. Any erasures, interlineations, or other modifications in the Proposal shall be initialed in original ink by the authorized person signing the Proposal. Facsimile, electronic (e- mail) or mailgram Proposal amendments or withdrawals will not be considered. No Proposal shall be altered, amended or withdrawn after the specified Proposal Due Date and Time. 1.4 Cost of Proposal Preparation. The Town does not reimburse the cost of developing, presenting or providing any response to this solicitation. Proposals submitted for consideration should be prepared simply and economically, providing adequate information in a straightforward and concise manner. The Proposer is responsible for all costs incurred in responding to this RFP. All materials and documents submitted in response to this RFP become the property of the Town and will not be returned. 1.5 Inquiries. A. Written/Verbal Inquiries. Any question related to the RFP shall be directed to one of the Town Representatives whose names appear on the cover page of this RFP. Questions shall be submitted in writing or via e-mail by the final date for inquiries indicated on the cover page of this RFP or submitted verbally at the Pre-Submittal Conference on the date indicated on the cover page of this RFP. In the event the Town offices are closed on the final date for inquiries indicated on the cover page of this RFP, the Proposer shall submit the question(s) via e-mail to one of the Town Representatives. Any inquiries related to this RFP shall refer to the number and title, page and paragraph. However, the Proposer shall not place the RFP number and title on the outside of any envelope containing questions, because such an envelope may be identified as a sealed Proposal and may not be opened until after the RFP’s Due Date and Time. B. Inquiries Answered. Written questions will be read and answered at the Pre-Submittal Conference on the date indicated on the cover page of this RFP. Verbal or telephone inquiries directed to Town staff will not be answered. Within two business days following the Pre-Submittal Conference, answers to all questions received in writing or via e- mail or verbally at the Pre-Submittal Conference will be mailed, sent via facsimile and/or e- mailed to all parties who obtained an RFP package from the Town and who legibly provided their mailing addresses, facsimile and/or e-mail addresses to the Town. No questions will be accepted after the final date for inquiries listed on the cover of this RFP. 1089903.7 A-4 1.6 Payment Requirements; Payment Discounts. Any Proposal that requires payment in less than 30 calendar days shall not be considered. Payment discounts of 30 calendar days or more will be deducted from the Proposal price in determining the low Proposal. However, customers shall be entitled to take advantage of any payment discount offered by the Proposer provided payment is made within the discount period. 1.7 Federal Excise Tax. The Town is exempt from Federal Excise Tax, including the Federal Transportation Tax. Sales tax, if any, shall be indicated as a separate item. 1.8 Public Record. All Proposals shall become the property of the Town and shall become a matter of public record available for review, subsequent to the award notification. 1.9 Confidential Information. If a Proposer believes that a Proposal or protest contains information that should be withheld from the public record, a statement advising the Town Representative of this fact shall accompany the submission and the information shall be identified. The information identified by the Proposer as confidential shall not be disclosed until the Town Representative makes a written determination. The Town Representative shall review the statement and information and shall determine in writing whether the information shall be withheld. If the Town Representative determines to disclose the information, the Town Representative shall inform the Proposer in writing of such determination. 1.10 Proposer Licensing and Registration. Prior to the award of the Agreement, the successful Proposer shall (A) be licensed with the Arizona Corporation Commission to do business in Arizona and (B) have a Town of Fountain Hills business license on file with the Town Financial Services Department. The Proposer shall provide licensure information with the Proposal. Corporations and partnerships shall be able to provide a Certificate of Good Standing from the Arizona Corporation Commission. 1.11 Certification. By submitting a Proposal, the Proposer certifies: A. Familiarity with Laws, Ordinances, Rules and Regulations. The submission of a Proposal on the Services requested herein shall be considered as a representation that the Proposer is familiar with all Federal, State and local laws, ordinances, rules and regulations which affect those engaged or employed in the provision of such Services, or equipment used in the provision of such Services, or which in any way affects the conduct of the provision of such Services. If the Proposer discovers any provision in the RFP documents that it believes are contrary to or inconsistent with any law, ordinance, or regulation, Proposer shall report it to the Town in writing without delay. B. No Collusion. The submission of the Proposal did not involve collusion or other anti-competitive practices. C. No Discrimination. It shall not discriminate against any employee or applicant for employment in violation of Federal Executive Order 11456. D. No Gratuity. It has not given, offered to give, nor intends to give at any time hereafter, any economic opportunity, future employment, gift, loan, gratuity, special 1089903.7 A-5 discount, trip, favor or service to a Town employee, officer or agent in connection with the submitted Proposal. It (including the Proposer’s employees, representatives, agents, lobbyists, attorneys and subcontractors) has refrained, under penalty of disqualification, from direct or indirect contact for the purpose of influencing the selection or creating bias in the selection process with any person who may play a part in the selection process, including the Selection Committee, elected officials, the Town Manager, Deputy Town Manager, Department Heads and other Town staff. All contact must be addressed to the Town Representative listed on the cover of this RFP. Any attempt to influence the selection process by any means shall void the submitted Proposal and any resulting Agreement. E. Fair Trade Certifications. 1. Independent Prices. The prices have been arrived at independently, without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such prices with anyone. 2. No Disclosure. Unless otherwise required by law, the prices which have been quoted in its Proposal have not been knowingly disclosed by the Proposer and will not knowingly be disclosed by Proposer prior to opening. 3. Influence on Competition. No attempt has been made or will be made by the Proposer to induce any other person or firm to submit or not to submit a Proposal for the purpose of restricting competition. F. Sample Solid Waste Services Agreement. In addition to reviewing and understanding the RFP submittal requirements, it has reviewed the attached sample Solid Waste Services Agreement including the Scope of Work and other Exhibits and accepts all of the terms and conditions set forth therein. 1.12. No Signature/False or Misleading Statement. Failure to sign the Proposal, or signing it with a false or misleading statement, shall void the submitted Proposal and any resulting Agreement. II. PROPOSAL FORMAT; SCORING 2.1 Proposal Evaluation. A Selection Committee comprised of representatives from the Town will conduct the selection process according to the schedule listed on the cover page of this RFP. Upon receipt of a Proposal, each submittal will be reviewed for compliance with the Proposal requirements by the Selection Committee. Proposals shall be organized and submitted in the format as outlined below. Failure to conform to the designated format, standards and minimum requirements shall result in a determination that the Proposal is non-responsive. Proposals shall be opened at the time and place designated on the cover page of this RFP. The name of each Proposer and the identity of the RFP for which the Proposal was submitted shall be publicly read and recorded in the presence of witnesses. PRICES SHALL NOT BE READ. The Selection Committee will evaluate and award points to each Proposal based upon the scoring criteria as outlined in this document. Points listed below are the maximum number of points possible for each criteria and not the minimum number that the Selection Committee may award. 1089903.7 A-6 The Selection Committee will conduct oral interviews with at least three, but not more than five, of the highest ranked Proposers based upon the Proposal submittal scoring; provided, however, that fewer than three may be interviewed in the event that less than three qualified Proposals are received. After the Town has entered into an Agreement with the successful Proposer, the successful Proposal and the scoring documentation shall be open for public inspection. 2.2 Forms; Organization. Proposals shall be organized and submitted in the format indicated in the table below. The content of each chapter of the Proposal shall include the information described in subsection 2.3 below. The Proposer shall complete all forms in full. Forms not completed in full may result in disqualification. Forms 6, 7 and 8 allow the Proposer an opportunity to quote separate prices based on if Proposer is or is not awarded Residential Solid Waste Services, Residential Bulk Waste Services, Residential Recycling Services and Town Facility Recycling Services. If there is any doubt to the meaning of the same, Proposer may submit an inquiry to the Town in accordance with the requirements as set forth in this RFP. Chapter Content Chapter 1 Letter of Intent Form 1: Statement of Organization Form 2: Certificate of Insurability Form 3: Acknowledgement of Addenda Chapter 2 Form 4: Experience Key Personnel Statement of Independence Disclosure of Preclusion from Participating in Public Procurement Litigation, Regulatory Actions and Payment of Liquidated Damages History Compliance Records Chapter 3 Financial Statement Chapter 4 Method of Approach Chapter 5 Billing Chapter 6 Cost Information 2.3 Content. The proposal shall contain all of the following information. A. Chapter 1: General Information 5 pts 1. Letter of Intent. One page cover letter as described in subsection 1.3(C). The cover letter shall include the following statements: a. “Proposal is binding offer for a 180 calendar day period from the opening date as specified in this RFP.” b. “The information contained in this Proposal or any part thereof, including its exhibits, schedules and other documents and instruments delivered or to be delivered to the Town, are true, accurate and complete to the Proposer’s knowledge. This Proposal includes all information necessary to ensure that the statements herein do not in whole or in part mislead the Town as to any materials facts.” 1089903.7 A-7 2. Statement of Organization. Proposer must complete Form 1. Proposers are permitted to supply additional information that will assist the Town in understanding the legal organization of the Proposer. Include the legal name, address, identification number and legal form of the Proposer (e.g., partnership, corporation, joint venture, sole proprietorship). If a joint venture, identify the members of the joint venture and provide all of the information required under this section for each member. If the Proposer is a wholly owned subsidiary of another company, identify the parent company. 3. Certificate of Insurability. Proposer must complete Form 2. Failure to complete Form 2 may result in rejection of the Proposal. 4. Acknowledgement of Addenda. Proposer must complete Form 3. Failure to acknowledge all addenda may result in rejection of the Proposal. B. Chapter 2: Experience and Qualifications of the Proposer 20 pts 1. Experience. Proposer must complete Form 4. Proposers are permitted to supply additional information that will assist the Town in understanding the Proposer’s experience. 2. Key Personnel. Proposer shall provide an organization chart for key personnel and job descriptions indicating the qualifications and experience of key personnel the Proposer would assign to the transition team and to the ongoing management of the Services provided under the Agreement. For positions that are currently unfilled, identify minimum qualifications for that position. Specify the amount of time each individual will be dedicated to work on the Agreement. Provide résumés, names and phone numbers of municipal references of the key proposed management team members. At a minimum, key personnel shall include general manager, operations manager and maintenance manager or other personnel that will have regular contact with the Town. 3. Statement of Independence. The Proposer shall list and describe the Proposer’s or the Proposer’s subcontractor’s professional relationships involving the Town or any of its agencies or component units for the past five years, together with a statement explaining why such relationships do not constitute a conflict of interest relative to performing the Services sought in this RFP. 4. Disclosure of Preclusion from Participating in Public Procurement. If the firm, business or person submitting this Proposal has been debarred, suspended or otherwise lawfully precluded from participating in any public procurement activity, including being disapproved as a subcontractor with any Federal, state or local government, or if any such preclusion from participation from any public procurement activity is currently pending, the Proposer shall fully explain the circumstances relating to the preclusion or proposed preclusion in the Proposal. The Proposer shall include a letter with its Proposal setting forth the name and address of the governmental entity, the effective date of this suspension or debarment, the duration of the suspension or debarment and the relevant circumstances relating to the suspension or debarment. If suspension or debarment is currently pending, a detailed description of all relevant circumstances including the details enumerated above shall be provided. 1089903.7 A-8 5. Litigation, Regulatory Actions and Liquidated Damages History. Proposer shall describe all past and pending civil, legal, regulatory and criminal actions in which $2,500 or more was initially sought or ultimately obtained, that (a) are (i) now pending or which have occurred in the past five years, (ii) against key personnel, Proposer, Proposer’s subcontractors and all subsidiaries owned by Proposer and (iii) related to the scope of work described by this RFP or (b) involve a governmental entity as a party. 6. Compliance Records. In addition to the compliance information provided in response to other sections of this RFP, Proposer shall submit copies of all notices of violations, corrective action notices, enforcement actions or orders, warning notices or other forms of permit violation/non-compliance documentation that the Proposer and Proposer’s subcontractors received in the past five years from public agencies for vehicles and other equipment and vehicle staging, maintenance, processing, green waste processing, transfer and disposal facilities in Arizona, which are owned or operated by the Proposer, Proposer’s subcontractors, or Proposer’s parent company and subsidiaries. In addition, provide a statement disclosing any and all fines, penalties, settlements, or damages of any kind paid by Proposer, Proposer’s subcontractors, Proposer’s parent company and subsidiaries, to public agencies in the past five years. C. Chapter 3: Financial Statement 10 pts Proposer shall furnish a copy of the Proposer’s most recent audited financial statement. If In the event the Proposer does not have an audited financial statement, Proposer may substitute non-audited financial statement and complete federal tax return for the last two years. D. Chapter 4: Method of Approach 40 pts 1. General Proposal Requirements. Proposers bidding on any Service Option must provide the following: a. Description of Collection Equipment. Proposer shall describe the collection equipment that will be used to perform services. Proposer shall describe (i.e. manufacturer, capacity, color and other specifications) the Solid Waste Carts and Recycling Carts to be purchased. If requested, Proposer shall provide a sample of the Solid Waste Carts, Recycling Carts and Green Waste Carts. Proposer shall specify the number of collection vehicles, make, model, age, description of equipment and materials to be collected via the vehicle. The maximum age of a collection vehicle to be used within the corporate limits of the Town is seven years. Proposer shall describe the future equipment to be acquired and provide a timeline for acquisition of new equipment. Proposer shall identify if the collection service will be performed with one-person or two- person crews. Proposer shall state the average age of the collection vehicles to be used for the Agreement. b. Collection Route Schedules and Maps. Proposer shall include a proposed route schedule and maps. 1089903.7 A-9 c. Disposal and Processing Contracts. Proposer shall provide proof of disposal and processing contracts. If proposer owns the disposal and processing facilities, provide proof of ownership, along with proof of the processing facilities’ capacity to handle solid waste from the Town. d. Approach to Minimize Container Damage. Proposer shall describe procedures used to minimize damage to plastic refuse and recycling containers. e. Self-haulers. Proposer shall state whether self haulers will be permitted to deliver materials directly to the Disposal Facility and/or Recycling Facility. If self-haulers are able to deliver materials, Proposer shall state the days and hours that self-haulers may deliver materials, the process for delivery of materials, the costs for delivery of materials and other relevant information. 2. Recycling Service Proposal Requirements. In addition to the information required for all Proposers, Proposers bidding on Residential Recycling Services, Town Facility Recycling Services. Neighborhood Recycling Drop-off Services and/or Special Event Recycling Services must provide the following: a. Recyclable Materials to be Collected. Proposer shall identify all Recyclable Materials to be collected. Town recommends the Proposer collect the following materials: • Aluminum cans and foil. • Steel/tin cans • Glass food and beverage containers (flint, amber and green) • Newspaper, slick paper inserts • Magazines, paperback books • Residential mixed paper, junk mail inserts • Telephone books and Yellow Pages • Cardboard (corrugated, chipboard) • Aerosol cans • Plastic bottles and containers (Recycling logo #1 through #6) b. Recyclable Materials Accepted by Processing Facility. Proposer shall identify all Recyclable Materials accepted by the Processing Facility. If there are Recyclable Materials accepted by the Processing Facility that are not to be collected by the Proposer, Proposer shall explain the reason such recyclable materials are not to be collected. c. Approach to Minimize Over-Compaction of Recyclables. Describe approach to reduce residual of recyclable loads delivered to processing center. d. Processing Site Information. Provide the following information related to each processing facility: 1089903.7 A-10 • Name, location and description of the processing facility where recyclable materials will be handled. • Name of owner and operator of the facility, identifying if the company that owns and/or operates the processing facility is the same as the Proposer, a related-party entity, or subcontractor. • Contact name and phone number of the processing facility site manager. • The contract with the processing facility. • Operating procedures particularly related to inspection and handling of hazardous materials inadvertently delivered to the facility and related to the sorting equipment used to segregate and consolidate recyclable materials. e. Permitted and Available Processing Capacity. Proposer shall state the daily and annual permitted capacity of the processing facility. If the processing facility is not owned and operated by the Proposer, provide a letter from the processing facility owner and operator that documents its commitment to provide the processing services proposed in the Proposal and guaranteeing the capacity required over the term of the Solid Waste Service Agreement. If the capacity guaranteed to the Town relies on development of a new facility or expansion of an existing facility, describe the development or expansion plans, additional capacity to be constructed, schedule for development/expansion and permitting status of the development/expansion plan. f. Import Restrictions or Fees. Proposer shall list any import restrictions, taxes, or fees that will be applicable to the receipt of the Town’s recyclable materials, specifying for each tax or fee the per-ton dollar amount of such fee. Discuss the ability of the host jurisdiction or state to increase or levy taxes, host fees, or other fees. If there is an import restriction on accepting materials from outside of the local jurisdiction, describe the process to have the import restriction waived. g. RecycleBank. Proposer shall incorporate the RecycleBank program into its Proposal to allow for recycling rewards to Town residents. Proposer shall separately contract with RecycleBank to ensure that the service is available on the first day Recycling Services are provided to the Town. The Proposer shall describe, in detail, the method of calculation of a per-ton payment for each ton of recyclable materials processed at the processing facility, which reflects revenues from the sale of recyclable materials less processing costs, profit and other expenses. This per-ton payment is to be presented by the Proposer on Forms 5 and 7. The Proposal shall propose a method to periodically adjust the per-ton payment and such method shall address changes to market prices for recyclable materials and processing costs over the term of the Agreement. The Town will consider an index pricing structure versus a flat rate per ton price. The Proposer shall provide the formula and the current index rates for any index price structure proposed. In lieu of payment of the per-ton amount directly to the Town, the Proposer shall set forth in its Proposal its method for offsetting the amount that would otherwise be paid to the Town against the costs associated with (a) the Town Facility Solid Waste Services and (b) the Residential Solid Waste Services. 1089903.7 A-11 3. Solid Waste Services. Proposer shall describe the method for performing Residential Solid Waste Services, Town Facilities Solid Waste Services and Special Event Solid Waste Services. Proposer shall describe whether the system shall be fully automated or semi-automated. In addition, Proposer shall describe how out of Cart set-out shall be handled and other pertinent information. a. Disposal Site Information. Provide the following information related to each disposal facility: • Name, location and description of the disposal facility where recyclable materials will be handled. • Name of owner and operator of the facility, identifying if the company that owns and/or operates the disposal facility is the same as the Proposer, a related-party entity, or subcontractor. • Contact name and phone number of the disposal facility site manager. • The contract with the disposal facility. • Operating procedures particularly related to inspection and handling of hazardous materials inadvertently delivered to the facility and related to the sorting equipment used to segregate and consolidate recyclable materials. b. Permitted and Available Disposal Capacity. Proposer shall state the daily and annual permitted capacity of the disposal facility. If the disposal facility is not owned and operated by the Proposer, provide a letter from the disposal facility owner and operator that documents its commitment to provide the disposal services proposed in the Proposal and guaranteeing the capacity required over the term of the Solid Waste Service Agreement. If the capacity guaranteed to the Town relies on development of a new facility or expansion of an existing facility, describe the development or expansion plans, additional capacity to be constructed, schedule for development/expansion and permitting status of the development/expansion plan. 4. Residential Bulk Waste Services. Proposer shall describe the method for performing Residential Bulk Waste Services on (i) an on-call, fee-per-service basis and (ii) a twice per year basis by a Town-wide bulk waste drop off event at not less than three locations chosen by the Town. Proposer shall describe how Bulk Waste in excess of the allotted amount shall be handled and other pertinent information. a. Disposal Site Information. Provide the following information related to each disposal facility: • Name, location and description of the disposal facility where recyclable materials will be handled. • Name of owner and operator of the facility, identifying if the company that owns and/or operates the disposal facility is the same as the Proposer, a related-party entity, or subcontractor. • Contact name and phone number of the disposal facility site manager. 1089903.7 A-12 • The contract with the disposal facility. • Operating procedures particularly related to inspection and handling of hazardous materials inadvertently delivered to the facility and related to the sorting equipment used to segregate and consolidate recyclable materials. b. Permitted and Available Disposal Capacity. Proposer shall state the daily and annual permitted capacity of the disposal facility. If the disposal facility is not owned and operated by the Proposer, provide a letter from the disposal facility owner and operator that documents its commitment to provide the disposal services proposed in the Proposal and guaranteeing the capacity required over the term of the Solid Waste Service Agreement. If the capacity guaranteed to the Town relies on development of a new facility or expansion of an existing facility, describe the development or expansion plans, additional capacity to be constructed, schedule for development/expansion and permitting status of the development/expansion plan. 5. Residential Green Waste Services Proposal Requirements. In addition to the information required for all Proposers, Proposers bidding on Residential Green Waste Services must provide the following: a. Green Waste Processing Site Information. Provide the following information related to each processing facility to be used: • Name, location and description of the green waste processing facility. • Name of owner and operator of the facility, identifying if the company that owns and/or operates the processing facility is the same as the Proposer, a related-party, entity or subcontractor. • Contact name and phone number of the site manager. • The contract with the green waste processing facility. • Operating procedures particularly related to inspection and handling of hazardous materials inadvertently delivered to the facility and related to the pre-processing activities, green waste processing methods. • Marketing plans for finished products. b. Permitted and Available Processing Capacity. State the daily and annual permitted capacity of the processing facility. If the processing facility is not owned and operated by the Proposer, provide a letter from the processing facility owner and operator that documents its commitment to provide the green waste processing services proposed in the Proposal and guaranteeing the capacity required over the term of the Agreement. If the capacity guaranteed to the Town relies on development of a new facility or expansion of an existing facility, describe the development or expansion plans, additional capacity to be constructed, schedule for development/expansion and permitting status of the development/expansion plan. c. Materials Accepted for Processing. Provide a list of the materials accepted at the facility for green waste processing. 1089903.7 A-13 d. Import Restrictions or Fees. Proposer shall list any import restrictions, taxes, or fees that will be applicable to the receipt of the Town’s green waste materials, specifying for each tax or fee the per-ton dollar amount of such fee. Discuss the ability of the host jurisdiction or state to increase or levy taxes, host fees, or other fees. If there is an import restriction on accepting materials from outside of the local jurisdiction, describe the process to have the import restriction waived. E. Chapter 5: Billing 5 pts Proposer shall submit information related to its proposed method of billing. The proposed form of billing structure shall meet the minimum standards set forth in the sample Solid Waste Disposal Agreement. F. Chapter 6: Cost Information 20 pts Proposer shall complete the forms set forth below: 1. Residential Services. Each Proposer submitting a Proposal for Residential Solid Waste Services, Residential Bulk Waste Services and Residential Recycling Services, Proposer shall complete Form 5 (including 5.1, 5.2 and 5.3). 2. Town Facility Services and Special Event Services. Each Proposer submitting a Proposal for Town Facility Solid Waste Services, Town Facility Recycling Services, Special Events Solid Waste Services and Special Events Recycling Services shall complete Form 6 (including 6.1, 6.2 and 6.3). 3. Neighborhood Recycling. Each Proposer submitting a Proposal for Neighborhood Recycling Drop-off Services shall complete Form 7 (including 7.1 and 7.2). 4. Green Waste. Each Proposer submitting a Proposal for Residential Green Waste Services shall complete Form 8. Total Possible Points for Written Submittal: 100 III. ORAL INTERVIEWS; SCORING Proposing firms selected for oral interviews will be invited to participate in discussions with the Selection Committee on the date indicated on the cover page of this RFP, or at other such date as indicated by the Town and awarded points based upon the criteria as outlined below. Proposing firms may be given additional information for these oral interviews. These discussions will relate less to the past experience and qualifications already detailed in the Proposals and relate more to (i) identifying the Proposing firms’ program approach and to an appraisal of the people who would be directly involved in this Services for this RFP and (ii) exploring with the Proposer the scope and nature of the project, the Proposer’s proposed method of performance and the relative utility of alternate methods of approach. 1089903.7 A-14 Oral Interview General Information 10 Experience and Qualifications of the Vendor 25 Key Positions 20 Proposed Services Provided 35 Favorable Evaluation by Maricopa County Department of Environmental Health Service 10 Total Possible Points for Oral Interview 100 Total Points Possible for Proposal: 200 IV. AWARD OF AGREEMENT 4.1 Multiple Award. The Town reserves the right to award by individual Service Option, by group of Service Options, or as a total, whichever is deemed most advantageous to the Town. The Town also reserves the right to choose the Billing Option at its sole discretion. A. Scoring. To determine whether a single agreement or multiple agreements are awarded, the Town shall compare the average scores of each of the highest scoring for each proposed Service Option separately, the highest scoring proposed for each combination of Service Options, and the highest scoring proposed for all Service Options taken together. B. Flexibility in Proposal Approaches. The Town is aware of the complexity of the services to be provided and the fact that there is more than one approach to satisfying some of the minimum specifications or that more than one solution or method may be applied to meet a given requirement. The evaluation program is designed to allow a certain amount of freedom in how to accomplish the task, as long as the Town’s functional requirements are met. Proposals will be evaluated in accordance with the factors set forth below and ranked, according to the total number of points each individual proposal earned, based on the stated maximum point allowance per factor. 4.2 Waiver; Rejection; Reissuance. Notwithstanding any other provision of this RFP, the Town expressly reserves the following rights: A. Cancel RFP. To cancel this RFP for any reason, with or without the substitution of another RFP. B. Other Actions. To take any action affecting this RFP, this RFP process, or the services to this RFP that would be in the best interests of the Town. C. Additional Information. To issue additional requests for information. D. Supplemental Information; Clarifications. To require one or more of the Proposers to supplement, clarify or provide additional information in order for the Town to evaluate the Proposals submitted. Clarification means a communication with a Proposer for the sole purpose of eliminating ambiguities in the Proposal and does not give the Proposer the opportunity to revise or modify its Proposal. 1089903.7 A-15 E. Investigation; Inspection. To conduct investigations with respect to the qualifications and experience of each Proposer and to inspect Proposer(s) facilities during normal working hours. F. Waive Defect. To waive any defect or irregularity in any Proposal. G. Reject Proposals. To reject any or all Proposals. H. Flexible Award. To award all, none, or any Service Option that is in the best interest of the Town to one or more of the Proposers. I. Discussions. To discuss and negotiate with selected Proposer(s) any terms and conditions in the Proposal including, but not limited to, financial terms. J. Sole Discretion. To be the sole judge of the respective Proposals received. By submitting a Proposal for the services, all Proposers acknowledge and agree that (1) no enforceable agreement arises until the Town signs the Solid Waste Services Agreement(s), (2) no action shall require the Town to sign such agreement(s) at any time and (3) each Proposer waives all claims to damages, lost profits, costs, expenses, reasonable attorneys fees, etc., as a result of the Town not signing such agreement(s). 4.3 Protests. Any Proposer may protest this RFP issued by the Town, the proposed award of a Solid Waste Services Agreement, or the actual award of a Solid Waste Services Agreement. 4.4. Offer. A Proposal is an offer to contract with the Town based upon the terms, conditions and specifications contained in this RFP, the Solid Waste Services Agreement and the Proposer’s responsive Proposal, unless any of the terms, conditions, or specifications is modified by a written addendum or agreement amendment. Provided, however, that no contractual relationship shall be established until the Proposer has signed, and the Town has approved, a Solid Waste Services Agreement between the Town and the Proposer in the form acceptable to the Town Attorney. A sample Solid Waste Services Agreement is included herein. This RFP does not constitute an offer by the Town and does not commit the Town to accept a Proposal. No binding agreement, obligation to negotiate, or any other obligation shall be created on the part of the Town unless the Town and Proposer(s) execute the agreement(s). No recommendations or conclusions from this RFP process concerning Proposer(s) shall constitute a right (property or otherwise) under federal or State law. V. FORMS [SEE FOLLOWING PAGES] 1089903.7 FORM 1: STATEMENT OF ORGANIZATION 1. PROPOSER Full Name of Business: Principal Business Address: Principal Phone Number: Local Business Address: Local Business Contact Person: Local Business Fax: Local Business E-Mail: Type of Organization: Tax ID #: License #: Provide names of authorized representative(s) of the Proposer who has legal authority to bind the Proposer in contractual obligations: (a) (b) (c) 2. SERVICE OPTIONS Service Options Proposed (check all that apply): Residential Solid Waste Services, Residential Bulk Waste Services, Residential Recycling Services and Town Facility Recycling Services. Town Facility Solid Waste Services Neighborhood Recycling Drop-off Services Residential Green Waste Services 3. SUBCONTRACTOR List of all firms participating in this Proposal: Name Address Area of Responsibility (a) (b) (c) (d) 1089903.7 FORM 2: CERTIFICATE OF INSURABILITY By submitting a Proposal, the submitting Proposer certifies that it is fully aware that the Insurance Requirements contained in the Agreement apply whether awarded one or more Service Options pursuant to this RFP. Furthermore, the Proposer assures the Town of Fountain Hills that it is able to produce the insurance coverage required should it be selected for award of the Agreement. Should the Proposer’s firm be awarded the Agreement by the Town and then be unable to produce the insurance coverage specified within ten calendar days, it is fully aware and understands that it may not be considered for further projects by the Town of Fountain Hills. Signature of Proposer Printed Name of Signee Company Name Date 1089903.7 FORM 3: ACKNOWLEDGEMENT OF ADDENDA: By submission of this Proposal, Proposer hereby certifies receipt of all the addenda listed in the table below. Addendum Number Description of Addendum 1089903.7 FORM 4: EXPERIENCE Proposer shall provide a minimum of five references of public agencies, cities, towns, private companies, contracts and communities presently being served by the Proposer with similar services to those being proposed in this proposal 1. Name of Public Agency: Address: Phone Number: Contact Person: Year Contract Initiated: Number of Residential Units Served: Description of Services: 2. Name of Public Agency: Address: Phone Number: Contact Person: Year Contract Initiated: Number of Residential Units Served: Description of Services: 3. Name of Public Agency: Address: Phone Number: Contact Person: Year Contract Initiated: Number of Residential Units Served: Description of Services: 1089903.7 FORM 4: EXPERIENCE (continued) 4. Name of Public Agency: Address: Phone Number: Contact Person: Year Contract Initiated: Number of Residential Units Served: Description of Services: 5. Name of Public Agency: Address: Phone Number: Contact Person: Year Contract Initiated: Number of Residential Units Served: Description of Services: 1089903.7 FORM 5: COST FORM FOR RESIDENTIAL SOLID WASTE SERVICES, RESIDENTIAL BULK WASTE SERVICES, RESIDENTIAL RECYCLING SERVICES AND TOWN FACILITY RECYCLING SERVICES Form 5.1 - Costs for Residential Solid Waste Services Monday through Thursday Collection Week Service Rate Same Day Collection [1] Different Day Collection [2] Residential Solid Waste Services 1. Solid Waste Collection Service Rate $ /Unit/Month $ /Unit/Month 2. Solid Waste Cart Rate [3] 65 Gallon 96 Gallon $ /Unit/Month $ /Unit/Month $ /Unit/Month $ /Unit/Month 3. Solid Waste Disposal Rate [4] $ /Unit/Month $ /Unit/Month 4. Additional Solid Waste Cart Collection Service Rate [5] $ /Unit/Month $ /Unit/Month 5. Additional Solid Waste Cart Rate [3][5] $ /Unit/Month $ /Unit/Month 6. Additional Solid Waste Cart Disposal Rate [4][5] [6] [6] 7. Non-Collection Day Collection Rate [7] $ /Unit/Month $ /Unit/Month 8. Non-Collection Day Disposal Rate [4][7] [6] [6] Residential Bulk Waste Services 1. Bulk Waste Collection Rate $ /6 CY $ /6 CY 2. Bulk Waste Disposal Rate [4] $ /6 CY $ /6 CY 3. Semiannual Bulk Waste Event $ /6 CY $ /6 CY Residential Recycling Services 1. Recycling Collection Service Rate $ /Unit/Month $ /Unit/Month 2. Recycling Cart Rate [3][8] 65 Gallon 96 Gallon $ /Unit/Month $ /Unit/Month $ /Unit/Month $ /Unit/Month Residential Cart Change Rate [9] $ /Cart $ /Cart [1] Same Day Collection means Contractor shall perform both Residential Solid Waste Services and Residential Recycling Services on the same day of the week for each Residential Service Unit. [2] Different Day Collections means Contractor may perform Residential Solid Waste Services and Residential Recycling Services on different days of the week for each Residential Service Unit. [3] Cart Rate means the cost for purchase up to and including the initial delivery of the Carts to Residential Service Units. Contractor shall be responsible for the costs associated with the maintenance, delivery after the initial delivery and storage of Carts. Ownership of the Carts in the possession of Residential Service Units at the expiration of the Agreement shall rest with the Contractor. [4] Disposal Rate shall be the sole fee charged for the disposal of Solid Waste and Bulk Waste. [5] Additional Solid Waste Service means the cost associated with an additional Solid Waste Cart for a Residential Service Unit. [6] Additional Solid Waste Cart Disposal Rate shall be equal to Solid Waste Disposal Rate. [7] Non-Collection Day Collection Rate shall mean the provision of Solid Waste Collection Services by the Contractor on a day other than the Residential Service Unit’s scheduled Collection day. [8] Proposer shall provide a choice of the size of Carts for solid waste and recycling (65 & 96-gal) to enable residents to choose the level of service most appropriate for their situation. The default level of service will be the 96 gallon Carts. Recycle Carts shall be a standard blue color with the recycle logo imprinted on the container; provided, however, that the Town may, it its sole discretion, allow for alternative Recycling Cart colors that are clearly marked or colored to easily distinguish them from the Solid Waste Cart and 1089903.7 the Green Waste Cart and so long as the recycle logo is clearly displayed. All Carts must be Proposer grade, wheeled containers. Each must have a permanently attached lid, and be designed to easily fit through gates and doors. [9] Proposer shall provide residents with a one-time ability to request a change in Cart size. Any additional changes in Cart size will be individually charged to the resident, per Cart. 1089903.7 FORM 5: COST FORM FOR RESIDENTIAL SOLID WASTE SERVICES, RESIDENTIAL BULK WASTE SERVICES, RESIDENTIAL RECYCLING SERVICES AND TOWN FACILITY RECYCLING SERVICES (continued) Form 5.2 - Costs for Residential Solid Waste Services WITHOUT RECYCLING Monday through Thursday Collection Week Service Rate Same Day Collection [1] Different Day Collection [2] Residential Solid Waste Services 1. Solid Waste Collection Service Rate $ /Unit/Month $ /Unit/Month 2. Solid Waste Cart Rate [1][6] 65 Gallon 96 Gallon $ /Unit/Month $ /Unit/Month $ /Unit/Month $ /Unit/Month 3. Solid Waste Disposal Rate [2] $ /Unit/Month $ /Unit/Month 4. Additional Solid Waste Cart Collection Service Rate [3] $ /Unit/Month $ /Unit/Month 5. Additional Solid Waste Cart Rate [1][3] $ /Unit/Month $ /Unit/Month 6. Additional Solid Waste Cart Disposal Rate [2][3] [6] [6] 7. Non-Collection Day Collection Rate [5] $ /Unit/Month $ /Unit/Month 8. Non-Collection Day Disposal Rate [2][5] [6] [6] Residential Bulk Waste Services 1. Bulk Waste Collection Rate $ /6 CY $ /6 CY 2. Bulk Waste Disposal Rate [2] $ /6 CY $ /6 CY 3. Semiannual Bulk Waste Event $ /6 CY $ /6 CY Residential Cart Change Rate [7] $ /Cart $ /Cart [1] Cart Rate means the cost for purchase up to and including the initial delivery of the Carts to Residential Service Units. Contractor shall be responsible for the costs associated with the maintenance, delivery after the initial delivery and storage of Carts. Ownership of the Carts in the possession of Residential Service Units at the expiration of the Agreement shall rest with the Contractor. [2] Disposal Rate shall be the sole fee charged for the disposal of Solid Waste and Bulk Waste. [3] Additional Solid Waste Service means the cost associated with an additional Solid Waste Cart for a Residential Service Unit. [4] Additional Solid Waste Cart Disposal Rate shall be equal to Solid Waste Disposal Rate. [5] Non-Collection Day Collection Rate shall mean the provision of Solid Waste Collection Services by the Contractor on a day other than the Residential Service Unit’s scheduled Collection day. [6] Proposer shall provide a choice of the size of Carts for solid waste (65& 96-gal) to enable residents to choose the level of service most appropriate for their situation. The default level of service will be the 96 gallon Carts. All Carts must be Proposer grade, wheeled containers. Each must have a permanently attached lid, and be designed to easily fit through gates and doors. [7] Proposer shall provide residents with a one-time ability to request a change in Cart size. Any additional changes in Cart size will be individually charged to the resident, per Cart. 1089903.7 FORM 5: COST FORM FOR RESIDENTIAL SOLID WASTE SERVICES, RESIDENTIAL BULK WASTE SERVICES, RESIDENTIAL RECYCLING SERVICES AND TOWN FACILITY RECYCLING SERVICES (continued) Form 5.3 - Residential Recycling Processing and Marketing Rate and Town Facility Recycling Processing and Marketing Rate Type of Recyclable Material [1] Processing/Marketing Fee [2] Flat per Ton Payment [3] Revenue Share [4] $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor [1] Proposer shall list the type of Recyclable Material. [2] Processing/Marketing Fee shall be the sole fee charged for the processing and marketing of Recyclable Materials. [3] Flat per Ton Payment is a flat payment that, in the absence of participation in the RecycleBank (or equivalent) program, would be paid by the Contractor to the Town for Recyclable Materials. [4] Revenue Share means the percent of revenues from the sale of Recyclable Materials that, in the absence of participation in the RecycleBank (or equivalent) program, would be paid to the Town and the percent of revenues from the sale of Recyclable Materials paid to the Contractor. [5] Incoming Tons means the tons of recorded at the scale house at the Recycling Facility upon arrival of the Collection vehicle. [6] Outgoing Tons means the tons of Recyclable Materials sold. 1089903.7 FORM 6: COST FORM FOR TOWN FACILITY SOLID WASTE SERVICES AND SPECIAL EVENTS SOLID WASTE SERVICES Form 6.1 - Costs for Town Facility Solid Waste Services Collection Frequency per Week Rates 1x 2x 3x 4x 5x 6x 7x Solid Waste Cart Service Collection Rate [1] Disposal Rate [1] [2] 96 gallons Cart Rental Rate [1] [3] Container Service Collection Rate [1] Disposal Rate [1] [2] 2 CY Container Rental Rate [1] [4] Collection Rate [1] Disposal Rate [1] [2] 4 CY Container Rental Rate [1] [4] Collection Rate [1] Disposal Rate [1] [2] 6 CY Container Rental Rate [1] [4] Collection Rate [1] Disposal Rate [1] [2] 8 CY Container Rental Rate [1] [4] [1] Collection Rate, Disposal Rate and Container Rental Rate shall be stated in $/Container/Month. [2] Disposal Rate shall be the sole fee charged for the disposal of Solid Waste. [3] Cart Rate means the cost for purchase up to and including the initial delivery of the Carts to Residential Service Units. Contractor shall be responsible for the costs associated with the maintenance, delivery after the initial delivery and storage of Carts. Ownership of the Carts in the possession of Town Facilities at the expiration of the Agreement shall rest with the Contractor. [4] Container Rental Rate shall be the sole fee charged by the Contractor for the purchase, maintenance, delivery and all other costs associated with the Container. Form 6.2 - Costs for Town Facility Recycling Services [1] Collection Frequency Collection Rate Processing/Marketing Fee Container Rental Rate [2] 1 x per week $ /Container/Month [3] $ /Container/Month 2 x per week $ /Container/Month [3] $ /Container/Month 3 x per week $ /Container/Month [3] $ /Container/Month 4 x per week $ /Container/Month [3] $ /Container/Month 5 x per week $ /Container/Month [3] $ /Container/Month 6 x per week $ /Container/Month [3] $ /Container/Month 7 x per week $ /Container/Month [3] $ /Container/Month [1] Town Facility Recycling Services shall be provided via Containers as set forth in the Solid Waste Service Agreement. [2] Container Rental Rate shall be the sole fee charged by the Contractor for the purchase, maintenance, delivery and all other costs associated with the Container. [3] Shall be equal to the fee for residential recycling processing and marketing as stated in table 5.2 above. 1089903.7 FORM 6: COST FORM FOR TOWN FACILITY SOLID WASTE SERVICES AND SPECIAL EVENTS SOLID WASTE SERVICES (continued) Form 6.3 - Costs for Special Events Solid Waste Services and Special Events Recycling Services Solid Waste Roll-off Size Collection Rate Disposal Rate Container Rental Rate 10 CY $ /Container/Pull $ /Ton $ /Container 20 CY $ /Container/Pull [1] $ /Container 30 CY $ /Container/Pull [1] $ /Container 40 CY $ /Container/Pull [1] $ /Container [1] Disposal Rate shall be equal to Disposal Rate for a 10 CY. Special Event Recycling Services Collection Frequency Collection Rate Processing/Marketing Fee 1 x per event $ /96 Gallon Cart/Event [1] 2 x per event $ /96 Gallon Cart/Event [1] 3 x per event $ /96 Gallon Cart/Event [1] 4 x per event $ /96 Gallon Cart/Event [1] 5 x per event $ /96 Gallon Cart/Event [1] 6 x per event $ /96 Gallon Cart/Event [1] 7 x per event $ /96 Gallon Cart/Event [1] [1] Shall be equal to the fee for residential recycling processing and marketing as stated in Form 5 above. 1089903.7 FORM 7: COST FORM FOR NEIGHBORHOOD RECYCLING DROP-OFF SERVICES Form 7.1 - Costs for Neighborhood Recycling Drop-off Services [1] Collection Frequency Collection Rate Container Rental Rate [2] 1 x per week $ /Container/Month $ /Container/Month 2 x per week $ /Container/Month $ /Container/Month 3 x per week $ /Container/Month $ /Container/Month 4 x per week $ /Container/Month $ /Container/Month 5 x per week $ /Container/Month $ /Container/Month 6 x per week $ /Container/Month $ /Container/Month 7 x per week $ /Container/Month $ /Container/Month [1] Neighborhood Recycling Drop-off Services shall be provided via Containers as set forth in the Solid Waste Services Agreement. [2] Container Rental Rate shall be the sole fee charged by the Contractor for the purchase, maintenance, delivery and all other costs associated with the Container. Form 7.2 - Neighborhood Recycling Drop-off Services Processing and Marketing Rate Type of Recyclable Material [1] Processing/Marketing Fee [2] Flat per Ton Payment [3] Revenue Share [4] $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor $ /Incoming Ton [5] $ /Outgoing Ton [6] $ /Incoming Ton [5] $ /Outgoing Ton [6] ___% to Town and ___ % to Contractor [1] Proposer shall list the type of Recyclable Material. [2] Processing/Marketing Fee shall be the sole fee charged for the processing and marketing of Recyclable Materials. [3] Flat per Ton Payment is a flat payment that, in the absence of participation in the RecycleBank (or equivalent) program, would be paid by the Contractor to the Town for Recyclable Materials. [4] Revenue Share means the percent of revenues from the sale of Recyclable Materials that, in the absence of participation in the RecycleBank (or equivalent) program, would be paid to the Town and the percent of revenues from the sale of Recyclable Materials paid to the Contractor. [5] Incoming Tons means the tons of recorded at the scale house at the Recycling Facility upon arrival of the Collection vehicle. [6] Outgoing Tons means the tons of Recyclable Materials sold. 1089903.7 FORM 8: COST FORM FOR RESIDENTIAL GREEN WASTE SERVICES Monday through Thursday Collection Week Service Rate Same Day Collection [1] Different Day Collection [2] Residential Green Waste Services 1. Residential Green Waste Collection Service Rate $ /Unit/Month $ /Unit/Month 2. Residential Green Waste Processing and Marketing Rate $ /Unit/Month $ /Unit/Month [1] Same Day Collection means Contractor shall perform both Residential Solid Waste Services and Residential Recycling services on the same day of the week for each Residential Service Unit. [2] Different Day Collections means Contractor may perform Residential Solid Waste Services and Residential Recycling Services on different days of the week for each Residential Service Unit. 1089903.7 SECTION B Sample Solid Waste Services Agreement 1089903.7 B-1 SAMPLE SOLID WASTE SERVICES AGREEMENT BETWEEN TOWN OF FOUNTAIN HILLS AND This SOLID WASTE SERVICES AGREEMENT (this “Agreement) is made on , 2010 (the “Effective Date”) between the Town of Fountain Hills, an Arizona municipal corporation (the “Town”) and , a(n) (the “Contractor”). RECITALS A. The Town issued a Request For Proposals, “Solid Waste Services (PZ2010-001)” (the “RFP”), a copy of which is attached hereto as Exhibit A and incorporated herein by reference, seeking proposals from vendors for residential curbside solid waste collection and disposal services, bulk waste collection and disposal services, residential recycling services, green waste services, Town facility solid waste services, Town facility recycling services and special event solid waste and recycling services within the corporate limits of the Town of Fountain Hills (the “Services”). B. The Contractor submitted a proposal in response to the RFP (the “Proposal”), which is attached hereto as Exhibit B and incorporated herein by reference, and the Town desires to enter into an Agreement with the Contractor for the Services. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by reference, the following mutual covenants and conditions, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Town and the Contractor hereby agree as follows: 1. Definitions. As used herein, and notwithstanding any other contrary definition given these terms under Arizona law, the parties hereto specifically agree that the terms defined below shall, for the purpose of this Agreement, have the meanings as set forth in this Section. The words “shall,” “will” and “must” are always mandatory and not merely discretionary. The word “may” indicates something that is not mandatory but permissible. When not inconsistent with the context, words in the plural shall include the singular and vice versa, words importing persons shall include firms and corporations, words in the present tense shall include the future and use of the masculine gender shall include the feminine gender. The terms “herein,” “hereunder,” “hereby,” “hereto,” “hereof” and any similar terms, shall refer to this Agreement; the term “heretofore” shall mean before the date of adoption of this Agreement; and the term “hereafter” shall mean after the initial date of adoption of this Agreement. 1.1 “Backdoor” means a location at the front, side or rear of a Residential Service Unit acceptable to both the Resident and Contractor as the location for Residential 1089903.7 B-2 Collection Service. If an appropriate location cannot be agreed upon, the Contract Administrator shall designate the location for Residential Collection Service. 1.2 “Bulk Waste” means Solid Waste composed of materials not easily containerized in a Solid Waste Cart or Recycling Cart such as, but not limited to, Green Waste, furniture, cardboard and large appliances. 1.3 “Bulk Waste Collection Services” means Collection of Bulk Waste and delivery to the Disposal Facility or the Recycling Facility by the Contractor. 1.4 “Bulk Waste Services” means Bulk Waste Collection Services and the disposal of Bulk Waste at the Disposal Facility or recycling of Bulk Waste at the Recycling Facility. 1.5 “Business Day” means any day, Monday through Friday, from 5:00 AM, Local Time to 5:00 PM, Local Time. 1.6 “Cart” means a Recycling Cart, a Solid Waste Cart or a Green Waste Cart, as applicable. 1.7 “Council” means the Mayor and Town Council of the Town of Fountain Hills, Arizona. 1.8 “Collection” means the act of picking up Solid Waste or Bulk Waste from Residential Units and delivery of the Solid Waste or Bulk Waste to the Disposal Facility. Collection shall also mean the act of picking up Program Recyclables from Residential Units or Town Facilities and delivery of the Program Recyclables to the Recycling Facility. 1.9 “Collection Service” means Residential Solid Waste Collection Services, Residential Bulk Waste Collection Services, Residential Recycling Collection Services, Residential Green Waste Collection Services, Town Facility Solid Waste Collection Services, Town Facility Recycling Collection Services, Special Event Solid Waste Collection Services and Special Event Recycling Collection Services. 1.10 “Commencement Date” means the earliest date the Contractor shall commence the Collection Services in accordance with this Agreement and pursuant to the phase-in schedule set forth in Exhibit D, attached hereto and incorporated herein by reference. 1.11 “Construction Debris” means solid waste derived from the construction, repair or remodeling of buildings or other structures. 1.12 “Construction and Demolition Waste” shall include Construction Debris and Demolition Debris. 1.13 “Contamination” means the existence of any material or substance on or contained in Recyclable Materials that would result in failure to meet Recovered Material specifications. 1089903.7 B-3 1.14 “Contract Administrator” means the Town Manager of the Town, or his designee or designees, who shall represent the Town in the administration and supervision of this Agreement. 1.15 “Container” means any metal or plastic container, with a capacity of approximately 300 gallons designed to or intended to be mechanically dumped into a loader- packer type garbage truck and used for Town Facility Recycling Services. All such Containers must be clearly marked in a manner as approved by the Town. 1.16 “Demolition Debris” means solid waste derived from the demolition of buildings or other structures. 1.17 “Disposal Facility” means a facility, area of land or excavation in which Solid Waste and Bulk Waste are placed for permanent disposal. Disposal Facility does not include a land application unit, surface impoundment, injection well, compost pile or waste pile or an area containing ash from the on-site combustion of coal that does not contain household waste, household hazardous waste or conditionally exempt small quantity generator waste. 1.18 “Disposal Services” means the disposal of Solid Waste and Bulk Waste by the Contractor. 1.19 “Expiration Date” means June 30, 20__ at 11:59 PM, Local Time. 1.20 “Green Waste” means organic yard waste, including but not limited to, grass clippings, tree trimmings, brush clippings, and other similar material. 1.21 “Green Waste Cart” means a receptacle with wheels with a capacity of up to approximately 96 gallons designed or intended to be mechanically dumped into a load-packer type garbage truck and approved by the Town Manager or authorized designee for the Collection of Green Waste from Residential Service Units. All Green Waste Carts shall be green in color and clearly distinguishable from Solid Waste Carts. 1.22 “Hazardous Waste” means solid waste as described in 40 Code of Federal Regulations part 261, as amended. 1.23 “Local Time” means the time in Phoenix, Arizona. 1.24 “Materials Acceptance Protocol (MAP)” means the document which identifies the types and standards for the Recyclable Materials which are to be collected and processed under this Agreement. The MAP is attached hereto as Exhibit E and incorporated herein by reference. 1.25 “Missed Block” shall mean, as determined by three or more customers on a block, that each customer deems that her/his respective properly-prepared Cart that was set out at the Collection location on the scheduled Collection day was not picked up by the Contractor. 1089903.7 B-4 1.26 “Missed Collection” shall mean, as determined by the customer, a properly prepared Cart that was set out at the Collection location on the scheduled Collection day that was not picked up by the Contractor. 1.27 “Nonprogram Recyclable” means any Recyclable Materials, excluding Program Recyclables, delivered to the Recycling Facility. 1.28 “Nonprogram User” means any generator of Nonprogram Recyclables. 1.29 “Non-recyclable Waste” means the portion of Solid Waste, exclusive of Hazardous Waste, that is not Program Recyclables. 1.30 “Person” means an individual, corporation, company, association, partnership, unit of local government, state agency, Federal agency, or other legal entity. 1.31 “Process”, “Processed” or “Processing” means the separation, sorting, crushing, baling, shredding, flattening or other treatment of Program Recyclables into Recovered Materials. 1.32 “Processing Fee” means the per ton fee for receipt and processing of Program Recyclables. 1.33 “Program Recyclables” means the Recyclable Materials as defined in the MAP originating from sources within the Town which are collected single stream and delivered by the Contractor or self haulers, delivered to the Recycling Facility, and processed and marketed by the Recycling Facility. 1.34 “Recovered Material(s)” means Recyclable Materials which have been processed at the Recycling Facility to market specifications. 1.35 “Recyclable Materials” means those materials which are capable of being recycled and which would otherwise be processed or disposed of as Solid Waste. 1.36 “Recyclable Materials Collection Services” means the provision of Residential Recycling Collection Service, Town Facility Recycling Collection Service and Special Event Recycling Collection Service by the Contractor. 1.37 “Recycling” means any process by which materials which would otherwise become Solid Waste are collected, separated, or processed and reused or returned to use in the form of raw materials or products. 1.38 “Recycling Cart” means a receptacle with wheels with a capacity of up to approximately 96 gallons designed or intended to be mechanically dumped into a loader-packer type garbage truck and approved by the Town Manager for the Collection of Program Recyclables from Residential Service Units, Town Facilities and special events. All such Recycling Carts must be clearly marked in a manner as approved by the Town Manager or authorized designee. 1089903.7 B-5 1.39 “Recycling Facility” means a Solid Waste Facility that is owned, operated or used for the storage, treatment or processing of Recyclable Materials and that handles wastes that have a significant adverse effect on the environment. 1.40 “Recycling Services” means the Collection of Recyclable Materials by the Contractor from Residential Service Units and Town Facilities in the Town, delivery of Recyclable Materials to Recycling Facility, and processing and marketing of Recyclable Materials at the Recycling Facility. 1.41 “Rejects” means material other than Residue, such as Non-recyclable Waste or materials other than those defined in the MAP, which is delivered with Recyclable Materials and which shall be handled and accounted for separately from Recyclable Materials and Residue. 1.42 “Residential Bulk Waste” means Bulk Waste that is generated and disposed of at a Residential Service Unit. 1.43 “Residential Bulk Waste Collection Service” means the Collection of Bulk Waste by the Contractor from Residential Service Units and the delivery of the Bulk Waste to the Disposal Facility or Recycling Facility. 1.44 “Residential Green Waste Service” means the Collection of Green Waste by the Contractor from Residential Service Units and the delivery of Green Waste to a green Waste processing facility. 1.45 “Residential Recyclable Materials” means any Recyclable Materials that is generated from Residential Service Units, not including Construction and Demolition Waste or Hazardous Waste. 1.46 “Residential Recycling Collection Services” means the Collection of Recyclable Materials by the Contractor from Residential Service Units and the delivery of the Recyclable Materials to the Recycling Facility. 1.47 “Residential Recycling Services” means the Collection of Recyclable Materials by the Contractor from Residential Service Units, delivery of the Recyclable Materials to the Recycling Facility and processing and marketing of the Recyclable Materials at the Recycling Facility. 1.48 “Residential Services” means Residential Solid Waste Services, Residential Bulk Waste Collection Services, Residential Green Waste Services and Residential Recycling Services. 1.49 “Residential Service Unit” mean residential dwellings and establishments identified by the Town to receive Residential Services from the Contractor and utilizing (i) a Solid Waste Cart for the accumulation and set-out of Residential Solid Waste and (ii) a 1089903.7 B-6 Recycling Cart for the accumulation and set-out of Residential Recyclable Materials. Town, at its sole discretion, may add or delete Residential Units. 1.50 “Residential Solid Waste” means any garbage, Green Waste or rubbish that is generated from Residential Service Units, not including Construction and Demolition Waste or Hazardous Waste. 1.51 “Residential Solid Waste Collection Services” means the Collection of Solid Waste by the Contractor from Residential Service Units and delivery of the Solid Waste to the Disposal Facility. 1.52 “Residential Solid Waste Services” means the Collection of Solid Waste by the Contractor from Residential Service Units, delivery of the Solid Waste to the Disposal Facility, and disposal of the Solid Waste at the Disposal Facility. 1.53 “Residue” means that portion of the Recyclable Materials accepted by the Contractor which is not converted to Recovered Materials due to spoilage, breakage, contamination and/or transportation or processing inefficiencies, other than Rejects. 1.54 “Residue Allowance” means that portion of incoming Program Recyclables defined as Residue and shall not exceed the overall annual Residue Allowance of 15%. 1.55 “Scavenging” means the unauthorized removal of Recyclable Material after the generators thereof divest control physically or as a matter of appropriate law, rule or regulation. 1.56 “Solid Waste” means any garbage, trash, rubbish, waste tire, refuse, sludge from a waste treatment plant, water supply treatment plant or pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material unless otherwise excluded by the Arizona Revised Statutes. 1.57 “Solid Waste Cart” means a receptacle with wheels with a capacity of up to approximately 96 gallons designed or intended to be mechanically dumped into a loader- packer type garbage truck and approved by the Town Manager for the Collection of Residential Solid Waste. All such Solid Waste Carts must be clearly marked in a manner as approved by the Town Manager or authorized designee. 1.58 “Solid Waste Facility” means a transfer facility and any site owned, operated or utilized by any person for the storage, processing, treatment or disposal of solid waste, conditionally exempt small quantity generator waste or household hazardous waste unless otherwise excluded by Arizona Revised Statutes. 1.59 “Special Event Solid Waste Collection Services” means the Collection of Solid Waste by the Contractor from special events as requested by the Town and delivery of the Solid Waste to the Disposal Facility. 1089903.7 B-7 1.60 “Special Event Recycling Collection Services” means the Collection of Recyclable Materials from special events as requested by the Town via Containers or Recycling Carts and delivery to the Recycling Facility by the Contractor. 1.61 “Source Separated Materials” means materials that are separated by material type by the generator. 1.62 “State” means the State of Arizona. 1.63 “Ton” means a unit of weight equal to 2,000 pounds. 1.64 “Town Facility” means any Town-owned or operated facility designated by the Town for Town Facility Recycling Services. The Town has the sole authority to add or eliminate Town Facilities. 1.65 “Town Facility Recycling Collection Services” means the Collection of Recyclable Materials from Town Facilities via Containers or Recycling Carts and delivery to the Recycling Facility by the Contractor. 1.66 “Town Facility Solid Waste Collection Services” means the Collection of Solid Waste by the Contractor from a Town Facility and delivery of the Solid Waste to the Disposal Facility. 1.67 “Town Revenue Rate” means the minimum payment by Contractor to Town per ton of Program Recyclables received at the Recycling Facility. 2. Representations. 2.1 Relationship of the Parties. It is clearly understood that each party will act in its individual capacity and not as an agent, employee, partner, joint venturer, or associate of the other. An employee or agent of one party shall not be deemed or construed to be the employee or agent of the other for any purpose whatsoever. The Contractor is advised that taxes or Social Security payments will not be withheld from any Town payments issued hereunder and Contractor agrees to be fully and solely responsible for the payment of such taxes or any other tax applicable to this Agreement. 2.2 Representations by Town. The Town represents to the Contractor that the Town is duly organized and existing in good standing under the laws of the State and is duly qualified and authorized to carry on the governmental functions and operations as contemplated by this Agreement. The Town further represents that the person signing on its behalf has been properly authorized and empowered to enter into this Agreement. The Town acknowledges that it has read this Agreement, understands it, and agrees to be bound by it. 2.3 Representations by Contractor. The Contractor represents to the Town that at the time of execution of this Agreement: 1089903.7 B-8 A. Authority. The Contractor is duly qualified and in good standing to do business in the State and is duly qualified and in good standing to do business wherever necessary to carry on the business and operations contemplated by this Agreement. The Contractor further represents that the person signing on its behalf has been properly authorized and empowered to enter this Agreement. The Contractor further acknowledges that it has read this Agreement, understands it, and agrees to be bound by it. B. Recyclable Materials Processing. The Contractor has entered into a contract for Recyclable Materials processing and marketing services, a true and correct copy of which is attached hereto as Exhibit F and incorporated herein by reference, for the Initial Term and Renewal Terms (as defined in Section 3 below). C. Solid Waste Disposal. The Contractor has entered into a contract for Disposal Services, attached hereto as Exhibit G and incorporated herein by reference, for the Initial Term and Renewal Terms. D. Licenses; Materials. The Contractor has obtained all applicable environmental and other governmental permits, licenses, permits and authorizations that are (1) necessary for providing the Services and (2) required to be issued under Federal, State, local law, regulation, rule or ordinance. Contractor shall maintain in current status all Federal, State and local licenses, permits and authorizations required for the operation of the business conducted by the Contractor. The Town has no obligation to provide Contractor, its employees or subcontractors any business registrations or licenses required to perform the specific services set forth in this Agreement. The Town has no obligation to provide tools, equipment or material to Consultant. E. Insurance/Bonds. The Contractor has obtained and submitted to the Town (1) certificates of insurance for all required insurance coverages specified in this Agreement and (2) documentation of performance bond as required by this Agreement. F. No legal Action Pending. To the best of the Contractor’s knowledge, there is no action, suit or proceeding, at law or equity, before or by any court or government authority, pending or threatened against the Contractor, wherein an unfavorable decision, ruling or finding would materially adversely affect the performance by the Contractor of its obligation hereunder or the other transactions contemplated hereby, or which, in any way, would adversely affect the validity or enforceability of this Agreement, or any other contract or instrument entered into by the Contractor in connection with the transactions contemplated hereby. Contractor agrees that it shall take all steps necessary to ensure that the representations set forth in this Section 2.3 shall remain true and correct for the entire Term of this Agreement. 3. Term of Agreement. 3.1 Initial Term. Unless sooner terminated in accordance with the provisions in this Agreement, the term of this Agreement shall commence on the Commencement Date and shall continue in effect until the Expiration Date (the “Initial Term”). 1089903.7 B-9 3.2 Option to Renew. After the Initial Term, Town shall have the option at its sole discretion to renew this Agreement for up to three additional one-year terms (each, a “Renewal Term”). The Initial Term and any Renewal Terms shall be collectively referred to herein as the “Term.” To exercise its option, Town shall provide written notice to Contractor not later than 30 calendar days preceding the scheduled date of expiration of the then-current Term. This provision in no way limits the Town’s right to terminate this Agreement at any time during the Term pursuant to the provisions in this Agreement. 4. Solid Waste Services, Bulk Waste Services and Recycling Services. The Contractor shall begin providing the services set forth in this Section on their respective Commencement Dates, as determined by the phase-in schedule included on Exhibit D, and the Contractor shall change rates for such services not greater than as set forth on Exhibit C. 4.1 Solid Waste. A. Residential Solid Waste Services. Contractor shall collect, once per week on a scheduled day, all Solid Waste Carts from each Residential Service Unit in the Town. Contractor shall deliver the Residential Solid Waste collected to the Disposal Facility and dispose of the Residential Solid Waste at the Disposal Facility. Upon the receipt of a written work order from the Town, Contractor shall provide additional Solid Waste Cart collection and non-collection day Collection Services. B. Residential Bulk Waste Services. Contractor shall provide an on-call, fee-for-service process for collecting residential bulk waste of up to six cubic yards from each Residential Service Unit in the Town. Contractor shall also hold, not less than two times each year, on days chosen by the Town, Town-wide bulk waste drop-off events at not less than three locations as selected by the Town. Contractor shall deliver the Bulk Waste collected to the Recycling Facility or the Disposal Facility. If the Bulk Waste is delivered to the Recycling Facility, Contractor shall process and market the Bulk Waste at the Recycling Facility. If the Bulk Waste is delivered to the Disposal Facility, Contractor shall dispose of the Residential Solid Waste at the Disposal Facility. Upon the receipt of a written work order from the Town, Contractor shall provide additional Bulk Waste Collection Services. C. Town Facility Solid Waste Services. Contractor shall collect, not less than once per week, all Solid Waste in Solid Waste Carts or Containers at Town Facilities shown in the table below: Table 4.1 Town Facilities Address Container Size Collection Frequency 1089903.7 B-10 D. Special Event Solid Waste Services. Upon request of the Town, the Contractor shall deliver Solid Waste Carts or containers to the site of a special event and shall collect and dispose of Solid Waste collected in such Solid Waste Carts or Containers. 4.2 Recycling. A. Residential Recycling Services. Contractor shall collect, once per week on a scheduled day, all Program Recyclables via single stream in a Residential Recycling Cart from each Residential Service Unit in the Town. Contractor shall deliver the Program Recyclables collected to the Recycling Facility. In addition, Contractor shall process and market the Program Recyclables delivered to the Recycling Facility. B. Town Facility Recycling Collection. Contractor shall collect, on a frequency solely decided by the Town, all Program Recyclables from each Town Facility listed in Table 4.1 above. Contractor shall deliver the Program Recyclables collected to the Recycling Facility. In addition, Contractor shall process and market the Program Recyclables delivered to the Recycling Facility. C. Special Events Recycling Collection. Upon request of the Town, Contractor shall deliver Recycling Carts to the site of a special event and shall collect and process all Program Recyclables collected by such Recycling Carts, the frequency of which shall be at the Town’s sole discretion. D. Neighborhood Recycling Drop-off Services. Contractor shall be solely responsible for providing single stream Collection, Processing and Marketing of Recyclable Materials generated and disposed of at the Neighborhood Recycling Drop-off Sites. The Town shall have the sole authority in determining the frequency of Collection for each Neighborhood Recycling Drop-off Sites. Table 4.2 – Neighborhood Recycling Drop-off Service Site Neighborhood Recycling Drop-off Service Site Address E. Disposal Prohibited. The Contractor shall be prohibited from (1) disposal of and/or landfilling of any Program Recyclables accepted or processed at the Recycling Facility or (2) marketing Program Recyclables to markets that the Contractor knows or reasonably should have anticipated will dispose of and/or landfill the Program Recyclables, except when approved in writing by the Town. 4.3 Residential Green Waste Collection. Contractor shall collect, once per week on a scheduled day, all Green Waste via Residential Green Waste Cart from each Residential service Unit in the Town that has selected the green waste option and has agreed to 1089903.7 B-11 pay the additional cost of same. Contractor shall deliver all Green Waste collected from Green Waste Carts at Residential service Units to a Green Waste processing facility. 4.4 Backdoor Collection Services. Contractor shall provide Backdoor Collection Services for Residential Solid Waste and Recyclable Materials from Residential Service Units if all adult occupants residing therein are handicapped, or due to age or verified physical limitations, cannot safely move Carts and if a request for Backdoor Collection Services has been made to and approved by the Town, in the manner required by the Town. The Town shall notify the Contractor in writing of any Residential Service Unit requiring Backdoor Collection Services. No additional monies shall be due to the Contractor for the provision of Backdoor Collection Services. Contractor shall provide Backdoor Collection Services on the same scheduled Collection day that Collection Services would otherwise be provided to the Residential Service Unit. 4.5 Manner of Providing Services. Unless otherwise stated in this Agreement, the Contractor shall be solely responsible for all aspects of the management, operations and maintenance and equipment relating to the Services including, but not limited to, the following: A. Rejected Loads. Transportation and disposal of Rejected Loads (as defined in subsection 5.2 below) at the Recycling Facility to the Disposal Facility. B. Residue and Rejects. Transportation and disposal of Residue and Rejects at the Recycling Facility to the Disposal Facility. C. Recovered Materials. The shipping and marketing of Recovered Materials processed at the Recycling Facility. D. Records. The maintenance of complete and accurate records and the provision of reports to the Town in accordance with the requirements of this Agreement. E. Maintenance. The preventive maintenance, maintenance and repair of systems and equipment including vehicles, buildings, grounds and other equipment. F. Clean-up. The prevention and clean-up of litter, spillage, dust and odor as set-forth in this Agreement. G. Personnel. The recruitment, hiring and training of all managerial, supervisory and operating personnel providing the Services. H. Carts. Cart maintenance and delivery of new Solid Waste Carts, Recycling Carts and Green Waste Carts, as applicable, once the program begins. Contractor shall also be solely responsible for Storage of unused Carts. 4.6 Part-Time Residents. Contractor shall provide each Residential Unit the opportunity to annually stop service temporarily for a period of up to six continuous months upon notification by the resident. 1089903.7 B-12 5. Inspection of Loads and Rejected Loads. 5.1 Contractor’s Right to Inspect Loads. The Contractor may inspect each delivery of Program Recyclables prior to and upon their discharge at the Recycling Facility for consistency with the MAP. 5.2 Unacceptable Loads. Contractor may not designate a load as an unacceptable load for any reason other than those identified in this Section. Prior to departure from the Recycling Facility of the vehicle delivering Recyclable Materials to the Recycling Facility, Contractor may designate a load as a “Rejected Load” for the following reasons: A. Excessive Non-Recyclable Waste. A load of Program Recyclables contains more than 15% Non-recyclable Waste by weight. B. Public Health Danger. A load of Program Recyclables presents a substantial endangerment, such as disease or death, to the public or employee health or safety. C. Hazardous Waste. A load contains Hazardous Waste that cannot be easily separated from acceptable materials. 5.3 Procedure upon Rejection of Load. A. Notice of Rejected Load. If the Contractor designates a load as a Rejected Load for the reasons set forth in subsections 5.2(A) and (B) above, Contractor must immediately provide written notice to the Town, including the reason the load was designated a Rejected Load. If Contractor fails to provide notice in accordance with this subsection, Contractor shall accept the load. B. Right to Inspect Rejected Loads. Upon receipt of the notice by the Town in accordance with subsection 5.3(A) above, Contractor shall retain the Rejected Load for an additional 24 hours to allow the Town a right to inspect the load. The Town may waive the right to inspect the load. Failure to inspect the load within 24 hours of receipt of notice shall be deemed a waiver of the right to inspect the load. C. Dispute or Acceptance of Designation as Rejected Load. If the Town inspects the load, the Town may dispute or accept the designation as a Rejected Load. If the Town disputes the rejection of the load, the Contract Administrator’s decision as to whether the load will or will not be accepted shall be final and conclusive. If the load is not deemed a Rejected Load by the Contract Administrator, the Contractor shall accept and process the load. D. Costs for Rejected Loads not due to Hazardous Waste. Contractor shall, at its sole expense, pay for transportation and disposal costs of Rejected Loads for the reasons set forth in subsections 5.2(A) and (B) above. 1089903.7 B-13 5.4 Procedure upon Rejection of Load due to Hazardous Waste. A. Notice of Rejected Load due to Hazardous Waste. If the Contractor designates a load as a Rejected Load for the reason set forth in subsection 5.2(C) above, Contractor must immediately provide written notice to the Town, including the reason the load was designated as containing Hazardous Waste. If Contractor fails to provide notice in accordance with this Section, Contractor shall accept the load. B. Right to Inspect Hazardous Waste. Upon receipt of the notice by the Town in accordance with subsection 5.4(A) above, Contractor shall retain the load for an additional 12 hours to allow the Town to inspect the load. The Town may waive the right to inspect the load. Failure of the Town to inspect the load within 12 hours of receipt of notice shall be deemed a waiver of the right to inspect the load. C. Dispute or Acceptance of Designation as Hazardous Waste. If the Town inspects the load, Town may dispute or accept the designation as containing Hazardous Waste. If the Town disputes the rejection of the load, the Contract Administrator’s decision as to whether the load will or will not be accepted shall be final and conclusive. If the load is not deemed a Rejected Load by the Contract Administrator, the Contractor shall accept and process the load. D. Costs for Hazardous Waste. For costs related to disposal of Hazardous Waste that the Contractor fails to provide notice in accordance with subsection 5.4(A) above, Contractor shall, at Contractor’s sole expense, handle and dispose of the Hazardous Waste. If Contractor provides notice in accordance with subsection 5.4(A) above as to a load with Hazardous Waste and the Town determines that the load does contain Hazardous Waste, Town shall have the right to (1) handle and dispose of the Hazardous Waste or (2) require the Contractor to handle and dispose of the Hazardous Waste. If Contractor provides notice in accordance with subsection 5.4(A) above and either the Town concurs that the load contains Hazardous Waste or the Contract Administrator concludes that the load contains Hazardous Waste, and the Town elects not to dispose of the Hazardous Waste as permitted in this subsection, Contractor may bill the source of the Hazardous Waste the cost of handling and disposal of the Hazardous Waste. 6. Handling of Rejects and Residue. 6.1 Handling of Rejects. The Contractor shall segregate and store all Rejects and shall notify the Town prior to their removal for disposal to permit the Town’s inspection thereof. The Town shall have the right to inspect such Rejects within 24 hours of notification and to make its own determination as to whether such materials are in fact Rejects, as defined herein. Contractor shall, at its sole expense, pay for transportation and disposal costs of Rejects. 6.2 Handling of Residue. Contractor shall be solely responsible for ensuring that Residue which is culled from Program Recyclables accepted by Contractor or which is the result of processing activity shall not exceed the overall annual Residue Allowance of 15%. If the residue exceeds the Residue Allowance, Town may assess liquidated damages in accordance 1089903.7 B-14 with Section 18 of this Agreement. Contractor, at is sole expense, shall bear costs of transporting and disposal of all Residue. 7. Collection and Processing Equipment. 7.1 Collection Services Vehicles. A. Appearance of Collection Services Vehicles. Contractor shall paint all Collection Service vehicles uniformly with the name of Contractor, customer service office telephone number and the unique identification number of the vehicle in letters not less than six inches high on each side and the rear of the vehicle. All Collection Services vehicles shall be uniquely numbered and a record kept of the vehicle to which each number is assigned. No advertising shall be permitted on vehicles, except for events sponsored by the Town, which shall be advertised on request of the Town. B. Age of Collection Services Vehicles. Contractor shall provide all Collection Services pursuant to this Agreement with Collection vehicles less than seven years of age. The average age for the Collection vehicles to be used for performance of Collection Services provided pursuant to this Agreement shall not exceed three years of age. 7.2 Collection Services Carts. Town shall have the sole decision in determining the appearance of the Carts. A. Purchase and Initial Distribution of Carts. The Contractor, at its sole cost, shall purchase all Carts required for the provision of Collection Services pursuant to this Agreement. In addition, the Contractor, at its sole cost, shall deliver one Solid Waste Cart, one Recycling Cart and one Green Waste Cart (for Residential Service Units choosing the optional Green Waste Service) to each Residential Service Unit prior to the Commencement Date, unless instructed otherwise by the Town. The Contractor shall attach a program introduction notice to each Cart delivered. B. Subsequent Distribution, Maintenance and Storage. After the initial distribution of Carts, Contractor, at its sole cost, shall deliver Cart(s) to a Residential Service Unit within two business days of the request by the Town. Contractor shall attach a program introduction notice to each Cart delivered. C. Cart Care and Maintenance. Contractor’s employees shall take care to prevent damage to Carts by unnecessarily rough treatment. Contractor shall be solely responsible for Cart maintenance. D. Reserve Carts. Contractor shall maintain a minimum of 15 Solid Waste Carts, 15 Recycling Carts and 15 Green Waste Carts at a secure location within the corporate limits of the Town to ensure that extra or replacement Carts can be expeditiously provided upon the request of the Town. E. Replacement of Carts. Upon notification to Contractor by the Town or a customer that a Cart has been lost, destroyed, stolen or that it has been damaged 1089903.7 B-15 beyond repair, Contractor shall purchase, if necessary, and deliver a replacement Cart to such customer within two business days. At the expense of the Contractor, each Residential Service Unit shall be entitled to unlimited replacements of destroyed or damaged beyond repair Cart(s) for the life of the Agreement at no cost to the Town or the customer if determined by the Contract Administrator or authorized designee that such destruction or damage was caused by the Contractor or Contractor’s employees or equipment. For additional replacements beyond those as provided in this Agreement or for Carts purchased by written authorization of the Town Manager, Town shall reimburse Contractor the purchase cost paid by Contractor for the Cart. 7.3 Collection and Processing Equipment, Excluding Carts. A. Purchase, Operation and Maintenance. Unless otherwise stated in this Agreement, Contractor shall be solely responsible for all costs of purchasing, operating and maintaining Collection and processing equipment for the Term of this Agreement. Town, at its sole discretion, shall determine whether the Contractor is or is not properly maintaining the Collection and processing equipment. If the Town determines the Contractor is not properly maintaining the Collection and/or processing equipment, Contractor shall replace such equipment in accordance with this Agreement and Town may assess liquidated damages in accordance with Section 18 of this Agreement. B. Replacement. Unless otherwise stated in this Agreement, Contractor shall be solely responsible for the replacement of Collection and processing equipment if such equipment is lost, stolen or damaged beyond normal wear and tear. If Contractor or Town determines that Collection and/or processing equipment requires replacement, Contractor shall replace such equipment within 14 calendar days with comparable equipment. Contractor shall be responsible to make the appearance of the replacement equipment in adherence with the requirements of this Section. 7.4 Ownership. A. Collection Services Equipment other than Carts and Containers. Ownership of Collection Services Equipment other than Carts shall rest with Contractor. B. Carts and Containers. Ownership of Carts and containers shall rest with the Contractor during and after the term of the Agreement. 7.5 Disposal Facility and Recycling Facility Equipment. The Disposal Facility, Recycling Facility and any other processing center used to perform the Services shall be equipped with adequately sized truck scales and computerized record-keeping systems for weighing and recording all incoming and outgoing delivery vehicles and vehicles transporting Recyclable Materials to markets. The Recycling Facility shall be capable of recording the type of Recyclable Materials received for each incoming truck. Additionally, the Recycling Facility shall be capable of recording the weights of each type of Recyclable Material which are shipped. Contractor shall separately weigh, record and tabulate each load from Town. 8. Personnel. Contractor shall assign a qualified person or persons who will be charge of its operations within the Town and authorized to make decisions on Contractor’s 1089903.7 B-16 behalf and shall provide the name, office telephone number, mobile phone number, email address and facsimile number of Contractor’s representatives and key personnel to the Contract Administrator. Contractor agrees that the Town shall have 24 hour access to said representative via a non-toll call from the corporate limits of the Town. Such records shall be updated as personnel or contact information changes. In addition, Contractor shall adhere to the following requirements: 8.1 Key Personnel. Contractor shall provide adequate, experienced personnel, capable of and devoted to the successful completion of the Services to be performed under this Agreement. Contractor agrees to assign specific individuals to key positions. Contractor agrees that, upon commencement of the Services to be performed under this Agreement, key personnel shall not be removed or replaced without prior written notice to the Town. If key personnel are not available to perform the Services for a continuous period exceeding 30 calendar days, or are expected to devote substantially less effort to the Services than initially anticipated, Contractor shall immediately notify the Town of same and shall, subject to the concurrence of the Town, replace such personnel with personnel of substantially equal or superior ability and qualifications. If deemed qualified, the Contractor is encouraged to hire Town residents to fill vacant positions at all levels. 8.2 Uniforms. Contractor shall furnish each employee involved in the performance of this Contract with a uniform and safety vest, shirt or jacket which clearly displays the name of Contractor. Such uniforms and safety equipment shall make the employee readily visible to other motorists. Contractor’s employees shall wear complete uniforms and safety vest, shirt or jacket at all times. 8.3 Safety Training. Contractor shall provide regularly scheduled, on-going operating and safety training for all employees. In addition, Contractor’s employees shall be trained to perform their duties to maximize the Town’s recycling rate, minimize contamination and promote recycling at all times. Such meetings shall be mandatory for all Collection and supervisory personnel and held not less than once per month. All temporary and newly hired permanent Collection personnel and supervisory employees must receive comprehensive safety and operational training prior to working on the Collection vehicles or performing duties under this Agreement. Training manuals and schedules shall be maintained at the local office of Contractor and available for review at any time by Contract Administrator. 8.4 General Training. All employees involved in the performance of this Agreement including office and all Collection personnel, must be provided adequate training before and during their employment with the Contractor. This training shall familiarize employees with the required duties and standards of performance, specific requirement on routes to which they will be assigned, teach the route layouts previously established and approved and provide necessary knowledge to eliminate delays and Missed Collections. All supervisory and Collection employees must be provided equipment and supplies prior to and during the performance of their duties. All Collection, administrative, supervisory and customer service personnel must receive customer service training prior to and during the time they are employed by the Contractor. 1089903.7 B-17 8.5 Contact with Others. Contractor’s employees shall treat all customers, co- workers, Town employees and any individual with whom they come in contact in the performance of their duties in a polite and courteous manner. Rudeness, belligerence and the use of profanity are strictly prohibited. The Town reserves the right to direct Contractor to remove any employee who violates this policy from providing services to the Town, pursuant to this Agreement. 8.6 Compliance with Laws. In performance of Collection Services, Contractor’s employees must adhere to municipal, Town, State and Federal laws. Town reserves the right to make a complaint regarding any employee of the Contractor who violates any provision herein, or who is wanton, negligent or discourteous in the performance of his/her duties. The Town may recommend appropriate action be taken by the Contractor and may require the Contractor to remove any unacceptable employee, as determined by the Town, from service to the Town. 9. Hours of Operation and Holidays. Contractor shall not make any changes to the hours of operation as provided in this Section without the prior, written approval of the Contract Administrator. 9.1 Residential Collection Services. Excluding Holidays (as defined in subsection 9.7 below), Contractor shall provide Residential Collection Services from Monday through Thursday, 6:00 AM, Local Time to 5:00 PM, Local Time. Residential Collection Services that fall on a Holiday shall be collected as set forth in Section 9.7 below. 9.2 Town Facility Recycling Services. Excluding Holidays, Contractor shall provide Town Facility Recycling Services from Monday through Thursday, 6:00 AM, Local Time to 5:00 PM, Local Time. Town Facility Recycling Services that fall on a Holiday shall be collected on the following day. 9.3 Town Facility Solid Waste Services. Excluding Holidays, Contractor shall provide Town Facility Solid Waste Services from Monday through Thursday, 6:00 AM, Local Time to 5:00 PM, Local Time. Town Facility Solid Waste Services that fall on a Holiday shall be collected on the following day. 9.4 Extension of Collection Services Hours of Operation. If the Contractor determines that the Collection Services will not be completed by 5:00 PM, Local Time on the scheduled Collection day, the Contractor shall notify the Town by 3:00 PM, Local Time and request an extension of the Collection hours. The Contractor shall inform the Town of the areas not completed, the reason for non-completion and the expected time of completion. The Town must approve any extension of hours of operation. 9.5 Disposal Facility. Excluding holidays as defined in subsection 9.7 below, Contractor shall maintain, or cause its provider to maintain, the Disposal Facility open and available to receive Solid Waste seven days per week between 7:00 AM, Local Time to 6:00 PM, Local Time. 1089903.7 B-18 9.6 Recycling Facility. Excluding Holidays, Contractor shall maintain or cause its provider to maintain the Recycling Facility open and available to receive Program Recyclables seven days per week between 7:00 AM, Local Time to 6:00 PM, Local Time. 9.7 Holidays. The Town, at its sole discretion, may add or delete holidays. If the Town elects to add or delete holidays, the Town will provide the Contractor notice in accordance with the provisions of this Agreement. If a holiday occurs on a scheduled Collection day, Contractor shall perform the scheduled Collection for the holiday and the remainder of the week ending on Friday on the next calendar day after the scheduled Collection day. For purposes of this Agreement, “Holidays” shall include the following: A. New Year’s Day B. Independence Day C. Thanksgiving Day D. Christmas Day 10. Customer Service Complaints; Billing. Contractor and Contractor’s employees understand that customer service is of great importance to the Town. Contractor and its employees will work diligently to provide high quality customer services to the Town and all customers. 10.1 Customer Service Complaint Resolution Procedure. All customer service complaints shall initially be directed to the Contractor. The Contractor will generate an electronic work order outlining all legitimate complaints received. The work order will contain (A) date and time of call, (B) customer name, address and phone number and (C) type of complaint. A copy of the work order will then be electronically submitted to the Town, including a schedule for resolution. The Contractor will resolve each customer complaint in a timely manner as set forth below: A. Same Day Request. If the complaint is a Missed Collection or Missed Block, Contractor shall pick up the Missed Collection or Missed Block on that same day if the complaint is received by the Contractor prior to 11:00 AM, Local Time. B. Next Day Request. If the complaint is a Missed Collection or Missed Block, Contractor shall pick up the Missed Collection or Missed Block before 5:00 PM, Local Time on the next calendar day if the complaint is received by the Contractor after 11:00 AM, Local Time. C. Other Complaints. If the complaint other than a Missed Collection or Missed Block, Contractor shall resolve the complaint within 24 hours of written notice of such complaint to Contractor. 10.2 Work Order Reporting. Upon resolution of the customer complaint, Contractor will close the work order and resubmit it to the Town. The closed work order will 1089903.7 B-19 include (A) Contractor’s determination as to legitimacy of the complaint, (B) the date, time and action taken to resolve complaint and (C) the name of responsible contact at Contractor’s location regarding the complaint. 11. Damage to Property. The Contractor shall take all necessary precautions to protect public and private property during the performance of this Contract. Except for reasonable wear and tear, the Contractor shall repair or replace any private or public property that is damaged by the Contractor. Such property damages shall be addressed for repair or replacement, at no charge to the property owner, within 48 hours with property of the same or equivalent value at the time of the damage. If the Contractor fails to address the repair or replacement of damaged property within 48 hours, the Town may, but shall not be obligated to, repair or replace such damaged property and the cost of doing so (A) shall be paid by the Contractor to the Town within 30 days of receipt of demand therefore or (B) may be deducted by the Town from only amounts owing to the Contractor. 12. Spillage and Leakage, Litter, Dust and Odor. 12.1 Spillage and Leakage. Contractor shall clean up any spilled or blowing materials as well as fluids spilled or leaked from Contractor’s vehicles by the Contractor, Contractor’s employees or authorized person or entity providing service to the Contractor. During transport, all materials shall be contained, covered and enclosed so that leaking, spilling and blowing of materials does not occur. Contractor shall perform all cleanups within two hours of the spillage or leakage. 12.2 Litter. If Contractor operates the Disposal Facility, the Recycling Facility or the processing facility for Green Waste, the Contractor shall be required to pick up any and all litter (including any glass spillage) which blows or falls from the Disposal Facility, Recycling Facility or Green Waste facility onto the site or adjoining or surrounding property by the end of each workday or by the end of the first shift, if operated for more than ten hours per day. All on- site parking areas and roadways shall be swept at least once per month. 12.3 Dust and Odor. If Contractor operates the Disposal Facility, the Recycling Facility or Green Waste facility the Disposal Facility, Recycling Facility and Green Waste facility shall be operated to prevent the escape of dust and odors. The Contractor shall routinely clean the tip floor and the process and storage areas. 13. Recordkeeping, Reporting, Audited Financial Statements and Reporting Format. 13.1 Recordkeeping. The Contractor shall create, maintain and make available records as defined in, and required by, all applicable local, State and Federal laws, rules and regulations and any reports as are reasonably necessary to: A. Deliveries. Document Program Recyclables deliveries, Residential Solid Waste deliveries, time delivered to Recycling Facility, time delivered to Disposal Facility, tonnage of material delivered, Rejected Loads by date collected and other information as requested by Contract Administrator (a monthly summary shall also be submitted to the Town). 1089903.7 B-20 B. Missed Collections; Problem Set-out. Document Missed Collections, Late Set-outs and Improper Set-outs on a daily basis including the address, time and date for each and the reason, photograph and notice for Improper Set-outs (a monthly summary shall also be submitted to the Town). C. Recovered Material. Document Recovered Material from Program Recyclables tons marketed by commodity, entity marketed to, price paid by the end market and other information as requested by Contract Administrator (a monthly and annual summary shall also be submitted to the Town). D. Program Recyclables. For Program Recyclables, document incoming tonnages, residue tonnages, rejects tonnages, hazardous waste tonnages, marketed tonnages by commodity and inventory tonnages by commodity. Contractor shall provide an explanation if incoming tonnages does not equal the total of rejects tonnages, hazardous waste tonnages, marketed tonnages by commodity and inventory tonnages by commodity (a monthly and annual summary shall also be submitted to the Town). E. Hazardous Waste. Document Hazardous Waste including the source, tonnage, date received, disposal facility and other information as requested by Contract Administrator (a monthly and annual summary shall also be submitted to the Town). F. Other Regulatory Documents. Such other documents and reports as the Town may reasonably require to verify compliance with the Agreement or to meet the Town’s reporting requirements with the State (a monthly and annual summary shall also be submitted to the Town). G. Residue; Rejects. Document Residue and Rejects separately including tonnage, description of material, source of material (i.e. Program Recyclables, Nonprogram Recyclables, hauler, etc.), disposition and other information as requested by Contract Administrator (a monthly and annual summary shall also be submitted to the Town). H. Recovered Materials Marketing. Report the activities to research, investigate and develop new markets for Recovered Materials (a monthly and annual summary shall also be submitted to the Town). I. Availability of Documents. All of Contractor’s records shall be available to Town and its representatives at reasonable times and places throughout the term of this Agreement and for a period of five years after last or final payment. 13.2 Reporting. A. Initial Reports. 1. Transition Plan. The Contractor shall provide a transition plan 90 calendar days prior to Commencement Date. This plan shall detail transition to the Contractor providing Solid Waste Service, Bulk Waste Service, Recycling Service 1089903.7 B-21 and Residential Green Waste Service. This transition plan will be submitted for approval by the Contract Administrator. 2. Processing and Marketing Plan. The Contractor shall provide a processing and marketing plan 90 calendar days prior to Commencement Date. This plan shall detail the processing and marketing of all Program Recyclables and Recyclable Materials at the site. This processing and marketing plan will be submitted for approval by the Contract Administrator. 3. Hazardous Waste Contingency Plan. The Contractor shall provide a Hazardous Waste contingency plan, 30 calendar days prior to the Commencement Date, to the Contract Administrator and to the Town’s Risk Manager. This plan shall detail what actions shall be taken by the Contractor upon discovery of Hazardous Waste. This contingency plan will be reviewed by the Contract Administrator. The plan shall include a copy of a signed contract(s) with a permitted Hazardous Waste transporter(s) to handle any Hazardous Waste discovered. The plan must comply with all State and Federal regulations regarding the handling of Hazardous Waste. Non-conformance with any State or Federal regulation shall cause rejection of the plan. This Hazardous Waste contingency plan will be submitted for approval by the Contract Administrator. B. Monthly Reports. Contractor shall submit all monthly reports required by this Agreement to the Town Manager or authorized designee within seven calendar days following the end of each calendar month. C. Annual Reports. Contractor shall submit all annual reports required by this Agreement to the Towns Manager or authorized designee within 30 calendar days following the end of the Town’s fiscal year. 13.3 Audited Financial Statements. The Contractor will be required to submit audited financial statements prepared by an external accounting firm for itself as a whole within 90 calendar days of the end of the Contractor’s fiscal year end. The audited financial statements may be issued by either the Contractor, or by ___________, and shall contain detailed information collection, processing and marketing of Recyclable Materials which shall include at a minimum ____________’s income statement and balance sheet; proof that all insurance policies relative to this Agreement are in effect; and information on any outstanding lawsuits that might adversely impact Town. In the event Contractor is acquired, the Contractor shall notify the Town of the transfer in ownership, whereupon the Town shall have the option to require that the audited financial statements be submitted by the acquiring entity. The Contractor has provided a Guaranty Agreement by ____________, a copy of which is attached hereto and incorporated herein as Exhibit H. In the event Contractor is acquired, the Town shall have the option to require that the acquiring entity provide a Guaranty Agreement in a form acceptable to the Town Attorney. The financial basis records shall be kept in accordance with generally accepted accounting principles. 13.4 Report Format. Within 14 days after the Commencement Date, the Contractor will be required to submit to the Town for its approval the format and sample 1089903.7 B-22 contents of the records to be maintained and the reports to be generated in fulfillment of the requirements of the Agreement. Contractor shall submit all reports in electronic format approved by the Town and in hard copy. 14. Customer List, Billing and Collections, Payment and Annual Adjustments. 14.1 Customer List. On or prior to _______, 20__, the Town shall provide Contractor with a Residential Service Unit customer list and a Town Facility customer list. Regardless of the customer list, Contractor shall provide Collection Services to all Residential Services Units in accordance with this Agreement. 14.2 Billing and Collection. A. Solid Waste, Bulk Waste, Recycling and Disposal Services. The Contractor shall bill Residential Service Units for Residential Solid Waste, Bulk Waste, Recycling Services and Residential Green Waste Services in accordance with the rate structure established on Forms 5 and 8 respectively, attached hereto as a part of Exhibit C and as may subsequently be adjusted as set forth in this Agreement. 1. Understandable Bills. Bills will be clear, concise and understandable. Bills must be fully itemized, clearly delineating all activity during the billing period, including optional charges, rebates and credits. 2. Uniform Billing. Contractor shall bill all Residential Service Units in a uniform, non-discriminatory manner, regardless of level of service. Payment shall be due no sooner than the 15th day of each billing period, and the due date shall be listed on each bill. Bills shall be mailed no later than the first day of the billing period. Contractor shall provide a process to accept payments from a homeowners’ association or its authorized representative for Service Units within that homeowners’ association. 3. Customer Dispute. In case of a bill dispute, the Contractor must respond to a written complaint from a resident within 15 days. 4. Refunds. Refund checks will be issued promptly, but no later that the next billing cycle following resolution of the request or 30 days, whichever is earlier. Credits for service will be issued no later than the next billing cycle following the determination that a credit is warranted. 5. Individual Rights. Contractor shall not deny service, deny access, or otherwise discriminate against citizens on the basis of race, color, religion, national origin, sex, age, or disability. Contractor shall comply at all times with all other applicable federal, state, and local laws and regulations, and as amended from time to time, relating to nondiscrimination. 1089903.7 B-23 6. Equal Opportunity. Contractor shall strictly adhere to applicable equal employment opportunity requirements of federal, state, and local regulations as amended from time to time. 7. Protection of Privacy. a. At the time of delivery of the Carts to a Residential Service Unit and at least once a year thereafter, Contractor shall provide notice in the form of a separate, written statement to each Residential Service Unit that clearly and conspicuously informs the occupant of: (1) The nature of personally identifiable information collected or to be collected and the nature of the use of such information. (2) The nature, frequency, and purpose of any disclosure which may be made of such information, including any identification of the types of persons to whom the disclosure may be made. (3) The period during which such information will be maintained by the Contractor. (4) The times and place at which the Customer may have access to such information in accordance with subsection 14.2(A)(7)(e) below. (5) The limitations provided by this Section with respect to the collection and disclosure of information by Contractor and the right of the Customer to enforce such limitations. b. For purposes of the subsection, the term “personally identifiable information” does not include any record aggregate data which does not identify particular persons. c. Except as provided in herein, Contractor shall not disclose personally identifiable information concerning any customer without the prior written or electronic consent of the customer concerned. d. Contractor may disclose such information if the disclosure is: (1) Necessary to render, or conduct a legitimate business activity related to Services provided by the Contractor to the customer. (2) Made pursuant to a court order authorizing such disclosure, if the customer is notified of such order by the person to whom the order is directed. 1089903.7 B-24 e. A customer shall be provided, free of charge, access to all personally identifiable information regarding that customer which is collected and maintained by Contractor. Such information shall be made available to the customer at reasonable times and at a convenient place designated by Contractor. A customer shall be provided reasonable opportunity to correct any error in such information. f. Contractor shall destroy personally identifiable information if the information is no longer necessary for the purpose for which it was collected and there are no pending request or orders for access to such information under subsection 14.2(A)(7)(e) or pursuant to a court order. 8. Contractor shall establish a procedure for addressing delinquent accounts and shall be solely responsible for courteous resolution of any collection matters. The Contractor shall be permitted to pick up the Solid Waste Cart, Recycling Cart and Green Waste Cart from any Residential Service Unit for which fees for service have become delinquent by more than 60 days after the first notice of delinquency by the Contractor to the customer. The Contractor shall not receive any payment from the Town on account of excessive delinquencies. B. Recycling Facilities Processing and Marketing Services. Contractor shall submit a monthly bill on or before the 15th day of each month to the Town for all services performed during the immediate prior calendar month. Contractor shall ensure that each bill (1) describes services provided to the Town, (2) includes all charges for the prior month, and (3) includes any other information the Town requests. Contractor shall bill Town in accordance with the Rate Structure established on Form 5 and as may subsequently be adjusted as set forth in this Agreement. 14.3 Town Payment to Contractor. A. Town Facility Solid Waste Collection Services. Town shall pay Contractor for Town Facility Solid Waste Collection Services at the rates set forth on Form 6.1 in an amount equal to the Town’s authorized Town Facility Solid Waste Collection Services minus any disputed amounts and minus any liquidated damages. B. Town Facility Recycling Collection Services. Town shall pay Contractor for Town Facility Recycling Collection Services at the rates set forth on Form 6.2 in an amount equal to Town’s authorized Town Facility Recycling Collection Services minus any disputed amounts and minus any liquidated damages. 14.4 Payment for Variance; Inspections. For the duration of this Agreement, Contractor shall be solely responsible for the costs associated with the request for and issuance of a variance by the Maricopa County Environmental Services Division with respect to services to be provided pursuant to this Agreement. Contractor shall also be responsible for conducting any inspections required as a condition upon the Town’s variance. Contractor shall provide the Town with (A) quarterly reports detailing the inspections completed and (B) other such 1089903.7 B-25 information or reports as may be requested by the Town from time to time to comply with the requirements of the variance. 14.5 Annual Rate Adjustments. All costs proposed in Forms 5, 6, 7 and 8 (inclusive) shall remain fixed from the execution of this Agreement through June 30, 20 . On July 1, 20 and every July 1st thereafter during the Term of this Agreement, all cost of Collection Services, excluding costs associated with Carts, costs associated with Containers, costs of disposal and costs of processing and marketing, shall be adjusted, increases or decreased, according to this Section. The annual adjustment shall be a composite of two indices, 85% of which will be the Consumer Price Index – All Urban Consumers, CUUSA429SA0, CWUSA429SA0, Not Seasonally Adjusted, Area: Phoenix-Mesa, Item: All items (“CPI”) and 15 % of which will be the Diesel Fuel price index by the United States Department of Energy (the “DOE”). The Diesel Fuel adjustment shall be based on the most recent price as of July 1st of the then-current year as compared to the same price as calculated one year ago for Diesel Fuel (cents per Gallon), U.S. The CPI adjustment shall be calculated by comparing the index as of July 1st of the then-current year with the same index as it existed on July 1st of the prior year. Example: Assume that the CPI-All Urban Consumers, CUUSA429SA0, CWUSA429SA0, Not Seasonally Adjusted, Area: Phoenix-Mesa, Item: All items for the first half of 2010 is 105.5 and the first half of 2011 is 110.5. Assume that the Diesel Fuel price index by the DOE for Diesel Fuel (cents per Gallon), U.S. in 2011 is 308.5 and change from a year ago was –21.5. The calculation is as follows: 110.5-105.5 105.5 x .85 = 4.03% then 308.5-(308.5-(-21.5)) (308.5-(-21.5)) x .15 = -0.98% then 4.03% + -0.98% = 3.05% annual rate adjustment Notwithstanding the result of the calculation for the composite indices, in no event shall the cumulative rate adjustment (the CPI plus the Diesel Fuel price index by the DOE) exceed 5% per year. 15. Public Education Activities. Contractor shall provide the following services associated with public education notices at no cost to the Town or the customer. Contractor will at no time place public education notices inside customers’ mailboxes. Contractor shall not distribute any public education notices to Residential Service Units within the Service Area without written approval from Contract Administrator. 15.1 Distribution of Program Introduction Notice. Contractor shall distribute, at Contractor’s own expense, a program introduction notice for each Residential Service Unit for which Contractor delivers a Cart. The program introduction notice shall be delivered to each Residential Service Unit twice before Collection begins. Contractor shall deliver the first notice via first class mail not later than 60 days prior to the Commencement Date. Thereafter, 1089903.7 B-26 Contractor shall attach a program introduction notice via a non-adhesive means to each Cart delivered to a customer or picked up by a customer at the Contractor’s office. 15.2 Development, Printing and Distribution of Improper Set-out Notice. Contractor shall develop, print and distribute, at Contractor’s own expense, an improper set-out notice. The improper set-out notice shall be approved by the Town and shall include one original with two copies. The improper set-out notice shall include (A) the date (B) reason for non-Collection and (C) Contractor’s customer service telephone number and (D) any other information the Town requests. Contractor shall attach the original improper set-out notice via a non-adhesive means to the handle of the Cart. Contractor shall take a digital photo of set-out that receives an improper set-out notice. Contractor shall maintain copies of improper set-out notices and digital photos in a format that enables Contractor to immediately retrieve a requested notice or photo by address. Contractor shall provide a monthly report of improper set-out notices as set forth in this Agreement. 16. Ownership of Solid Waste and Program Recyclables. Title to Solid Waste, including Bulk Waste, shall pass to the Contractor once the Contractor takes possession of the materials at the Residential Service Unit. Title to Program Recyclables shall remain with the Town until the Recyclable Materials are processed and sold. The risk of loss to the Recyclable Materials shall pass to Contractor at the time they are picked up by the Contractor. After the risk of loss passes to Contractor, if any Recyclable Materials are lost, damaged or scavenged, Contractor shall be liable to the Town for that sum of funds that would have been paid to the Town in accordance with the provisions of this Agreement. 17. Addition and Deletion of Recyclable Materials. The Town reserves the right to add or delete other Program Recyclables to the program or delete Recyclable Materials from the program if the contracting parties agree it is economically and technically feasible. Additional fees, if any, for recovery of additional Recoverable Materials may be negotiated and implemented as a change in service fee in an amendment to this Agreement. 18. Liquidated Damages. Contractor understands that if Contractor does not timely perform its obligations pursuant to the terms of this Agreement, Town will suffer damages which are difficult to determine and adequately specify. The acts or omissions set forth in this Section 18 shall be considered a breach of the Contract. The Contractor shall be liable for liquidated damages amount(s) upon determination of the Town that performance has not occurred consistent with the provisions of the Agreement. The Town shall notify the Contractor in writing or electronically of each act or omission in this Agreement reported to or discovered by the Town. It shall be the duty of the Contractor to take whatever steps or action may be necessary to remedy the cause of the complaint. The Contractor agrees, in addition to any other remedies available to the Town, that the Town may deduct the full amount of any damages from any payment due to the Contractor. The remedy available to the Town under this paragraph shall be in addition to all other remedies which the Town may have under law or at equity. 18.1 Missed Collection. $25 for each Missed Collection above two misses per Collection day, to be assessed at the end of each Collection month. A Missed Collection occurs when (A) a resident reports that their material was set at the curb by 6:00 AM, Local Time and was not collected (B) the address was not reported by the Contractor as a late set-out or an 1089903.7 B-27 improper set-out. Contractor may dispute the designation as a Missed Collection to the Contract Administrator. In the case of a dispute, the Contract Administrator’s determination shall be final as to whether a set-out is a Missed Collection. 18.2 Missed Block. $250 for each incident of the Contractor failing to pick up material on a block. A Missed Block occurs when one side of a street between cross streets or an entire cul-de-sac where residents from at least three households on that street report that they had their material out before 6:00 AM, Local Time the material was not picked up, the material was properly sorted and the address was not reported by the Contractor as a late set-out. Contractor may dispute the designation as a Missed Block to the Contract Administrator. In the case of a dispute, the Contract Administrator’s determination shall be final as to whether a block is a Missed Block. 18.3 Less than Majority Collected. $2,500 for each incident for failure to complete a majority (50%) of the Collections on a given day. 18.4 Failed Spill Clean-up. $250 for each incident for failure to clean up material spilled or littered by Contractor within six hours of verbal or written notification. 18.5 Failed Vehicle Maintenance. $100 for each incident for failure to maintain vehicle in manner which prevents nuisances such as leaky seals or hydraulics. 18.6 Failed Correction of Missed Collection. $250 for each incident for failure or neglect to collect materials from a Missed Collection location within the amount of time specified in this Agreement. 18.7 Failed Cart Maintenance. $100 for each incident for failure to maintain Carts or Containers in proper working order ten days after notice has been provided by the Town. 18.8 Fail to Timely Complete Reports. $250 for each incident for failure to timely provide a complete monthly or annual report. 18.9 Failure to Return Carts. $100 for each incident for failure to return Carts or Containers to their original locations after collection. For the purposes of this subsection, “original location” shall mean within ten feet of the location at which the Cart was placed immediately prior to the Contractor picking it up for service. Contractor shall not be penalized for any Carts returned to their original location which are subsequently moved by a third party. 18.10 Failure to Provide Updated Maps. $50 per day for each day beyond 30 days after change in routing for failure to provide updated route maps to Town after change in routing. 18.11 Failure to leave Education Tag. $100 for each incident for failure to leave an education tag when material that is inappropriately prepared is not collected. 1089903.7 B-28 18.12 Failure to Label. $100 for each incident for distributing Carts without labels that include text and graphics depicting what materials may be placed in the containers. 18.13 Failed Customer Complaint Response. $100 per Business Day thereafter per incident for failure to respond to any customer complaint received by the close of the following Business Day. 18.14 Failure to Document Customer Complaints. $50 per Business Day thereafter per incident for failure to provide the Town with the required resolved customer complaint documentation. 18.15 Failure to Accept Materials. $3,000 for each day for failure to be able to accept materials on any day after the date upon which service begins on which materials are to be collected. 18.16 Failed Reject Handling. $500 for each occurrence for failure to handle Rejects in accordance with this Agreement. 18.17 Failure to meet Residue Allowance. For Failure to meet annual Residue Allowance in accordance with this Agreement: (A) $500 for 0.01% to 5.00% over the Residue Allowance; (B) $1,000 for 5.01% to 10.00% over the Residue Allowance; (C) $1,500 for each 10.01% to 15.00% over the Residue Allowance; (D) $2,000 for 15.01% to 20.00% over the Residue Allowance; and (E) $2,500 for 20.01% or more over the Residue Allowance. Exceptions: For the purposes of this Agreement, the Contractor shall not be deemed to be liable for penalties where its inability to perform Collection Service is the result of conditions of Force Majeure as set forth in Section 25 of this Agreement, inclement weather severe enough that trucks cannot safely take Collections, provided however, that the Contractor shall obtain the approval for the delay from the Town prior to 3:00 PM, Local Time of the scheduled Collection day. 19. Payment Withheld. In addition to express provisions elsewhere contained in this Agreement, Town may withhold from any payment otherwise due the Contractor such amount as determined necessary to protect the Town’s interests on account of: (i) Unsatisfactory progress of the work not caused by condition beyond Contractor’s control; (ii) Defective work not corrected; (iii) Contractor’s failure to carry out instructions or orders of the Town or its representative; (iv) A reasonable doubt that the Agreement can be completed for the balance then unpaid; (v) Execution of work not in accordance with the Agreement; (vi) Claim filed by or against Contractor or reasonable evidence indicating problem filing of claims; (vii) Failure of Contractor to make payments to any subcontractor for material or labor; (viii) Damage to another contractor; (ix) Unsafe working conditions allowed to persist by Contractor; (x) Failure of Contractor to provide required reports and other reports as required by Town; (xi) Use of any subcontractors without the Town’s prior, written approval; or (xii) Failure of Contractor to provide accurate invoices and supporting data as describe elsewhere in this agreement. When the foregoing defaults have been cured, payment shall be made for amounts withheld because of them and the Town shall never be liable for interest on any delayed or late payment. The Town’s right to withhold payments under this Section will be reasonable in light of the nature of 1089903.7 B-29 the claims and the amount of available insurance and performance bonds pursuant to this Agreement. 20. Performance Guaranty. Contractor shall furnish the Town with a Performance Bond covering faithful performance of this Agreement. The bond shall be submitted within 45 days following the Effective Date, but in no event later than the Commencement Date. The Bond shall be in an amount not less than annual value of this Agreement and in the form approved by the Town Attorney. The term of the Bond shall be not less than one year beginning on the Commencement Date. The Contractor shall furnish the Town with a renewal of the Bond for an additional term of not less than one year from the expiration date of the Bond then in effect for each year this Agreement is in effect. The renewal of the Bond shall be submitted at least 30 days prior to the expiration date of the Bond then in effect. Notwithstanding the foregoing, the Surety shall not be obligated to renew the Performance Bond for any successive year. Non-renewal shall not be construed as a default by the Contractor under the bond and shall not be actionable under any bond provided. The Performance Bond shall be limited to one and only one surety which shall be issued by a Surety Company authorized to do business in the State of Arizona and have A.M. Best rating of “A” or better and the “T” Underwriting limitation is not exceeded by this Bond. 21. Taxes. Contractor shall be responsible for and shall pay all sales, consumer, use and other taxes. When equipment, materials or supplies generally taxable to the Contractor are eligible for a tax exemption due to the nature of the item, Contractor shall assist Town in applying for and obtaining such tax credits and exemptions which shall be paid or credited to Town. 22. Compliance with Laws and Regulations. The Contractor shall keep fully informed and shall at all times during the performance of its duties under this Agreement ensure that it and any person for whom the Contractor is responsible remains in compliance with all rules, regulations, ordinances, statutes or laws affecting the Services including the following: (i) existing and future Town and County ordinances and regulations, (ii) existing and future State and Federal laws, (iii) existing and future Occupational Safety and Health Administration (“OSHA”) standards, (iv) applicable laws, statutes, codes, rules and regulations related to or prohibiting discrimination in employment in the performance of its work under this Agreement and (v) requirements as established by the Congress of the United States in the Fair Labor Standards Act, as amended from time to time. 23. Town Inspection Rights. 23.1 Town’s Right to Inspect Records, Books, Data and Documents. The Town or any of its duly authorized representatives shall have access, within 24 hours of notification, to all books, records, data and documents of the Contractor for inspection and audit, at Town’s expense. Additionally, the Contractor shall give the Town written notice of any other professional relationships it enters into with the Town or any of its agencies or component units during the period of this Agreement. 23.2 Town’s Rights to Inspect Facilities and Equipment. The Town or any of its duly authorized representatives shall have access, within 24 hours of notification, to inspect 1089903.7 B-30 Contractor’s facilities, including the Disposal Facility and Recycling Facility if operated by the Contractor, and equipment and perform such inspections, as Town deems reasonably necessary, to determine whether the services required to be provided by Contractor under this Agreement conform to the terms hereof and/or the terms of this Agreement. Town shall conduct the inspection of facilities and equipment during hours of operation. Contractor shall make available to Town all reasonable facilities and assistance to facilitate the performance of inspections by Town’s representatives. 24. Dispute Resolution. 24.1 Interpretation of Agreement. Except as provided otherwise in this Agreement and to the extent permitted by law, the Contract Administrator shall be responsible for interpreting this Agreement to resolve disputes that may arise hereunder. The parties agree that any decision rendered by the Contract Administrator in connection with such matters shall be final and binding upon Contractor, the customer and the Town. 24.2 Definition of Claim. As used herein “claim” means a written demand or assertion by one of the parties seeking, as a legal right, the payment of money, adjustment or interpretation of the Agreement terms, or other relief, arising under or relating to this Agreement. A voucher, invoice, or request for payment that is not in dispute when submitted is not a claim under this subsection. However, where the submission is subsequently not acted upon in a reasonable time, or disputed either as to liability or amount, it may be converted to a claim for the purpose of this subsection. A claim by the Contractor shall be made in writing and submitted to the Contract Administrator. When a controversy cannot be resolved by mutual agreement, the Contractor shall submit a written request for final decision to the Contract Administrator. The written request shall set forth all the facts surrounding the controversy. 24.3 Process for Dispute Resolution. In connection with any claim under this clause, the Contractor, at the discretion of the Contract Administrator, may be afforded an opportunity to be heard and to offer evidence in support of its claim. The Contract Administrator shall render a written decision on all claims within 30 Business Days of receipt of the Contractor’s written claim, unless the Contract Administrator determines that a longer period is necessary to resolve the claim. The decision shall be furnished to the Contractor by certified mail, return receipt requested, or by any other method that provides evidence of receipt. If a decision is not issued within 30 calendar days, the Contract Administrator shall notify the Contractor of the time within which a decision shall be rendered and the reasons for such time extension. The Contract Administrator’s decision shall be final and conclusive. Pending resolution of a claim, the Contractor shall proceed diligently with the performance of the Agreement in accordance with subsection 24.4 below. 24.4 Operations during Dispute. In the event that any dispute arises between Town and Contractor relating to this Agreement performance or compensation hereunder, Contractor shall continue to render service and receive compensation in full compliance with all terms and conditions of this Agreement as interpreted, in good faith, by the Town, regardless of such dispute. The Contractor expressly recognizes the paramount right and duty of Town to provide adequate services to its residents and further agrees, in consideration of the execution of this Agreement, that in the event of such a dispute, if any, it will not seek injunctive relief in any 1089903.7 B-31 court without first negotiating with Town in good faith for an adjustment on the matter or matters in dispute and, upon failure of said negotiations to resolve the dispute shall present the matter to mediation in the courts of Arizona. If mediation fails, Contractor shall present the matter to a court in Arizona. Notwithstanding the other provisions in this subsection, Town reserves the right to terminate this Agreement at any time whenever the service provided by Contractor fails to meet reasonable standards of the trade, after Town provides written notice to Contractor pursuant to Section 28 of this Agreement. Upon termination, Town may call the performance bond and apply the cash and surety bond for the cost of service in excess of that charged to Town by the firm engaged for the balance of the Agreement period. 25. Force Majeure. Except for any payment obligation by either party, if the Town or Contractor is unable to perform or is delayed in its performance of any of its obligations under this Agreement by reason of any event of force majeure, such inability or delay shall be excused at any time during which compliance therewith is prevented by such event and during such period thereafter as may be reasonably necessary for the Town or Contractor to correct the adverse effect of such event of force majeure. An event of “Force Majeure” shall mean the following events or circumstances to the extent that they delay the Town or Contractor from performing any of its obligations (other than payment obligations) under this Agreement: acts of God, tornadoes, hurricanes, floods, sinkholes, fires and explosions (except those caused by negligence of Contractor, its agents and assigns), landslides, earthquakes, epidemics, quarantine, pestilence and extremely abnormal and excessively inclement weather, acts of public enemy, acts of war, terrorism, effects of nuclear radiation, blockades, insurrection, riots, civil disturbances or national or international calamities, suspension, termination or interruption of utilities necessary to the operation of either the Disposal Facility or the Recycling Facility. In order to be entitled to the benefit of this Section, a party claiming an event of Force Majeure shall be required to give prompt written notice to the other party specifying in detail the event of Force Majeure and shall further be required to use its best efforts to cure the event of Force Majeure. 26. Indemnification. To the fullest extent permitted by law, the Contractor, as Indemnitor, shall indemnify, defend and hold Town, its officers, officials, employees, agents and volunteers (“Indemnitees”) harmless from and against any and all liability, claims, losses, suits, actions, damages and expenses (including court costs, attorneys fees, and costs of claim processing, investigation and litigation (collectively “Claims”) for any personal injury, bodily injury, loss of life or loss or damage to property or any violation of any Federal, state or local law or ordinance or other cause related to or arising out of Contractor’s performance of its obligations pursuant to the terms of this Agreement, caused, in whole or in part by the negligent or intentional acts or omissions of Contractors, its owners, officers, directors, employees, subcontractors or agents or on account of the performance or character of this Agreement. This indemnity includes any claim or amount arising out of or recovered under the Workers Compensation Law or arising out of the failure of Indemnitor to conform to any Federal, state or local law, statute, ordinance, rule, regulation or court decree. It is the specific intention of the parties that the Indemnitee shall, in all instances except for Claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be indemnified by Indemnitor from and against any and all Claims. It is agreed that Contractor will be responsible for primary loss investigation defense and judgment costs where this indemnification is applicable. The amount and type of insurance coverage requirements set forth below will in no way be construed as limiting the scope of the indemnity in this Section. 1089903.7 B-32 27. Insurance. 27.1 General. A. Insurer Qualifications. Without limiting any obligations or liabilities of Contractor, Contractor shall purchase and maintain, at its own expense, hereinafter stipulated minimum insurance with insurance companies duly licensed by the State of Arizona with an AM Best, Inc. rating of A- or above with policies and forms satisfactory to the Town. Failure to maintain insurance as specified herein may result in termination of this Agreement at the Town’s option. B. No Representation of Coverage Adequacy. By requiring insurance herein, the Town does not represent that coverage and limits will be adequate to protect Contractor. The Town reserves the right to review any and all of the insurance policies and/or endorsements cited in this Agreement but has no obligation to do so. Failure to demand such evidence of full compliance with the insurance requirements set forth in this Agreement or failure to identify any insurance deficiency shall not relieve Contractor from, nor be construed or deemed a waiver of, its obligation to maintain the required insurance at all times during the performance of this Agreement. C. Additional Insured. All insurance coverage and self-insured retention or deductible portions, except Workers’ Compensation insurance and Professional Liability insurance, if applicable, shall name, to the fullest extent permitted by law for claims arising out of the performance of this Agreement, the Town, its agents, representatives, officers, directors, officials and employees as Additional Insured as specified under the respective coverage sections of this Agreement. D. Coverage Term. All insurance required herein shall be maintained in full force and effect until all work or services required to be performed under the terms of this Agreement are satisfactorily performed, completed and formally accepted by the Town, unless specified otherwise in this Agreement. E. Primary Insurance. Contractor’s insurance shall be primary insurance with respect to performance of this Agreement and in the protection of the Town as an Additional Insured. F. Waiver. All policies, except for Professional Liability, including Workers’ Compensation insurance, shall contain a waiver of rights of recovery (subrogation) against the Town, its agents, representatives, officials, officers and employees for any claims arising out of the work or services of Contractor. Contractor shall arrange to have such subrogation waivers incorporated into each policy via formal written endorsement thereto. G. Policy Deductibles and/or Self-Insured Retentions. The policies set forth in these requirements may provide coverage that contains deductibles or self-insured retention amounts. Such deductibles or self-insured retention shall not be applicable with respect 1089903.7 B-33 to the policy limits provided to the Town. Contractor shall be solely responsible for any such deductible or self-insured retention amount. H. Use of Subcontractors. If any work under this Agreement is subcontracted in any way, Contractor shall execute written agreements with its subcontractors containing the indemnification provisions set forth in this Section and insurance requirements set forth herein protecting the Town and Contractor. Contractor shall be responsible for executing any agreements with its subcontractors and obtaining certificates of insurance verifying the insurance requirements. I. Evidence of Insurance. Prior to commencing any work or services under this Agreement, Contractor will provide the Town with suitable evidence of insurance in the form of certificates of insurance and a copy of the declaration page(s) of the insurance policies as required by this Agreement, issued by Contractor’s insurance insurer(s) as evidence that policies are placed with acceptable insurers as specified herein and provide the required coverages, conditions and limits of coverage specified in this Agreement and that such coverage and provisions are in full force and effect. Confidential information such as the policy premium may be redacted from the declaration page(s) of each insurance policy, provided that such redactions do not alter any of the information required by this Agreement. The Town shall reasonably rely upon the certificates of insurance and declaration page(s) of the insurance policies as evidence of coverage but such acceptance and reliance shall not waive or alter in any way the insurance requirements or obligations of this Agreement. In the event any insurance policy required by this Agreement is written on a “claims made” basis, coverage shall extend for two years past completion of the Services and the Town’s acceptance of the Contractor’s work or services and as evidenced by annual certificates of insurance. If any of the policies required by this Agreement expire during the life of this Agreement, it shall be Contractor’s responsibility to forward renewal certificates and declaration page(s) to the Town 30 days prior to the expiration date. All certificates of insurance and declarations required by this Agreement shall be identified by referencing the RFP number and title or this Agreement. Additionally, certificates of insurance and declaration page(s) of the insurance policies submitted without referencing the appropriate RFP number and title or reference to this Agreement, as applicable, will be subject to rejection and may be returned or discarded. Certificates of insurance and declaration page(s) shall specifically include the following provisions: 1. The Town, its agents, representatives, officers, directors, officials and employees are Additional Insureds as follows: a. Commercial General Liability - Under Insurance Services Office, Inc., (“ISO”) Form CG 20 10 03 97 or equivalent. b. Auto Liability - Under ISO Form CA 20 48 or equivalent. c. Excess Liability - Follow Form to underlying insurance. 1089903.7 B-34 2. Contractor’s insurance shall be primary insurance as respects performance of the Agreement. 3. All policies, except for Professional Liability, including Workers’ Compensation, waive rights of recovery (subrogation) against Town, its agents, representatives, officers, officials and employees for any claims arising out of work or services performed by Contractor under this Agreement. 4. A 30-day advance notice cancellation provision. If ACORD certificate of insurance form is used, the phrases in the cancellation provision “endeavor to” and “but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives” shall be deleted. Certificate forms other than ACORD form shall have similar restrictive language deleted. 27.2 Required Insurance Coverage. A. Commercial General Liability. Contractor shall maintain “occurrence” form Commercial General Liability insurance with an unimpaired limit of not less than $3,000,000 for each occurrence, $5,000,000 Products and Completed Operations Annual Aggregate and a $5,000,000 General Aggregate Limit. The policy shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury. Coverage under the policy will be at least as broad as ISO policy form CG 00 010 93 or equivalent thereof, including but not limited to, separation of insured’s clause. To the fullest extent allowed by law, for claims arising out of the performance of this Agreement, the Town, its agents, representatives, officers, officials and employees shall be cited as an Additional Insured under ISO, Commercial General Liability Additional Insured Endorsement form CG 20 10 03 97, or equivalent, which shall read “Who is an Insured (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of “your work” for that insured by or for you.” If any Excess insurance is utilized to fulfill the requirements of this subsection, such Excess insurance shall be “follow form” equal or broader in coverage scope than underlying insurance. B. Vehicle Liability. Contractor shall maintain Business Automobile Liability insurance with a limit of $2,000,000 each occurrence on Contractor’s owned, hired and non-owned vehicles assigned to or used in the performance of the Contractor’s work or services under this Agreement. Coverage will be at least as broad as ISO coverage code “1” “any auto” policy form CA 00 01 12 93 or equivalent thereof. To the fullest extent allowed by law, for claims arising out of the performance of this Agreement, the Town, its agents, representatives, officers, directors, officials and employees shall be cited as an Additional Insured under ISO Business Auto policy Designated Insured Endorsement form CA 20 48 or equivalent. If any Excess insurance is utilized to fulfill the requirements of this subsection, such Excess insurance shall be “follow form” equal or broader in coverage scope than underlying insurance. C. Professional Liability. If this Agreement is the subject of any professional services or work, or if the Contractor engages in any professional services or work adjunct or residual to performing the work under this Agreement, the Contractor shall maintain Professional Liability insurance covering negligent errors and omissions arising out of the 1089903.7 B-35 Services performed by the Contractor, or anyone employed by the Contractor, or anyone for whose negligent acts, mistakes, errors and omissions the Contractor is legally liable, with an unimpaired liability insurance limit of $2,000,000 each claim and $2,000,000 annual aggregate. In the event the Professional Liability insurance policy is written on a “claims made” basis, coverage shall extend for two years past completion and acceptance of the Services and the Contractor shall be required to submit certificates of insurance and a copy of the declaration page(s) of the insurance policies evidencing proper coverage is in effect as required above. D. Workers’ Compensation Insurance. Contractor shall maintain Workers’ Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction over Contractor’s employees engaged in the performance of work or services under this Agreement and shall also maintain Employers Liability Insurance of not less than $500,000 for each accident, $500,000 disease for each employee and $1,000,000 disease policy limit. 27.3 Cancellation and Expiration Notice. Insurance required herein shall not expire, be canceled, or materially change without 30 calendar days’ prior, written notice to the Town. 28. Termination; Cancellation. 28.1 By the Town for Cause. In the event there should occur any Material Breach or Material Default in the performance of any covenant or obligation of Contractor which has not been remedied within 30 days after receipt of written notice from the Town specifying such breach or default (or such longer period of time as is reasonably necessary to cure any such breach or default which is not capable of being cured within 30 days, provided that the Contractor has undertaken the cure within such 30 days and proceeds diligently thereafter to cure in an expeditious manner; provided further that such cure period shall not exceed 90 days), the Town, may if such breach or default is continuing, terminate this Agreement upon written notice to the Contractor. The following events shall, without limitation, constitute a Material Breach or a Material Default by Contractor for purposes of this Section: (i) contractor shall abandon as hereinafter defined, the performance of Collection Services for a period of five consecutive calendar days unless caused by event of Force Majeure. As used herein, the term “abandon” shall refer to voluntary cessation of performance of Collection Service or operation of the Disposal Facility or Recycling Facility; (ii) the failure of Contractor to process Program Recyclables for a period of five consecutive calendar days at any time after the Commencement Date; (iii) if the Contractor’s hazardous substance contingency plan as required by this Agreement hereof shall fail to comply with all Federal and State regulations regarding the handling of hazardous waste; (iv) the failure of Contractor to pay amounts owed to the Town under the terms of this Agreement within 14 calendar days after such amounts become finally due and payable; (v) if Contractor shall be not paying its debts when they become due; shall have filed, or consented by answer or otherwise to the following against it of, a petition for relief or reorganization and bankruptcy or insolvency law of any jurisdiction; shall make an assignment for the benefit of its creditors in lieu of taking advantage of any such bankruptcy or insolvency law; shall consent to the appointment of custodian, receiver, trustee or other officer with similar powers with respect to any substantial part of its property; shall be adjudicated insolvent or shall take corporate action for the purpose of any of the forgoing; and (vi) the default by Contractor 1089903.7 B-36 with respect to any obligation to any third party pertaining to the Contractor or to Collection Services, which may permit any third party, either immediately or following notice and/or the passage of time to accelerate the maturity of any obligation of the Contractor, to assume control of the Contractor or take possession of or to transfer or caused to be transferred to any third party any portion of the assets of the Contractor, but only if such default materially interferes with or prevents Contractor’s performance under the terms of this Agreement. A. Failure to Cure. If the Contractor shall fail to cure its Breach or Default as specified in this Section, the Town may terminate this Agreement upon ten days written notice. In such case, the Contractor shall not be entitled to receive further payment for services rendered from the effective date of the notice of termination. B. Notice of Termination. Upon receipt of Notice of Termination, Contractor shall promptly discontinue all affected work unless the Notice of Termination directs otherwise, deliver or otherwise make available to Town all data, drawings, specifications, reports, estimates, summaries, such other information as may have been required under the terms of Agreement whether completed or in process. C. Town’s Right to Mitigate. In addition, Town may enter into a separate contract for the completion of the Agreement, according to its terms and provisions, or use such other methods as in Town’s sole opinion shall be required for the completion of the Agreement. All damages, costs and charges incurred by Town, together with the cost of completing the terms and provisions of the Agreement, shall be deducted from any monies due or which may become due to Contractor. In case the damages and expenses so incurred by Town shall exceed the unpaid balance, then Contractor shall be liable and shall pay to Town the amount of such excess. D. Contractor Not in Breach. If after Notice of Termination it is determined for any reason that Contractor was not in Breach or Default, then the rights and obligations of the Town and the Contractor shall be the same as if the Notice of Termination had not been issued pursuant to the termination for cause clause as set forth in paragraph 1 of this Section. 28.2 For Town’s Convenience. This Agreement is for the convenience of the Town and, as such, may be terminated without cause after receipt by Contractor of written notice by the Town. In such instance, an adjustment shall be made to the Contractor, for the reasonable costs of the work performed through the date of termination. Termination costs do not include lost profits, consequential damages, delay damages, unabsorbed or under absorbed overhead of the Contractor or its subcontractors and/or failure to include termination for convenience clause into its subcontracts and material purchase orders shall not expose the Town to liability for lost profits in conjunction with a termination for convenience settlement or equitable adjustment. Contractor expressly waives any claims for lost profit or consequential damages, delay damages, or indirect costs which may arise from the Town’s election to terminate this contract in whole or in part for its convenience. 28.3 Due to Work Stoppage. This Agreement may be terminated by the Town upon 30 days’ written notice to Contractor in the event that the Services are permanently 1089903.7 B-37 abandoned. In the event of such termination due to work stoppage, payment shall be made by the Town to the Contractor for the undisputed portion of its fee due as of the termination date. 28.4 Conflict of Interest. This Agreement is subject to the provisions of ARIZ. REV. STAT. § 38-511. The Town may cancel this Agreement without penalty or further obligations by the Town or any of its departments or agencies if any person significantly involved in initiating, negotiating, securing, drafting or creating this Agreement on behalf of the Town or any of its departments or agencies is, at any time while the Agreement or any extension of the Agreement is in effect, an employee of any other party to the Agreement in any Town or a consultant to any other party of the Agreement with respect to the subject matter of the Agreement. 28.5 Gratuities. The Town may, by written notice to the Contractor, cancel this Agreement if it is found by the Town that gratuities, in the form of economic opportunity, future employment, entertainment, gifts or otherwise, were offered or given by the Contractor or any agent or representative of the Contractor to any officer, agent or employee of the Town for the purpose of securing this Agreement. In the event this Agreement is cancelled by the Town pursuant to this provision, the Town shall be entitled, in addition to any other rights and remedies, to recover or withhold from the Contractor an amount equal to 150% of the gratuity. 28.6 Agreement Subject to Appropriation. The provisions of this Agreement for payment of funds by the Town shall be effective when funds are appropriated for purposes of this Agreement and are actually available for payment. The Town shall be the sole judge and authority in determining the availability of funds under this Agreement and the Town shall keep the Contractor fully informed as to the availability of funds for the Agreement. The obligation of the Town to make any payment pursuant to this Agreement is a current expense of the Town, payable exclusively from such annual appropriations and is not a general obligation or indebtedness of the Town. If the Town Council fails to appropriate money sufficient to pay the amounts as set forth in this Agreement during any immediately succeeding fiscal year, this Agreement shall terminate at the end of then-current fiscal year and the Town and the Contractor shall relieved of any subsequent obligation under this Agreement. 28.7 By Contractor For Cause. In the event there should occur any Material Breach or Material Default in the performance of any covenant or obligation of Town which has not been remedied within 30 days after receipt of written notice from the Contractor specifying such breach or default (or such longer period of time as is reasonably necessary to cure any such breach or default which is not capable of being cured within 30 days, provided that the Town has undertaken the cure within such 30 days and proceeds diligently thereafter to cure in an expeditious manner), the Contractor, may if such breach or default is continuing, terminate this Agreement upon written notice to the Town. The following events shall, without limitation, constitute a Material Breach or a Material Default by Town for purposes of this Section: (i) The failure of Town to pay amounts owed to the Contractor under the terms of this Agreement within 45 days after such amounts become finally due and payable or (ii) If Town shall have filed, or consented by answer or otherwise to the following against it of, a petition for relief or reorganization and bankruptcy or insolvency law of any jurisdiction; shall make an assignment for the benefit of its creditors in lieu of taking advantage of any such bankruptcy or insolvency law; shall consent to the appointment of custodian, receiver, trustee or other officer with similar 1089903.7 B-38 powers with respect to any substantial part of its property; shall be adjudicated insolvent or shall take official action for the purpose of any of the foregoing. A. Failure to Cure. If Town shall fail to cure its Breach or Default as specified in subsection 28.7 hereof, the Contractor may terminate this Agreement upon ten days written notice. In such case, the Town shall not be entitled to receive further payment from the Contractor from the effective date of the Notice of Termination. B. Damages. All damages, costs and charges incurred by Contractor, together with the cost of completing the terms and provisions of the Agreement, shall be deducted from any monies due or which may become due to Town. In case the damages and expenses so incurred by Contractor shall exceed the unpaid balance, then Town shall be liable and shall pay to Contractor the amount of such excess. 29. Miscellaneous. 29.1 Survival. Any rights either party may have in the event it terminates this Agreement pursuant to the terms hereof shall survive such termination. 29.2 Joint Preparation. The preparation of this Agreement has been a joint effort of the parties and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties than the other. 29.3 Further Assurance. Contractor and Town agree to execute, acknowledge and deliver and cause to be done, executed, acknowledged and delivered all such further documents and perform such acts as shall reasonably be requested of it in order to carry out this Agreement and give effect hereto. Accordingly, without in any manner limiting the specific rights and obligations set forth in this Agreement, the parties declare their intention to cooperate with each other in effecting the terms of this Agreement. 29.4 Time of the Essence. For purposes herein, the parties agree that time shall be of the essence of this Agreement and the representations and warranties made are all material and of the essence of this Agreement. 29.5 Captions and Section Headings. Captions and section headings contained in this Agreement are for convenience and reference only and in no way define, describe, extend, or limit the scope or intent of this Agreement, nor the intent of any provision hereof. 29.6 No Waiver. No waiver of any provision in this Agreement shall be effective unless it is in writing, signed by the party against whom it is asserted and any such written waiver shall only be applicable to the specific instance to which it relates and shall not be deemed to be a continuing or future waiver. 29.7 Exhibits. All Exhibits attached hereto contain additional terms of this Agreement and are incorporated into this Agreement by reference. 1089903.7 B-39 29.8 Independent Contractor. The Contractor acknowledges and agrees that the Services provided under this Agreement are being provided as an independent contractor, not as an employee or agent of the Town. Contractor, its employees and subcontractors are not entitled to workers’ compensation benefits from the Town. The Town does not have the authority to supervise or control the actual work of Contractor, its employees or subcontractors. The Contractor and not the Town, shall determine the time of its performance of the services provided under this Agreement so long as Contractor meets the requirements of its agreed scope of work. Contractor is neither prohibited from entering into other contracts nor prohibited from practicing its profession elsewhere. Town and Contractor do not intend to nor will they combine business operations under this Agreement. 29.9 Amendments. This Agreement may be modified only by a written amendment signed by persons duly authorized to enter into contracts on behalf of the Town and the Contractor. 29.10 Provisions Required by Law. Each and every provision of law and any clause required by law to be in the Agreement will be read and enforced as though it were included herein and, if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the application of either party, the Agreement will promptly be physically amended to make such insertion or correction. 29.11 Severability. In the event that any provision of this Agreement shall, for any reason, be determined to be invalid, illegal, or unenforceable in any respect by a Court of competent jurisdiction, the parties hereto shall negotiate in good faith and agree to such amendments, modifications, or supplements of or to this Agreement or such other appropriate actions as shall, to the maximum extent practicable in light of such determination, implement and give effect to the intentions of the parties as reflected herein and the other provisions of this Agreement shall, as so amended, modified, or supplemented, or otherwise affected by such action remain in full force and effect. 29.12 Entire Agreement; Interpretation; Parol Evidence. This Agreement represents the entire agreement of the parties with respect to its subject matter and all previous agreements, whether oral or written, entered into prior to this Agreement are hereby revoked and superseded by this Agreement. No representations, warranties, inducements or oral agreements have been made by any of the parties except as expressly set forth herein, or in any other contemporaneous written agreement executed for the purposes of carrying out the provisions of this Agreement. This Agreement shall be construed and interpreted according to its plain meaning and no presumption shall be deemed to apply in favor of, or against the party drafting the Agreement. The parties acknowledge and agree that each has had the opportunity to seek and utilize legal counsel in the drafting of, review of and entry into this Agreement. 29.13 Assignment. No right or interest in this Agreement shall be assigned by Contractor without prior, written permission of the Town signed by the Town Manager and no delegation of any duty of Contractor shall be made without prior, written permission of the Town signed by the Town Manager. Any attempted assignment or delegation by Contractor in violation of this provision shall be a breach of this Agreement by Contractor. This Agreement 1089903.7 B-40 and the rights and obligation contained herein shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 29.14 Subcontracts. This Agreement and any permits required for performance of the Agreement may not be assigned, subcontracted, conveyed, or otherwise disposed of without the prior, written approval of the Town, which will not be unreasonably withheld. No such assignment or subcontracting shall relieve Contractor of its liability under this Agreement. In the event Contractor elects to use any subcontractors, this does not relieve Contractor from any prime responsibility of full and complete satisfactory and acceptable performance under any awarded Agreement. However, the Agreement may be assigned for the purpose of financing after notification of the terms of such assignment to the Town Manager or authorized designee. 29.15 Rights and Remedies. No provision in this Agreement shall be construed, expressly or by implication, as waiver by the Town of any existing or future right and/or remedy available by law in the event of any claim of default or breach of this Agreement. The failure of the Town to insist upon the strict performance of any term or condition of this Agreement or to exercise or delay the exercise of any right or remedy provided in this Agreement, or by law, or the Town’s acceptance of and payment for services, shall not release the Contractor from any responsibilities or obligations imposed by this Agreement or by law and shall not be deemed a waiver of any right of the Town to insist upon the strict performance of this Agreement. 29.16 Attorneys’ Fees. In the event either party brings any action for any relief, declaratory or otherwise, arising out of this Agreement or on account of any breach or default hereof, the prevailing party shall be entitled to receive from the other party reasonable attorneys’ fees and reasonable costs and expenses, determined by the court sitting without a jury, which shall be deemed to have accrued on the commencement of such action and shall be enforced whether or not such action is prosecuted through judgment. 29.17 Liens. All materials or services shall be free of all liens and, if the Town requests, a formal release of all liens shall be delivered to the Town. 29.18 Offset. A. Offset for Damages. In addition to all other remedies at law or equity, the Town may offset from any money due to the Contractor any amounts Contractor owes to the Town for damages resulting from breach or deficiencies in performance or breach of any obligation under this Agreement. B. Offset for Delinquent Fees or Taxes. The Town may offset from any money due to the Contractor any amounts Contractor owes to the Town for delinquent fees, transaction privilege taxes and property taxes, including any interest or penalties. 29.19 Notices and Requests. Unless a specific time frame for notice is otherwise specifically set forth in this Agreement (including, but not limited to Subsections 5.3, 5.4, 6.1, 9.4, 23.1, 25 and 29.21), any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (A) delivered to the party at the address set forth below, (B) deposited in the U.S. Mail, registered or 1089903.7 B-41 certified, return receipt requested, to the address set forth below, (C) given to a recognized and reputable overnight delivery service, to the address set forth below or (D) delivered by facsimile transmission to the number set forth below: If to the Town: Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 Facsimile: (480) 816-0100 Attn: Richard L. Davis, Town Manager With copy to: GUST ROSENFELD, P.L.C. 201 East Washington Street, Suite 800 Phoenix, Arizona 85004-2327 Facsimile: (602) 340-1538 Attn: Andrew J. McGuire, Esq. If to Contractor: Facsimile: Attn: or at such other address and to the attention of such other person or officer, as any party may designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed received (A) when delivered to the party, (B) three Business Days after being placed in the U.S. Mail, properly addressed, with sufficient postage, (C) the following Business Day after being given to a recognized overnight delivery service, with the person giving the notice paying all required charges and instructing the delivery service to deliver on the following Business Day, or (D) when received by facsimile transmission during the normal business hours of the recipient. If a copy of a notice is also given to a party’s counsel or other recipient, the provisions above governing the date on which a notice is deemed to have been received by a party shall mean and refer to the date on which the party and not its counsel or other recipient to which a copy of the notice may be sent, is deemed to have received the notice. 29.20 Confidentiality of Records. The Contractor shall establish and maintain procedures and controls that are acceptable to the Town for the purpose of ensuring that information contained in its records or obtained from the Town or from others in carrying out its obligations under this Agreement shall not be used or disclosed by it, its agents, officers, or employees, except as required to perform Contractor’s duties under this Agreement. Persons requesting such information should be referred to the Town. Contractor also agrees that any information pertaining to individual persons shall not be divulged other than to employees or officers of Contractor as needed for the performance of duties under this Agreement. 29.21 Records and Audit Rights. Contractor’s and its subcontractor’s books, records, correspondence, accounting procedures and practices and any other supporting evidence relating to this Agreement, including the papers of any Contractor and its subcontractors’ employees who perform any work or Services pursuant to this Agreement to ensure that the 1089903.7 B-42 Contractor and its subcontractors are complying with the warranty under subsection 29.22 below (all the foregoing hereinafter referred to as “Records”), shall be open to inspection and subject to audit and/or reproduction during normal working hours by the Town, to the extent necessary to adequately permit (A) evaluation and verification of any invoices, payments or claims based on Contractor’s and its subcontractors’ actual costs (including direct and indirect costs and overhead allocations) incurred, or units expended directly in the performance of work under this Agreement and (B) evaluation of the Contractor’s and its subcontractors’ compliance with the Arizona employer sanctions laws referenced in subsection 29.22 below. To the extent necessary for the Town to audit Records as set forth in this subsection, Contractor and its subcontractors hereby waive any rights to keep such Records confidential. For the purpose of evaluating or verifying such actual or claimed costs or units expended, the Town shall have access to said Records, even if located at its subcontractors’ facilities, from the effective date of this Agreement for the duration of the work and until three years after the date of final payment by the Town to Contractor pursuant to this Agreement. Contractor and its subcontractors shall provide the Town with adequate and appropriate workspace so that the Town can conduct audits in compliance with the provisions of this subsection. The Town shall give Contractor or its subcontractors reasonable advance notice of intended audits. Contractor shall require its subcontractors to comply with the provisions of this subsection by insertion of the requirements hereof in any subcontract pursuant to this Agreement. 29.22 E-verify Requirements. To the extent applicable under ARIZ. REV. STAT. § 41-4401, the Contractor and its subcontractors warrant compliance with all Federal immigration laws and regulations that relate to their employees and compliance with the E-verify requirements under ARIZ. REV. STAT. § 23-214(A). Contractor’s or its subcontractor’s failure to comply with such warranty shall be deemed a material breach of this Agreement and may result in the termination of this Agreement by the Town. 29.23 Scrutinized Business Operations. Pursuant to ARIZ. REV. STAT. §§ 35- 391.06 and 35-393.06, the Contractor certifies that it does not have scrutinized business operations in Sudan or Iran. For the purpose of this subsection the term “scrutinized business operations” shall have the meanings set forth in ARIZ. REV. STAT. § 35-391 or 35-393, as applicable. If the Town determines that the Contractor submitted a false certification, the Town may impose remedies as provided by law including terminating this Agreement pursuant to subsection 28.1 above. 29.24 Conflicting Terms. In the event of any inconsistency, conflict or ambiguity among the Agreement, the Scope of Work, the Fee Proposal, the RFP and the Contractor’s Proposal, the documents shall govern in the order listed herein. 29.25 Applicable Law; Venue. This Agreement shall be governed by the laws of the State of Arizona and suit pertaining to this Agreement may be brought only in courts in the State of Arizona, Maricopa County. IN WITNESS WHEREOF, the parties hereto have executed this instrument as of the date and year first set forth above. “Town” “Contractor” 1089903.7 B-43 TOWN OF FOUNTAIN HILLS, an Arizona , municipal corporation a(n) By: Jay T. Schlum, Mayor ATTEST: Name: Its: Bevelyn J. Bender, Town Clerk 1089903.7 B-44 (ACKNOWLEDGEMENTS) STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) This instrument was acknowledged before me on , 2010, by Jay T. Schlum, the Mayor of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, on behalf of the Town of Fountain Hills. Notary Public in and for the State of Arizona My Commission Expires: STATE OF ) ) ss. COUNTY OF ) This instrument was acknowledged before me on , 2010, by as of , a(n) , on behalf of the corporation. Notary Public in and for the State of My Commission Expires: 1089903.7 EXHIBIT A TO SOLID WASTE SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND [RFP] See following pages. 1089903.7 EXHIBIT B TO SOLID WASTE SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND [Contractor’s Proposal] See following pages. 1089903.7 EXHIBIT C TO SOLID WASTE SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND [Fee Proposal – Completed Forms 5 - 7] See following page(s). 1089903.7 EXHIBIT D TO SOLID WASTE SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND [Phase-in Schedule/Map] See following page(s). 1089903.7 EXHIBIT E TO SOLID WASTE SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND [Materials Acceptance Protocol] See following page(s). 1089903.7 EXHIBIT F TO SOLID WASTE SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND [Recycling Materials Processing Contract] See following page(s). 1089903.7 EXHIBIT G TO SOLID WASTE SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND [Disposal Services Contract] See following page(s). 1089903.7 EXHIBIT H TO SOLID WASTE SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND [Guaranty Agreement] See following page(s). 1246116.2 Date: May 13, 2010 From: Raymond Rees, Environmental Planner Subject: Addendum No. 1 (this “Addendum”) Request for Proposals PZ2010-001 (the “RFP”) SCOPE This Addendum forms a part of the RFP and the resulting Solid Waste Services Agreement (the “Agreement”) and clarifies, corrects, or modifies the original RFP documents prepared by the Town of Fountain Hills. Any capitalized terms used herein and not otherwise defined shall have the meanings set forth in the RFP. Please acknowledge receipt of this addendum in the space provided on the attached form. This acknowledgement and addendum must accompany the submitted proposal. Failure to do so may subject the bidder to disqualification. This Addendum No. 1 consists of responses to clarification questions posed at the Mandatory Pre-Submittal Conference held in the Town Council Chambers on May 6, 2010. Where responses have resulted in changes to the RFP forms (including the draft from of agreement), such changes are set forth below. The clarifications set forth below are not in chronological order, but rather follow the order of the questions presented at the Pre-Submittal Conference. In the event of a conflict between the terms of the original RFP documents and this Addendum, the terms of this Addendum shall prevail. ADDENDUM 1. A Town map is attached hereto as Exhibit 1. The estimated 12,000 total residential units within the corporate limits of the Town should be used for the purpose of preparing proposals. A more detailed residential unit list will be made available prior to execution of the Agreement. 2. The Town is currently aware of three existing contracts with homeowners’ associations (Sunridge Canyon, FireRock and Eagle Mountain) that have expiration dates in 2012. These three associations comprise a substantial portion of the single family homes in REQUEST FOR PROPOSALS FOR SOLID WASTE SERVICES Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 ADDENDUM NO. 1 Addendum No. 1 Solid Waste Services RFP May 13, 2010 Page 2 1246116.2 Fountain Hills that are governed by a single homeowners’ association. Prior to the time the Agreement is executed, as complete a list of all associations and their respective contracts as practicable will be provided and included in the Agreement as Exhibit E. 3. The Town estimates that 30% of Fountain Hills residents are part-time based upon data utilized by the Fountain Hills Sanitary District. The Town has not independently verified this estimate. The Town is also not able to provide information as to how many of the part-time residents live in single family detached homes (requiring individual Carts) as opposed to multifamily homes that do not utilize individual Carts for the residents. 4. The Agreement has not been modified to allow for collection six days per week, and shall be governed by Subsections 9.1 and 9.7 of the Agreement. Regular collection shall occur Monday through Thursday, with Friday collection allowed only to accommodate a Holiday occurring on Thursday of that same week. 5. The Disposal Facility and the Recycling Facility are required to be open seven days per week for the convenience of the residents of Fountain Hills, and such requirement is not related to the required days for Collection (Monday – Thursday). 6. The selected Contractor will be responsible for all compliance monitoring and inspection necessary pursuant to the Town’s variance with the Maricopa County Environmental Services Division. 7. The Contractor will only be required to provide two sizes of Carts (65 & 96 Gallon). Recycling Carts shall be standard blue with white recycling logo unless a comparable alternate design is approved by the Town. Forms 5.1 and 5.2 of the RFP are hereby deleted in their entirety and replaced with the new Forms 5.1 and 5.2 (including changes for Cart size and Recycling Cart color) attached hereto as Exhibit 2. 8. Subsection 2.3(B)(5), on page A-8 of the RFP is hereby deleted in its entirety and replaced with the following: 5. Litigation, Regulatory Actions and Liquidated Damages History. Proposer shall describe all past and pending civil, legal, regulatory and criminal actions in which $2,500 or more was initially sought or ultimately obtained, that (a) are (i) now pending or which have occurred in the past five years, (ii) against key personnel who will be associated with service to the Town, including Proposer, Proposer’s subcontractors and all subsidiaries owned by Proposer, (iii) related to the scope of work described by this RFP and occurring within Arizona, New Mexico, California, Nevada, Utah or Colorado or (b) involve a governmental entity as a party. Addendum No. 1 Solid Waste Services RFP May 13, 2010 Page 3 1246116.2 9. Subsection 2.3(D)(2)(g), on page A-10 of the RFP, is hereby deleted in its entirety and replaced with the following: g. Recycling Rewards Program. (i) RecycleBank. Proposer shall incorporate the RecycleBank program into its Proposal to allow for recycling rewards to Town residents. Proposer shall separately contract with RecycleBank to ensure that the service is available on the first day Recycling Services are provided to the Town. The Proposer shall describe, in detail, the method of calculation of a per-ton payment for each ton of recyclable materials processed at the processing facility, which reflects revenues from the sale of recyclable materials less processing costs, profit and other expenses. This per-ton payment is to be presented by the Proposer on Forms 5 and 7. The Proposal shall propose a method to periodically adjust the per-ton payment and such method shall address changes to market prices for recyclable materials and processing costs over the term of the Agreement. The Town will consider an index pricing structure versus a flat rate per ton price. The Proposer shall provide the formula and the current index rates for any index price structure proposed. In lieu of payment of the per-ton amount directly to the Town, the Proposer shall set forth in its Proposal its method for offsetting the amount that would otherwise be paid to the Town against the costs associated with (a) the Town Facility Solid Waste Services and (b) the Residential Solid Waste Services. (ii) Alternative Rewards Program. The Proposer may, as an alternative to the RecycleBank program requirement above, submit for the Town’s consideration an alternative recycling rewards program that is substantially similar in scope and benefits to the RecycleBank program. The Town may approve or reject such alternative recycling rewards program at its sole discretion. In the event the Town rejects the alternative offered by the Proposer, the Proposer may (1) withdraw its proposal or (2) within 20 days following the notice of rejection by the Town, submit a revised Proposal including RecycleBank. 10. The Town’s intent is that the Initial Term of the Agreement will be five years, with the three additional one-year option terms thereafter. Upon execution, the Effective Date and the Expiration Date will be established and set forth in the Agreement. 11. Subsection 3.2 of the Agreement, on page B-9 of the RFP, is hereby deleted in its entirety and replaced with the following: 3.2 Option to Renew. After the Initial Term, Town shall have the option to request renewal of this Agreement for up to three additional one-year Addendum No. 1 Solid Waste Services RFP May 13, 2010 Page 4 1246116.2 terms (each, a “Renewal Term”). The Initial Term and any Renewal Terms shall be collectively referred to herein as the “Term.” To exercise its option, Town shall provide written notice to Contractor (each an “Option Notice”) not later than 60 calendar days preceding the scheduled Expiration Date of the then-current Term. The Contractor shall, within 15 calendar days following receipt of the Town’s Option Notice, either accept or reject the Town’s request. If the Contractor fails to accept or reject the Town’s renewal request within 15 days following receipt of the Town’s Option Notice, the Contractor shall be deemed to have consented to renewal of the Agreement for one year. This provision in no way limits the Town’s right to terminate this Agreement at any time during the Term pursuant to the provisions in this Agreement. 12. Subsection 14.2(A)(8), on page B-24 of the RFP, is hereby deleted in its entirety and replaced with the following: 8. Contractor shall establish a procedure for addressing delinquent accounts and shall be solely responsible for courteous resolution of any collection matters. The Contractor shall be permitted to pick up the Solid Waste Cart, Recycling Cart and Green Waste Cart from any Residential Service Unit for which fees for service have become delinquent by more than 60 days after the first notice of delinquency by the Contractor to the customer. The Contractor shall not receive any payment from the Town on account of excessive delinquencies. 13. Subject to space availability, the Town can accommodate the reserve Solid Waste Carts, Recycling Carts and Green Waste Carts at its Street Yard, located at 17137 Falcon Drive, which Carts shall be accessible to the Contractor during the Town’s normal business hours. 14. Subsection 7.5, on page B-15 of the RFP, is hereby deleted in its entirety (including all subsections) and replaced with the following: 7.5 Disposal Facility and Recycling Facility Equipment. The Disposal Facility, Recycling Facility and any other processing center used to perform the Services shall be equipped with adequately sized truck scales and computerized record-keeping systems for weighing and recording all incoming and outgoing delivery vehicles and vehicles transporting Recyclable Materials to markets. The Recycling Facility shall be capable of recording the type of Recyclable Materials received for each incoming truck. Additionally, the Recycling Facility shall be capable of recording the weights of each type of Recyclable Material which are shipped. Contractor shall separately weigh, record and tabulate each load from Town. Addendum No. 1 Solid Waste Services RFP May 13, 2010 Page 5 1246116.2 15. Subsection 1.56, on page B-6 of the RFP will remain unchanged as it has been determined to be consistent with the definition in State law. 16. Subsection 18.9, on page B-27 of the RFP, is hereby deleted in its entirety and replaced with the following: 18.9 Failure to Return Carts. $100 for each incident for failure to return Carts or Containers to their original locations after collection. For the purposes of this subsection, “original location” shall mean within ten feet of the location at which the Cart was placed immediately prior to the Contractor picking it up for service. Contractor shall not be penalized for any Carts returned to their original location which are subsequently moved by a third party. 17. Subsection 18.10, on page B-27 of the RFP, is hereby deleted in its entirety and the remainder of Section 18 is renumbered accordingly. 18. Subsection 18.18 (the number assigned to it prior to the renumbering set forth in Section 17 of this Addendum), on page B-28 of the RFP, is hereby deleted in its entirety and replaced with the following: 18.17 Failure to meet Residue Allowance. For Failure to meet annual Residue Allowance in accordance with this Agreement: (A) $500 for 0.01% to 5.00% over the Residue Allowance; (B) $1,000 for 5.01% to 10.00% over the Residue Allowance; (C) $1,500 for each 10.01% to 15.00% over the Residue Allowance; (D) $2,000 for 15.01% to 20.00% over the Residue Allowance; and (E) $2,500 for 20.01% or more over the Residue Allowance. 19. With respect to Form 5.3 and Form 7.2, columns 3 and 4 thereof (relating to revenue to the Town from recycling) have not been removed, but have been clarified. The intent of these columns is to allow the Town to have a baseline by which to compare the cost savings to the Town against the added benefit to the citizens. The Town intends that none of the revenue from Recycling shall be paid to the Town; Contractor shall retain all such revenues and shall be responsible for all costs associated with participating in a recycling rewards program. 20. A performance bond shall be required as set forth in Section 20 of the Agreement. 21. The first partial paragraph of Subsection 29.19 of the Agreement (the portion above the notification addresses for the Parties and their respective counsel), on page B-41 of the RFP, is hereby deleted in its entirety and replaced with the following: 29.19 Notices and Requests. Unless a specific time frame for notice is otherwise specifically set forth in this Agreement (including, but not limited to Subsections 5.3, 5.4, 6.1, 9.4, 23.1, 25 and 29.21), any notice or other Addendum No. 1 Solid Waste Services RFP May 13, 2010 Page 6 1246116.2 communication required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (A) delivered to the party at the address set forth below, (B) deposited in the U.S. Mail, registered or certified, return receipt requested, to the address set forth below, (C) given to a recognized and reputable overnight delivery service, to the address set forth below or (D) delivered by facsimile transmission to the number set forth below: 22. If a hauler currently providing service within the corporate limits of the Town is awarded the contract, such hauler will not be required to replace every Cart already placed on each property. 1246116.2 EXHIBIT 1 TO ADDENDUM NO. 1 TO REQUEST FOR PROPOSALS FOR SOLID WASTE SERVICES [Town Map] See following page. Street Name Sec. Street Name Sec. Street Name Sec. Street Name Sec. Street Name Sec. Street Name Sec. Street Name Sec. Abbey Lane 22 Catawba Plaza 11 Escalante Drive 11 *La Ronda Court 14 Peachtree Lane 10 Sonoran Way 26 Winchester Drive 21 Acacia Way 9 Catclaw Court 9,16 Escondido Drive 11 Lamont Drive 23 Peakview Court 9 *Sonoran Vista 20 Windchime Drive 23 *Aerie Cliff 29 Cavern Drive 16 Fairfax Drive 10 Lamplighter Way 14 Pelican Drive 10 Sourdough Place 5 Windyhill Road 5Agape Court 11 Cayuga Lane 11 Fairlynn Drive 10 Laney Court 14 Pepperwood Circle 11 Sparrow Lane 23 Winston Lane 10 Agate Knoll Place 4 *Centennial Peak Drive 29 Fairway Court 26 Lantana Lane 15,16 Peso Place 14 Spotted Horse Way 20 Woodpecker Bay 23 Agave Drive 9 Centipede Drive 4 Fairy Duster Court 16,17 Lantern Lane 11 Pheasant Plaza 23 Springfield Way 10 Woodside Drive 11 Aguilar Drive 11 Century Drive 9 Falcon Drive 23 Lariat Lane 11 Picatinny Way 4 Springmont Drive 10 Woodside Lane 11 Alamosa Avenue 11 Cerro Alto Drive 5 Fayette Drive 10 Lark Court 9 Piedra Blanca Way 15 ***Staghorn Drive 8,9 Wrangler Court 4Alamosa Circle 11 Cervantes Court 4 Finch Drive 23 Laser Drive 27 Pincushion Way 22 *Star Gaze Trail 27 Wren Court 9 Algonquin Court 11 Chama Drive 15,22 *Fire Canyon 28 Last Trail Drive 26,27 (Pinnacle Court) 17 Stancrest Drive 10 Yamu Kiva Circle 11 Almont Drive 15 Chaparral Way 9 Firebrick Drive 26 *Lava Bluff Trail 28 Pintail Court 14 Stardust Drive 16 Yaqui Circle 22 Aloe Drive 11 Charlton Court 10 *Fireridge Trail 28 Ledferd Lane 26 Pinto Drive 21 Sterling Way 11 Yellowstone Place 4 *Alta Loma North 14 Cherry Hills Court 22 *FireRock CC Drive 28,29 Lema Circle 26 Player Court 23 Stoneridge Court 4 Yerba Buena Way 11*Alta Loma South 14 Chicory Drive 16 Flaming Arrow Court 4 Leo Drive 27 Ponderosa Drive 16 Stratford Circle 10 Yucca Drive 9 Alvarado Drive 5 Chinook Plaza 11 Flat Rock Drive 14 *Links Drive 27 Powderhorn Drive 27 Sullivan Drive 22 Zaharias Drive 23 Amhurst Drive 23 Chipmunk Lane 21 *Flying Butte 29 Littler Place 26 *Prairie Dog Trail 5,6 Sumac Drive 16 Zamora Plaza 8 Andrew Drive 15 Chiquita Drive 15 *Fontana Way 14 Log Lane 5 Presidio Court 16 ***Summer Hill Boulevard 29 Zane Grey Lane 4 Appian Way 22 Choctaw Circle 11 *Foothill Trail 28 *Lombard Place 27 Prickly Pear Court 9 (Summit Drive) 17 Zapata Drive 8*Arista Lane 20 *Cholla Crest Trail 28,29 Fountain Hills Boulevard 10,15,21,22 *Lone Wolf Trail 6 Princess Court 9 (Summit Drive North) 17 Zephyr Drive 23 Armijo Drive 11 Cholla Drive 15,16,22 Fountain Hills Place 22 *Longfeather 29 Primrose Drive 15,16 (Summit Drive South) 17 *Zorra Way 5,6 Armour Circle 23 Cholula Drive 5 *Four Peaks Way 28 *Lookout Ledge 29 *Pulve Court 20 Sunburst Drive 16,17,21 Arrow Drive 10 Chuparosa Court 9 Frisco Drive 22 Lorma Lane 9 Puma Drive 21 Sundance Way 21 Arrowweed Drive 11,14 *Cirrus Court 29 Galatea Drive 10 Los Mochos Court 8 *Quail Point Place 28 Sundown Drive 8,9Arroyo Vista Drive 15,22 Cliff Top Drive 14 Gambel Drive 14 Los Siete Court 15 Quail Ridge Drive 14 Sunflower Drive 15,16 Ashbrook Drive 10 (Cloud Crest Trail) 17 Garland Circle 21 Lost Arrow Drive 15 *Quartz Court 8 Sunridge Drive 5,8,17 Aspen Drive 4,5 Cobblestone Lane 4 *Gecko Court 8 Lost Hills Drive 15 Quick Draw Place 4 Sunrise Circle 26 Audubon Place 4 Colony Drive 14 Genoa Way 21,22 Lotus Lane 16 Quinto Drive 23 *Sunscape Drive 14 Augusta Court 23 *Copper Ridge Trail 28 Glenbrook Boulevard 10 Love Court 10,11 Rand Drive 23 Sunset Drive 9,16Avenida Vida Buena 15 *Copperwynd Drive 17 Glendora Drive 10 Lunar Lane 26 *Red Bluff Drive 27,28 *Sunset Ridge 29 Avenue of the Fountains 14,15 Corona Drive 5 Gleneagle Drive 10 Mallard Court 14 Red Mountain Trail 27 (Sunset Vista Drive) 17,20 Avila Drive 8 Costa Drive 11 Glenpoint Drive 10 Malta Drive 23 (Red Sky Court) 17 Sussex Place 10 Axis Drive 27 Cotswold Court 10 Glenview Drive 10 Mangrum Court 23 *Redrock Drive 21 Sycamore Drive 16,21 Aztec Place 8 Council Court 11 Glenview Place 10 Manitou Drive 22 Regency Place 23 Tabasco Circle 5*Azure Court 29 Courtside Drive 11 Gold Court 4 Manzanita Lane 17 Rhoads Court 17 Tacony Drive 21 *Azure Vista Trail 28 Coventry Circle 10 Golden Eagle Blvd. 4,5,9 Maple Drive 10 Rica Vida Way 11 *Talon Trail 29 Baca Drive 11 *Coyote Court 6 Gorden Drive 26 Marathon Drive 5 Richwood Avenue 4 Tamarack Lane 10 Bahia Boulevard 11 *Coyote Way 6 Grande Boulevard 11 Maria Court 5 *Ridgeline Drive 27 Tanglewood Court 10 Bainbridge Avenue 9,10 *Creosote Court 8 *Grandview Drive 17 Marigold Court 9 *Ridgeview Court 21 *Teakwood Lane 11*Balera Drive 27 *Crested Butte Trail 28 Granite Way 16 *Mariposa Court 8 Ridgeway Drive 20,21 Teal Drive 14,23 Balsam Drive 10 *Crested Crown 29 Grassland Drive 4 Mayan Drive 8 *Ringtail Trail 5 Technology Drive 27 Barnes Drive 23 (Crestview Court) 17 Graythorn Way 9 Mayflower Drive 10 Roadrunner Drive 9 Tee Court 23 Baron Drive 22 *Crestview Drive 20,29 Greenbrier Lane 26,27 Mazatzal Circle 5 Robin Drive 9 Tejon Drive 11 Barrel Cactus Way 15 *Crimson Canyon 29 Greene Valley Drive 5 McDowell Mtn Road 2 *Rock Ridge Trail 27,28 Telegraph Drive 21Bayfield Drive 10 Cromwell Drive 22 Greenhurst Avenue 10 *McDowell View Trail 28 Rock Valley Plaza 4 Teller Drive 23 Baylor Drive 26 (Crown Court) 17 *Grey Owl Trail 6*Mesa Vista Court 20,21 Rockview Court 16 Tepee Drive 4 *Bighorn Parkway 6 *Crown Ridge 29 Greystone Drive 16,21 Mesquite Lane 9,16 Rockwood Drive 26 Tepic Lane 9 Bittersweet Way 16 Crystal Hills Drive 15 Gunsight Drive 14,15 Middlecoff Court 22 Rocky Mountain Place 4 Tequesta Court 8 Blackbird Drive 4, 10 Crystal Point Drive 15 Hagen Lane 26 Midland Drive 10 *Rosemont Court 21 *Terra Trail 29Blackfoot Lane 11 Crystal Ridge Drive 15 Hamilton Drive 11,14 Mimosa Drive 15 Rosetta Drive 15 *Terrace Lane 27 Bluejay Place 10 Cyprus Point Court 26 Hampstead Drive 10 Mirage Crossing Court 11 Rosita Drive 11 Thistle Drive 15,16Bluejay Place 10 Cyprus Point Court 26 Hampstead Drive 10 Mirage Crossing Court 11 Rosita Drive 11 Thistle Drive 15,16 Bobcat Plaza 5 *Dancing Bears Court 20 Hawk Drive 22,23 *Miramonte Way 29 Rough Circle 26 Tioga Drive 23 Bond Drive 23 Daniel Drive 15 Hawley Drive 11 *Miravista 28,29 Round Up Circle 4 Toluca Circle 5 *Bonita Drive 14 Dawn Ridge Court 23 Hawthorn Court 10 Mission Bell Court 23 Royal Court 23 Tombstone Avenue 27*Borrego Trail 6 De Anza Drive 11 Heather Drive 10 Monaco Drive 15 Runyon Place 4 *Tombstone Trail 27,28 Bottlebrush Way 4 *Deer Trail Court 8 *Heavenly Vista Trail 28 Monterey Drive 26 Ruskin Lane 4 Tower Drive 23 Boulder Drive 4 Deerskin Drive 11 Hedgehog Court 9 Montrose Drive 10 Rusty Nail Court 4 Trevino Drive 21-27 Bowstring Plaza 11 Del Cambre Avenue 11 *Hidden Canyon Court 28 Morning Glory Way 9 Ryan Way 15 Trojan Court 23 Boxcar Drive 4,5 Delgado Drive 8 *Hidden Springs Trail 28 *Mountain Majesty 29 Sabinas Drive 11 Tumbleweed Drive 16*Boxwood Lane 11 Delray Drive 11 Hillcrest Drive 26 *Mountain Parkway 5,6 Sage Drive 17 *Twilight View Drive 29 Bradford Drive 10 Demaret Drive 26 *Hillside Drive 21 *Mountain Vista Court 20 *Sagebrush Lane 8 Twin Deer Run 16 Brantley Drive 14 Desert Canyon Drive 9 Honeysuckle Drive 8 Mountainside Drive 15 Saguaro Boulevard 10-17 Two Gun Circle 4 Briarwood Drive 10 Desert Flower Drive 8 Hopbush Way 9 (Mountainview Court) 17 Saki Drive 4 Vallecito Drive 11 Bristol Bay 10 *Desert Fox Parkway 5,6 *Horizon Trail 27,28 *Mourning Dove Drive 5,6 Salida Drive 23 Valley Drive 23Britt Court 11 *Desert Hawk Trail 28 Hummingbird Trail 27 Muskrat Lane 21 San Andres Drive 5 *Valley Vista Drive 29 Brittlebush Lane 9 *Desert Rose Drive 29 Huron Lane 11 Mustang Drive 20,21 San Blas Circle 8 Valloroso Drive 11 Brockway Lane 10 Desert Sage Drive 15 Hyde Park Drive 10 Nelson Drive 27 San Carlos Drive 11 Valverde Drive 16 Brodiea Drive 16 *Desert Tortoise Trail 5,6 Ibsen Drive 10,11 Newmarket Court 10 San Diego Circle 9 Vandalia Way 15 *Broken Bow 29 Desert Vista 23 Inca Avenue 22,23 Niblick Way 23 San Marcus Drive 11 Venetian Lane 21,22Brunswick Drive 10 *Desert Wash Trail 28 Indian Pony Way 21 Nicklaus Drive 26,27 San Paulo Place 11 *Ventura Court 20 Bucking Bronco Way 21 *Desert Willow Drive 29 Indian Wells Drive 23 Nightingale Circle 23 San Tomas Place 9 Veracruz Plaza 5 Buckthorn Court 9 Desperado Court 27 Indigo Drive 22 Norte Vista 5 *Sandstone Court 29 Verbena Drive 16,17 Buena Vida Court 11 Deuce Court 11 *Indigo Hill Drive 29 *Northridge Lane 27 Santa Maria Place 5 Verde River Drive 14,15 Buffalo Drive 21 Devlin Circle 23 Ironwood Drive 15 *Northstar Drive 15 Santa Rosa Lane 11 *Vermillion Drive 29Bumblebee Lane 4 *Diamante Drive 14 Ivory Drive 11 Nyack Drive 4 Santiago Place 8 Vern Place 10 Burkemo Drive 26 *Diamondback Court 6 Jacklin Drive 22,23 *Oakwood Lane 11 Sarazen Circle 26 Via De Penasco 14 Burro Drive 21,22 *Diamondback Trail 6 Jackrabbit Lane 9,16 Oasis Drive 23 Sawik Circle 22 Via Del Oro 14 Bursage Drive 9 Dickens Court 10 *Jagged Circle 29 Ocotillo Drive 21,22 Saxon Drive 23 ***Via Del Sol 14 Cabrillo Drive 5 Dixie Mine Trail 4 Jamaica Lane 4 Old Trail Court 22 *Scarlet Sky Lane 29 Via La Playa 14Cactus Drive 9 Dogwood Lane 10 *Javelina Court 5 Olympic Way 10,11 Scorpion Drive 4 *Viento Court 20 Cactus Flower Way 8 Dove Drive 9 *Javelina Trail 5 Organpipe Circle 15,22 Segundo Drive 15 *Villa Ridge Court 27,28 Cactus Wren Court 9 Drury Lane 10 Jericho Drive 16 Oro Grande Drive 11 Seminole Lane 10 *Villas Drive 27,28 Calaveras Avenue 11 Dryad Place 5 Jojoba Lane 9 Overlook Court 4 *Shadow Canyon Drive 8 Vista Del Lago 14 Calico Drive 11 Dull Knife Drive 14 Kendall Drive 10 Owl Court 9 *Shadow Ridge Trail 28 *Vista Del Monte 5Caliente Drive 11 Eagle Crest Road 9 Kensington Place 26 Oxford Drive 10 Shagbark Court 10 *Vista Drive 20,21 Calle Del Flores 11 Eagle Feather Ridge 9 Keota Drive 22,27 Pageland Circle 4 Shea Boulevard 26-29 *Vista Verde Court 28 Calle Del Oro 11 Eagle Lane 23 *Kern Court 29 *Palatial Circle 21 Sheffield Court 10 (Vistaview Court) 17 Calle Del Prado 11 ***Eagle Mountain Pkwy 29 Keymar Drive 10 *Palatial Drive 21,28 Sherwood Drive 10 Walapai Circle 22 Calle Del Sol 11 (Eagle Ridge Drive) 7,17,20 Kilmer Court 4 ***Palisades Boulevard 9-17 Shiloh Way 11 Walnut Lane 4Calle La Fuenda 11 Eagle Rock Drive 4,9 Kim Drive 4 Palmer Way 26 *Shimmering View 29 Walsh Drive 23 Cambria Drive 15 Eagle View Court 4 Kings Way 11 Palmetto Lane 10 Shoot Out Plaza 4 Warbler Way 23 *Camelview Drive 29 Eagles Nest Drive 4 Kingstree Boulevard 22,23 Palo Brea Court 9 *Shooting Star Trail 27 *Wax Wing Court 8 Cameo Drive 10 *East Ridge Lane 17 *Kino Court 21 Palo Verde Lane 5 *Sierra Alegre Court 20 Wendover Drive 10 Cameron Court 23 Echo Hill Drive 16 Kiowa Circle 22 Palomino Blvd. 20,21 Sierra Del Sol 17 Westby Drive 15(Canyon Crest Court) 17 Edgewater Court 5 Kipling Drive 4 Pampas Place 11 Sierra Madre Drive 4,5,9 Westminster Place 10 Canyon Drive 4 Edgewater Drive 5 Kirk Lane 26 Pancho Villa Place 8 Sierra Norte 17 Westridge Drive 20,21 (Scottsdale Streets) *Canyon View Lane 28 Edgeworth Drive 10 Kit Fox Place 5 Panorama Drive 14,23 Silver Hawk Court 10 *Westwind Court 15 Cardinal Court 9 Eider Court 14 Kiwanis Drive 14 (Paradise Drive) 20 Silverado Drive 11 *Whisper Draw 28,29 *** Private/Public Carmel Drive 10 El Lago Boulevard 14-16 La Casa Drive 11 Paradox Drive 5 Sioux Drive 23 Whitestone Way 21Carmelita Court 9 El Pueblo Boulevard 10,11,14 La Costa Drive 10,11 Parkview Avenue 14,15 Sirocco Drive 23 *White Wing Court 6 * Private Streets Cascade Drive 11 El Sobrante Avenue 11 La Jara Drive 11 Parlin Drive 23 Skylark Circle 10 Widgeon Court 14 Cassidy Court 14 Elena Drive 4,9 La Montana Drive 14,15 Partridge Place 23 Skyridge Lane 4 Wild Horse Way 21 Updated 06-15-2009 C till D i 5 Eld Di 22 *L P l Pl 6 Pl Ndi Pk 14 15 *Sk li D i 20 29 Wild t C t 9Castillo Drive 5 Emerald Drive 22 *La Paloma Place 6 Paul Nordin Parkway 14,15 *Skyline Drive 20,29 Wildcat Court 9 Catalpa Place 10 Enterprise Drive 23 La Pasada Drive 11 Peace Pipe Place 4 *Solitude Canyon 29 Wiley Drive 11 1246116.2 EXHIBIT 2 TO ADDENDUM NO. 1 TO REQUEST FOR PROPOSALS FOR SOLID WASTE SERVICES [Forms 5.1 and 5.2] See following page. FORM 5: COST FORM FOR RESIDENTIAL SOLID WASTE SERVICES, RESIDENTIAL BULK WASTE SERVICES, RESIDENTIAL RECYCLING SERVICES AND TOWN FACILITY RECYCLING SERVICES Form 5.1 - Costs for Residential Solid Waste Services Monday through Thursday Collection Week Service Rate Same Day Collection [1] Different Day Collection [2] Residential Solid Waste Services 1. Solid Waste Collection Service Rate $ /Unit/Month $ /Unit/Month 2. Solid Waste Cart Rate [3] 65 Gallon 96 Gallon $ /Unit/Month $ /Unit/Month $ /Unit/Month $ /Unit/Month 3. Solid Waste Disposal Rate [4] $ /Unit/Month $ /Unit/Month 4. Additional Solid Waste Cart Collection Service Rate [5] $ /Unit/Month $ /Unit/Month 5. Additional Solid Waste Cart Rate [3][5] $ /Unit/Month $ /Unit/Month 6. Additional Solid Waste Cart Disposal Rate [4][5] [6] [6] 7. Non-Collection Day Collection Rate [7] $ /Unit/Month $ /Unit/Month 8. Non-Collection Day Disposal Rate [4][7] [6] [6] Residential Bulk Waste Services 1. Bulk Waste Collection Rate $ /6 CY $ /6 CY 2. Bulk Waste Disposal Rate [4] $ /6 CY $ /6 CY 3. Semiannual Bulk Waste Event $ /6 CY $ /6 CY Residential Recycling Services 1. Recycling Collection Service Rate $ /Unit/Month $ /Unit/Month 2. Recycling Cart Rate [3][8] 65 Gallon 96 Gallon $ /Unit/Month $ /Unit/Month $ /Unit/Month $ /Unit/Month Residential Cart Change Rate [9] $ /Cart $ /Cart [1] Same Day Collection means Contractor shall perform both Residential Solid Waste Services and Residential Recycling Services on the same day of the week for each Residential Service Unit. [2] Different Day Collections means Contractor may perform Residential Solid Waste Services and Residential Recycling Services on different days of the week for each Residential Service Unit. [3] Cart Rate means the cost for purchase up to and including the initial delivery of the Carts to Residential Service Units. Contractor shall be responsible for the costs associated with the maintenance, delivery after the initial delivery and storage of Carts. Ownership of the Carts in the possession of Residential Service Units at the expiration of the Agreement shall rest with the Contractor. [4] Disposal Rate shall be the sole fee charged for the disposal of Solid Waste and Bulk Waste. [5] Additional Solid Waste Service means the cost associated with an additional Solid Waste Cart for a Residential Service Unit. [6] Additional Solid Waste Cart Disposal Rate shall be equal to Solid Waste Disposal Rate. [7] Non-Collection Day Collection Rate shall mean the provision of Solid Waste Collection Services by the Contractor on a day other than the Residential Service Unit’s scheduled Collection day. [8] Proposer shall provide a choice of the size of Carts for solid waste and recycling (65 & 96-gal) to enable residents to choose the level of service most appropriate for their situation. The default level of service will be the 96 gallon Carts. Recycle Carts shall be a standard blue color with the recycle logo imprinted on the container; provided, however, that the Town may, it its sole discretion, allow for alternative Recycling Cart colors that are clearly marked or colored to easily distinguish them from the Solid Waste Cart and the Green Waste Cart and so long as the recycle logo is clearly displayed. All Carts must be Proposer grade, wheeled containers. Each must have a permanently attached lid, and be designed to easily fit through gates and doors. [9] Proposer shall provide residents with a one-time ability to request a change in Cart size. Any additional changes in Cart size will be individually charged to the resident, per Cart. FORM 5: COST FORM FOR RESIDENTIAL SOLID WASTE SERVICES, RESIDENTIAL BULK WASTE SERVICES, RESIDENTIAL RECYCLING SERVICES AND TOWN FACILITY RECYCLING SERVICES (continued) Form 5.2 - Costs for Residential Solid Waste Services WITHOUT RECYCLING Monday through Thursday Collection Week Service Rate Same Day Collection [1] Different Day Collection [2] Residential Solid Waste Services 1. Solid Waste Collection Service Rate $ /Unit/Month $ /Unit/Month 2. Solid Waste Cart Rate [1][6] 65 Gallon 96 Gallon $ /Unit/Month $ /Unit/Month $ /Unit/Month $ /Unit/Month 3. Solid Waste Disposal Rate [2] $ /Unit/Month $ /Unit/Month 4. Additional Solid Waste Cart Collection Service Rate [3] $ /Unit/Month $ /Unit/Month 5. Additional Solid Waste Cart Rate [1][3] $ /Unit/Month $ /Unit/Month 6. Additional Solid Waste Cart Disposal Rate [2][3] [6] [6] 7. Non-Collection Day Collection Rate [5] $ /Unit/Month $ /Unit/Month 8. Non-Collection Day Disposal Rate [2][5] [6] [6] Residential Bulk Waste Services 1. Bulk Waste Collection Rate $ /6 CY $ /6 CY 2. Bulk Waste Disposal Rate [2] $ /6 CY $ /6 CY 3. Semiannual Bulk Waste Event $ /6 CY $ /6 CY Residential Cart Change Rate [7] $ /Cart $ /Cart [1] Cart Rate means the cost for purchase up to and including the initial delivery of the Carts to Residential Service Units. Contractor shall be responsible for the costs associated with the maintenance, delivery after the initial delivery and storage of Carts. Ownership of the Carts in the possession of Residential Service Units at the expiration of the Agreement shall rest with the Contractor. [2] Disposal Rate shall be the sole fee charged for the disposal of Solid Waste and Bulk Waste. [3] Additional Solid Waste Service means the cost associated with an additional Solid Waste Cart for a Residential Service Unit. [4] Additional Solid Waste Cart Disposal Rate shall be equal to Solid Waste Disposal Rate. [5] Non-Collection Day Collection Rate shall mean the provision of Solid Waste Collection Services by the Contractor on a day other than the Residential Service Unit’s scheduled Collection day. [6] Proposer shall provide a choice of the size of Carts for solid waste (65& 96-gal) to enable residents to choose the level of service most appropriate for their situation. The default level of service will be the 96 gallon Carts. All Carts must be Proposer grade, wheeled containers. Each must have a permanently attached lid, and be designed to easily fit through gates and doors. [7] Proposer shall provide residents with a one-time ability to request a change in Cart size. Any additional changes in Cart size will be individually charged to the resident, per Cart. 1246116.2 FOUNTAIN HILLS ACKNOWLEDGMENT OF ADDENDA RECEIVED INVITATION FOR BIDS REQUEST FOR PROPOSALS FOR SOLID WASTE SERVICES Addendum No. 1 , affirms that ADDENDUM No. 1 has (Name of Vendor/Designee) been received and that the information contained in ADDENDUM No. 1 has been incorporated in formulating its Proposal. , 2010 Signed Date Print Name Title Company Name Address City, State, Zip Code END OF ADDENDUM No. 1 1253415.3 Date: May 27, 2010 From: Raymond Rees, Environmental Planner Subject: Addendum No. 2 (this “Second Addendum”) Request for Proposals PZ2010-001 (the “RFP”) SCOPE This Second Addendum forms a part of the RFP and the resulting Solid Waste Services Agreement, and clarifies, corrects, or modifies the RFP documents prepared by the Town of Fountain Hills, as amended by Addendum No. 1 issued May 13, 2010 (the “First Addendum”). Any capitalized terms used herein and not otherwise defined shall have the meanings set forth in the RFP, as modified by the First Addendum. Please acknowledge receipt of this Second Addendum in the space provided on the attached form. This acknowledgement and Second Addendum must accompany the submitted proposal. Failure to do so may subject the bidder to disqualification. This Second Addendum consists of responses to written clarification questions submitted by (i) Republic Services, Inc. on May 11, 2010 (the “Republic Questions”), a true and correct copy of which is attached hereto as Exhibit 1 and incorporated herein by reference and (ii) Waste Management of Arizona on May 20, 2010 (the “Waste Management Questions”), a true and correct copy of which is attached hereto as Exhibit 2 and incorporated herein by reference. The clarifications set forth below are not in chronological order, but rather follow the order of the questions included in the Republic Questions and the Waste Management Questions, respectively. Because the Republic Questions were submitted prior to the issuance of the First Addendum, where appropriate, the answers shall refer to those already issued in the First Addendum. In the event of a conflict between the terms of the original RFP documents, the First Addendum and this Second Addendum, the terms of this Second Addendum shall prevail. REQUEST FOR PROPOSALS FOR SOLID WASTE SERVICES Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 ADDENDUM NO. 2 Addendum No. 2 Solid Waste Services RFP May 27, 2010 Page 2 1253415.3 ADDENDUM Answers To Republic Questions 1. See Clarification 10 of the First Addendum. 2. See Clarification 10 of the First Addendum. 3. See Clarifications 2 and 3 of the First Addendum. 4. Townhomes and patio homes are included in the estimated 12,000 residential units within Fountain Hills. 5. All Fountain Hills residents living in homes that receive curbside Collection shall be required to participate in recycling. 6. A resident cannot opt out of recycling, but may receive additional Solid Waste Carts so long as such additional Carts are picked up on the same day as the initial Solid Waste Cart. The Contractor shall propose a price for additional Solid Waste Carts. See Forms 5.1 and 5.2. 7. Fountain Hills has approximately eight locations for front loading containers, including local parks, municipal buildings and two fire stations. The Town may sponsor one or two special events each year (i.e. St. Patrick’s Day celebration) that would require large front loading containers. 8. See Clarification 13 of the First Addendum. 9. See Agreement Subsection 4.3, on page B-10. 10. See Agreement Subsection 4.6, on page B-11. 11. See Agreement Subsection 5.4, on page B-13, which clearly sets forth the Town’s expectations with respect to hazardous materials. 12. Contractor makes the determinations as to Cart replacement. See Clarification 22 of the First Addendum. 13. The average age of the fleet of vehicles used in Fountain Hills must be not more than three years, but in certain circumstances an individual truck can be as old as seven years. Addendum No. 2 Solid Waste Services RFP May 27, 2010 Page 3 1253415.3 14. The Town is seeking to manage its costs with respect to the resulting Agreement and, therefore, wants to ensure that staff is available during normal business hours to handle any of the duties assigned to the Town in the Agreement. 15. See Clarification 5 of the First Addendum. 16. Community drop-off services are intended to provide recycling opportunities to residents living in multifamily homes not otherwise served by curbside pick up. 17. Neighborhood drop-off bins would be at the request of citizens for neighborhood clean-up activities. These would be pay-for-use by the requesting Fountain Hills citizens. 18. No longer applicable. See Clarification 17 of the First Addendum. 19. The Town intends to mandate Solid Waste Services and Recycling Services; Green Waste Services are required to be offered by the Contractor, but participation by residents is voluntary. 20. See Clarification 7 of the First Addendum. 21. The Town will not consider centralized billing through the Town. The Contractor is solely responsible for the billing and collecting system. Answers to Waste Management Questions 1. The Town hereby confirms that the information requested in Subsection II(B)(6) of the RFP, on page A-8, is limited to those facilities that the Contractor reasonably anticipates could be used for service to the Town pursuant to the Agreement. 2. Subsection 4.2(I) should not, under any circumstances, be interpreted as (i) modifying Subsection 1.11(F) or (ii) in any way inviting any changes to the form of Agreement included in the RFP. The Contractor shall not propose any changes to the Agreement as part of its Proposal. 3. Official immediate written notice may also be accomplished by hand delivery, but the Contractor should additionally take all commercially reasonable steps necessary to ensure that the prompt notice intent of the Agreement is met. 4. The 12,000 unit estimate includes multifamily homes, some of which very likely will not require service. The Town has not independently verified how many such multifamily homes currently exist. Addendum No. 2 Solid Waste Services RFP May 27, 2010 Page 4 1253415.3 5. Yes, the reference in Clarification 16 of the First Addendum should reference page 28 instead of page 27. We apologize for the error. 6. The import fees language is intended to have the Contractor describe to the Town any import fees that might affect the revenue typically generated from a particular recyclable material. The Town is not currently aware of any such fees locally. However, as the Town is neither in the solid waste business nor aware of the final destination of any recyclable materials collected in the Town, the Town must rely on the Contractor to disclose any such fees. 7. Form 6.2 will not be amended. It is important to the Town that residents can clearly see the revenue that the Town is foregoing in an effort to keep the monthly charges as low as possible. 8. Form 7.2 will not be amended for the same reasons set forth in Clarification 7 above. As an additional note, the information required on Form 5.2 is intended for comparison purposes only, so that the Town can evaluate whether there is additional cost associated with providing one recycling and one solid waste pick up each week as opposed to two solid waste pick ups each week. 9. Forms 5.1 and 5.2 of the RFP currently have the pricing set at a cost per six cubic yards, without regard to the number of pick ups necessary. 10. Subsection 28.2 of the Agreement is required to ensure that the Agreement is in compliance with the Arizona Budget Law. This provision is applicable during all years of the Term. 1253415.3 EXHIBIT 1 TO ADDENDUM NO. 2 TO REQUEST FOR PROPOSALS FOR SOLID WASTE SERVICES [Republic Questions] See following pages. 1855 E Deer Valley Rd ♦ Phoenix ♦ AZ ♦ 85024 May 11th, 2010 Raymond Rees/Environmental Planner Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, AZ 85268 Re: Questions for PZ2010-001 – Fountain Hills 1) What is the start date of the contract? 2) What is the term of the agreement? 3) How many of the 12,000 residents are under the HOA contract? Is the Town able to provide house counts within an HOA contract and contract expiration date? 4) Are townhomes or patio homes included in the 12,000-home count? 5) Will everyone be required to participate in the recycling program? If not, would the hauler be able to charge a different rate for homeowners who opt out of the recycling program? 6) If a homeowner opts out of the recycling program, may the hauler charge for 2 cans to be serviced the same day? 7) What are the locations for Town Facilities? What and when are the special events? 8) Why does the Town require a staged area for additional residential containers? Will the site be provided by the Town? 9) What do you anticipate in a weekly green waste program? 10) What is the expectation for service for part-time residents? 11) We do not take hazardous waste and aerosol cans and your bid includes this in the language. Will you send out a revised copy of the RFP with this eliminated? 12) How or who determines cart replacement? 13) Please clarify the language describing the average age of the service vehicles. 14) Why is the Town opposed to Friday service? 15) Why do your require the disposal facility open seven days per week? 1855 E Deer Valley Rd ♦ Phoenix ♦ AZ ♦ 85024 16) If you are offering home owners recycling service, why would you have community drop off services? 17) Are the neighborhood drop-off bins for the parks and recreation areas? 18) Who is responsible for placing recyclable material in Solid Waste carts? 19) What service does the Town intend to mandate? 20) Will the Town consider revising container sized to 2 sizes? 21) Would you consider having a centralized bill go to the Town directly? 1253415.3 EXHIBIT 2 TO ADDENDUM NO. 2 TO REQUEST FOR PROPOSALS FOR SOLID WASTE SERVICES [Waste Management Questions] See following pages. May 20, 2010 Town of Fountain Hills 16705 E. Ave of the Fountains Fountain Hills, AZ 85268 Raymond Rees Stormwater/Environmental Planner Dear Mr. Rees; As indicated in your e-Mail yesterday, today is the last day for questions. Below are the last few questions I have: 1. During the bidder’s conference, we received clarification that the compliance information requested at II(B)(6) can be limited to history specifically involving the facilities that would perform the services under the proposed contract. Because this clarification does not appear in Addendum No. 1, would the City please confirm the revision to this aspect of the proposal requirements as discussed in the bidder’s conference?” 2. Section 1.11.F (page A-5) says that by submitting a proposal, contractor “accepts all of the terms and conditions set forth therein.” But in Section 4.2.I (page A-15) the Town reserves the right to discuss and negotiate any terms and conditions in the proposal. Does the Town prefer that the Proposer’s requested modifications to the sample Solid Waste Services Agreement be (1) noted in the Proposal for discussion and negotiation after award or (2) addressed in the Proposal with proposed alternative language? 3. In Addendum No. 1, No. 21, the Town revised Section 29.19 (page B-41) regarding notice. For clarification regarding the subsections listed in the new Section 29.19 that require immediate written notice, is notice to be given only by fax? 4. Is 12,000 the number of single-family homes? Does this number include any multi-family homes that do not require service? 5. Page 5 of the addendum No. 16 Did you mean on page 28 not 27 of the original bid? 6. Page A-10 f. Please explain import fees? 7. Form 6.2 if the town does not intend to receive rebates, please remove rebate area. 8. Form 7.2 if the town does not intend to receive rebates, please remove rebate area. 9. How do you want bulk rate priced, per home or per pick-up? 10. Page, B-37 No. 28.2 this was brought up in the pre-bid meeting. Please explain, is this after the initial term or is it any time during the contract? Thank you in advance for addressing the questions: Sincerely, William Day Jr. William Day Jr. Territory Manager Public Sector Services Waste Management of Arizona 602-721-4018 Bday2@wm.com 1253415.3 FOUNTAIN HILLS ACKNOWLEDGMENT OF ADDENDA RECEIVED INVITATION FOR BIDS REQUEST FOR PROPOSALS FOR SOLID WASTE SERVICES Addendum No. 2 , affirms that ADDENDUM No. 2 has (Name of Vendor/Designee) been received and that the information contained in ADDENDUM No. 2 has been incorporated in formulating its Proposal. , 2010 Signed Date Print Name Title Company Name Address City, State, Zip Code END OF ADDENDUM No. 2 1327834.1 Date: August 19, 2010 From: Raymond Rees, Environmental Planner Subject: Addendum No. 3 (this “Third Addendum”) Request for Proposals PZ2010-001 (the “RFP”) SCOPE This Third Addendum forms a part of the RFP and the resulting Solid Waste Services Agreement, and clarifies, corrects or modifies the RFP documents prepared by the Town of Fountain Hills, as amended by Addendum No. 1, issued May 13, 2010 (the “First Addendum”) and Addendum No. 2, issued May 27, 2010 (the “Second Addendum”). Any capitalized terms used herein and not otherwise defined shall have the meanings set forth in the RFP, as modified by the First Addendum and the Second Addendum. Please acknowledge receipt of this Third Addendum in the space provided on the attached form. This acknowledgement and Third Addendum must accompany the submitted proposal. Failure to do so may subject the bidder to disqualification. This Third Addendum is issued for the purpose of requesting additional information with respect to Form 5, as submitted by the bidders. Specifically, the bidders are requested to provide the Town with the information required on Form 5.1.A, attached hereto as Exhibit 1 and incorporated herein by reference, setting forth the various costs associated with “Multiple Day Collection.” As used herein, “Multiple Day Collection” means two Solid Waste pick-ups in each week, with recycling picked up on the same day as one of the two Solid Waste pick-ups. In the event of a conflict between the terms of the original RFP documents, the First Addendum, the Second Addendum and this Third Addendum, the terms of this Third Addendum shall prevail. REQUEST FOR PROPOSALS FOR SOLID WASTE SERVICES Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 ADDENDUM NO. 3 1327834.1 EXHIBIT 1 TO ADDENDUM NO. 3 TO REQUEST FOR PROPOSALS FOR SOLID WASTE SERVICES [New Form 5.1.A] See following page. 1327834.1 FORM 5: COST FORM FOR RESIDENTIAL SOLID WASTE SERVICES, RESIDENTIAL BULK WASTE SERVICES, RESIDENTIAL RECYCLING SERVICES AND TOWN FACILITY RECYCLING SERVICES Form 5.1.A - Costs for Residential Solid Waste Services Monday through Thursday Collection Week Service Rate Multiple Day Collection [1] Residential Solid Waste Services 1. Solid Waste Collection Service Rate $ /Unit/Month 2. Solid Waste Cart Rate [2] 65 Gallon 96 Gallon $ /Unit/Month $ /Unit/Month 3. Solid Waste Disposal Rate [3] $ /Unit/Month 4. Additional Solid Waste Cart Collection Service Rate [4] $ /Unit/Month 5. Additional Solid Waste Cart Rate [2][4] $ /Unit/Month 6. Additional Solid Waste Cart Disposal Rate [3][4] [6] 7. Non-Collection Day Collection Rate [6] $ /Unit/Month 8. Non-Collection Day Disposal Rate [3][6] [6] Residential Bulk Waste Services 1. Bulk Waste Collection Rate $ /6 CY 2. Bulk Waste Disposal Rate [3] $ /6 CY 3. Semiannual Bulk Waste Event $ /6 CY Residential Recycling Services 1. Recycling Collection Service Rate $ /Unit/Month 2. Recycling Cart Rate [2][7] 65 Gallon 96 Gallon $ /Unit/Month $ /Unit/Month Residential Cart Change Rate [8] $ /Cart [1] Multiple Day Collection means Contractor shall perform, for each Residential Service Unit, Residential Solid Waste Services on two days each week and Residential Recycling Services on the same day of the week as one of the Residential Solid Waste Services days. [2] Cart Rate means the cost for purchase up to and including the initial delivery of the Carts to Residential Service Units. Contractor shall be responsible for the costs associated with the maintenance, delivery after the initial delivery and storage of Carts. Ownership of the Carts in the possession of Residential Service Units at the expiration of the Agreement shall rest with the Contractor. [3] Disposal Rate shall be the sole fee charged for the disposal of Solid Waste and Bulk Waste. [4] Additional Solid Waste Service means the cost associated with an additional Solid Waste Cart for a Residential Service Unit. [5] Additional Solid Waste Cart Disposal Rate shall be equal to Solid Waste Disposal Rate. [6] Non-Collection Day Collection Rate shall mean the provision of Solid Waste Collection Services by the Contractor on a day other than the Residential Service Unit’s scheduled Collection day. [7] Proposer shall provide a choice of the size of Carts for solid waste and recycling (65 & 96-gal) to enable residents to choose the level of service most appropriate for their situation. The default level of service will be the 96 gallon Carts. Recycle Carts shall be a standard blue color with the recycle logo imprinted on the container; provided, however, that the Town may, it its sole discretion, allow for alternative Recycling Cart colors that are clearly marked or colored to easily distinguish them from the Solid Waste Cart and the Green Waste Cart and so long as the recycle logo is clearly displayed. All Carts must be Contractor grade, wheeled containers. Each must have a permanently attached lid, and be designed to easily fit through gates and doors. [8] Proposer shall provide residents with a one-time ability to request a change in Cart size. Any additional changes in Cart size will be individually charged to the resident, per Cart. 1327834.1 FOUNTAIN HILLS ACKNOWLEDGMENT OF ADDENDUM RECEIVED REQUEST FOR PROPOSALS FOR SOLID WASTE SERVICES Addendum No. 3 , affirms that ADDENDUM No. 3 has (Name of Vendor/Designee) been received and that the information contained in ADDENDUM No. 3 has been incorporated in completing its Proposal. , 2010 Signed Date Print Name Title Company Name Address City, State, Zip Code END OF ADDENDUM No. 3 1346193.10 EXHIBIT B TO SOLID WASTE SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND ALLIED WASTE TRANSPORTATION, INC. D/B/A ALLIED WASTE SERVICES OF PHOENIX [Contractor’s Proposal] See following pages. 1346193.10 EXHIBIT C TO SOLID WASTE SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND ALLIED WASTE TRANSPORTATION, INC. D/B/A ALLIED WASTE SERVICES OF PHOENIX [Fee Proposal – Completed Forms 5 - 8] See following page(s). 1346193.10 EXHIBIT D TO SOLID WASTE SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND ALLIED WASTE TRANSPORTATION, INC. D/B/A ALLIED WASTE SERVICES OF PHOENIX [Phase-in Schedule/Map] See following page(s). 1346193.10 EXHIBIT D WILL BE INCLUDED HEREIN AFTER EXECUTION OF THIS AGREEMENT, UPON CONCURRENCE OF BOTH PARTIES. 1346193.10 EXHIBIT E TO SOLID WASTE SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND ALLIED WASTE TRANSPORTATION, INC. D/B/A ALLIED WASTE SERVICES OF PHOENIX [Materials Acceptance Protocol] See following page(s). Reference Facility: River Recycling Hudson Baylor built its River Recycling facility, located at the Salt River Pima Maricopa Indian Community’s landfill in 2000-2001, after winning a competitive bid to develop the recycling plant. River Recycling provides residential recycling processing services to a number of cities and towns east of the City of Phoenix. The initial agreements that led to the development of the MRF were Inter-Governmental Agreements (IGA) between the Salt River Pima Maricopa Indian Community and the Cities of Scottsdale and Mesa. Under these IGA's, the municipalities bring recyclables to the landfill. River Recycling then has a contract with the Community to process these recyclables. The initial agreement was put in place in 2000, and called for all of Scottsdale recyclables to be delivered to the MRF. In early 2001, the City of Mesa agreed to bring approximately half of their recyclables. Several other communities and commercial haulers in the region also bring single stream material to River. In 2004, River Recycling, through a competitive bid process, was awarded a direct contract to process the remaining half of the City of Mesa’s residential recyclables. In early 2006, River Recycling won the contract to process the Town of Gilbert’s recyclables through a competitive bid process. As a result of this growth, River Recycling processed in excess of 83,200 tons of single stream residential material in 2008. River Recycling Process Description River Recycling was designed to process recyclables at 25 tons per hour, using 25 staff, including office and plant management personnel. This indicates a design capacity of 52,000 tons per year, assuming a single shift operation working 8 run hours per day. The system was manufactured by Machinex Technologies of Canada. It has subsequently been enhanced with TiTech optical sorting equipment, supplied and installed by Van Dyk Baler. River Recycling is one of the first single-stream MRF's in the US to use optical sorting for recovered paper production. This additional equipment has maintained our throughput capacity while improving quality and reducing headcount. The Tipping area of over 11,000 square feet receives incoming materials. Trucks are backed into one of three large overhead doors where the recyclable materials are discharged. The Tipping Area has a storage capacity of approximately 500 tons, based on an average material density of 250lb/cy and an average height of ten feet. Materials are immediately pushed into the system in-feed pit conveyor by front-end loader. The materials are then conveyed up an incline conveyor to a Pre-Sort conveyor where bulky metals and identified rejects are removed. This area is designed for maximum flexibility so that it can be manned to run at full capacity, or adjusted based on speed and quality of material. Items sorted at pre-sort are dropped into roll-off containers below the pre-sort station for baling and/or disposal, depending on the material in question. Materials are next conveyed to Machinex’ Mach I Star Screen Technology, where commingled containers are separated from the fiber stream and oversize cardboard is mechanically sorted from the stream. The cardboard (OCC) floats over the top of the screen to a conveyor that sends the OCC to storage bunker prior to baling. The remaining paper is comprised of old newspaper (ONP), mixed paper (MP) and white office paper (OP). This paper is separated into two streams to minimize burden depth, and then passes over an ONP screen system to remove any remaining containers. The newspaper that travels over the top of the screens then passes through the optical sorting units, to remove remaining contaminants. The remaining paper then passes over two quality sort belts, so that any necessary fiber impurities can be removed from the stream. Sorters can pull out MP, OP, and any chipboard, kraft bags, and small cardboard that remain with the stream. Since the application of the optical sorting units, very little manual labor is required to clean the sorted newspaper. There are bins under the sorting belts for each of these materials. The negative sort off the quality belts is ONP, which feed storage bins that empty directly to the baler in feed conveyors. The mixed containers feed onto a transfer conveyor system that leads to a polishing screen that separates any remaining paper traveling with the containers, and also separates the heavy glass and fines from the plastic and metal containers. The plastic and metal containers continue on to a bottle and can sort line. The line includes a magnet to pull steel cans, an eddy current to sort aluminum, an optical sorting unit to capture PET plastic, and HD-Natural and HD-Colored plastics are manually sorted to bins. Glass bottles are diverted to a separate sort line that allows for the color sorting of bottles. The sorted bottles are conveyed to crushers, and the resulting crushed glass is stored in outside storage bunkers that are accessible by front-end loader for shipping. Fines (2” minus) are separated from the glass bottles by a screen and conveyed to a compactor outside. The indoor bunkers that receive sorted materials have reversing floor conveyors, so that the materials may be baled to either of the two Bollegraaf balers at the plant. This allows continuous operation of the facility even during scheduled downtimes. Subsequent to the initial construction of the facility, we have made continual process improvements to improve throughput, quality, and efficiency of the system. These improvements include rubberizing various components to minimize glass breakage; changing disc sizing on the newspaper screens to improve the quality of the ONP generated; and constant monitoring (direct and video) of the system to further fine tune the processing system. River Recycling, Scottsdale, Arizona  Services provided: Municipal recycling (with contracts)  Type of facility: Single-stream  Approximate facility size: 38,000 square feet  Ownership: Land owned by SRPMIC; Structure and equipment owned by Hudson Baylor  Commodities processed (2008): 82,264  Products sold: #8 News, OCC, Mixed Paper, PET, HD-Na; HD-Co; Aluminum, Steel, Flint, Green, and Amber Glass  Year opened: 2002  Systems: Machinex Sorting Systems (with OCC and ONP Star Screens as well as Angled Polishing Screen), Two Bollegraaf Balers, 3 Ti-Tech Optical Sorters  Areas served: Cities of Mesa, Scottsdale, the town of Gilbert and other smaller communities in the area 1346193.10 EXHIBIT F TO SOLID WASTE SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND ALLIED WASTE TRANSPORTATION, INC. D/B/A ALLIED WASTE SERVICES OF PHOENIX [Recycling Materials Processing Contract] See following page(s). 1346193.10 EXHIBIT G TO SOLID WASTE SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND ALLIED WASTE TRANSPORTATION, INC. D/B/A ALLIED WASTE SERVICES OF PHOENIX [Disposal Services Contract] See following page(s). COPY OF DISPOSAL SERVICES CONTRACT IS ON FILE WITH THE TOWN CLERK. 1346193.10 EXHIBIT H TO SOLID WASTE SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND ALLIED WASTE TRANSPORTATION, INC. D/B/A ALLIED WASTE SERVICES OF PHOENIX [Performance Bond] See following page(s). WELLS FARGO Wells Fargo Insurance Services USA, Inc. IS Saulh Main Street. 3rd FL (29601) Post Office Box 3478 Greenville. SC29GO2 Teh 864 233 9G26 TallFiee: 800 33B 7154 wellsfargo.com October 19, 2010 Allied Waste Transportation, Inc Stacy Loveland Re: Typo of Bond: Non-Construction Contract Performance Bonds Bond Number: 8986543 Obligee: Town of Fountain Hills Description: Residential & Recycling Collection & Disposal Bond Amount: $2,000,000.00 Dear Stacy, Enclosed please find the above referenced. Please mark your files accordingly before submitting to the appropriate contact with the obligee. Please do not hesitate to contact us should you have any questions. Sincerely, Sarabeth Scott Enclosures Together we'll go far Fidelity and Deposit Company of Maryland 3910 Keswick Road Baltimore, MD 21211 ZURICH PERFORMANCE BOND (Annual Form 1001) Bond No. 8986543 KNOW ALL MEN BY THESE PRESENTS, that we, Allied Waste Transportation, Inc as Principal, (hereinafter called the "Principal"), and Fidelity and Deposit Company of Maryland as Surety, (hereinafter called the "Surety"), are held firmly bound unto, Town of Fountain Hills as Obligee, (hereinafter called the "Obligee"), in penal sum of Two Million Dollars and 00/100 Dollars ($ 2.000.000.00 ) good and lawful money of the United States of America, for the payment of which, well and truly to be made, we bind ourselves, our heirs, administrators, executors, successors, assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has entered into written contract with the Obligee, dated October 20. 2010 (hereinafter called the "Contract"), which Contract is incorporated herein by reference and, NOW, THEREFORE, the condition of this obligation is such that, if the Principal shall indemnify the Obligee for any and all loss that the Obligee may sustain by reason of the Principal's failure to comply with the terms and conditions of said Contract, then this obligation shall be null and void, otherwise it shall remain in full force and effect. PROVIDED, HOWEVER, that: 1. The term of this bond is for the period commencing July 1, 2011 and expiring on June 30, 2012 , unless released by the Obligee prior thereto. However, the term of this bond may be extended for an additional one-year period by the issuance of a Continuation Certificate by the Surety. 2. The liability of the Surety under this bond and all continuation certificates issued in connection therewith shall not be cumulative and shall in no event exceed the bond amount set forth above or in any additions, riders or endorsements properly issued by the Surety. 3. Non-renewal by the Surety nor failure of the Principal to provide the Obligee with a replacement bond shall not constitute default under this bond. 4. In the event the Principal shall be declared by the Obligee to be in default under the Contract, the Obligee shall provide the Surety with a written statement setting forth the particular facts of said default no later than thirty (30) days from the date of said default, which notice shall be sent to the Surety by registered mail to the address in stated in Section 6 below. 5. The Surety will have the right and opportunity, at its option, and in its sole discretion, to: a.) cure the default; b.) assume the remainder of the Contract and to perform or sublet same; c.) or to tender to the Obligee funds sufficient to pay the cost of completion less the balance of the Contract price up to an amount not to exceed the penal sum of the bond. In no event shall Surety be liable for fines, penalties, liquidated damages or forfeitures assessed against the Principal. 6. The Obligee's acceptance of this bond and reliance upon it as security constitutes its acknowledgement and agreement as to the terms under which it is offered and issued by the Surety. 7. All notices, demands and correspondence with respect to this bond shall be in writing and addressed to: The Surety, at the following address: Fidelity and Deposit Company of Maryland 3910 Keswick Road Baltimore, MD 21211 Page 1 of 1 The Principal, at the following address: Principal Name Allied Waste Transportation, Inc Address 4811 W Lower Buckeye Rd City State Zip Phoenix, AZ 85041 The Obligee, at the following address: Obligee Name Town of Fountain Hills Address 16705 East Avenue of the Fountains City State Zip Fountain Hills, AZ 85268 ZURICH Sealed with our seals and dated this 18th day of October 2010 Allied Waste Transportation, Inc Princi Witness' , \ aGuuuu Fidelity and Deposit Company of Maryland Witness Attomey-in-Fact Sarabeth Scolt Obligee Acknowledgement Witness Name and Title: Page 2 of 2 POWER OF ATTORNEY Republic Services, Inc., a Delaware corporation and having its chief place of business at 18500 N. Allied Way, Phoenix, Arizona 85054, hereby makes, constitutes and appoints WACHOVIA INSURANCE SERVICES, INC., acting through and by any of Johanne Puckett and/or Sarabeth Scott, its true and lawful attorney and affix its corporate seal to and deliver for and on behalf as surety thereon or otherwise, bonds of any of the following classes, to wit: 1. Surety bonds and/or bid bonds to the United States of American or agency thereof, including those required or permitted under the laws or regulations relating to Customs or Internal Revenue; license and permit bonds or other indemnity bonds under the laws, ordinances or regulations of any state, city, town, village, board, other body organization, public or private; bonds to transportation companies; lost instrument bonds; lease bonds; worker's compensation bonds; miscellaneous surety bonds; and bonds on behalf of notaries public; sheriffs, deputy sheriffs and similar public officials. 2. Surety bonds and/or bid bonds on behalf of REPUBLIC SERVICES, INC. and its subsidiaries in connection with bids, proposals or contracts. To sign and seal all bid bonds and surety bonds at or below the monetary threshold of Five Million Dollars ($5,000,000.00) on behalf of REPUBLIC SERVICES, INC. and its subsidiaries, relating to the provision of solid waste collection, transportation, recycling or disposal services by REPUBLIC SERVICES, INC. and its subsidiaries. REPUBLIC SERVICES, INC. hereby agrees to ratify and confirm whatsoever WACHOVIA INSURANCE SERVICES, INC. shall lawfully do pursuant to this power of attorney and the Client Service Agreement dated October 15, 2008 between WACHOVIA INSURANCE SERVICES, INC. and REPUBLIC SERVICES, INC. and until notice or revocation has been given by REPUBLIC SERVICES, INC. the acts of said attorney shall be binding on the undersigned. IN WITNESS WHEREOF, this Power of Attorney has been signed this 4th day of December, 2008, on behalf of REPUBLIC SERVICES, INC. by its Vice President and Associate General Counsel, Tim M. Benter. REPUBLIC SERVICES, INC., a Delaware corporation Tim M. Benter STATE OF FLORIDA ) )ss COUNTY OF BROWARD ) Subscribed and sworn to before me this X2 day of December, 2008 by Tim M. Benter, Vice President and Associate General Counsel of Republic Services, Inc. Notary Public CHRISTINE M. DOYLE MY COMMISSION IDD4II29I EXPIRES: Novoita-22,2009 Power of Attorney FIDELITY AND DEPOSIT COMPANY OF MARYLAND KNOW ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a corporation of the State of Maryland, by THEODORE G. MARTINEZ. Vice President, and ERIC D. BARNES, Assistant Secretary, in pursuance of authority granted by Article VI, Section 2, of the By-Laws of said Company, which are set forth on the reverse side hereof and are hereby certified to be in full force and effect on ihedate hS&fojjWiHiereby nominate, constitute and appoint Johanne S. PUCKETT and Sarabeth SCOTT^p|^(Q^dnife; Sgut^C^rolina, EACH its true y, and as its act and in pursuance of these purposes, as if they had been duly ny at its office in Baltimore, Md., in their own and lawful agent and Attorney-in-Facl, to make, execute,: deed: any and all bonds and undertakings, andj presents, shall be as binding i executed and acknowledged] proper persons. The said Assistant B£craaijulpiErt©Hg^rtfrnhat the extract set forth on the reverse side hereof is a true copy of Article VI, Section 2, of the By-Lag^jiaj^Company, and is now in force. IN WITNESS WHEREOF, the said Vice-President and Assistant Secretary have hereunto subscribed their names and affixed the Corporate Seal of the said FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 15th day of October, A.D. 2008. ATTEST: FIDELITY AND DEPOSIT COMPANY OF MARYLAND Eric D. Barnes Assistant Secretary By: Theodore G. Martinez Stale of Maryland 1 City of Baltimore J ss: On this 15th day of October, A.D. 2008, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, came THEODORE G. MARTINEZ, Vice President, and ERIC D. BARNES, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and they each acknowledged the execution of the same, and being by me duly sworn, severally and each for himself deposcth and saith, that they are the said officers of the Company aforesaid, and that the seal affixed to the preceding instrument is the Corporate Seal of said Company, and that the said Corporate Seal and their signatures as such officers were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above written. ,v,«^*, Constance A. Dunn Notary Public My Commission Expires: July 14.2011 POA-F 177-0029A EXTRACT FROM BY-LAWS OF FIDELITY AND DEPOSIT COMPANY OF MARYLAND "Article VI, Section 2. The Chairman of the Board, or the President, or any Executive Vice-Prcsident, or any of the Senior Vice-Presidents or Vice-Presidents specially authorized so to do by the Board of Directors or by the Executive Committee, shall have power, by and with the concurrence of the Secretary or any one of the Assistant Secretaries, to appoint Resident Vice-Presidents, Assistant Vice-Presidents and Attorneys-in-Fact as the business of the Company may require, or to authorize any person or persons to execute on behalf of the Company any bonds, undertaking, recognizances, stipulations, policies, contracts, agreements, deeds, and releases and assignments of judgements, decrees, mortgages and instruments in the nature of mortgages,...and to affix the seal of the Company thereto." CERTIFICATE I, the undersigned. Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the foregoing Power of Attorney is still in full force and effect on the date of this certificate; and 1 do further certify that the Vice-Presidenl who executed the said Power of Attorney was one of the additional Vice-Presidents specially authorized by the Board of Directors to appoint any Attorney-in-Fact as provided in Article VI, Section 2. of the By-Laws of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND. This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the 10th day of May, 1990. RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature of any Vice-President, Secretary, or Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect as though manually affixed." IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seal of the said Company, this. IS Asthlanl Secretary