HomeMy WebLinkAboutBairos Recycling Inc. - Non-Exclusive Franchsise for Roll-Off Collection ServicesBairos Recycling Inc.
RollOffFranchise
NON-EXCLUSIVE FRANCHISE AGREEMENT
BETWEEN
THE CITY OF FRESNO
AND
FOR
ROLL -OFF COLLECTION SERVICES
2011
Table of Contents
ARTICLE 1 DEFINITIONS.........................................................................................................2
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR ................................
6
3.1
REPRESENTAI IONS AND WARRANTIES . ................. .__.. __.
_.6
ARTICLE 3 TERM OF AGREEMENT...........................................................................................9
5.3
3.1
EFFECTIVE DATE... .... ....... ...... ...... ................. ..,..__ .............9
5.4
3E
CON DITIONS TO EFFECTIVENESS OF AGREEMENT..................................................................AT
55
3.3
INITIAL TERM... .... ........ ...... ................ ...... ....._. ..... ..........10
SA
36
34
OPTION TO EXTEND . ............... ................ _...._. ..........10
67
ARTICLE 4 SCOPE OF AGREEMENT........................................................................................11
............... 23
4.1
SCOPE OF AGREEMENT ............ ... _... __..._
1 1111
42
LIMITATIONS TO SCOPE ..... ..... _........... ...... ...... .......... .... .. ................
13
4.3
CITY -S RIGHT TO GRANT MULTIPLE NON EXCLUSIVE AGREEMENTS.......................................13
AA
CITY'S RIGHT TO EXCW OE NEWLY ANNEXED TERRITORY FROM SCOPE OF FRANCHISE
13
65
AGREEMENT CONSISTENT WITH APPLICABLE LAW..................................................................
13
4.6
OWNERSHIP OF MATERIALS......... __......_. I I 1 I __...13
47
NOTIFICATION TO CITY OF NON- FRANCHISED HAULERS..........................................................
14
ARTICLE S COLLECTION, PROCESSING, AND DISPOSAL SERVICES
5.1
COLLECTION .- _.
_11_14
53
PROCESSING AMARKETING SERVICES _... _.
__. _. ._.._.14
5.3
DIVERSIOOREQUIREMENT EQUIREMEOIREMENT........... - .....
............ ........... 16
5.4
DISPOSAL.... ..... ....... .. .... ...... ........
.... ...... ..... ...... ..... ...... .... 16
55
BILLING_. ..... ...... .......... .. ............. ..
................ ..... ...... .... 17
SA
36
CUSTOMER SERVICE _...__ ..,__....
11 . __...___..11
ARTICLE 6 STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT, AND PERSONNEL IT
6.1
OPERATING DAYS, HOURS, AND SCHEDULES.... ...... ..... ....... ...... ........
lT
63
COLLECTION STANDARDS ..... .................
... ........18
6.3
VEHICLE REQUIREMENTS ............. .... ,..... .,......... ... .......
...... .. ...............19
64
ROLL -OCE CONTAINER REQUIREMENTS. 1. 11 _.,.__.1
11 1 1 .1 20
6.5
PERSONNEL. .............. ................ .................
................22
6.6
HAZARDOUS WASTE INSPECTION AND HANOUNG..._ .__....
.. ... Z2
67
NONDISCRIMINATION ............. .................
............... 23
6.8
COMMUNICATION AND COOPERATION WITH CITY ... ...... ....... ...... ....... ......
...... ....... ........ ...... .... 23
ARTICLE) RECORD KEEPING AND REPORTING......................................................................24
City of Fresno NonExclusive RollOffAgreement Page i
4/8/11
2.1
GENERAL........ ...... ...... ...... ........ ..... ...... ...._.,, _....... ...... ,.......
..............24
7D
RECORDS I_....._..... .... ...... ...... ... ....,...... ...
__.25
7.3
GENERAL REPORTING REQUIREMENTS..... ..... .......... ............ ...... ............. ........ ......
....... ..... 25
].4
MONTHLY REPORT I.... I...... ...... ....... ..___
...__.I6
7.5
AB 939 COUNTY SURCHARGE REPORTING ........ ..__..__„__.....................................................27
ARTICLE
0 FRANCHISE FEES AND OTHER FEB ........................................................................28
8.1
GENERAL...... .................. ..... ..... ....... ....._28
.............. ..........
...
8 2
FRANCHISE FEE ......._ ................. ....... ...... .......
._....._.28
83
OTHER FEES..... .... ........ ...... .... ._...._.
..............18
8.4
ADJUSTMENT TO FEES .......... ..............
1. .
8.5
PAYMENULE LATEFEES .. .............1 _...._. ..................28
8.6
OVERPAYMENT
OVERPAYMENT OF FEES ..-- ._.... ._..............
.............._29
AT
NONCITYFEES; AS 939 COUNTY BUPCHARGE................................._.........__.._....._.............29
ARTICLE
9 CONTRACTOR'S COMPENSATION AND RATES.......................................................29
9.1
CONTRACTOR'S COMPENSATION ................. _..
...............29
91
CITY'S RIGHT TO SET MAXIMUM RATES.
........ .. _..... .
. ............29
9.3
CONTRACTOR'S RATES ................ ........_._ .._...........
.................30
ARTICLE
10 INDEMNITY AND INSURANCE.............................................................................30
10.1
INDEMNIFICATION ....I.......... . ........... ................
._.._30
101
INSURANCE.. ... ....... - ... .... ..... ... _................ .
............31
ARTICLE
11 DEFAULT AND REMEDIES....................................................................................35
11.1
EVENTS OF DEFAULT ... ........ ....... ..... . ......... .................35
11.2
RIGHT TO TERMINATE UPON DEFAULT ........ ............................................................................36
11.3
CITY'S REME0IES CUMULATIVE; SPECIFIC PERFORMANCE... ....... .... ........ ..... ....... ._.....__.__.36
114
LIQUIDATED DAMAGES... ........ ...... ........... .... ...... ...... .
_. __.36
11.5
DIVERSION NON-PERFORMANCE.... ....... ............. .... ........ ....... ...... ...... ...... ........ ...... .............
..... 38
116
CONDITIONS UPON TERMINATION ................. ..............
.__.._39
ARTICLE
12 OTHER AGREEMENTS OF THE PARTIES................................................................39
12.1
RELATIONSHIP OF PARTIES .... ....... ...... ......... ........_
__._.39
12.2
PERMITS AND LICENSES .._._.. .... ....... .._ ...... ..... ........ .....
....... .......... 40
123
COMPLIANCE WITH LAW...... ........ ...... ...... ....... ............._... ....... ...... ....... ......................._....._....40
134
GOVERNING LAW ... ... ........ . _.. ..._._...... ..
.............40
12 5
JURISDICTION ............... .. .. ............_
... .................
....... ......40
12.6
BINDING ON SUCCESSORS ...... ...... ..._.__.. ._..._........ ....
...... ...... . OD
12.8
ASSIGNMENT ......_..... .... ...... ...... .
.........._40
12.8
PARTIES IN INTEREST .................. _._ _..._.... ,.
............41
12.9
WAIVENOTICE ...O _..,.._ ................
............._41
12.11
RETIES ..........RTI ................ _..
..... 41
12.11
REPRESENTATIVES OF HE .............. ............
REPRESALA TIVITY
.......... ._...42
12.12
CRIMJNOF CONTRACTOR ......... _.TICS
....
12.13
ACKNOWLEDGMENT OF
ACXNOWLEOGMENi OF PUBLICRE5DURESS CODE SECTION 49520 NOTICE ...... ......
SE
...... ......_43
CIry of Fresno Non Exclusive Roll ff Agreement
Page IT
4/g/11
ARTICLE 13 MISCELLANEOUS AGREEMENTS..........................................................................AI
13.1
ENTIRE AGREEMENT _...._ ...... I ..... ..... ..............
.............44
133
_..__. .................. ...............
_.,._...,44
13.3
REFERENCEADI LA
TO TAWS _...... ............ ..
._..... ..............A4
134
INTERPRETATION ............ ..................
__...44
13.5
PRONOUNS A[-S;.....NSE
TENSE...... ....... ....................... ........ ........._.
___..._.........._... ....... 44
133
TEXT TO CO TOLLUPALSI
................ ..................
...... .............. 45
133
AMEND ENTPOL
AMENDMENT .................. ......._..
..
.... ...........AS
138
SEVERABILITY ............... ..
.......... _45
13.1
COUNTERPART
COUNTERPARTS ....... ...._ .......... ................
._...A5
13.10
F%HIPIT3...... _.......... .. ........... ....
.. ...............AS
List of EahibRs
A Schedule for Liquidated Damages
0 Secretary's CeNlRcadon
C Statement of Applicant's Understanding and Representations
D Approved Processing and Residue Disposal Facilities
City of Fresno Nan -Exclusive TellOffAgreement Page iii
4/8/11
NON-EXCLUSIVE
BETWEEN
THE CITY OF FRESNO
J�AANO
Irk0i Avii
Sr'1 L•
FOR ROLL -OFF COLLECTION SERVICES
Tbis not; elusive. franchise agreement (Agreement) Is made and entered Into This �(' day of
�T)qv' 20—A1, by and between the OW of Fresno, a municipal corporation, (City) and
Pi& sr nS T.&P. n OJ, a,r N 'I urs(. (Contractor.)
—�I
RECITALS
This Agreement is entered Into with reference to the following fads and circumstances
WHEREAS, the Legislature of the State of California, by enactment of the (>Ihi Integrated Waste
Management Act of 1989, codified at California Public Resources Code Settlon 40000 et seq. ('AcV) ),
has declared that It is in the public interest to authorize and require local agencies to make adequate
provisions for Solid Waste Collection within their jurisdiction, and
WHEREAS, the State of California ("State") has found and declared that the amount of Solid Waste
generated In California, coupled with diminishing landfill space and potential adverse environmental
Impacts from landfilling and the need to conserve natural resources, have created an urgent need for
State and local agencies to enact and Implement an aggressive integrated waste management program.
The State has, through enactment of the Act, directed the responsible State agency and all local
agencies, to promote Disposal Site Diversion and to maximize the use of feasible Solid Waste reduction,
reuse, Recycling, and Composting options In order to reduce the amount of Split Waste that must be
Disposed of in Disposal Sites; and,
WHEREAS, the Ad requires local agencies to divert 50%of discarded materials from landfills; and,
WHEREAS, the City Council established goals of achieving 75% diversion by 2012 and zero waste status
by 2025 on lune 26, 2007, and approved a Zero Waste Strategic Adlon Plan on February 11, 2009; and
WHEREAS, the City finds that resin& Recycling. and Composting Recyclable Materials, Organic
Materials, and Construction and Demolition Debris (C&D) and beneficial use or composing of Organic
Materials Is essential to further the City's efforts to reduce Solid Waste Disposal and comply with the Act
and the City's zero waste goals; and
WHEREAS, pursuant t0 the powers granted the City as a charter city by Article %I, Section Sia) of the
California Constitution and Article all of the Fresno City Charter, the Ciry has determined that the public
health, safety, and well-being require that a franchise agreement defining nom -exclusive rights be
awarded to qualified companies to provide for the rolloff container collection of Permitted Materials
City of Fresno Rall -Off Agreement Page 1
4/8/11
stent for collection of materials excluded in the Ol Municipal Code, and other services related to
meeting requirements of the Act, and
WHEREAS, the City requires all haulers providing Rolll Collectlon services for Permitted Materials In
the CIry to obtain a tootexclusive franchise in order to regulate this business, ensure Its orderly
operation, achieve its diversion goals, and to minimize the potential for adverse effectsit may have on
the local environment: and
WHEREAS, the City Council has determined through an application process that the Contractor, by
demonstrated experience, reputation, and deal is qualified to provide for the RollOffContainer
Collection of permitted Materials within the corporate limits of the City and the Transportation of such
material to appropriate places of gecydin& Processing, and/or Disposal, and an provide insurance
consistent with the City's requirements. The City Council desires that Contractor be engaged to perform
such. services on the baffi set forth In this Agreement; and
WHEREAS, Contractor intends to use the City's streets, alleys, other public rightsaf way, and
Infrastructure to provide Roll Off Collection services to the CILYs residents and businesses; and
WHEREAS, the City intends to receive just and reasonable fees from the Contractor for Cry's
administration of the Agreement and for Contrattols use of the City streets, alleys, other public rights
of way, and infrastructure which the CIry may lawfully impose and the companies are obligated to pay;
and,
NOW, THEREFORE, In consideration of me mutual promises, covenants, and conditions atntalned'In this
Agreement and for other goad and valuable consideration, the Parties agree as follows:
ARTICLE T
DEFINITIONS
For purposes of this Agreement, unless a different meaning is clearly required, the following words and
phrases shall have the following meanings respectively ascribed to them by this Article and shall be
agtabzed throughout this Agreement
"Act" means the California Integrated Waste Management Act of 1989 ILITA on 30 of the California
Public Resources Code), as amended, supplemented, superseded, and replaced from time to time.
"Agreement" means this Agreement between the Ciry, and Contractor for Roll -Off Container Collection,
Processing, and Disposal of Permitted Materials including all exhibits, and any future amendments
hereto.
"Appliable Lows s all Federal. State, and local laws, regulations, rules, Orders, judgments,
degrees, permits, approval, or other requirements of any governmental agency having jurisdiction over
the Roll ON Container Collection, Transportation, Recycling, Processing, and Disposal of Permitted
Materials that are In force an the Effective Dae and as they may be enacted, issued, or amended during
fine Term of this Agreement.
City of Fresno Rall -Off Agreement Page 3
a/a/11
"Approved C&D Processing Site" means the processing site spe ifled In Exhibit D, which was selected by
Contacmr and approved by the City.
'Approved! Disposal She" means a Material Site selected by the Contactor or its Subcontractor(sl and
approved by the City for Disposal of residue from Approved Processing Sitea. Approved Disposal Site($)
are listed In Exhibit D.
-Approved Organics Processing Site means the processing site specified in Exhibit 0, which was
selected by Contractor and approved by theCity.
'Approved Processing She(s)" means the Approved C&D Processing She, Approved organics Processing
Site, and/or Approved Regdables Processing Site.
"Approved Processor means the operator of an Approved Processing Site.
'Approved Berydables Processing Site' means the processing site specified In Exhibit D, which was
selected by Contractor and approved by the City.
"Bin' means a container with capacity of approximately one (1) to eight (B) cubic wards, with a hinged
lid, and with wheels, that is typically serviced by a front end loading Collection vehicle.
'Business Days' mean days during which City offices are open W do business with the public.
"Cart' means a plastic container with a hinged lid and wheels that Is typically serviced by an automated
or eml-automated Collection vehicle. A Can has capadty of ID, 35, 64, or 96 gallons (or slmllar
volumes)
'C&D" means Construction and Demolition Debris.
'Change In lav/' means any of the fallowing events or conditions that have a material and adverse
effect on the performance by the Parties of their respective obligations under this. Agreement (except
for payment obligations):
a. The enactment, adaption, promulgation, issuance,modification, or written change in
administrative or Judicial Interpretation on or after the Effeii Date of any Applicable
low, or
b. The order or judgment of any governmental body, on or after the Effective Date, to the
extent such order or judgment Is not the result of willful or negligent action, error or
or lack of reasonable diligence of the cry or of the Contractor, whichever Is
Wert ng the occurrence of aChange in law; provided, however, that the contesting In
Nod faith or the (allure In good faith to contest any such order or judgment shall not
constitute or be construed as such a willful or negligent action, error or omission or lack of
reasonable diligence.
"City' means me City of Fresnc, California, a municipal eorpo2tlon, and all the teRhory lying within the
municipal boundaries of the City as presently existing or as such boundaries may be modified during the
Term.
City of Fresno RolOff Agreement Page 3
4/8111
"Cltys Municipal Code^ means the City of Fresno Municipal Code
"Collect"m"Collemion" means the act of collecting Permittee Materials and other materlaI at the place
of generation in the City,
"Contra l" shall mean of, from or pertaining to non Residential Premius where business activity is
conducted, including but not limited to, retail sales, services, wholesale operations, manufacturing and
industrial operations, but excluding businesses conducted upon Residential property which are
permitted under applicable zoning regulations and are not the primary use M the property.
"Compactor" means a mechanical apparatus that compresses materials into a container, which
container may be detachable. for the purposes of this Agreement Compactors shall include only
Compactors with container capacities of ren (to) to fifty (so) cubic yard that are serviced by Rail Off
Collection Trucks
"Com illi or "Composting' includes a controlled biological decomposition of Organic Materials
yielding a safe and nuisance free Compost Product
"Compost Pleal means the product resulting from the controlled biological decomposition of
Organic Materials that are Soune Separated from the Solld Waste stream, orwhlch are separated ata
centralized facility,
"Construction and Demolition Debris(Clill means materials resurcmg from construction, remodeling,
repair, cleanup, or demolition operations that are not hazardous as defined in California Code of
Regulations, Title 22 Section 662613. This term Includes, but 15 not limited to, asphalt, concrete, cement
concrete. brick, lumber, gypsum wallboard, concrete board, cardboard, and other associated packaging,
mating material, ceramic one, carpeting, plastic pipe and steel, as well as vegetative matter resulting
from land clearing and landscaping including but not limited to rock, soil, tree stumps. Constructlon and
Demolition Debris excludes putrencible wastes.
"CmHraaar means hake) ) 44cuilchniii insert conMattofs name), a
_(Insert corporation, sok plOWIRMUNIIIIII partrlerthip as appropriate) organized and
a ring under the laws of the State of Califomla and Its officers, directors, employees, agents,
companies, and Subcontractors.
"Certrartor Partyhesl" shall mean Contractor, officers, directors, management employees, or fiscal
employees (where "management employee" means any employee with dire¢ or Indirect responsibility
for direction and control over the Contractors activities untler this Agreement and "fiscal employee"
means an employee with direct or indirect responsiblllty and control duties relating to financial matters
under this Agreement),
'Criminal ARlvity" means those activities described in Section 12.12.1.
'Customer" means the Person whom Contractor submits billing invoice to and collects payment from
for Collection services provided,
"oeskntled o6posai Ate^ means the American Avenue carni at 19950 W American Avenue in
Tranquility, California for the purposes of Disposing S id Waste.
City of Fresno Roll -Off Agreement Page a
41
"Designated Waste' means non -Hazardous Wastes that may pose special Disposal problems because of
Its Potential to contaminate the environment and whim may be Disposed of only in Class II Disposal
Sites at Class III Disposal Sloes pursuant to a variance Issued by the California Department of Health
Services.
"Dlrectul' shall mean the Public Utilities Director of the City or an moderate! representative of the
Public Utilities Director.
'Discarded Mattdals` means Solid Waste, Recyclable Materials, Organic Materials, or C&D placed by a
Generator in a receptacle and/or at a location that Is des gained for Collection pursuant to the City's
Municipal Code.
"Dispgail or Dispose (or variation thervi means the flood disposition of Solid Waste at a Disposal
Site.
"Disposal Sita" means a facility for ultimate Disposal of Said Waste.
"Diversion" means activities that reduce or eliminate the amount of Solid Waste from Said Waste
Disposal including, but not limited to, Deciding, and Composting.
"Drop Box" means an open tar container with capacity ham six (6) to fifty (S0) cubic yards that is used
for Collection of Perm Wed Materials and that Is urvlaed by Roll -OR Collection Truck. Drop Boxes with
capacities of less than ten (10) cubic yards may only be used for the purposes of Collaring C&D. A Drop
Box, which is also known as a rolloff bas and/or debris bot, is a type of Roll Off Container.
"gffaRlve Date" means the date set forth In the introductory paragraph of this Agreement
'Federal' means belonging to or pertaining to the national general government of the United States.
"Food Snaps" means those discarded materials that will decompose and/or putrefy Including (i) all
kitchen and table food waste, (il) animal or vegetable waste that is generated during or results from the
storage, preparation, cooking or handling of food stuffs, (iii) discarded paper that is contaminated with
Food Scraps, (Ivl fruit waste, grain waste, dairy waste, meat and fish waste; and, (v) non Recyclable
paper or contaminated paper. Food Scraps are a subset of Organic Materials.
"Franchise Fee" means the fee paid by Contractor to City for the Privilege to hold the non-excWslve
rights granted by this Agreement.
"Gelrerato/ means any Person whose act or process produces Permitted Materials, or whose act Rrsr
causes Permitted Materials to become subject to regulation.
'Green Waste Material' means any materials generated from the maintenance or alteration of public,
commercial, or residential landscapes that will decompose and/or putrefy including, but not Named to,
Yard clippings, grass, leaves, shrub/tree trimmings or Corning; (less than P' in diameter), brush, flowers,
weeds, dead plants, small pieces of unpainted and untreated wood, and other types of organic waste.
For the purposes of this Agreement, such materials shall be Source Separated and placed by a Generator
In a receptacle and/or at a location that Is designated for Collection. Green Waste Material is a subset
of Organic Materials.
Gry of Fresno Poll Off Agreement Page 5
4ASl
"Hazardous Waste' means all substances defined as Hazardous Waste, acutely Hazardous Waste, or
extremely Hazardous Waste by the State In Health and Safety Code §25110.02,§25115, and 1251]] or
in the future amendments to or m odfiouions of such statutes or identified and listed as Hazardous
Waste by the U.S. Environmental Protection Agency, (EPA), pursuant to the Resource Conservation and
Recovery Act (02 USE §6901 ems.), all future amendments thereto, and all rules and regulations
promulgated thereunder.
'Holidays' are defined as New Year's Day, Thanksgiving Day, and Christmas Day.
'IMedloss Waste" means biomedical waste generated at hospitals, public or private medical clinics,
dental offices, research laboratories, pharmaceutical industries, blood banks, mortuaries, veterinary
facilities and other similar establishments, as defined in Health and Safety Code Section 25112.5.
"Liquidated Damages" means the amounts due by Contractor to City for failure to meet specific
quantifiable standards of performance as described In Section 11.4 and Exhibit A.
"Organic Materials" means those discarded materials that will decompose and/or putrefy Including
Green Waste Material and Food Scraps such as, hot are not limited to, green trimmings, grass, weeds,
leaves, prunings, branches, dead plants, brush, tree trimmings, dead trees, small wood pieces, other
types of organic yard waste, vegetable waste, ffvJt waste, grain waste, dairy waste, meat waste, fish
waste, paper contaminated with Food Scraps, pieces of unpainted and untreated wood, and pieces of
unpainted and untreated wallboard. No discarded material shall be considered to be Organic Materials,
unless such material is Source Separated from Solid Waste, Recyclable Materials, C&D, or other
materials.
'Parent Company" refers to a company owning more than fifty percent (50%) of the shares of another
company (5ubsld1mi or a company that has management control over such subsidiary.
"Party or Parties"refers to the City and Connector, Individually or together.
"Permitted Materials' refers to Solid Waste, Source Separated Recyclable Materials, Source Separated
Organic Materials, and C&D. Permitted Materials exchudesSource Separated Food Scraps,
"Peragn(sl' means any individual, firm, association, organization, partnership, corporation, business
trust, joint venture, the United States, the State of Califamia, the County of Fresno, and special purpose
districts.
"Premises" means any land or building In the City where Permitted Materials are generated at
accumulated.
'Processing' means to prepare, treat, or convert through some special method.
"Pracesshtg Slte" means any plant or site used for sorting, cleansing, treatlny or reconstituting
Permitted Materials for the purpose of making such material available for reuse.
"Putresclble Waste" means Solid Wastes originated from living organisms and their metabolic waste
products and from pMmleam, which contains naturally produced organic compounds and which are
City of Fresno Roll -Off Agreement Page 6
All
bi0logicallV decomposable by microbial and fungal action into the constituent compounds Of water,
carbon dioxide and Other simpler organic compounds..
"Rates" means the charges and fees Contractor bills and collects from eaeh Customer receiving service
pursuant to this Agreement.
"9leryclable Materials" means those Discarded Materials that the City Code permits, directs and/or
requires Generators to set out In Recyclables Materials containers for Collection bar the purpose Of
Recycling. NO Discarded Materials shall he considered Recyclable Materials unless such material Is
separated from Solid Waste and Organic Materials, Recyclable Materials shall include, but not be
limited to: newspaper (including inserts, coupons, and store advertisenni mixed paper (Including
office paper, computer paper, magazines. junk mail, catalogs, brown paper bags, brown paper,
paperboard, "per egg canons, telephone books, grocery bags, colored paper, construction paper,
enveloped, legal pad backings, face boxes, soap boxes, cereal and other similar food bmesl; chipboard;
cardboard; paper milk cartons; glass containers of any color (including glass bottles and jars all colors);
aluminum cans; fabric softener containers; steel, tin or bi-metal cans; plastic containers(clear or green
plastic soda and water bottles, plastic containers and bottles and plastic bags with no. 1, 2 or 3 on the
bottom); and mod containers from potato salad, pasta salad, whipped cream, etc.
"Recycle or Recycllne cra ans the process of collecting, sorting, cleansing, treating, and reconstituting
materials for the purpose of using the altered farm in the manufacture of a new product. Recycling does
not lnclutle burning, incinerating, or thermally destroying solid waste.
"Residential" shall mean of, from, or pertaining t0 a single-family Premises, multi plea, or multifamily
Premises Including single-family homes, apartments, condominiums, townhouse complexes, mobile
home parks, coo"ntive apartments, and yacht harbors and marinas where residents live aboard boats.
"Roll -Off Container" means a Drop Roo or Compactor used for Collection of Permitted Materials and
serviced by a Rolloff Collection Truck. ROTI -Off Containers with capacities of less than ten (10) cubic
yards may only be used for the purposes of COIlening C&D.
"Rall -Off Collection Truck" means a collection vehicle with a mechanical device such as a winch that
pulls Or loads a Roll Off Container onto the truck bed or attached trailer and separately transports each
Roll ON Container to a Disposal Site or Processing Site.
"Solid Waste" means solid waste as defined in California Public Resources Code, Division 30, Part 1.
Chapter Z, 440191 and regulations promulgated thereunder and them Discarded Materials that the City
Code requires Generators voice the City to set out for Collection. Excluded from the definition of Solid
Waste are C&D, Hazardous Waste, Infectious Waste, Designated Waste, Source Separated Recyclable
Materials, Source Separated Organic Materials, and radioactive waste. Notwithstanding any provision
to the contrary, "5011d Waste" may Include de minims volumes or concentrations of waste of a type and
Dunt normally found in Residential Sold Waste after Implementation of programs for the safe
collection, recycling, treatment and dispmal of household hazardous waste In compliance with section
4150D and 41802 of the GlifOmia Public Resources Code.
"Source Separated" means the segregation, by the Generator, of materials designated for separate
Collection for some farm of Recyclin& Processing, Composting, recovery, or reuse.
"State" means the State of Callfomia.
City of Fresno Roll Off Agreement Page 2
4/9/11
`subcontratto' means a party who has entered Into a contract, express or Implied, with the Contractor
for the performance of an act that is necessary for the Contractors fulfillmem of its obligatlonw under
this Agreement.
'Term" means the Terre of this Agreement, including extension periods If granted, as provided for in
Article 3.
ffon" means a unit of measure for weight equivalent to 3,000 standard pounds where each pound
contains 16 ounces.
°Tonnage" means the total weightiin Tons Collected, recycled, Composted, Diverted or Disposed of, as
the contest requires.
Tanspartation" means the act of transporting or stat of being transported.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR
2.1 REPRESENTATIONS AND WARRANTIES
The Contractor, by execution of this Agreement, represents and warrants the following to City, for the
purpose of inducing city to enter Into this Agreement and W consummate She transactions
contemplated hereby:
A. Corporate Status. Contractor is duly organized, validly existing and In good standing under the
laws of the State. It Is qualified to transact business In the Oty and State and has the power to
own its properties and to carry an hs business as now owned and operated and as required by
this Agreement.
g. Authorization, Contractor has the authority to enter this Agreement and perform its obligations
under this Agreement The Board of Directors of Contractor (or the shareholders, if necessary),
sole proprietor, or partners have taken all actions required by law, Its articles of Incorporation,
Its bylaws, or otherwise, to authorize the execution of this Agreement. The Person signing this
Agreement on behalf of Contractor represents and warrants that they have authority to do so
and the corporate secretary's rertifcate in Exhibit B confirms this. Th¢ Agreement constitutes
the legal, valid, and binding obligation ame Contactor.
C, Agreemert Will Not Cause Breach. To the best of Contractor's knowledge after reasonable
investigation, the execution or delivery of this Agreement or performance by Contractor of
Its obligations hereunder does not conflict with, violate, or result in a breach: (0 of any law or
governmental regulation applicable to Contractor; (ii) any term or condition of any ivdgment,
order, or decree of any court, administrative agency or other governmental authority; or, liil)
any Agreement or Instrument to which Contractor is a party or by which Contractor or any of Its
properties or assets are bound, or constitute a default thereunder
City of Fresno Roll Off Agreement page a
4/8/11
D. NO Litigation. To the best of Contractor's knowledge after reasonable Investigation, there is no
action, suit, proceeding or ovesbgatim, at law or In equity, before or by any court or
governmental authority, commission, board, agency or Instrumentality decided, pending or
Threatened against Contractor wherein an unfavorable decision, ruling or finding, In any single
else or in the aggregate, would:
1. Materially adversely affect the performance by. Contractor of its Obligations hereunder;
2. Adversely affect the validity Or enforceability of this Agreement; or
3. Have a material adverse effect on the financial condition of Contractor, or any surety or
entity guaranteeing Contractors performance under this Agreement.
E. No Adverse Judicial Decisions. To the best Of Contractor's knowledge after reasonable
Investigation, there is no judicial decision that would prohibit this Agreement or subject this
Agreement to legal challenge.
F. No legal Prohibition. To the best of Contractors knowledge after reasonable Investigation,
there is no Applicable law In effect on the date Contractor signed this Agreement that would
prohibit the Contractors performance of its obligations under this Agreement and the
Transactions contemplated hereby.
G. ContrMOYs Statements. The Contactors Application and any other supplementary
information submitted to the Cm, which the City has other on In entering this Agreement, do
not 10 contain any untrue statement of a material tett, or Ii) omit to state a material fan that
necessary in order to make the statements made, in light of the circumstances in which they
were made, not misleading.
H. Contractors Investiptlan. Contractor has made an independent Investigation (satisfactory, to
it) of the conditions and circumstances surrounding the Agreement and the work to be
Performed hereunder. Contractor has considered such matters in entering this Agreement to
provide sees in exchange for the compensation provided for under the terms of this
Agreement.
I. Ability, to Perform. Contractor possesses the business, professional, and technical expertise to
Collect, Transport, Recycle, Process, and Dispose Permined Materials generated In the City.
Contractor possesses the equipment, faclllryQes), and employee resources required to perform
Its obligations under this. Agreement.
ARTICLE 3
TERM OF AGREEMENT
3.1 EFFECTIVE DATE
Contractor may provide the Rail Off Container Collection, Transportation, Recycling, Pro essial
Composi and 01sposal services authorized by this Agreement commencing on the Effective Date.
C14 of Fresno Roll -Off Agreement Page
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3.2 CONDITIONS TO EFFECTIVENESS OF AGREEMENT
The obligation of City to permit this Agreement to became effective and to Perform Its undertakings
provided for In this Agreement is subject to the satisfaction of all the conditions below, each of which
maybe waived, in written form, in whole Or in part by City.
A. Acurary, of Representations. The representations and warranties made in Article 2 of thas
Agreement are true and correct On and as of the Effective Date,
B. Absence of LXlgation. There is no litigation lording on the Effective Date in any court
challenging the award or execution of this Agreement or seeking to restrain or enjoin its
performance.
C. Furnishings of Insurance. Contractor has furnished evidence of the Insurance required by
Article 10 that is satisfactory to the City.
D. Effectiveness Of City Council Action. The City Council action approving this Agreement shall
have became effective and all Parties shall have signed the Agreement pursuant to Applicable
law prior to or an the Effective Date, provided that no restraining order of any kind has been
issued,
3.3 INITIAL TERM
The Initial Term of this Agreement shall commence on the Effective Date and continue In full farce for
five 151 years, until lune 30, 2026, The Term may be amended pursuant to Seclaon 3A or terminated
early In accordance with Section 11.2.
3.4 OPTION TO EXTEND
Subject to City Council approval, the City shall have the option to extend this Agreement for an
additional term of up to five ISI years. If the City extends the Agreement, it shall give written notice to
Contractor at least one hundred eighty (180) calendar days prior to expiration of the initial Term. The
City's written notice shall specify the number of years by which it elects to extend the Term of this
Agreement and the revised expiration date of the Agreement Any such extension shall not become
effective unless Contractor agrees to the extension, In WrltMg, at least one hundred fifty(150) calendar
days prior to expiration of the Initial Term.
City of Fresno Roll -Off Agreement Page 10
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ARTICLE 4
SCOPE OF AGREEMENT
4.1 SCOPE OF AGREEMENT
This nonexclusive franchise, granted! to Contractor, authorizes contractor to Called Transport, Recycle,
Process, Compost, and Dispose of Permitted Materials placed by Residential or Commerclal Generators
In Nall -Off Containers for Collection, provided that the Customer has Prior atlly arranged for Contractor
to provide Collection services.
The Contractor shall be responsible for the following services:
A. Collecting Permitted Materials placed by each Customer in a Rall- Off Container for Collecilon as
requested by Customer
10 Providing each Customer, upon delivery of Roll Off Contalner, a printed list that specifies the
materials that cannot be placed In the Rall-lNf Container Il.e., Hazardous Wastes) and a list of
acceptable Recyclable Materials, Organic Materials, and C&D that may be placed In the Roll -Off
Container.
C Transporting Collected Solid Waste to the Designated Disposal Site and transporting other
materials to an Approved Processing Site.
D. Furnishing all labor, supervislon, vehicles, Rall -Off Contacts, other equipment, materials,
supplies, and all other Items and services necessary to perform Its obligations under this
Agreement.
C Paying all expenses related to provision of services required by this Agreement Including, but
not limited to, Franchise Fees, taxes, regulatory fees, Collection costs, Transportation casts,
Processing costs; Disposal costs, utilities, etc.
F. Providing all services required by this Agreement in a thorough and professional manner so that
residents, businesses, and the City are provided timely, reliable, courteous and Mgn-quality
service at all times.
G. Performing all services in substantial accordance with this Agreement at all times using best
industry practice for comparable operations.
H. Complying with Applicable law.
I. Performing or providing all other writes necessary to fulfill Its obligations under this
Agreement.
1. Diverting a minimum of 50% of the C&D Collected from Disposal. The Diversion rate shall be
calculated each month based upon the weights of OLD Collected and Diverted.
City of Fresno Roll Off Agreement Page 11
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K. Diverting a minimum of 7096 of the Recyclable Materials Collected from Disposal. The Diversion
rate shall be calculated each month based upon the weighs of Recyclable Materials Collected
and Diverted,
L Diverting a minimum of 90% of the Organic Materials Collected from Disposal. the Dlvension
ate shall eve calculated each month based upon the weights of Organic Materials Collected and
CNerted.
The enumeration and specification of particular aspects of service, labor, or equipment requirements
shall not relieve Contractor of the duty of accomplishing all other aspects necessary to fulfill As
.obligations under this Agreement whether such requirements are enumerated elsewhere in the
Agreement or not.
4.2 LIMITATIONS TO SCOPE
The scope of the Agreement shall be no exclusive. Permitted Materials may be Collected and
Transported by other Persons provided that such Persons d0 so In accordance with the City's Municipal
Code, including but not limited to the following:
A. Permitted Materials Collected by Other Non-Excluslve Franchises Haulers. Permitted Materials
Collected by a parry that has executed a Non-Excluslve Franchise Agreement with the city for
Roll -Off Container Collection Services,
B. Permitted Materials Collected by City. Permitted Materials collected by the Cry's mumcbral
collection operation inclutling hl materials Collected using equIml such as Carts and Bins,
not regulated by this Agreement (2) materials Collected from City fanllnes, and special events
and venues sponsored by the City, which may he Collected In Carts, Bins, or RollOffContainers
by the Cry's municipal collection operation or City crews,
C. Donated Regclable Materials. Recyclable Materials Generated In the City that are Source
Separated and donated by the Generator to youth, civic, charitable, or other nonprofit
organizations.
D. Materiels Hauled by Owner or Ocmpam, an Its Contactor. Permitted Materials that are
removed from any Premises and are Transported to a Disposal Site or Processing Site by lil the
Owner or Occupant of such Premises, ilii by full-time employee of owner or Occupant that uses
the Debts or Oaupanth equipment to transport materials: or (Ilii by a constriction or
demolition contractor performing mnrtrvction or demolition work at the Premises, whose
removal of the Permitted Materials is Incidental to the service being performed (as defined in
Section 6-201 of the City's Municipal Coull and such contractor remover materials at no
additional or separate fee using mmactgls employees and contractors equipment.
E. Green Waste Material, Private collection of Green Waste Material resulting from landscaping
or gardening service performed W the person collecting such materials.
City of Fresno Roll -Off Agreement Page 12
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F. Other Recyclable Materials. Private collection by any person or company that Vansports
Recyclable Materials through use of its awn vehicle(sl, and receives no compensation for such
Collection or Transportation.
G. Materials from Public RlroOls and Other Government FacllMies. The removal of any materials
generated by public schools, cities, the County, or federal facilities (with the exception of those
facilities subject to 43115C. 5ectlon 6961(df
4.3 CITY'S RIGHT TO GRANT MULTIPLE NON-EXCLUSIVE AGREEMENTS
The City may grant to an unlimited number of additional Persons similar non-exclusive franchise
agreements for Roll Off Container Collection, Transportation, Financing, Processing, CompaNnR and
Disposal of Permitted Materials,
4.4 CITY'S RIGHT TO EXCLUDE NEWLY ANNEXED TERRITORY FROM SCOPE OF
FRANCHISE
The City reserves therlght to exclude territory that is annexed Into the corporate limits of the City
subsequent to the Effective Date from the scope of this franchise.
4.5 AGREEMENT CONSISTENT WITH APPLICABLE LAW
This Agreement and scope of this franchise shall be Interpreted to be consistent with Applicable Law,
now and during the Term. If future judicial Interpretations of current law or new laws, regulations, or
judicial Interpretations limit the ability of the City to lawfully provide for the scope of services as
specifically set forth herein, Contractor agrees that the scope Of the Agreement will be limited to those
sciences and materials which may be lawfully provided and that the City shall not be responsible for any
lost profits or losses claimed by Contractor to area out of limitations of the scope of the Agreement wit
forth herein. In such an event, it shall be the responsibility of Contractor to minimize the financial
Impact of such future judicial Interpretations or flew laws.
4.6 OWNERSHIP OF MATERIALS
Once Permitted Materials are placed In a Roll Off centaintt for Collection by Contractor, ownership and
the right to possession of such materials shall transfer directly from the Customer to Contractor.
On a short-term basis not
tteed more than five (5) calendar clays per year, City may obtain
ownership or possession of Permitted Materials placed In the Roll -Off Container for Collection, for
purposes of waste characterization studies, upon written notice to Contractor of Its intent to do so.
However, nothing In this Agreement shall be con4ruead as giving rise to any inference that City has such
ownership or possession unless such written notice has been given to Contractor.
City of Fresno Rall -0H Agreement Page 13
4/8/11
L.T NOTIFICATION TO CITU OF NON -FRANCHISED HAULERS
If Contractor can produce evidence that other Persons are Collecting Permitted Materials and do not
have rights to do so as granted by non-exclusive franchise agreement with the City or otherwise, or in a
manner that is not consistent with the City's Municipal Code, Contractor shall notify the City in writing,
within ten I10I calendar days of Contractor witnessing such circumstances. The Contractors notice shall
include the name and telephone number of the Person or company Collecting Permitted Materials (if
known), the date the Contractor witnessed the event, the location of the Roll Off Container along with
Contractor's evidence of the violation of the rights granted by this non-exclusive franchise.
ARTICLE 5
COLLECTION, PROCESSING, AND DISPOSAL SERVICES
5.1 COLLECTION
Contractor is hereby authorized to Collect Permitted Materials fmm residents and businesses in the City
sing RollOffContainers. Contractor hall Collect Permitted Materials from Customers that voluntarily
subsoibe to or request RollOffContainer Collection services from Contractor. Contractor shall provide
Its Customers with a ROIL Off Container for Permitted Materials Collection or shall allow Its Customers to
provide a Roll -Off Container. Contractor shall Collect Permitted Materials from Premises as frequently
as scheduled by Contractor or as mutually agreed with Customer, but not less than once week for Solid
Waste and Organic Materials, Contractor shall provide requested service to its Customers and shall
charge Customers for service at Rates mutually agreed by Customer and Contractor.
Contractor shall Transport Solid Waste Collected patients to this Agreement to the Designated Disposal
Site and other materials to an Approved Processing Site that has been selectetl by the Contractor and
approved by the City, The Approved Processing grads) mug be ableto demonstrate Diversion rates in
accordance with Suggests 0.1 and 5 3.
Contractor may enter into contracts with Customers far Collection services provided that in no case shall
the term of such contracts extend beyond the Term of this Agreement, and provided that in the event
the City terminates this Agreement the contracts with any and all Customers shall terminate on the
termination date of this Agreement.
5.2 PROCESSING AND MARKETING SERVICES
A. Praces0ng. Contractor agrees to Transport and deliver (p all C&D it Collects in the City to the
Approved CAD Processing Site. (iii all Recyclable Materials It Collects In the City to the Approved
Recyclable Processing Site, and giil all Organic Materials it Collects in the Clty to the Approved
Organics Processing Site. Residue from the C&D. Recyclable Materials, and Organics Processing
and Composting activities shall be Disposed of by Carrionmr or its Approved Processor at an
Approved Disposal Site selected by Contractor In accordance wish Seaton 5A. Contractor
selected the Approved Posta g Site(s)and Approved Disposal Site(sl, which are identified In
City of Fresno Roll Off Agreement Page 16
6/g/11
Exhibit O. Connector shall permit or arrange for the City to iroped the Approved Processing
Shall) and observe operations at any time Curing Derision.
Contractor or Its Approved Processm(s) shall P icaessall permits and approvals necessary for use
of the Approved Processing SItek) In full regulatory compliance. Contractor shall, upon City
request, prone or request from Its Approved Precessions) and provide copies of notices of
violation or permR to the City. Upon request of the City, Contractor shall provide a ttrtAied
statement from its Approved Pmcesso(s) documenting its Diversion rate.
If Contractor elects to use a Processing Sites) that is different than the Approved Processing
S'mi specified In Exhibit U. It shall request written approval from the City sixty (00) calendar
days prior to use of the site and obtain the City's written approval no later than ten (10)
calendar days prior to use of the Site.
If Contractor Is unable to use an Approved Processing Site clue to an emergency or sudden
unforeseen closure of the Approved Processing Site, Contractor may use an alternative
Processing Site provided that (I) the Contractor protides verbal and written notice to the City
within twenty-four (24) hours of use of an alternative Processing Site, and III) the alternative
Processing Site Is fully permitted and in compliance with all Applicable laws. The written notice
shall include a description of the reasons the Approved Processing Site is not feasible and the
period of time Contractor proposes to use the alternative Processing Site. Contractor shall use
the alternative Processing Site for no more than twenty -f00124) hours without obtaining Oil
written approval.
B. Marketing. The Contractor or its Approved Processor shall be responsible for marketing C&D,
Recyclable Materials, and Organic Materials Cautioned In the City, and Diverted Contractor
and/or Its Approved Processor may retain all revenues generated from the Sale of Permitted
Materials that are Diverted.
Upon request, Contractor or its Approved Processor shall provide proof in the form of sales
receipts showing endorser) to the City that all C&O, Recyclable Materials, and Organic Materials
Diverted are marketed for Recycling or reuse In such a manner that materials shall be
considered as Diverted In accordance with the State regulations established by the Act All
residual material from the Processing activities that is not marketed for use shall be accounted
for as Disposal Tonnage at a permitted Disposal Site. No Permitted Material shall be
transported to a domestic or foreign location if Sprd waste Disposal of such material is its
intended use.
Contractor or its Approved Processor shall provide the City, upon written Uri with a list of
broker/buyers it uses to market C&D, Recyclable Materials, and Organic Materials Diverted. City
may audit brokers or buyers to confirm that materials are being Reryded and Diverted from
Disposal. If Contractor becomes aware that a broker or buyer has illegally handled or Disposed
Of material generated by the CIty or elsewhere, Contractor shall immediately inform the City and
terminate Its contract or working relationship with such party immediately.
C. Processing and Marketing Costs. Contractor shall pay all costs associated with Processing and
marketing of Permitted Materials including payment of any gate fees charged at the Approved
Processing Sites.
City of Fresno Rall -Off Agreement Page 15
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5.3 DIVERSION REQUIREMENT
Contractor shall Divert from landfill disposal at least 1p 50% by weight Of all C&D It Collects within the
City, fill 70% by weight of all Recyclable Materials it Collects within the Ciry, and lilil 90%by weight of all
Organic Materials It Collects within the City during each calendar month by Processing, Recycling, or
Composting some or all of the C&D. Recyclable Materials, and Organic Materials Collected,
If Contractor falls to meet the Diversion requirements stated in the preceding paragraph during a
Calendar month, the Cry may terminate the Agreement In accordance with Section i1.5.
5.6 DISPOSAL
A. Disposal of SUIId Waste Collected. Contractor shall Transport all Solid Waste Collected in the
City to the Designated Disposal Site, which the City specifies shall be the American Avenue
Landfill in Tranquility, California. Contractor shall pay all costs associated with Transporting and
Disposal of Solid Waste including payment of any gate fees charged at the Designated Disposal
Site.
B. Disposal of Preceding Residual Contractor shall, or shall require its Approved Processor to,
Dispose of residue from Processing of C&D, Recyclable Materials, and Organic Materials
Collected within the City, Nat are not Diverted through processing activities, by Transporting
the residue to an Approved Disposal She specified in Exhibit D, which is lawfully authorized to
accept such material.
T. Permitted Site. Contractor or its Approved Processor shall only Dispose of materials at a
permitted Disposal Site that is in full regulatory compliance. Contractor, or its Approved
Processor,shall keep or confirm all existing permits and approvals neuiessarry, for use of the
Disposal Sl i In full regulatory compliance. Contractor shall, upon request, feasible copies of
notices of violation or permits to the Ciry.
D. Compliance with Regulations. Contractor shall observe and comply with all regulator In effect
at the Designated Disposal Site and Approved Disposal Sheila) and cooperate with the operator
thereof with respect to delivery of Solid Waste, including directlons to unload Collection vehicles
In designated areas, accommodating operations and maintenance activities, and complying with
Hazardous Waste exclusion programs,
E. Disposal at Approved She. Contractor, or Its Approved Processor, shall not Dispose of such
residue by depositing it on any public or private land In any river, stream, or other waterway, or
in any san&ary sewer or storm drainage system or In any other manner which violates
Applicable Laws. Contractor, or Its Approved Processor, selected the Approved Disposal SRelsl
for esidue Disposal specified in Exhibit D. Contractor shall arrange for the Cry to Inspect the
Approved Disposal Sli and observe operations at any time during the Term.
E. Alternative Disposal Site. If Contractor, or its Approved Processor, elects to use a Disposal
Sltelsj that is different than the Approved Disposal Sites listed in Exhibit D, it shall request
written approval team the City SO calendar days Prior an use of the site and obtain the Cry's
written approval no later than 10 calendar days Prior to use of the site.
City of Fresno RailOffAgreement Page 16
41
If Contractor, or Its Approved Processor, is unable to use the Approved Disposal Site due to an
emergency or sudden unforeseen closure of the Approved Disposal Site, Contractor, or its
Approved Processor, may use n alternative Disposal Site provided that 10 the Contractor
Provides verbal and written notice to Me City within twenty-four (34) hours of use of an
Alternative Disposal SHe, and lip the alternative Processing Site is fully Permitted and in
compliance with all Applicable Laws. The written notice shall include a description of the
reasons the Approved Disposal Site Is not feasible and the period of time Contactor, or its
Approved Processor, Proposes to use the alternative Disposal Site. Contractor shall use the
alfematNe Disposal She Far no more than twenty four (34) hours without obtaining Ons
written approval.
5.5 BILLING
Contractor shall bill all Customers and collect billings In accordance with Contrattooestabllshed Pates,
which are set in a manner consistent with provislons of Section 9.3. The Contactor shall prepare, mail,
and collect bills (or shall Issue written receipts for cash paymmi for Collection services provided by
Contractor. Contractor shall be responsible for collection of payment from Cusmmers with past due
accounts.
Contractor shall maintain copies of all billings and receipts, each in chronological order, for five (5) years
after expiration or termination of this Agreement Contractor shall retrieve and make available to the
City copies of the billings and receipts within five (5) days of the Directors written request for the
billings and receipts. The Contractor may, at its option, maintain those records in computer form, on
microfiche, or In any other manner, provided that the cereals can be preserved and retrieved for
inspection and verification in a timely manner.
6.6 CUSTOMER SERVICE
Contractor shall maintain a business once within the Clry or within a reasonable distance of the City
Ilmlts approved by the Director. The business office shall staff at least one customer serv4e
representative capable of accepting Payments from Customers, armament service questions, and
resolving Customer service issues. Contractor shall have a toll-free Customer service telephone number
and shall have staff available to answer calls from at least 800 a.m. to 6:00 p.m., Monday through
Friday. An answering machine shall record Customer calls and voice messages between 600 p.m. and
a 00a in.
ARTICLE 6
STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT,
AND PERSONNEL
6.1 OPERATING DAYS, HOURS, AND SCHEDULES
A. Days and Hours of Collection
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1. Residential Premises. Delivery or Collection of a III Condoner to or from Residential
Premises shall only occur between the hours of 600 a.m. and 6W p.m., any day of the
week.
2. Commercial Premises. Deliveryorcasucticn of a III Container to or from Commercial
Premises that are 200 feet or less from Residential Premises shall only occur between the
hours of 6:00a.m. and 6:00 p, m., any day of the week. Delivery or Collection of a Roll Off
Container to or from Commercial Premises that are more than 200 feet from Residential
Premises shall only occur between the hours of 500 a.m. and 7:00 p.m., any day of the
week. The Director may require modifications to hours for delivery and collection from
Commercial Premises to resolve none complaints, and, in such case, the Director may
change the allowable operating hours.
3. Exceptions. In the event of an unforeseen circumstance, the Contractor may deliver or
Collect a Roll ON Container from Residential or Commercial Premises that are 200 feet or
less from Residential Premises between the hours of 5:00 a.m, and 10:00 p -m., upon prior
written approval hum the Director.
4. Failure to Comply. If the Contractor falls to comply with the Collection hours described in
this Section, the Contractor shall pay me City Liquidated Damages as described in Section
11.4 and Enhibil A.
6.2 COLLECTION STANDARDS
65.1 Instructions to Customer
Contractor shall Instruct Customers as to any preparation of Permitted Materials necessary prior to
placing In the Roll Off Container. Contractor shall, In written form, Inform all Customers as to the
acceptable materials that can be Included In the Roll Off Container and any unacceptable materials to be
concluded from Collection.
6.2.2 Care a Private Properly
Contractbr shall not damage provide property. Contractor shall ensure that its employees: pl close all
gates opened In making Collections, unless otherwise directed by the Consumer; (oil. do not cross
landscaped areas, and Bill do not tllmb or lump ever hedges and fences.
City shall refer ramparts about damage to private property to Centuries. Contractor shall repair all
damage to private and public property Caused by Its employees to Its previous conduct.
6.2.3 Uner Abatement
A. Minimization of Spills. Contractor shall use due care to prevent vehicle oil and vehicle fuel Dean
being spilled or scattered dutlng Collection and Transportation operations. If any Permitted
Materials are spilled or scattered during Collection or Transportation gperatlons, the Contractor
ho 11 promptly clean up all spilled and scattered materials.
City of Fresno Roll Off Agreement Page 1g
4/8/11
Contractor shall not transfer loads from one vehicle t0 another on any public street, unless It is
necessary t0 do so because of mechanical fallure, hot load (combustion of material in the truck),
accidental damage to a vehicle, or unless approved by the City.
If Contractor falls to perform some or all of the requirements described In this Section, the
Contractor shall pay the City Liquidated Damages as described In sendin 11.4 and Exhibit A.
B. Clean -Up. Each Collection vehicle shall Carry protective gloves, a broom, and shovel A all times
for cleaning up litter and absorbent material for cleaning up liquid spills. The Contractor shall
discuss Instances of repeated spillage not caused by it with the Customer of the Premises where
spillage occurs,
and Contractor shall report such Instances to City. If the Contractor has
attempted to have a Customer slap creating spillage but is unsuccessful, the City will attempt,
upon notice by the Contractor, to rectify such nodded with the Customer.
C. Covering of toads. Contractor shall caves all Roll -Off Containers at the pickup location before
Transporting materials to prevent Permitted Materials from morning during Transportation.
6.2.4 Noise
All Collection operations shall be conducted as quietly as Assume and shall conform to Applicable taw.
Contractor will Promptly resolve any Complaints of noise during the morning or evening hours of the
day to the satisfaction of the Ciry. In the event of repeat occurrences of noise levels in excess of 75
dblAf, the Contactorshall pay Liquidated Damages in accordance with 5eci0d 11.4 and Exhibit A.
6.8 VENIC LE REQUIREMENTS
A General. Vehicles used to provide services under this Agreement shall he kept In a safe, neat.
clean, and operable condition at all times. If Contractor Nils to keep Collection vehicles in a safe
and sanitary condition, the Contractor shall pay the City Liquidated Damages as described in
Section 114 antl Exhibit A.
e. speclfiatlons. Contractor shall register all vehicles with the California Department of Motor
Vehicles. All such vehicles shall comply with California Environmental Protection Agency (EPA)
noise emission and air quality regulations and other applicable noise control regulations.
C. Vehicle Identification. Contractors name, local telephone number, and a unique Identification
tuber for each vehiclesed to provide se untler this Agreement,n
shall be prominently
displayed on all vehicles, in letters and umbers that are a minimum of 4 incheshigh.
Contractor shall not place the Clry's 1090 on its vehicles.
D. Cleaning add Maintenance
1. Cleaning. Collection vehicles khan be timroughly washed and thoroughly steam cleaned as
frequently as necessary to present a clean appearance of the exterior add Interior compartment
of the vehicle.
2. Maintenance. Contractor shall Inspect each vehicle daily to ensure that all equipment Is
operating properly. Vehicles that are not operating properly shall be taken out of service until
they are repaired and operating properly. Contractor shall perform all scheduled maintenance
City of Fresno ROTI -Off Agreement Page 19
4/8/11
functions in accordance with the manufacturer's specifications and schedule or in accordance
with California Highway Patrol standards, whichever are more rtrial Contractor shall keep
accurate records of all vehicle maintenance, recorded according to date and mileage, and shall
make such records available to the Cry, upon request to the extent necessary to perform the
Inspections described in Sections 6.3S and 6.8.
3. Repairs. Contractor shall repair, or arrange for the repair of, all of its vehicles and equipment
for which repairs are needed because of accident, breakdown, or any other cause, so as to
maintain all equipment In a safe and operable condition. Contractor shall maintain accurate
cards of repair, which shall Include the date/mileage, nature of repair and the signature of a
maintenance supervisor that the repair has been properly performed.
4. Stange. Contractor shall arrange to stare all vehicles and other equipment in safe and secure
Iocatlomil in accordance with cit applicable zoning regulations.
E Operation. Vehicles shall be operated in compliance with the Califamia Vehicle Cade, and all
applicable safety and local ordinances. Contractor shall not load vehicles in excess of the
manufacturers recommendations or limitations imposed by State or local weight rertrlRionsfor
vehicles and mads. Contractor shall have each Collection vehicle weighed at each Approved
Processing Sites or Designated Disposal Site to determine the unloaded weight -tare vii
of the vehicle, and the total loaded weight of each load delivered to the Approved Processing
Sites and Designated Disposal Site.
E Vehicle inspected. City may inspect vehicles at any, time to determine compliance with the
requirements of this Agreement. Contractor shall make vehicles available to the City and/or
Fresno County Health Department for Inspection, at any frequency City reasonably requests.
6.4 ROLL-0FF CONTAINER REODIREMENTS
A. General. All Roll -Off Containers shall meet applicable Federal, State, City and local regulations
for safety.
R. Spetlflcations
1. Prevent Leakage. Ifthe type of materials placed in the container may result In leakage of
liquids, Contractor shall take precautions to prevent the leakage of liquids. In accordance with
Section 17315 of Chapter of Title 14 of the California Cade of Regulations, Roll -Off Containers
used to Collect garbage and putrescible materials and/or garbage and putresclbles maid with
rubbish shall be non-absorbent, water -tight, vector -resistant, durable, easily cleanable, and shall
be designed for safe handling and the containment of refuse.
2. Provision of 3uHic ent Capacity. In accordance with section 17315 of Chapter of The 14 of
the California Code of Regulations, Containers for garbage and rubbish should be of an adequate
size and in sufficient numbers to tannin without over80wirrg, all the refuse that a household or
other establishment generates within the designated removal period.
3. use of Containers with Less than Ten (10)1 Yards of Capacity. Roll OR Containers with
capacities of less than ten µ0i cubicyards may only be used for purposes of Colletting CSD,
City of Fresno RoIFOff Agreement page 30
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C. Roll -Off container identification. Ali Contractorgrmiided Roll Off Containers shall prominently
display me Contractors name, local telephone number, a uniue qRii container
identification number, and alist of acceptable materials. As appropriate, RollOffCarrtainers
shall be labeled for: Solid Waste, Recyclable Materials, organic Materials, or C&D. Such IabeBng
may be temporary labeling in the form of magnetic or detachable signs.
If Contractor fails to comply with the provisions of this Section 6.4, the Contactor shall pay the
Clry Liquidated Damages as described in Section 11.4 and Usable A.
0. Cleaning, Painting, and Maintenance. All RollOfContainers shall be malntaln d in a sale,
serviceable, and functional condition. Contractor shall steam clean and repaint all Roll-0ff
Containers at least every two years, or more frequently, to present a clean, graffttl-free
appearance
E, Rall -Of CgnWlnO inspections. City may Inspect Roll- Of Containers at any time to determine
compliance with sanitation requirements. Contractor shall make Containers available to the City
at any frequency It requests. The City shall have the right to prohibit the useof any Roll-0ff
Containerthat fails to comply with the provisions In this Section 6.4.
F. Abandoned Roll -0 Containers. Contractor shall not Abandon any ROTI-0ff Container used to
provide Permitted Materials Collection Services under this Agreement If the Contractor
Abandons a Contractor -owned Roll -Off Container, CIry may remove the ROIHM Container and
Process and Dispose of the contents, If the City removes a ROTI -Off Container Abandoned by
Contractor, the Clay may charge Contractor for the City's costs incurred removing such RollO f
Container, Transporting, Processing, and Disposing of Its contents, and/or the cost of storing
such RollOffContainer. Contractor shall reimbursethe City for such costs within fourteen (14)
calendar days of the date of the City's invoice to the Contractor for such costs- If the Contractor
does not pay the invoice amount within fourteen poi days, the City shall become the Pall -Off
Container owner if the invoice stated the City's intent to become the Container owner In
lettering of at least 12 Mint font.
Forthe purposes of this Section 6A 't 'Alexander's means the following:
1. Contractor's failure to remove a ContractorownedROR-0ff Container. within five (s)
calendar days of receiving a written request from a Customer or the City of within five (s)
endar days after the termination of the customer service agreement between contractor
and the Customer, or
2. Contaetoes fallure to remove a ContraRorrowned Rall -Off Container within ten (10)
calendar days upon expiration or termination of this Agreement, except in the ase where
Contractor has been granted an extension of the Term of me Agreement or Contractor has
been granted a subsequent agreement authorizing Contractor t0 Collett and transport the
type or types of materials for which the Rolli Container was used pursuant to this
Agreement.
Chayof Fresno Roll -Off Agreement Page 11
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6.5 PERSONNEL
A. General. Contractor shall furnish such qualified drivers, maintenance, supervisory, Customer
service, clerical and other Personnel as may be necessary to provide the services required by
this Agreement in a safe and efficient manner.
6. Driver Qualifications. All drivers shall be trained and qualified In the operation of Collection
vehicles, and must have in effect a valid license, of the appropriate class, issued by the California
Department of Motor Vander. Contractor shall use the Class 6 California Department of Motor
Vehicles embitter -Pull Notice program' to monitor its drivers for safety.
G Safety Training. Contractor shall provide suitable operatbnal and safety training for all of lir
employees who operate Collection vehicles or equipment or who are otherwise directly Involved
in such Collection, Disposal, or Processing. Contractor shall train its employees Involved In
Collection to Identify, and not to collect, Hazardous Waste or Infectious Waste. Upon the Cry 's
request, Contractor shall provide a copy of its safety policy and safety training program, the
name of its safety officer, and the frequency of its tralnings.
D. Employee Conduct and Courtesy. Contractor shall use its best efforts to ensure that all
employees present a neat appearance and conduct themselves In a courteous manner,
Contnttorshall regularly train its employees In Customer courtesy, shall prohibit the use of loud
or profane language, and shall instruct Collection employees to perform the work as quietly as
possible. If any employee is found not to be courteous or not to be Performing services In the
manner required by this Agreement, Contractor shall take all appropriate corrective measures
and shall Pay the City Liquidated Damages as deaalbM in Rctlon 11.4 and Exhibit A.
E Employee Identification. While performing services under this Agreement, all of the
Contractors employees performing field service shall be dressed In clean clothes and shall wear
badges that include the employee's name and/or employee number, and Contradicts name. as
approved by the City.
6.6 HAZARDOUS WASTE INSPECTION AND HANDLING
A. Response to Hamrdous Waste Identlfled during Callection. If Contractor determines that
material placed in any Roll Off Container for Collection Is a Hazardous Waste that may not
legally be Disposed of at a Disposal Site or handled at the Processing Site, or presents a hazard
to Contractors employees, the Contractor shall refuse to accept such material. The Contractor
shall contact the Customer and request the Customer to arrange proper Disposal. If the
Generator cannot be reached immediately, the Contractor shall, before leaving the Premises,
leave a tag at least two Inches by six Inches (i" a 6") in size, which Indicates the reason for
refusing to Collect the material and lists a phone number for obtaining Information on proper
disposal of the Hazardous Waste. Under no circumstances shall contractors employees
knowingly Collect Hazardous Waste.
If Hazardous Waste is found in a Rall -Off Comabrer that could possibly result in imminent danger
to people or property, the Contractor shall Immediately notify the City's Fire Department using
the 911 emergency number.
City of Fresno Rall Off Agreement Page 22
4/8/11
The Contractor shall hairy fire City of any Hazardous Waste Identified in Roll -Off Consumers at
left at any Premises within za from of Identification of such mMedal.
B, Response to Hazardous Wastes ldentillel at Disposal SRe or Postasslry Size. The Contractor,
or its Approved Processor, or Dispasal Site operator shall provide load checkers and equipment
operators at the Processing or Disposal Situs) to Identify Hazardous Wastes for storage in
approved, on-site, hazardous materials storage coni, Contractor shall make reasonable
efforts to identify and notify the Customer. Contractor shall arrange for removal of the
Hazardous Wastes by permitted haulers In accordance with Applauds Laws and regulatory
requirements.
tithe Hazardous Wastes delivered to a Disposal She or Processing Site by Contractor before Its
presence is detected, and the Generator cannot be identified or fails to remove the material
after being requested to do so. the Contractor shall arrange for its proper Disposal. The
Contractor may make a good faith effort to recover the cost of Disposal from the Generator, and
the cost of this effort, as well as the cost of Disposal shall be chargeable to the Generator.
C, Regulations she Record Keeping. Contractor shall comply with emergency notification
procedures required by Applicable Laws and regulatory requirements. All records required by
regulations shall be maintained at the Contra do's facility. These records shall Include: waste
manifests, waste Inventories, waste charatlenaatlon records, inspection records, 'incident
reports, and training records.
6.7 NON-DISCRIMINATION
Contractor shall not discriminate In the provision of service or the employment of Persons engaged In
performance of this Agreement on account of race, color, natural origin, ancestry, religion, gender,
marital status, sexual orlenu[lon,age, physical or mental disability In violation of any Applicable Law.
6,8 COMMUNICATION AND COOPERATION WITH CITY
A. Communiotipns. If requested, the Contractor shall meet with the Cay or its agent to discuss
Service issues
6. Inspection by Qty. The Cry, or its designated representatives, shall have the right to observe
and review Contractor operations, Proposed Sites and Disposal Sites used by Contractor, and
enter ContracmJs Premises for the purposes of such observation and review during reasonable
hours without advance notice.
C. Cooperate with City -Initiated Studies. Contractor shall cooperate with and assist the City or its
agent with the performance of City -initiated studies of Permitted Materials soon as, but not
limited to, waste characterization and composition stutlies.
City of Fresno RolfOffAgreement Page 33
a/8/u
ARTICLE 7
RECORD KEEPING AND REPORTING
7.1 GENERAL
7.1.1 Maintenanceal Records
Contractor agrees to conduct data collection, information and record keeping, and reporting advnles
needed to comply with and to meet the reporting and Permitted Materials program management needs
of City, the AR and other Applicable Laws, and the requirements mthls Agreement.
This Article is intended to highlight the general nature of records and reports to be maintained by
Contractor, and their minimum content. This Article Is not meant to comprehensively define what the
cords and reports are to be and their content. With the written direction by or approval of City, the
cords and reports to be maintained and provided by Contractor In accordance with this and other
Articles of the Agreement shall be adjusted In number, format, or frequency, Records and reporting
may be revised to reflect current record keeping antl reporting requirements,
To the extent such requirements are set out In this and other Articles of this Agreement, they shall not
be considered limiting or necessarily complete.
7.1.1 Retention of Repwds
Unless otherwise required In this Article, Contractor shall retain all records and data required to be
maintained by this Agreement for the Term of this Agreement plus five (5) years after Its expiration or
earlier lerminadan. Records and data shall be In chronological order and readily and easily mteryreted.
1.1.3 Inspection M Records
The city. its auditors and otheragen6, shall have the right, during regular business hours, to Inspect
specific documents or records required by this Agreement or any ocher similar records or reports of the
Contractor that the City shall deem, at Its sale discretion, necessary to evaluate the Contractors
performance provided for in this Agreement, The City may make copies of any documents h deems
relevant to this Agreement The City shall provide Contractor written notice at least three (3) Business
(lays prior to any Inspection of these records, and Contractor shall retrieve and make available m the
City the requested documents and records at thattime.
The City reserves the right to inspect records for the purposes of auditing the Contractor's reports,
reported Diversion level, and fee payments to the City. If an audit conducted by the City, or its
representatives, finds: (i) that the Contractor has made any intentional misrepresentation with respect
to the fees dues to the City Leg., Franchise Fees or other fees due to the Cry) In an amount greater than
51,000 or 10% of the fees due to the City during the period covered by the audit, whichever is greater,
or pi) that the Diversion level Is 5% different than the Diversion level reported by the Contractor, then in
addition to any other remedies available to the City, Contractor shall reimburse the City forme City's
costs Incurred in the performance of the audit. Such reimbursement shall he wild by Contractor, along
with any underpaid fees and Liquidated Damages required by Section 11.4 and Exhibit A, within tMrse
(30) calendar days of the date the Cry notifies the Contractor of the amount due.
City of Fresno Poll Off Agreement Page 34
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7.1.4 Record Sewdty
Contractor shall maintain adequate record security to preserve records from events that can be
reasonably anticipated such as fire, theft, and earthquake. Electronically maintained data and records
shall be protected and backed -up.
7.2 RECORDS
7.2.1. Financial and Operational Records
Contractor shall maintain accurate and complete accounting records containing the underlying financial
and operating data relating to and showing the basis for computation of all revenues associated with
providing Permitted Materials Collection, Transportation, Processing Recycling, Composting, and
Disposal services. The accounting records shall be prepared In accordance with Generally Accepted
Accounting Principles GAAP) consistently applied.
At a minimum, the fallowing operational records shall be maintained by Contractor for Ory relating to:
A. Customer account Information and balling records;
a, Tannage of material Collected by type leg., Said Waste, Recyclable Material, Organic Material,
or C&DI listed by Processing Site or Disposal Site where such materials were delivered. Where
possible, Information Is to be separated by Residential and Commekcial Customers.
C. Tannage of Recyclable Materials, Organic Material, and C&D Diverted from Disposal by
Contractor and supporting documentation.
D. Diversion level, which shall equal Tonnage Diverted by Contractor divided by the Tonnage
Collected by Contactor multiplied by IDD, Ilsted separately by month bar the previous quarter.
Tonnage Diverted shall reflect Permitted Materials Processed less residue Disposed.
E. Residue levelsof Processed or Comported materials.
E Weight tickets from III Designated Disposal Site documenting the Tonnage of Solid Waste
Collected within the City and delivered to the Designated Disposal She; ilii Processing Sites
documenting the Tonnage of Permitted Materials Collected within the City and delivered to the
Approved Processing Sites; and, dill Approved Disposal Sites documenting the Tannage of
residue delivered to Approved Disposal Sites by vehicle, date, and time.
G. End use and markets for recovered materials.
Colamctor shall make records available to the cry upon request.
7.22 Customer Records
Contractor shall maintain accurate and complete records containing the number and Types of accounts
served by the Contractor. The records shall contain, at a minimum, the Customers name, type of
husamess, phone number, address of RollORContainer delivery and Collection location, date of delivery
and Collection, Itemized listing of serviczs performed, type of Permitted Material Collected, Tonnage
Cityof Fresno Poll Off Agreement Page 25
A/g/11
Collected, and the amount charged to provide services. The information shall be provided to the Cry
upon request.
733 CERCEA Oeknse Records
City views its ability to defend rise" against Comprehensive Environmental Response, Compensation and
fill Act CERCI -A), and related litigation as a matter of great importance. For this reason, the City
regards its ability to prove where Permitted Materials Collected by the Contractor are taken far
Processing, Recycling, Comporting, Transfer, or Disposal, as well as where they are not taken, to be
matters of concern. Contractor shall maintain, retain and preserve records which can establish where
Permitted Materials Collected were Processed. Composites. and Disposed land therefore establish
where they were not). This provision shall survive the inspiration or earlier termination Of this
Agreement. Contractor shall maintain these records for a minimum of ran (10) years beyond expiration
or earlier termination of the Agreement. Contractor shall provide these records to City(upon request or
at the end of the record retention "nod)In an organized and Indexed manner rather than destroying or
disposing of them.
7.3 GENERAL REPORTING REQUIREMENTS
The format of each report shall be approved by Ciry. Contractor may propose report formats that are
responsive to the objectives. Contractor agrees to mall a copy of all reports and submit all reports an
computer class, by email, or by modem in a format compatible with Cites software and computers at
ro additional charge. Contactor will provide a certification statement, under penalty or perjury, by the
esponsible Contractor official, that the report being submitted is true and correct to the best
knowledge of such official after their reasonable inquiry.
Contractor shall submit monthly reports within fifteen (15) calendar days of the end of each month If
Contractor does not submit the monthly reports by the dates required In this Article, Contractor shall
Pay the City Liquidated Damages as described in Section 11.6 and Exhibit A.
Contractor shall submit (via mail and e-mail) all reports to:
Solid Waste Division Manager
City of Fresno
1325 El Dorado Street
Fresno, CA 93206
7.4 MONTHLY REPORT
The monthly report shall present the following Information.
A. Total Tonnage. Total Permitted Materials Tonnage Collected by Contractor within the Cry
during the previous quarter, hired separately by material type and by month.
B. Diverted Tonnage. Permitted Materials Tonnage Collected by Contractor world the City that
was Diverted during the previous quarter, listed separately by material type and by month.
City of Fresno Roll Off Agreement Page 26
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C. Disposed Tonnage. Permitted Materials Tannage Collected by Contractor within the City that
was Disposed during the previous quarter, listed separately by month.
D. Diversion Label. Tannage Diverted by Contractor divided by the Tonnage Collected by
Contactor mublplled by 100, listed separately by month for the previous quarter. Tonnage
Diverted shall reflect Permitted Materials Processed less residue Disposed.
E C&D. Tonnage generated from construction and demolition permitted sites, noting the Permit
umber, the site address, the Tannage hauled, the date hauled, and the facilities to which the
material was hauled.
F. Disposal and Proposing locations. Contractor shall provide a list of the names and addresses
of where Permitted Materials Collected within the City during fine previous quarter was Diverted
and Disposed. Such list shall include the amount of Permitted Materials Tonnage Diverted
and/or Disposed at each location during the previous quarter, listed separately by material type
and by month.
G. Revenues. Gross revenues legcash receipts) earned on all RollOffContainer COIeRipn,
Transportation, Processing, asserting, Composting, and/or Disposal services provided to
Customers within the Clay during the previous quarter, listed separately by month.
H. Insurance. Updated Insurance certificates.
I. Account lidormation. In table format, the number of Customers within the City limits served
and number of poll -Off Containers serviced per month listed by Roll Off Container type (Drop
Box or Compactor), Roll Off Container size, and listed separately by Permitted Material type,
and regularly schedule services and unscheduled (on call) service.
J. Contractor Officers and Board Members. Provide a list of Contractors officers and members of
its board of directors (only required with the December monthly report each year, or in the
event of a change In the officers or board members).
The City reserves the right to request additional reports from Contractor, and upon City's request,
Contractor shall provide Information required above far the time period requested by the City. his the
doure of the City to track the above required information on an ongoing basis throughout the term of
this Agreement.
7.5 AS 939 COUNTY SURCHARGE REPORTING
Contractor acknowledges that City Is a party to that certain AS 939 Memorandum of Understanding with
me County of Fresno and various other )ursdictems dated January 6, 20118 (the "AB 939 MOU"j, and
further acknowledges having received and reviewed a copy of the AS 939 MOt1 The Parties agree that
Contractor is a "Jurisdiction's Hauler', as that term Is used in Part IV, Xttil H of the AS 939 MOU.
Contractor shall comply with all requirements of Part IV, Semon H of the AS 939 MOU that are
applicable to a Jurisdiction's Hauler, including but not limded to submittal of reports and payment of the
AB 939 Surcharge (as that term is defined In the AB 939 MOU).
City of Fresno Roll Off Agreement Page 27
4/8/11
ARTICLE 8
FRANCHISE FEES AND OTHER FEES
8.1 GENERAL
Contractor shall collect the fees described in this Section ham Customers through Contractor's regular
billings and remit collected amounts to City on a monthly basis as described In Section 8:5.
8.8 FRANCHISE FEE
In consideration of the exclusive rights provided Contractor herein, Contractor shall pay Franchise Fees
to the City each month equal to 10% Of actual gross Rate revenues (e.g. cash receipts) mora ted to
Contractor by Customers for services provided by Contractor under this Agreement.
8.8 OTHER FEES
The City may set bcmer" additional fees, as it deems necessary. The amount, time, and method of
payment and adjustment process will be set in a manner similar to that for Other fees described In this
Article.
8.4 ADJUSTMENT TO FEES
Guy may adjust the fees established in this Article annually at any time during the Term of this
Agreement.
8.5 PAYMENT SCHEDULE AND LATE FEES
On or before the 20th day of each month during the Term of this Agreement, Contractor shall remit to
City Franchise Fees and other fees as described in this Roll If such remittance Is not paid to the City
on Or before the 20th day of any month, Contractor shall pay, in addlnon to the amount awed to Clry,
2% of the amount owing for that month; plus an additional 2% owing an any unpaid balance for each
following thirty (30) calendar day Period the fee remains unpaid
Each monthly remittance to City shall be accompanied by statement Itemizing each fee paid; detailing
calculation Of all fees; stating actual gross revenues (e.g. cash receipts) for monthly period collected
from all operations conducted or permitted by this Agreement, and stating the number and size of
Containers serviced by Contractor for the monthly period Each remittance including all supporting
documentation shall be provided to.
Attn: City Controller, France Department
City of Fresno
2 WO Fresno Street
Fresno, CA 93721-3624
CRY of Fresno Roll -Off Agreement Page 28
4/8/11
8.6 OVERPAYMENT OF FEES
If Contractor believes it has paid Franchise Fees or Other fees as desedbed in this Article, In excess of the
fees due to the City. Contractor may submit a request for refund to the Director. If proof of
overpayment is satisfactory to the Director, the Director shall authorize the City to refund the
overpayment to the Contractor. Contractor shall not apply any overpayment as a credit against any
Franchise Fee or other amounts payable to the City, unless specifically authorized to do so by the
Director in writing.
8.7 NON -CITY FEES; AS 939 COUNTY SURCHARGE
Pursuant o Section 7.5, Contractor shall pay the County of Fresno an AB 939 surcharge as applicable In
accordance with the AB 939 MOLL
ARTICLE 9
CONTRACTOR'S COMPENSATION AND RATES
9.1 CONTRACTOR'S COMPENSATION
Contractor's compensation for performance of all its obligations under this Agreement shall be: III
actual Bate revenues paid to Contractor (e.g. cash reel by Customers that obtained Contractors
Collection services less fees doe; to fine City in accordance with Article 8, and lip revenues generated by
the sale of collected materials inverted from Disposal.
ContracmCs compensation provided for in this Article shall be the full, entire, and complete
ampematlon due to Contractor pursuant to this Agreement for an labor, equipment materials and
supplies, Processing. Comporting, and Disposal fees, regulatory fees, City fees, taxes, insurance, bonds,
overhead, operations, profit and all other things necessary to perform all the services in the manner
tripled by this Agreement.
It Contractors costs are more than Contractors compensation, Contractor shall not be compensated for
the difference In costs and revenues. If contractors costs are less than Contractors compensation.
Contractor shall retain the difference,
9.3 CITY'S RIGHT TO SET MAXIMUM RATES
The City reserves the right to establish maximum Bates for Permitted Materials Collection services
Provided under this Agreement in the event than lad there are three or fewer companies holding n
excluslve franchise agreements for Collection of Permitted Materials, or lbd the Rates changed by the
companies holding non-exclusive franchise agreements for Collection of Formal Materials are no
longer comparable to those of other jurisdictions, as reasonably determined by City. If the City chooses
to exercise its right to set maximum Bates, City shall notify Contractor at least 380 calendar days prior to
the date that maximum Rates become effective. In such case, City will set maximum Rates with
City of Fresno Roll INf Agreement Page 39
ill
consideration of reasonable and necessary costs for Collection, Processing Composting, and Disposal
and With the intention Of setting maximum Rapes that WAR enable parties, inducing the Contractor, that
have executed Non -Exclusive Franchise Agreements with the City for Roll Off Container COIIemOn
Services the ability t0 recover reasonable and necessary costs and a reasonable pro t.
9.0 CONTRACTOR'S RATES
Contractor shall set the Rates it charges its Customers for ROir Coll services. The Contractors
Rates shall net exceed City established maximum Oates, If the City exercises its rights under Second 9.2.
ARTICLE 10
INDEMNITY AND INSURANCE
10.1 INDEMNIFICATION
Contractor shall indemnify, defend with counsel acceptable to the City, protect and hold harmless the
City and each Of its officers, officials, employees, volunteers, and agents (collectively, indemnities) from
and against all claims, damages (Including but not limited to special, consequential, natural resources
and punitive damaged, 'Injuries, costs, (Including without limit any and an response, 2medlation and
removal cosi lasses, demands, debts, rens, liabilities, causes of anion, suis, legal Or administrative
Proceedings, Interest, free, charges, penalties, and expenses (including without limit attorneys expert
contacts fees and costs incurred In connection with defending against any Of the foregoing or In
enforcing this indemnify), (Collectively,,'Dammes") of any kind whatsoever paid, incurred Or suffered
by, or asserted against, indemnities arising from or attributable to the am or omisslont of Contractor
whether or not negligent or otherwise culpable, in connection with Or related to the performance of this
Agreement, except such lose Or damage which was caused by the sole negligence or willful misconduct
Of the Cry.
Contractor's duty to defend and indemnify herein shall Include Damages arising from Or attributable to
any operations, repairs, cleao-up or detntlnofmn, or other plan (regardless Of whether undertaken due
to governmental action) m ning any Hazardous Waste Collected in the Clry. Contractor shall be
required to Indemnify the City for the costs for any claims arising from the Prokessam& Composting, or
Disposal of Per robed Materials, Including, but not limited to, balms arising under the Comprehensive
Environmental Response. Compensation and Liability Act (CERCLA). The foregoing is intended to
operate as an agreement to defend and indemnify and hold harmless Indemnities to the foil extent
Permitted for liability pursuant to Semon 102(e) of CERCtA, 42 uS.C. Section 961 and California
Health and Safety Code Section 2530
In addition. Contractors duty to defend and Indemnify herein includes all flus and/or penalties
imposed by the California Department of Resources Recycling and Recovery, subject he the rd idiots
set forth in Public Resources Code Section 4001 if the requirements of the AR are not met by the
Contractor with respect to the Permitted Materials Collected Under this Agreement, and such failure Is
due to Contractor delays in providing information that prevents Contractor or City from submitting
reports required by the Act in a timely manner.
Cory of fears Roll ofrAgreement Page 30
4/8/11
This provision will survive the expiation or earlier termination of this Agreement and shall not be
construed as a waiver of rights by Cry to contribution or Indemnity from third partes.
10.2 INSURANCE
10.2.1 Minimum Scope Of Insurance
Coverage shall be at least as broad as:
A Insurance Services Office Commercial General Liability coverage.
1. Personal injury
2. Contractual liability
B. Insurance Services Once Covering Automobile Liability, code l "any auto'.
A. Worker's Compensation insurance as required by the Labor Code of the State of California and
Employers Liability insurance.
B. Such other Insurance coverages and limits as may be required by the CRY,
10.2.2 Minimum Llmhsgflnsurance
Contractor shall maintain limbs no less than:
A. General Liability: $1,00,1%q each occurrence for bodily injury and property damage;
$1,000000 for personal and advenbing injury; $2,000,000 products and completed operations
aggregate, and $2,000,000 general aggregate. If Commercial General Liability Insurance or other
form with a general aggregate liability is used, either the general aggregate limit shall apply
separately to this project/location or the general aggregate limit shall be [wire the required
occurrence limit.
B. Automobile Liability: $1,00i der accident for bodily Injury and property damage.
C Workers' Compensation: Workers' compensation limine as required by the Labor Code of the
State of California.
0, Employees Llabli try $1,000,000 each accident for bodily injury.
$1,00,000 disease each employee.
$1,00,000 disease policy limit.
E. pollution Legal Llablifily $1,000pW per laim/occurrence and $2,000,00 aggregate for belly
Injury, property damage, and remediation of contaminated site.
1023 Deductibles and XlLlnsursd Retentions
Any deductibles or self- insured retentions must be declared to and approved by theLiry. At the option
of the City, either: the insurer Shall reduce or eliminate such deductifles or self Insured retentions as
respects the Clry. Its officials and employees; or the Contractor shall procure a bond guaranteeing
payment of losses and related investigations, claim administration and defense expenses.
City of Frei Rall -Off Agreement Page 31
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16.2.4 Other Insurance provisions
The sallies are to contain, or be endorsed to contain, the following provisions:
A. General Liability and Automobile Liability Coverages
1, The City, Its officers, officials, employees, agents and volunteers are to be covered as
additional insureds as respects_ liability arising out of activities performed by or on behalf
of the Contractor; products and completed operations of the Contractor; premises owned,
leased or used by the Contractor; or automobiles owned, leased, hired or borrowed by the
Contractor. The coverage shall contain no special limhations on the scope of protection
afforded to the City, Its ofRcials, employees, of volunteers. The automobile liability is
endorsed to contain MICA 90 coverage.
2. The Contractor's Insurance coverage shall be primary Insurance as respects Ne City, Its
officials, employees, and volunteers; Any insurance or WE Insurance normalned by the
Cuts, Its officials, employees, or volunteers shall be excess of the Contractor's insurance and
shall not contribute wish it.
1 Any failure to comply with reporting provisions of the policies shall not affect coverage
provided to the City, its officials, employees, or volunteers.
4. Coverage shall state that to Contractor's insurance shall apply separately to each Insured
against wham claim is made or suit Is brought, except with respect to the limits of the
Insurer s liability.
B. WorkersCompensation and Employers Llaellty Coverage. The Insurer shall agree to waive all
rights of subrogation against the City, its officers, employees, and volunteers for losses arising
from work performed by the Contractor for the City.
C All Coverages. Each insurance polity required by this clause shall be endorsed to state that
coverage shall not be suspended, voided, canceled by either Percy, reduced in coverage or In
units except after 30 calendar days' prior written notice by cenlfled mall,. return recelpt
requested, has been given to the City.
10.2.5 4ccephhility of Insurers
The Insurance policies required by this Section shall be Issued by an Insurance company or companies
authorized to do business in the State of California and with a rating in the most recent edition of Best's
Insurance Reports of size category Vll or larger and a rating classification of A or better.
20.2.6 Verification of Cwwage
Contractor shall furnish Contractor's Insurance agent copy of these specifications, and direct the agent
to provide the City with ardhcates of insurance and with original endorsements affecting coverage
required by this clause. Issuance of documentation indicates the Contractors insurance complies with
these provisions. The certificates and endorsements for each Insurance policy are to be signed by a
Person authorized by that insurer to bind coverage on Its behalf. The cerbOcates and endorsements are
to be received and approved by the Cry before work commences. The City may require complete,
cerli0ed copies of all required insurance palides, at any time.
City of Fresno Roll -Off Agreement Page 32
III
10.2.2 Required Endorsements
A. The Workers' Compensation policy shall contain an endorsement In substantially the fallowing
form
"Thirty calendar day9 prior written notice shall be given to the City of Fresno In the event of
cancellation, reduction in coverage, or nonrenewal of this polity"
Olrector of Public Utilities
City of Fresno
2600 Fresno Street
Fresno, CA 93221-3620
B. The Commercial General Liability. Business and Automobile Liability, and Pollution Legal Liability
policies shall contain endorsements in substantially the following Term:
1. "Thirty calendar daysprior written notice shall be given to the City of Fresno in the event
Of cancellation, reduction in cove2ge, or nom renewal of this pall
Director of Public Utlldies
City of Fresno
2600 Fresno Street
Fresno, CA 93221-3620
2. 'The City of Fresno, its officers, employees, and agents are additional insureds on this
polity."
3. This police shall be considered primary insurance as respects any other valid and
collectible insurance maintained by the City of Fresno, including any self-insured retention
or program of self-insurance, and any other such Insurance shall be considered excess
Insurance only."
4. "Inclusion of the City of Fresno as an lneured shall not affect the City's rights as respects any
claim, demand suit or judgment brought or recovered against the Contractor. This policy
shall protect Contractor and the City in the same manner as though a separate Pull had
been issued to each, but this shall not ope2te to Increase the Contractors IiabilM as set
forth In the policy beyond the amount shown or to which the Contractor would have been
liable if only one parts had been named as an Insured'
10.2.8 delivery Of proof of Coverage
Simultaneously with the execution of this Agreement, Contractor shall furnish the City certificates of
each policy of Insurance required hereunder, In form and substance satisfactory to Cirysuch
certificates shall show the type and amount of coverage, effective dates and deep of expiration of
policies and shall have all required endorsements. If the City requests, copies of each policy, together
with all endorsements, shall also be promptly delivered to City.
Renewal certificates will be famished annually to City t0 demonstrate maintenance of the required
coverages throughout the Term,
City of Fresno ROTI -Off Agreement Page 33
4/8)11
10.2.9 Othar Insurance Requirements
A. If arty services are delegated to a Subcontractor,the Contractor shall require such Subcontractor
to Proved statutory WorkersCompensation insurance and employer's liability insurance for all
of the Subcontractor's employees engaged in the work in accordance with Sections 10.2.2.0 and
1022.1) and 10A.B. The liability insurance required by Section 10.2.2.A shall cover all
Subcontractors or the Subcontractor must furnish evidence of insurance provided by It meeting
all of the requirements of this Section 10.2.
B, If at any time during the life of the Agreement or any extension, Contractor or any of Its
subcontractors fail to maintain any required Insurance in full force and direct, Contractor shall
he in breach of the Agreement until notice Is received by City that the required insurance has
been restored to full farce and effect and that the premiums therefore have been paid for a
period satisfactory to City. Any failure to maintain the required insurance shall be sufficient
cause for City to terminate this Agreement. NO action taken by City pursuant to this Section
shall in any way relieve Contractor of its responsibilities under this Agreement.
C The Contractor shall comply with all requirements of the insurers issuing policies- The carrying
of insurance shall not relieve Contractor from any obligation under this Agreement. If any claim
exceeding the amount of any deductibles or self-insured reserves is made by any third person
against the Contractor orany subcontractor because of any occurrence related to this
Agreement, the COntfacmrshall PrOmptly report the facts In writing to the insurance carrier and
to the Cut.
D. The Commencial General Liability, Automobile Liability, and Pollution Legal Liability Insurance
policies shall be written on an "occurrence,"rather than a "claims made" basis. If Contractor is
unable to purchase Pollution Legal Liability Insurance on an occurrence farm and must purchase
such insurance on a claims -made form:
1. The "Retro Date" must be shown, and must be before the effective date of the Agreement
or the commencement Of work by Contractor.
2. The policy shall be endorsed W provide not less than a 5 -year discovery, period This
requirement shall survive expiration or termination of the Agreement.
3. If coverage is canceled or non renewed, and not replaced with another claims made policy
0" with a "Retro Date" prior o the effective date of the Agreement, Contractor must
purchase 'extended reporting' coverage for a minimum Of 5 years following the exgravon
or termination of the Agreement.
4. A copy of the claims reporting requirements most be submitted to City for review.
5. These requirements shall survive expiration or termination of this Agreement.
CIry of Fresno ROIIUff Agreement Page 34
418111
ARTICLE 11
DEFAULT AND REMEDIES
11.1 EVENTS OF DEFAULT
Each of the fallowing shall constitute an event of default ("Event of Default") hereunder.
A. Contractor falls to perform Its obligations under this Agreement, or future amendment to this
Agreement, including, but not limited to, Contractor's failure to pay Franchise Fees and other
City fees In accordance with Article 8 of this Agreement, and the breach continues for more than
10 Business Days after written notice from the City forthe correction thereof;
Bi Contractors failure to Divert 50% of the C&D, 70% of the Recyclable Materials, and 9036 of
Organic Materials Collected In Ne City as required by Section 5.3 of this Agreement after
Contractor Is given an opportunity to remedy the nonperformance as described in Section 11.5;
C, Any representation,warranry, or disclosure made to City by Contractor In connection with or as
n Inducement to entering into this Agreement or any future amendment to this Agreement,
which proves to be false or misleading in any material respect as of the time such
representation or disclosure is made, whether or not any such representation, warranty, or
disclosure appears as part Of this Agreement;
O. There Ig a seizure or attachment (other than a pre -judgment attachment) of, or levy affecting
possession on, the operating equipment of Contractor, Including without limit Its vehicles,
maintenance or office facilities, or any part thereof of such proponipn as I substantially impair
Contractors ability to perform under this Agreement and which cannot be released, bonded, or
othenvbe lifted within 48 hours excluding weekends and Holidays,
E. Contractor flies voluntary petition for debt relief under any applicable bankruptcy, Insolvency,
debtor relief, or other similar law now or hereafter in effect, or shall consent to the
appointment of or taking of possession by a receiver, liquidator, assignee (other than as a part
Of a transfer of equipment no longer useful to Contractor or necessary for this Agreement(,
trustee (other than as security for an Obligation under a deed of trust,, custodian, sequestratln
for similar officiall of the Contractor for any pan of Contractor's operating assets or any
substantial pan of Contractor's Property, or shall make any general assignment for the benefit
of Contractors creditors, or shall hit generally to pay Contractor's debts as they pecome clue or
shall take any action in furtherance of anyof the foregoing;
F. A court having jurisdiction shall enter a decree or order for relief in respect of the Contractor, in
any Involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now
or hereafter In effect, or Contractor shall consent to or shall fail to oppose any such connecting,
or any such court shall enter a decree or order appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Contractor or for any pan of the
Contractors operating equipment or assets, or orders the winding up or liquidation of the
affairs of Contractor,
City Of Fresno HoltOffAgreement page 35
09111
K2 RIGHT TO TERMINATE UPON DEFAULT
Upon a default by Contractor, the City may terminate this Agreement within 10 calendar days of the
default but no later than 180 calendar days after the default Such termination shall be effective 30
calendar days following the Qty's written notice t0 Contractor, and such termination shall be effective
Attend the need forany hearing, suit. or legal action.
11.3 CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE
The Cdys right to terminate the Agreement under Section 11.3 Is not exclusive, and the City's
termination of the Agreement and/or the Imposition Of Liquidated Damages shall not constitute an
election of remedies. Instead, these rights shall be to addition t0 any and all other legal and equitable
rights and remedies which the Clty may have.
By virtue of the nature of this Agreement, the urgency of timely, continuous and high quality service, the
lead time required to effect alternative service, and the rights granting by City to the Contractor, the
remedy of damages for a breach hereof by Contractor Is inadequate and City shall be entitled t0
Injunctive relief.
11.4 LIQUIDATED DAMAGES
General. The Parties find that as of the time of the execution of this Agreement, It n
impractical, If not impossible, to reasonably ascertain the extent of damages which shall be
incurred by Cry as a result of a breach by Contractor of its obligations under this Agreement.
The factors relating to the impracticability of ascertaining damages Include, but are not limited
to, the fact that: (p substantial damage results to members of the public who are denied
services or denied quality for reliable service; (11) such breaches cause inconvenience, anxiety,
frustration, and deprivation of the benefits of the Agreement TO individual members of the
general public for whose benefit this Agreement exists, In sub)ecd a ways and In varying
degrees of intensity which are Incapable of measurement in precise monetary terms; gii)that
servicesmight deravailableat substantially lower costs than alternative se eand the
monetarys
los services of from denial of servicof tlenial of quality q reliable s
impossible to calculate in precise monetary termv, and It) the termination of this Agreement
for such breaches, and other remedies are, at best, a means of future correction and not
remedies which make the public whole for past breaches.
9. Service Performance Standards; Liquidated Namages for Failure to Meet Stancards. The
Parties further acknowledge that consistent, reliable RollOffCollection, Processing, and
Disposal service is of utmost importance to Clry and that City has considered and relied on
Contractor's representations as to its quality of service commitment In executing this
Agreement. The Parties recognize that some quantified compares of peffcmance are necessary
and appropriate to ensure consistent and reliable service and performance. The Parties further
recognize that if Contractor fails to achieve the performance standards, or falls to summit
required documents in a timely manner, City and Its residents and businesses will suffer
damages, and that it is and will be, impractical and extremely difficult to ascertain and
determine the exact amount of damages that City will suffer. Therefore; without prejudice to
City's right to treat such non-performance as an event of default under this Article, the Paris
City of Frema Roll W Agreement Page 36
4/8/11
agree that the Liquidated Damages amounts established m Exhibit A of this Agreement and the
following Liquidated Damage amounts represent a reasonable estimate of the amount of such
damages considering all of the circumstances existing on the Effective Date of this Agreement,
Including the relationship of the sums to the range of harm to City that reasonably could be
anticipated and the anticipation that proof of actual damages would be costly or Impractical,
Contractor agrees to pay las Dquldavel Damages and not as a penalty) the amounts set forth in
the Schedule of Liquidated Damages, Exhibit A
City may determine the occurrence of events giving rise to Uquidated Damages through she
observation Of Its own employees or representative or Investigation of complaints by
Customers, occupants, and Generators.
Liquidated Damages will only be assessed after Contractor has been given the opportunity but
failed to rectify the damages as described in this Agreement. Before assessing Uquidated
Damages, City shall give Contractor notice of its Intention to do so. The notice will include a
brief description of the Incident(el and/or npn-performance. The City may review land make
Copies at Its own expense) an information In the possesslon of Contractor relating to mcldent(s)
and nom -performance. City may, within 10 calendar days after issuing the notice, request a
meeting with Contractorcity may present evidence Of non-Performance'in writing and through
testimony of its employees and others relevant to the imcidengq and non-performance. City
will provide Contractor with a written explanation of its determination on each mci lent(s) and
non performance prior to authorizing the assessment of Liquidated Damages under this section
11A. The decision of City shelf be final and City shall not be subject to, or required to exhaust,
any further administrative remedies.
C Amount. City may assess Liquidated Damages for each calendar day or event, as appropriate,
that Contractor is determined to be liable In accordance with this Agreement In the amounts
Specified In Exhibit A subject to annual adjustment described below.
The amount of Liquidated Damages specified In Exhibit A shall be adjusted annually on the
anniversary of the Effective Date. The adjustment shall be rounded to the nearest cent.
Liquidated Damage amounts shall be adjusted to reflect changes in the Consumer Price index -
All urban Consumers (CPI J)compiled and published by the U.S. Department of Labor, Bureau
of Labor Statistics or its successor agency, Using the following Bureau of Labor Statistics
parameters.
Not Seasonally Adjusted
Area - Los Angeles -Riverside -Orange County, CA
Item -AII Items
Base Period -1982-80=100
The formula for annual adjustment is as follows:
Adjusted Liquidated Damage_ Then-mrenp Uquidated Damage Amounts
Amount most current CPI-U/previous 12monthCPI-U
City of Fresno FullONAgreement Page 37
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For
Current Liquidated Damage Amount = $150.00
Most recently published Index(January 2010)=21.610
Index published 12 months prior to most recently published Index
(January 2009)= 220.729
Adjusted Liquidated Damage Amount- $150.00 x (224.610/230.739)=$VD.61
If the Off Is discontinued or revised during the Term by the united States Department if
"her, such other government index or computation with which it Is replaced shall be used in
order to obtain substantially the same result as would be obtained if the CPI had not been
discontinued or revised.
D. Timing of Payment. Contractor shall Any any Liquidated Damages assessed by. City within 10
calendar days of the date the Liquidated Damages are estimated, If they are rot paid within the
In day period City may order the termination of the rights or "franchise" granted by this
Agreement.
11.5 DIVERSION NON-PERFORMANCE
If the Contractofs Diversion level is less than 50% for C&D, less than 2036 for Recyclable Materials,
and/or less than 9054 for Organic Materials Collected in the City fora monthly reporting period the
following steps shall be followed by the City and Contractor.
A. Wariic The City shall issue a written warning to the Contractor within 30 calendar days of
receipt of the Contractors monthly report documenting the Diversion level for the monthly
reporting period The warning notice shall specify the amount of time li.e. "correction peni
the City grants the Contractor to Improve its performance and meet he Diversion requirements
defined in Section 5.3.
B. Opportunity to Improve Performance. The Contractor shall modify its Collection, Processing,
Diversion, and public education and outreach programs fsubjett to the Citys approval) to
improve the Diversion level. At the end of the come tion period Contractor shall submit a
written report to the City identifying the Diversion level and providing the supporting
documentation. If the City determines that the Diversion level equals or exceeds Diversion
requirements defined In Section 5.3, the Contractor shall continue to perform services in such a
manner as to maintain or improve the Diversion level and the City shall waive its rights to
proceed with steps outlined In subsections Cand o of this Section 11.5 during the remainder of
then current repormly period.
C. Liquidated Damages. If the Contractor falls to Improve the Diversion level so that it Is equal to
or greater than Diversion requirements tlefined in Section 5.3 by the end of the correction
period grant" in subsection A of this Sanson, the Qty may levy, and Contractor shall pay,
Liquidated Damages described In Section 11.4.
O. Termination a the Agreement If Contractors falls to achieve a DHersion level that equals or
exceeds Diversion requirements defined In Section 5.3 within six months of the date the City
levied Liquidated Damages, the fallure to meet the Diversion requirements defined in Section
City of Fresno Roll OR Agreement Page 38
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5.3 shall be considered an event of default and the City may terminate the Agreement in
accordance with section 11.2.
11.6 CONDITIONS UPON TERMINATION
In the event this Agreement is terminated Under the provisions Of this Article, the following comlbpns
shall be effective:
A, Pro rota[ Roll -Off Collection Services. Contractor shall have no night or ancon to engage in
Roll Off Collection services in the City for a period of five years from the date of termination.
After five years, should the Contractor provide proof that the event causing the Contractor to
default under this Agreement has been corrected, the Contractor may reapply for a non
-
escluslve RollOffCollection service franchise, and the City, at the sole and complete discretion
of the City, may reirrstate the Contractor based on review of its reapplicaten.
e. Continuing LiabilRies. Contractor shall remain liable to the City for:
1. fees due In accordance with Article 8 that would otherwise be payable by the Contactor.
2. Liquidated Damages assessed pursuant to Section 116
3 Reports required by Article? for Roll -Off Collection activl[Ies performed by Contractor up to
and Including the date of computation.
4. Indemnity obligations under Section 10.1.
5 Record keeping and retention obligations under Sections 7.1 and 7.2.
C Release Customers and Generators from Obligations. Contractor shall allow Permitted
Materials Generators served by Contractor t0 arrange for Permitted Materials Collection
with a hauler authorized to perform such services, without penalty or liability for breach
of any contract between Contractor and its Customers or Generators.
D. Remove Roill Containers. Contractor shall remove all of Contrai Roll Off Containers
from all of Contractor's Collection locations and shall properly Reade, Process, Compost, or
Dispose of Permitted Materials in such Roll -Off Containers.
ARTICLE 12
OTHER AGREEMENTS OF THE PARTIES
12.1 RELATIONSHIP OF PARTIES
The Parties intend that Contractor shall perforin the services required by this Agreement as an
Independent Contractor engaged by City and not as an officer nor employee of the Citg nor as a partner
Of, or joint venturer with, the City. No employee or agent of Contractor shall be, or shall be deemed to
City of Fresno Roll Off Agreement Page 39
4/8/11
be, an employee Or agent of the Cry. Ecept as expressly provided herem, Contractor shall have control
Over the manner and means of conducting the ROIIOff Container Collector, Transportation, Pec ing,
Recycling, Composting, and Disposal services
es Performed under this Agreement, and all Persons
Performing such services. Contractor sialibe solely responsible for the acts and omissions of its
officers, employees, Subcontractors, and agents. Neither Contractor nor IIs officers, employees,
Subcontractors and agents shall obtain any rights to retirement benefits, workerscompensation
tienePts, or any other benefits which accme to City employees by virtue of their employment with the
cry.
12.2 PERMITS AND LICENSES
Contractor shall obtain and maintain, at Contractor's sole cost and expense, all permits and licenses
applicable t0 Contractor's operations under this Agreement which are required by any governmental
agency.
12.3 COMPLIANCE WITH LAW
Contactor shall, at all times, at its sole tort, comply with all Applicable Laws,
12.0 GOVERNING LAW
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the
State of California,
12.5 JURISDICTION
Any lawsuits between the Parties arising out of this Agreement shall he brought and concluded in the
courts of Fresno County In the State of California, which shall have exclusive Jurisdiction Over such
lawsuits.
With respect to venue, me parties agree that this Agreement Is made In and will be Performed In Fresno
County.
128 BINDING ON SUCCESSORS
The Povklons Of this Agreement shall more to the benefit to, and be binding on, the successors and
permitted assigns of the Parties.
12.7 ASSIGNMENT
Neither Party shall asslgn its rights nor delegate or otherwise transfer Its obligations under this
Agreement to any other Person
s
without the prior written consent of the Other Parry. Any such
assignment made without the consent of the Other party shall be void and the attempted assignment
City of Fresno Roll OHAgreement Page 40
4/8/11
shall constitute a material breach Of this Agreement Under no circumstances shall any assignment be
considered by City If Contractor is in default at any time during the period of consideration.
12.8 PARTIES IN INTEREST
Nothing in this Agreement, whether express or Implied, is Intended to confer any rights on any Persons
other than the Parties to it and their representatives, successors and permitted assigns.
12.9 WAIVER
The waiver by either Parry of any breach or violation of any provisions of this Agreement shall not be
deemed to be a waiver of any breach or violation of any other Provision nor of any subsequent breach
of violation of the same Or any other Provision. The subsequent acceptance by either PaM of any
monies which become due hereunder, shall not be deemed to be a waiver of any prexxdting or
concurrent breach or violation by the other Patty of any provision of this Agreement.
12.10 NOTICE PROCEDURES
All notices, demands, requests, Proposals, approvals', consents, and other communications which this
Agreement requires, authorizes or contemplates all, shall be In writing and shall either be personally
delivered to a representative Of the Partiesat the address below or deposited In the United States mail,
first class postage prepaid, addressed as follows:
A. If to Cry:
Public Utilities Director
City of Fresno
2EW Fresno 5t, Room 3055
Fresno, CA 937213624
a. ifto Contractor:
1 um
S.
rr T c.
as u
es
The address to which communications may be delivered may be changed from time to time by a notice
given In accordance with this section.
Notice shall be deemed given on the day It is Personally delivered or, If mailed, three calendar days food
the date It Is deposited In the mail.
City of Fresno Roll-0ff Agreement Page 41
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12.11 REPRESENTATIVES OF THE PARTIES
References in this Agreement to the "City" shall mean the City Council and all actions to be taken by the
City shall be taken by the City Council except as provided below. The Cry Council may delegate, In
writing, authority to the Director and/or o other City officials and may permit such Officials, in turn, t0
delegate in writing some or all of such authority to subordinate officers. The Contractor may rely upon
actlons taken by such delegates If they are within the scope of the authority properly delegated to them.
The Contractor shall, by the Effective Date, designate In writing a responsible officer who shall serve as
the representative Of the Contractor in all matters related to the Agreement and shall inform the City in
writing of such designation and of any limitations upon his or her authority to bind the Contractor. The
City may rely upon occur taken by such designated representative as actions of the Contractor unless
they are outside the more Of the authority delegated to hlm/ber by the Contractor as communicated t0
City.
12.12 CRIMINAL ACTIVITY OF CONTRACTOR
12.1x.1 Criminal Activity
For purpose of this Section, Criminal Activity shall mean any of the following events or circumstances:
A. COmidlags. The entry against any Contractor Parry Or its officers, of a criminal conviction or a
permanent mandatory Or prohibitory Injunction from a court, municipally, Or regulatory agency
of competent jurisdiction, based On pays taken In his or her official capacity on behalf of
Contractor with respect to:
1. Fraud or criminal offense in connecting with obtaining, attempting t0 obtain, procuring or
performing a public or private agreement related to municipal Solid Waste services of any
kind lincluding Collection, Transportation, transfer, Processing. Regclin8. Composting or
Disposal), including this Agreement or any amendment thereto;
2. Bribery Or attempting to bribe a public officer or employee Of a local,. State, or federal
agency;
3. Embezzlement, exporter, racketeering, false claims, false statements, forgery, falsification
or destruction of records, Obstruction of justice, knowingly receMng stolen property, theft,
or misprision failure to disclose) of a felony;
6 Unlawful disposal of Hazardous Wastes, the occurrence Of which any Contractor Party
knew or should have known;
5. Violation of antitrust laws, including laws relating to price bid -rigging, and sales and
market allocation, and of unfair and and -competitive trade practices laws;
6. Violation of securities laws; and
Z Felonies.
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R. Pleas. Entry of a plea of "gullry," "nolo contendere; or "no school by a Contractor Parry
based on acts taken In hit, her, or its pfficlal opacity on behalf of Contractor with respect to the
conduct described in preceding Section 12.12.1A
12.12.2 NotRe
Contactor shall notify City in writing within Fee calendar days of occurrence of any Criminal Activity by
any Contractor Parry.
12.12.3 CantriRaYS Cure
Upon accurrenre of any Criminal Activity, Contractor shall Immediately do or cause to be done all Of the
fallowing:
A Terminate from employment or remove from office any offending Individual Contractor Party,
unless otherwise directed or ordered by a court or regulatory agency of competent jurisdiction
r authority, and unless that termination would constitute a breach of any labor agreement
entered Into by Central and
R. Eliminate participation by any offending Individual Contractor Party in any management,
supervision, or decision activity that affects or could affect, directly or indirectly, the
performance of the Contractor under this Agreement
12.12.0 Tandefand Hisng
Contractor shall not allow or cause to be allowed to hire or transfer any individual from any Parent
Company or subsidiary company or business entire of Contractor who has committed Criminal Activity
ra Contractor representative, field supervisor, officer, or director who is directly or Indirectly
esponsible for performance of this Agreement without obtaining prior written consent of Ory,
following full disclosure to City of the facts and circumstances surrounding such Criminal Activity.
12.12.5 GorS Remedy
In the event of any occurrence of Criminal Activity, the City, in its sole dlscrtmon, may terminate the
Agreement within 30 still days written notice to Contractor, or may impose other sanctions; (which
may include financial sanctions, temporary suspensions, or any other condition seemed appropriate
sholl termination) as it will deem proper, in the following events:
A. Contractor fails to comply with the foregoing obligation of this Section, or
R. The Criminal Activity concems or relates directly or Indirectly to this Agreement.
Contractor shall be given the opportunity to present evidence In miEgatlon during the 30-nlendar day
notice period.
12.13 ACKNOWLEDGMENT OF PUBLIC RESOURCES CODE SECTION 49520 NOTICE
If Contractor has lawfully provided solid waste collection serrices. In the City for more than three (31
years prior to July 1, 2011 (and is therefore entitled to the notice provided for in Public ResourcesCode
49520), contractor shall consider execution of this Agreement by the City, as Others notice to Contractor,
pursuant to Public Resources Code 49520, that Contractor may provide service fora period of five l5)
Ory of Fresno RollOFAgreement Page 43
418/11
years beyond July 1, 2011, after which crime the Cry has the right to establish an earn a francb6e
collection system.
ARTICLE 13
MISCELLANEOUS AGREEMENTS
13.1 ENTIRE AGREEMENT
This Agreement, including the Exhibits, represents the full and entire Agreement between the Parties
with respect to the matters covered herein_
13.2 SECTION HEADINGS
The article headings and section headings In this Agreement are for convenlence of reference only and
are not tn[ended to be used In the construction of this Agreement nor to alter or affect any of dr;
pmV[cm$.
13.3 REFERENCES TO LAWS
All references In this Agreement to laws shall be understood to include such laws as they may be
Subsequently amended or recodifed, unless otherwise specifically provided.
13.4 INTERPRETATION
This Agreement shall be interpreted and construed reasonably and neither for nor against either Parry,
regardless of the degree to which either Party particlpated in Its drafting.
13.5 PRONOUNS AND PLURALS; TENSE
When not inconsistent with the context, words and phrases used in the present tense Include the
future, and words and phrases used In the singular number include the plural number Whenever fire
contest may real any pronoun used In this Agreement shall include the corresponding masculine,
feminine and neuter forms, and the singular farm of nouns, pronouns and verbs shall include the plural
and ince versa.
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13.6 TEXTTOCONTROL
The captions of the Articles or Sections in this Agreement are for convenience Only and In no way define,
hand, extend or describe the scope or intent of any of the provisions hereof, shall not ire deemed part of
this Agreement and shall not be used in construing or Interpreting this Agreement.
13.7 AMENDMENT
This Agreement may not be modified or amended in any respect except in writings good by the Par les.
13.8 SEVERABILITY
If any non -material provision of this Agreement is for any reason deemed to be Invalid and
unenforceable, the invalidity or unenforceability of such provision shall not affect any of the remaining
Provisions of this Agreement, which shall be enforced as if such invalid or unenforceable provision had
not been contained herein.
13.9 COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be considered an original.
13.10 EXHIBITS
Each of the Exhibits Identified as Exhibit "A" through "V is attached hereto and incorporated herein and
made a part hereof by this reference.
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IN W"ESS WHEREOF, the Parties have caused the Agreement to be executed On the day and year Nu
above wrinen.
City OF FRESNO
CONTMCFOR
A Municipal Corporation
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APPROVED ASTO FORM:
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City Of Fresno RollOffAgreement Page 46
0/8/11
EXHIBIT
SCHEDULE FOR LIQUIDATED DAMAGES
Contractor may be assessed Liquidated Damages if Contractor falls to fulfill its obligations with regards
to the events listed In this Exhibit in accordance with the terms and conditions of the Agreement with
regards to the time frame for accomplishing each event and nature of the responsibility associated with
the event unless otherwise stated in this Exhibit.
1.
Diversion Failure to achieve anti maintain a minimum of SUN
The greater of $5,000 or
Diversion per month of all C&D Collected within the City, ]C%
10% of The gross Rate
Diversion per month of all Recyclable Materials Collected within the
r received for
Clry, and 91 of all Organic Materials Collected within the City.
providing C&D,
Recyclable Materials,
and Organic Materials
in the City, for
the most recent 13-
month period
3.
teaks, Litter or Spills. For each occurrence Over five during a calendar
$300/ event
year of unreasonable leaks, Utter, or spills of Permitted Materials near
or on public streets and failure to pick up or clean up such material
mediately.
3.
Unaulboriaed Collection Hours. Foreach occurrence over five during
$300/even[
calendar year of Collecting permitted Materials during unauthorized
hours.
A.
Excessive Noise. For each occurrence ever So during a calendar year
$300/ event
of excessive
5,
Cleaning Collection Vehicles. For each Occurrence over five during a
$150/event
calendar year for failure to keep Collection vehicles in a safe and
sanitary condition.
6. Labeling of Roll -Off -Containers. For each occurrence Of Contractor s
$5Do/eve nt
failure to correctly label ContractorownedRoflL Containers (in
accordance with Section 66. Q.
Z DimouReaus Behavior. For each occurrence of discourteous behavior
$500/event
by Collection vehicle personnel, customer service personnel, or other
employees of Contractor
S. Injuries to Others. For each incident of personal)to ato a Person
55DOEL n[Ident
requiring medical treatment or hospitalization, where the negligence
of the Contractor or its personnel was a contributing factor to the
injury.
9.
Monthly Reports. Failure to submit monthly reports in the timef2me
$3001 day'
sari In this Agreement.
30.
Report Hazardous Waste. For each failure t0 notify the appropriate
$SW/event
authorities of reportable quantities of Hazardous Waste.
Al
31. Failure of Other Oblil lona. Failure to perform any a' obllgatlons MO/ for each
set Forth In this Agreement not speriFleally stated above and not obligation per day until
correct or proceeding in good faith to correct within 26 hours upon obligation is performed
2A hour notification by City.
Mntbly
oreports shall be considered late until such time and complete
monthly open Is received by City, For each calendar par, a Iowa Is late, the dally
liquidated Damage shall be aslndicated in the momNe reports section above.
In placing Designee's initials at the places provided, each Party specifically conflrrns Me accuracy of the
statements made above and the fact that each Party has had ample opportunity to consult with legal
and obtain an explanation of Liquidated Damage provisions of the time that the Agreement was
made
e
Conmacor City
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A-2
EXHIBIT
SECRETARY'S CERTIFICATION
The undersigned, tieing the Secretary of QAIYCS #Y miP�h(Ia
nr
California corpotbn (The Company"), do hereby certify that the following resolution was. adopted by
the Board of Directors of the Company and that such resolution has not been amended, modified or
rescinded and Is In full force and eRect as of the date hereof:
RESOLVED, that R'by �O. voS M. and hereby is, authorlaed to
arms nr primo ryriRxIisum
execute by and on behalf of toe Company any and all agreements, instruments, documents or papers, as
he/she may deem appropriate or necessary, pertaining to or relating to the Non -Exclusive Franchlse
Agreement between the Cry of Fresno and Company for ROTI -Off Container Collection, Trgnsporting
Processing, Recycling, Comporting, and Disposal of permitted Materials and that any such action taken
to date is hereby ratified and approved,
Dated: !n 11 -1m \
H1
Sig ture
Title
EXHIBIT[
STATEMEM OF APPUCANrS UNDERSTANDING
AND REPRESENTATIONS
The undersigned (who is duly authorized to hind the company submhtlhg Mis application) has reviewed
me mcialrements of the per exclusive franchise agreement for Fall Off Collection, Transporting,
Pmttssing, Recycling, Camporting, and Disposal services for Solid Waste, Recyclable Materials, organic
Materials, and C&D, its exhibits, and reference documents. In addition, the undersigned attests that this
application and any other supplementary Information submitted with this application do not: (1)contain
any untrue statement of a material fai pp contain inaccurate or misleading mmnnat on, or Pull emit o
state a material fan that is necessary to make the statements made, in light of me circumstances in
which they were made, not misleading.
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Company Name �—
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C-1
IXRIBITD
APPROVED PRMMMG AND RESIDUE DISPOSAL FACN9E5
The following facilities were selected by The Contractor and appmoed by the Clay.
facility name
Facility address
SWIS number
owner
operator
Fai name
Fai address
SWIS number
Owner
Opemor
Facility name
Faallty address
Approved MD PmeGLlnjLp Approved Organics Processing
_
Side
ri�e�Dl CA, ga�aS
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Approval *O=dM Approval Dispoml dp
me { _� rylAppRcMa ba,[cR�u��lIdue Ea
ill
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Approved Rwyda"VmMf Approval Disposal 94
SAM IA Wlowe gar guribble phyla
SWISnumber
Owner
Operator
• All Sold Waste shall be Disposed of at the Designated Disposal ratlllty.
Contractor City //� )
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