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Home My WebLink AboutGreen Valley Recycling - Non-Exclusive Franchsise for Roll-Off Collection ServicesGreen Valley Recycling Roll -OH Franchise BETWEEN THE CITY OF FRESNO /7 AND S�f `7rtC.b Va, c� FOR ROLL -OFF COLLECTION SERVICES �}Zj(,-1 ,2011 Vo NON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF FRESNO /7 AND S�f `7rtC.b Va, c� FOR ROLL -OFF COLLECTION SERVICES �}Zj(,-1 ,2011 This page intentionally blank Table of Contents RECITALS.................................................................................................................................1 ARTICLE3 DEFINITIONS............................_..................................._.........................................2 ARTICLE E REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR .................................8 2.1 REPRESENTATIONS AND WARRANTIES ............. _............... _......... _. ........._..................,8 . .......... ARTICLE 3 TERM OF AGREEMENT ................ ............... _..................................... ......................9 3.1 EFFECTIVE OAR ... .................. ........ ......... ............ 3E CONAITIONSTp EFFECTIVENESS pFAGREEMENT 9 ....... ..... 33 INITIAL TERM 10 ._........ OP...10 34 OPTION TO EXTEND .... ........ .... ..... ..........,10 ARTICLE O SCOPE OF AGREEMENT ......................................................................................... it 4.1 SCOPE OF AGREEMENT........ ._..... ......... .._... 4.2 LIMITATIONS TO SCOPE ,,,,,,, 11 ,.._..L 4.3 CITY'S RIGHT TO GRANTMULTIPLEEXCLUSIVE 12 NEWLYENON XEDTERRITORAGREEMENTS..... ...............................13 FRRITORYFflOMSCOP..OF FRANCHISE......... 44 CITY'AGREEMENT 13 4.5 MEERIGHT COE%CLUDE WITH APPLICABLE HAPPLICABLE ICAW,.... TOF ..............................................._..........33 OWNERSHIPMATRIALS. 4.6 OWNE0.5XIP OF MATERIALS................ .............. 4] NOTFICAIION TO CItt OF NON FRANCHISED HAULERS .... ..... _........ ....... ......... _.................. 13 ...14 ARTICLE 5 COLLECTION, PROCESSING, AND DISPOSAL SERVICES ............................................ m 5.1 COLLECTION ..... ....,.. ............. 5.2 PROCESSING AND MARKETING SERVICES 14 ....... .. , .. 53 DIVERSION REQUIREMEUIREMENT_. 14 ...... ._ SA pISP5PO5AL... �� 16 ......... ......... .......... 5.5 .......16 ...,... ........ CUSTOM 56 CUSTOMER SERVICE 17 ... .... ._....... .......... .__................_......... .,,., 17 ARTICLE 6 STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT, AND PERSONNEL I] 61 OPERATING DAYS, HOURS, AND SCHEDULES.._ ...... ................................. __.......................P R2 COLLECTION STANDARDS .__... ................ .................. 6.3 VEHICLE REQUIREMENTS— .__ ... 18 _.......... ............ ROLLOFF CONTAINER REQUIREMENTS 19 ...__. ......._................. CA 6.5 PERSONNEL. 2 6.6 HAZARWASTE INSPECTION AND HANDLING _ 322 ..... ,... 68 NONDISCRIMINATIONN NONDI CRI .... 22 . .... ...... _ ._......... ...,,. .CITY CITY__ 68 COMMUNICpTIONAN0000PEPATON WITH CIN 23 ... ........................ .. ............23 ... ...................... ARTICLE ] RECORD KEEPING AND REPORTING ....................................................................... 2A Clry of Fresno Non -Exclusive ROLL OX Agreement 4/R/le Page i 7.1 GENERAL....... ...... ........... ... _.. ............._ .. ................ 24 7.2 RECORDS_ ............... ..._I............ 73 NL P_EO.V.IR.EMFNTS............... ........... ......... __................. 26 7.9 MONTHLYREPORT. -- ...................... 26 ]s AS 939COUNTY SURCHARGE REPORTING__.................. ......_...2] ARTICLES FRANCHISE FEES AND DEEPER FEES... ........ ..................... - ................................. 28 BE GENERAL.. ................ ......_........... .... .._..... ....... . ............. 28 8.2 FRANCHISE FEE ... ............. ... ............._ .. ................ .........__... 28 9.3 OTHER EES ................. 8A ADJU5T ENTETO .......EF ..............._ ...._.......... ......._....... 28 8.5 AYME TSCHEDULES PAYMENTSCHEDULE IATE FEES ..................... ._........_........ 28 9 OVERPAYMENT OVER PAYMENT OF FEE939 ........... ..........._.._ ................. ............... 29 7 0] NON CITY FEES; A0939 COUNTY SURCHARGE ............................29 ARTICLE 9 CONTRACTOR'S COMPENSATION AND RATES....................................................... 29 9.1 CONTRACTORS COMPENSATION .......................... ............. 29 9.2 CITY S RIGHTTO SET MAXIMUM RATES.._...... ......... .._..... ..... ............. __....._..._................_.29 9.3 CONTRACTOR'S RATES. . ....... .... .................. ........... ... ........ ....... ............ ... .. 30 ARTICLE 101NDEMNITYAND INSURANCE.............................................................................. 30 10.1 INDEMNIFICATION _..... .. .. ....__.......... 30 10.2 INSURANCE. - .................. ARTICLE 11 DEFAULT AND REMEDIES.................................................................................... 35 111 EVENTS OF DEFAULT...... ..... ..._._........ ......... ... .... ..... .... .. . 35 11.2 RIGHT TERMINATE UPONVDEFAULT ......................._........ 36 113 LIITY REMEDIES ED IF;sPECIFl[PERFORMANQ..... ...--- ._.................._.._..._.36 IlA LIQUIDATED DAMAG UI ATEDOAMAGE$ ............ ..... 36 ILS DIVERSION NON PERFORMANCE . .......... ................. ..38 ]16 CONDITIONS UPON TERMINATION........... ....... ._ ......... ...........39 ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES................................................................ 39 121 RELATIONSHIP OF PARTIES......... ....... ...._....... ............ ..... .......... .............. ......--- . _............ 34 12.E PERMITS AND BOURSES ........... .---- ................ .---- _..._..._................ .. CO 123 COMPLIANCE WITH LAW..... ......... ............ ....... ......... ..... ......... ... ....... 40 126 GOVERNING LAW............... .. . ..._...._ ............... ._.......... 40 12.5 JURIS............ .......... ............. 40 127 BINDING ON.............. SVCCES5016. ........... ._....................................40 ASSIGNMENT ...EST............. ..... .... ..._.........�.................. ....... .�......... ........ ..... ............ _.__.......AO FEEASSIGN 12.8 IN INT.. PARTES IN INTEREST ................_.................. ......... .................. ............................... ............. ...... 1 WAIVER... ................... __.._41 12.10 12,1 NOTICE PROCEDURES ......_.... ............... ........................._ 41 12.11 REPRESETHE FTCONTRAIfS.................._....... ........ .......... ............ ........ .............._...... 42 12.12 CRIMINAL ACTIVITY CRIMINALACTIVITY OFCONTRACTORTOR......._.._._,...... ....................._......ICE..........._......._... 42 12.13 ACKNOWLEDGMENT OF PUBLIC RESOURCES CODE BECTON 495ID NOTICE .........................43 ORY OF Fresno Non -Exclusive Poll OH Agreement Page II 4/8/11 ARTICLE 13 MISCIRUANEOUS AGREEMENR .......................................................................... M 13AENTIRE AGREEMENT ............... _................._..._........_................._............_.................._..... 4I 13.2 SECTION HEADINGS...--- ................................................... ... ._.. .._..............._H 13.3 REFERENCES TO LAWS ..._.._. .. ........... .......... .................. 44 13.4 INTERPRETATION ........_._ .. ....... ...............49 135 PRONOUNS AND PWRA6:TENSE ......................... ............. ..... _..._................_..........._......... 44 13.6 CONTROL—._ ............... _........... _. ................. 45 13.9 AMENDMENT _............... ................. ....._. ..........._.... 45 13.9 SEVERAI ................. ..._.... ..... ..... .. ................... ........... 45 13.9 DR COUNIFFRIPAR ........................._.._.........................._.._................_................,.._.........._A5 IERS....RTS_ 45 ON of Exhibrs A Schedule for lquldated Damages B Secretary's Ce+tlficalian C Statement of Applleant's Understanding and Representations D Approved Processing and Residue CRAceal FadiRles Gp of Fresno Non Letluslva Roll -OFF Advisement Page If 4/8/11 This page intentionally blank NON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF FRESNO A D JAI V FOR ROLL -OFF COLL CNON ERVI mmmi dative franchise agreement Miroementl Is made and entered Into this 4 day of I . by and by the City of Fresno, a municipal corporation, (Cly) and JI�rmanor.l RECITALS this Agee meous entered Into with reference to the famwingfaas area circumstances WHEREAS, the legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989, molfied at California PuWlc Resources Code Section 4WC0 et seq. t"ACC) I, has de0ared that It Is In the public Interest to auNorlae and require local agencies to make adequate provisions far Solid Waste Collection within their Jurisdiction; and WHEREAS, the State of California ('Stale^) has found and declared mat the amount of Soud waste generated In California, coupled with idenrWahing Intel spare and potental adverse environmental Impacts from Ime filling and the need to conserve natural resources, have created an urgent need for State and local agencies t0 matt and implement an aggressive integrated waste management program. The State has, Mrwgh enactment of the AR, directed the responsible State agency andall local agencies, to promote Dkposal Site Diversion and to maii Ne use of feasible Solid Waste reduction, re use, heading, and Composting options In order to reduce the amount of Said Waste that must be Disposed of in Disposal Sites; and, WHEREAS, Me Aa requires local agencies to divert 50% of discarded materials from landfills;and, WHEREAS, the Gry Council established III of aNledng 75% diversion by 2012 and aew. waste status by 2025 on lune 26, 2002, and approved a Zero Waste Strategic Action Plan on February 11, 20419; and WHEREAS, the Cloy finds that reusing, RerytllnR and Compmtlrg Recyclable Materials, Organic Materials, and Construction and Demalitlon OeMs (CAD; and beneficial use Or mmysting of Organic Materials Is essential to further the CDys efforts t0 reduce Solid Waste Disposal and comply with Me Act and the City's zero waste goals; and WHEREAS, pursuant to the powers granted the CIN as a darter city by Article %I, Seaton 5(a) M the California Conzdtution and Article %III of me Fresno City Charter, the Oty has determined that fie public brad, satisfy, and welbbeNg require that a franchise agreement defining noncatluslve rights be awarded to qualified companies to provide for the rolbR container wll¢ttlon of Pandit al Materials City of Fresno ROlbH Agreement Page 4/8/11 wept for collection of materials "eluded in the Cloys Municipal Code, and other servrtes related to meeting requtrements of the Act; and WHEREAS, the Cup, requires all haulers providing Roll Hcollection scri for Permitted Materials In the are m obtain a ndrncxclusiive franchise In order to regulate thes business, ensure Its urderp operation, achieve its diversion Sol and to minimize the potential for adverse eRMs It may have on the deal environment; and WHERW, the Gty Cauncll has determined through an application process that the Cwtractw, by demonstrated experience, reputrtlon, and capache Is qualified to Wwltle for the RolO Container Collection of Perrmltled Materials within We corporate limits of the City and the TramwMtlon of such ma[mlal to appropriate places of Recycling, Processing. and/or disposal, and an praWde Insurance consistent with the atys requir . e Gty Comml desires that Contractor be engaged to perform ch services on the basis ml forth maThthis Agreement; and WHEREAS, Contractor Intends to use the Gty's street; alleys, other public MOM of way, and InfraRructure to proWtle RollOffCollection services to the Clty'i residents and businesses; and WHEREAS, rise City Intends W receive lust and renoble fees from the Contradar for Cil administration of We Agreement and for Contractors use of the CIN meets,alleys, other public rights - of way, and infrastructure which the City may lawfully Impose and the companies are obligated to pay; and, NOW, THEREFORE, In consideration of the mutual promises, covenants, and conditions contained in this Agreement and for other good and valuable consideration, the Partes agree as follwn: ARTICLE 1 DEFINITIONS For puryases of Agreement unless a different meaning Is dearly required, the following words and phases shall have the Fnuori meanings reslsectwely ascribed to them by this Artde and shall be Caploured throughout this Agreement 'AcP means the CalPomia Integrated Waste Management Act a 1989 (0VWm 30 of the Califon a Public Resources Code), as amended, supplemented, superseded, and replaced from time to time. 'Agreemeng" means this Agreement between the M and Cpntrattar for Sol -0N Container Collection, Processing, and gspoal of Permitted Materials Including all assets, and any Mute amendments hereto. °Applicable taw" Means all federal, State, and local laws, regulations, rules, orders, judgments, degrees, permlq approvals; or either requirements of any governmental agenry having jurisdiction over the Rolloff Murmurer Collection, Transportation, Reryding, Processing, and Disposal a Permitted Marchant that are In form on the Effective Date and x they may be enaaeq Issued, or amended budng the Term of this Agreement. Off of Fresno RolldH agreement Page 3 a/g/11 "Approved Me Processing Site" means the processing site specified In Exhibit 0, which was selected by Contractor and approved by the Gry. 'Approved Disposal site" means a Disposal Site selected by the Contractor or its Subconearmorlsl and approved by the Ory for Disposal Of residue from Approved Processing SIRIs). Approved Dls rani Sites) are listed in exhibit D. "Approved Dea l¢ Promising Slte" means the processing site speoped in Exhibit D, which was selected by Contractor and approved by the Uty. "Approved Processing Shu ls)" means the Approved C&0 Processing Site, Approved Organics Processing Site, and/or Approved Recrclables Processing Site. 'Approved Procei means the operator Of an Approved Processing site. 'Approved gecyda ales Processing Slte' means the processing site specXied In Ind bed D, which was selected by Contractor and approved by the Ory. "1110' means a container with capacity Of approalmately one (1) to eight Ig) cubic yards, with a hinged lid, and with wheels, that is typically servl¢d by a font Fact -loading ColleNon veldno. bu jxxxw Days' mean days during which City Offices are open to do buslnesswlth the public "Cart" means a plastic container with a hinged lid and wheels that is typically seMwd by an automated of semi adomated Collection whlde. A Grt has capacity of 30, 35, 64, or 96 gallons (or similar wlumes). 'CRP' means ConArvttli and Dernal Debts. 'Change In WW means any d the following events or canonical that haw a material and adverse effect on the performance by the Ponies of their respective obligations under his Agreement (except for payment obligations) a. IDe enactment, adoption, promulgation, Issuance, FoOdifcatien, o wrttten change In administrative or judicial Interpretation on or after the Effective Dare of any Applicable law, or hlire order or judgment of any governmental Mdy, on or after the Effective Marc to Me extent such order or judgment Is arms the result of willful or negllgere anion, error om1551on or lack of reasonable diligence Of the. Uty or of the Contractor, whichever Is Serting the occurrence Of a Chal In law, provided. however, ink Me contesting in good faith or the fair in good faith to contest any such Order or judgment shall not constitute or he construed as such a wllMul or negligent action, error or ornwoon Or lack Of reasonable diligence. "City hears the Cry of Fresno, Wifornla; a municipal corporation, and all Me territory lying within Me municipal boundaries Of the Oty as presently existing or as such boundaries may be modified during Me Term. City of Fresno Roll-0ff Agreement Page 3 6/8/11 "CWsMunicipal Code" means Fee City of Fresno Munkm Cade 'Collett" or 'Collection' mans the aft of collating Permitted Materials and other material at the plate of generation In Fee City. 'Commercial" shall mean of, from or pertaining to non P smerollal Premises where business activity k ondutteq including, but not limited tq retail sales, services, wholesale emotions, manufacturing and industrial Operallons, but maturing businesses conducted upon Pulderri property which are permitted order applicable zoning Mutations and are not the primary use of the property. "Compactor" me nserchanral apparatus that Warnmesses materials Into a contalme, which container may be detachable. Fpr We purposes of this Agreement, Compactors shall include onty Compactors with container capacities of tan I101 to Why (501 cubic yard that are serviced by gdl-0R Collection Trucks. "Tarrpott" or "Compastln(' includes a controlled blalogn decomposition of Organl[ Materials yielding a safe and nuisance free Com mi Product. -Comport Pmduil mi the product «suMng from the controlled biologlcal decomposition OF Organic Materials Mal are Source Separated from the SOW Waste stream, or which are separated at a centralized facility. -Construction and Cemalhlon Oebrls(C&0)" means materials resulting from construction, remodeling, repair cleanup, or demolition operations that arenot hazardous as defined In California cede of Regulations, rite 22 Section 66M13.Thlsterm Includes,bu[Is not limited to, asphalt concrete, eement brick, lumber, gypsum wallboard, concrete Wizard, compared, and Other associated packaging, concrete, oGng material, ceramic tile, comer n8. plastic pipe and steel, as well as vegetative matter resulting from land clearing and landscaping including but not Uttered to rmk, soil, tree stumps. Construction and Demalltion Debts excludes putrescible wastes. "[Dorno means Eh4l(Ir Eft �Rpf�F,ydA a _Am tWFp t -amenprlemihpprtjnlp PY aWSorganized-and operating der the laws Of the State of California and Its officers, d ciffors, employees, agents, ruminator. aro Subcontractors. 'Contractor Parti(les)" shall mean Contractor, officers, directors, management employees, or fiscal employees (where 'management employee" means any employee with direct or lndlrett responsibility for direction and control over the Contractor's Mivities under this Agreement and 'fiscal employee" means an employee W.th direct or Indirect respOndblllty and control duties relatingnnal to flnamatters under this Agreement). "Criminal fical means those activities described In Section 1212.1. 'Customer" means We Person whom Contactor submits filling Invoice to and mlle[ts payment from far Col lesion mi prom tied. "Designated Mspocal SiR" means the American Avenue bndfill at 18950 W American Avenue in Tranquillity, California forthe purposes of Warpourig5olid Waste. Crty of Fresno 8011-011ffgpeernmt Pager 4/8/11 "Designated Waste' means nonalaaard n s Wastes that may pose special Dlspoul problems because of Its potential to contaminate me environment and which may be Disposed of only In Class II 01sp ing Sites or pass IS Disposal Sites pursuant to a modal Issued by the California Department of Healer Strauss. "Dheaor shall mean the Public Udiftie5 Director M the City or an authorized representative of the Public UGllties Director 'Discarded Materials' means Solid Waste, Recyclable Materials, organic Materials, or UD placed by a Generator In a receptade and/or at a location that Is designated bar Collection pursuant to me Cinys Municipal Code, 'Dlsmanal or Dapose for wall thereMj' means the final di5poshion N Solld Waste at a DBpoal sue, 'obpasal Site" means a fill llty farulumate Disposal of Solid Waste. 'DlveNon' means gruMbes that reduce or administer me amount Of Solid Waste from Solid Waste 1)(mo al Including, but not limited to, Rarytling. and Composting, "Drop Baa" means an open -top container with caWCLLy from six 6) to f(ry ISo) cubicyards that is used For CmIealon of Prominent Materials and that is denying W Poll -Off CORaction Truck. Drop Boreswlth capsules of less than ten (10) cubic yards may only be usetl for the purposes of Collecting C&D, A amp Box, which Is also known as a mlbff box and/or debris box, Is a type of poll-OfI Container. 'ff Achim Dap' means MetlMe selforth In the lntrodudory, paragraph c4mis Agreement. Federal" means belonging tear pertaining to the addition general government ofine Unload! States. "Food Sumps" means Thou discarded materials that will decompose and/or putrefy including (1) all kitchen and table Found waste, (11) animal or vegetable waste that is genrated during or results from the storage, preparation, masking or handling of food stuffs, (0) discarded paper that b contaminated with two Scraps, (1v) cost waste, gain waste, dairy wand, meat and fish waste, and, (v) non Recyclable papeormnaminatedpapec Fcad Sctapsareasubsetoforganlc M,,,Ial5. 'Franchise Fee' means the fee paid N Contractor to Crry for privilege to hold the non-ealuslve rights granted by this Agreement, -General means any person where act or process prWURS Paramount Materials. or whose act first causes Permitted Materials to become subject to reNlatlon. 'Green Waste Material" means any materials Rental from the maintenance or alteration of public, commertial, or resdentlal landscapes that will decompose and/or putrefy naturaing, but not limited to, yard clippings, gnu, leaves, shrub/tree trimmings or puddings (less than a- in channeter), brush, flowers. areas, dead plants, small pieces of unpainted and Indicated wood, antl other types of Organic waste. For cut purposes of this Agreement, such materials shall be Source Separated and placed by Generator In a reception and/or at a location that Is ordina retl For Collector. Green Waste Material Is a subset Of Organic Materials. City of Fresno Roll t Agreement Page a/B/il 'Hazardous Waste' Means an substances seamed as Hommous Wage, water Hazardous Waste, oc extremely Hga sous Waste by the State In Health and Safety Caste §2511D02, §25115, and 425117 Or In the future amendments to or reodlflatlons of such statNes or identified and listed as Hazardous Waste by the U.S. EnWronmental Protection Agenry (EPA); pursuant to the Resource Conservation and Recovery AR J42 USE 46901 ems.), all future amendments thereto, and all rules and regulations Promulgated thereunder. 'Holil are dented as New year's oay, Thanks ng Day,, and Christmas Day. 'Infectious Waste' means bicameal waste generated at hospitals, puhllc or Wlvate medial climes, denial offices, research laboratories, pharmaceutical Industries, NOW banks, mortuaries, veterinary NENIties and other similar esGhllshments, as defined In Health and Safety Code Section 251375. 'Liquidated Damages means the amounts due by Contractor to CEr for failure to meet specific quantiflable standards of performance as described In Section 11.4 and Evhibk A. 'Organic Materials' means those discarded materials that will decompose and/or putrefy Including Green Waste Material and Food Snaps such as, but are not limited Our green trimmings, Bass, weeds, leaves, pruning, branches, dead plant, brush, tree trimmings, dead trees, small wood pieces, Miner types of organic yard waste, vegetable waste, fruit waste, grain waste, dairy warte, meat Warte, fish waste, paper contaminated with Food Scraps, plates of unpainted and untreated wootl, and pieces of unpainted and untreated wallboard NO discarded material shall be considered to be Organic Materials, unless uch material Is Source Separated from Said Waste, Recyclable Materials, utz, or other materials. 'Parent Company' refers to a company Owning more than fifty percent (50%I of the shares of another company (subsidiary) ora company that has management central over such subsidiary. 'Party or Pvtlei refers to theOt, and Contractor, Individually or together. 'Porml¢ed Materlals' refers to Said Waste, Source Separated Rerytlable Materials, Sourm Separated Organic Materials, and CUD. Permitted Materials eYtlWes Source Separated Food! Scraps 'Fedi( " means any individual. firm, association, organization, WMershlp, corporation, biNness trzi joint venture, the united States, the State of California, the County of Fresno, and special purpose soNIRi 'Premises'ns any land or hullding In the CRY where Permitted Materials are generated or accumulatedTe 'Pros" n('means to prepare, treat, or convert through some special method, 'Procicebg Si m any plant O Site used for WHERE steaming, heating, Or reconstituting Materials far the purpose oe making suN material available for Mime. "Wrenched Wane' means Solid Wastes originated from lived cmanis metabolic waste their metawaste products and from petroleum, which camalns naturally produced organ c compounds and which are City of Fresno Roll -OR Agreement Page 4/g/11 biumoinlly decomposable by microbial and fungal action Into the constituent compounds nice carbon dioxide and Dthersimpier organic compounds. water, "Rates" means the charges and fees Contractor bills and rollecl5 from each Customer reading service pursuant to this Agreement. "Recyclable Materials" means those Discarded Materials that the Ory Code permits, directs and/or requires Generators to set out In Reryclables Materials containers for Collection for the purpose of Recycling. No Discarded Materials shall be 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 insert , papers, and store adveMSememph mixed paper (including Office paper, computer paper, magazines, funk mall, ntaiogs, brown paper bags, brown paper, Paperboard, paper egg cartons, tNephone books, grocery bags, colored paper, construction paper envelop n, legal pad badtings, shoe boxes, soap boxes,¢real and other sparar aced boxes(;sentenced ; cardboard, Paper milk cartons; glass containers of any =lot (including glass bottles and jars all colors); al aluminum cans; fabric softener containers; steek tin or bLmetcarr plastic commons (clear or gree plastic soda and water brown. plastic containers and bottles and plastic bags with no. 1,2 ora on me bottom); and food containers from potato salad, pasta salad, whipped cream, etc. "Rmydle or Resytling' means the mores of Patenting, swung, detailed, treatll and reconstituting materials for the purpose of u9ng the altered form In the manufacture of new product. Ieryding does not include burning, hollnerating, or thermally destroying Salad wash. 'Residential" shall mean of, from, or pertaining to a single badly Premises, muld-plex, or multifamily Premises Including single-hmlly homes, aWrMenq condominiums, townhouse complexes, mobile home pares, Ommeratwe adopters, and yacht harbors and marinas where residents live aboard boats. 'Roll OH Conine/' means a Drop Box or Competitor used for Collection M Permitted Materak and oersted by a ki Collection Truck. 110II431H Containers with rapadles of less than tem ODI cubic yards may only be used for the purposes W Collecting Cul "Roll -Of COREHA n Trader means acollection vehicle with a mechanical device such as a winch that pulls or )cal a Roll -OR Container onto the truck bed or attached pager and separately transports each RoIbR Container to a Olspoul She or Processing Site, "Solid Wei means solid waste as defined In Cathomla Public Resources Come, Division 30, Part 1, Chapter 2, 460191 and regulations promulgated thereunder and those Oisarded Materials that the Out Cote requires Generators wllMn the City to act out for Collection. Fmluded frwntM definition Of Solid Waste are C&0, Hazardous Waste, Infectious Waste. Designated Waste, Source Separated Recyclable Material; Source Separated Organlc Materials, and radioactive waste, NptwlNstanding any prov to the cont "Solid Waste" may include the minlmh volumes orconcentratlons Mwaste ofa type and amoum mentally found in Residential Send Waste after Implementation of programs for the safe collection recycling. treatment and disposal of household hazardous waste In compliance with Section 415W and 41802 Of the California Public Recpurt5 Code. "Source Separated" means the segregation, by the Generator, Of materials chalgmhd for separate Collection brsome form of Recycling Processing, COmncir , recovery, propose. "Sade" means Ne State of Callfprnia. Ory of Fresno Rall OH Agreement Page age 2 "subrontrardn" means a parywbo has entered Iare a camel express or Implied, with file Contractor for the performance of an act that is necessary for the ContractoYs fuMllment at its obligations under this Agreement. 'Tem' mea ns the Term of this Agreement, including extension periods if granted, as provided for In Article 3. "Ton'ea unit of measure for weight equivalent to 3,W] standard pounds where each pound Octal ns ounces. Tonnage' means the total weight In Tons Collected Recycled, Composted, Diverted, or Olsposed of, as the context real Rmrssportation" means the act oftonsporting or state of being transported ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR 2.1 REPRESENTATIONS AND WARRANTIES The Contractor, by exertion of this Agreemern, represents and warrants the ficiewlng to City, for the purpose of inducing City to enter Into thk Agreement and to consummate the transactions contemplated hereby: A. Corporate ShNs. Contractor is duly organized, validly existing and In two standing under the laws of the State. It is qualified TO fnnsatl business In the Oar and State and has Me power to own Its properties and to carry, on Its business As now owned and Operated and as required by this Agreement. B. Authorization. Contractor has the authority to enter this Agreement and perform Its chllgations under this Agreement The Board of Directors of Control (or the shareholders, If necessary), sole proprietor, or partil have bken all aRIDM required by law, Its articles Of incorporation, -Its bylaws, or otherwise, to authorize the exertion of this Agreement. The tenon signing this Agreement m on behalf of Contractor represents and warrants net they have authority do so and the corporate secretary: C rti&ata In Fxhlbn B confirms this, ThIs Agreement cnnitiNfes the legal, valid, and bmdmgohreannn either Contractor. C Agreement Will Not Cause &eeN. TO the best of Com rattors knowledge after reasonable Investigation, the execution or delivery Of this Agreement or the Performance by Contractor of its obligations hereunder does not conflict with, Molate, or result In a breach: I) of any law or govemmental regulation applicable to Contracoq Ilii any term or cani of any judgment, order, Or deoee Of any court, administrative All or other gavermnental authority; of, (III) any Agreement or instrument to which Contractor Is part or by which Contractor Or any of As properties or assets are bound, or constitute a default thereunder. City W Fresno poll-Cef Agreement pageg Al 0. No DHganon. Tothe best of contractor's knowledge after reasonable mvownparflon, there is no action, suit, proceeding or inveniglatlw, at law or In equity, before or W any coup or governmental authority commission, board, agency or instrumentally decided, pending Or threatened against Combustion wherein an unfavorable decision, ruling Or finding, In any single ase or in the aggregate. would: 1. Materially adversely affect the performance by Contractor Of its obligetiaM hereunder; 3. Adversely affect the validity or enforceability of MIS Agreement or 3. Have a material adverse effect On Me financial condition Of Contratlop or any surely or entity guaranteeingItontanois performance under this Agreement. E. No Adverse Judicial Decisions. To the best of Contractor's knowledge after reasonable Investigation, there is ed Judicial decision the would prohibit this Agreement or subject this Agreement to legal challenge. F. No legal ProhlbWon. To the best of CommehoYs knowledge after reasonable Investigation, there is no Applicable taw in eNetl 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. Contractors Statements. The Detractors Application and any other supplementary Information submNted to Me Gry, which the City has relied on In entering this Agreement, do not, (1) contain any untrue satememof a marenal fan, or lip Omit M state a material fact that is nexcessair, In Omer to make the statements made, In light of me circumstances In which they were made, not misleading. H. C ntranoeslmieWgl on. contractor has made an Independent investigation gaasfenory to ill Of the cmdii and tlnemstances surrounding the Agreement and the work to be Performed hereunder. Cantranor msnsidered smatters In entering MIs Agreement to provide servkes In exchange for me coSouthSouthmpensation pmvlded for under the terns. of this Agreement. I. AbIINy to Perform. Contractor Possesses the business, profesAonal, and technical erpertlse to Collect, Trani recycle. Process, and 01spose Permitted Materials generated in the arty Contractor possesses the equipment, facilllyllesl, and employee reources required to perform hs obligations under MIS Agro ment. ARTICLE 3 TERM OF AGREEMENT 3.1 EFFECTIVE DATE Contractor may provltle Ne Rcll-0 Con ewer colection, Transportation. RIDI Processing. Compostin&and 0lspesal services authorized bythk Agreement commencing on the Effenlve Date. (my of From Poll-Dif Agreement 0/8/11 Page9 3.3 CONDITIONS TO EFFECTIVENESS OF AGREEMENT The obligation nt (Dy to Permit this Agreement to become effective and to perform Its undertakings provided for In this Agreement is subject to me satisfaction of all Ne conditions below, each of which may be waived, In wriften farm, in whole or In pan oy Cty. A. Amurary of gepresenhtlons. The representations and warranties made In Article 2 of this Agreement are true and correct on and as Of the Effective Date. B. Absence of MpOon. There Is no litigation pending on the EffecLve Date In any court challenging the award or eyecutlon of this Agreement or seeking to restrain or midi. Ifs performance. C Furnishings of Insurance. Contractor has fumbi evidence of the Insurance required by Article 10 that s satufattary to the Clty. D. ENettiveness of One Couna ll Action. The Cry Council action approving this Agreement shall have become effective and all Parties shall have signed the Agreement pursuant to Applicable bw prior to or On the Effective pate, provided that no restraining order of any End has been Issued. 3.3 INITIAL TERM The Initial Term Of Mk Agreement shall commence On the EffeMve Date and conal... In full force for five (51 years, until June 30, 2016. The Term may be extended Pursuant to Section 3A or terminated early In accordance with Section 111. 3.4 OPTION TO UTEND $.Meat to City Council approval, the City shall have the option to extend this Agreement for an addlmor al term of up to five ISI years. If the Gty extends the Agreement, It shall give written notice to Contractor at least one hundred eighty (IN) calendar days prior to expiration of the Initial Term. The Cli written notice shall specify the number of years by whim It elects to extend the Term of this Agreement and the revised Marmon date of the Agreement. Any such extension shall not become effenWe unless Contractor agrees to me extension, In wrltln& at least one hundred filly µ51 calendar daysprior to expiration Of the Initial Term. City of Fresno ROII-0R Agreement page 10 A/B/u ARTICLE 4 SCOPE OF AGREEMENT 4.1 SCOPE OF AGREEMENT "is n exdusve hill granted to Contractor, auNorlaes Contractor to Collect, Transport,Recycle , Proc ; Compost, and all of permitted Mai li placed by Residential or Commercial Generators In Roll -Off Containers for Conettii provided that the Customer has voluntarily arranged for Centactor to provide Collection services. gbe Contact shall be responsible for the following all A. Colli Permitted Materials placed by each Customer In a Roll- Off Container for Collation as requested by Curtgner. B. Providing each Customer, upon delivery of Roll -OH Container, a printed list that speciftes the materials that cannot be placed In the Ali Container ll. e., Haaamous Wastes) and a un of acceptable awardable Materials, Organic Materials, and C&D that may be placed in the Ra16INf Container. C Transporting Colleted Solid Waste to We Designated! Disposal Site and transporting other materials to an Approved Processing Site. D. Furnishing all labor, supervision, vehidq Rel Containers, other equipment, materials, supplles, and all other items and SeMces necessary to Perform Its ohfgabons under this Agreement. E. Paying all expenses related to provision ofservicere required by this Agreement Include, but not limited to, Franchise Fees, taxa; regulatory fees, Collection costs, Transportation costs, processing costs, Dkposal costs, utlllfl etc. E Providing all servicesrequired by this Agreement In a thorough and prgfessomal manner sothat residents, businesses, and the aW ere provided timely, reliable, wurtews and high - all services M all times. G, performing all services In substantial accordance with this Agreement at all times using best Industry Arra the for comparable operations. H. Complying with Applicable aw. I. Performing or providing all other services necessary to fulfill Its obligations under this Agreement 1. DlveTng a minimum of SM M the C&D Call from Disposal. The Diversion rare shall be calculated each month based upon the welghtsof Clint Colleted and Invented. O[y of Fresno allORAgreement Page 11 419/11 K Diverting a minimum of 7014S of the RerytlableMateriah Collected from oisposaC The owersion rate shall be calculated each month based upon the weights of Recyclable Materials collected and Diverted. I. Diverting a minimum of 90% of the Organic Materials Collected from Disposal. The Diversion rate shall be calculated each month based upon the weights of Organic Materials Collected and o ver ed. Me enumeration and specffinuon of particular aspects of senice, mMr, or equipment requirements Shall not relleae Contactor of the duty of acmmpllshing all other aspects necessary to fulfill Its 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 extlusPre. Permitted Materials may be Collected antl Transported by other Persons provided that such Persons do SO In accordance with Ne Cities Municipal Code. Including but not limited apse bllfira ; A. Permitted Materials Collated by Other Non -Allusive Faarr ise Maulers. Permitted Materials Collected by a party that has executed a Non. Exclusive franchise Agreement wW the Gry for Rail OH Container Collection Services. B. Permitted MMer b Collected by CM/. Permitted Materials collected by the Gry's muninpal collection operation Including: Ill materials Collected using equipment such AS Grts and Box, not regulated by this Agreement 121materials ColleRed from City facilities, and special events and venues sponsored by the City, which may be Collettetl In Carts, gins, or Ili Cantainers by the 01 municipal collection operation craps crews. G Dona Recyclable Materials. ReWdable Materials Generated in the City that are Source Separated and donated by the Generator to youth, civa4 chartable, or other nonprofit orgenkrtions. 0. Materials Pained by owner or Ouupi or Rs CgttreRar, Permitted Materials that are removed from any Premises and are Transported to a Disposal Site or Processing Site by III the Owner m Occupant M such Premises, (til by lull -time employee of Owner w OccuWnt that uses the Owners or Cavpant's equipment to transport materials{ of Ilii) by a comab ion or demolition contractor performing wnstruNOn or demolition work al the Prem156, whose removal of the Permitted Materials is incidental to the service being performed laz defined In Seaton 6205(tilml of the aty's Municipal Code) and such contactor removes matedab at no addmonal or separate fee using contraci employees and cantrai equipment. L Green Waste Maferlal Private calleaion Of Green Waste Materlal resulting from landscaping orgardening service Performed by the person call¢Ringsuch materials. Ory of Fresno Roll-0ff Agreement Page 12 4/0/11 F. Other Recytlable MMedak. Private collection by any Person Or company that transports Recyclable Materials through use Of Its own vehIci 1, and receives no compensation for such Gallettionor Transpor-uni n. G. Mmr4b from Public Schools and Older Government FeelMrs. The removel M any materials generated by public schools, rules, the County, or federal facilities (with the exception of those fadlhies subject to 42 U.S.0 Section 6961(all. dA CITY'S RIGHT TO GRANT MULTIPLE NONEXCLUSIVE AGREEMENTS ME Ory may grant to an unlimited number M additional Persons similar ean mountain franchise agreements for all Container Odbod on, Transcortatlon, Rerytling, Protecting; Composting, and Dumoml M Permitted Materals, 6.0 CITY'S RIGHT TO EXCLUDE NEWLY ANNEXED TERRITORY FROM SCOPE OF FRANCHISE The City reserves the right to exnutle temtary that Is annexed Into the corporate limns of the City subsequent to the Effective Date from thesmpe of his franchise. 4.5 AGREEMENT CONSISTENT WITH APPLICABLE LAW This Agreement and scope of this franchise shall be Interpreted to NO comment with Applicable Law, now and during the Term. If future jurist InterPretadom of current law or new laws, regulations, or judicial Interpretations limit Ne ability of due Ory to IawNlly provide for the scope of services as specifically To forth herein, Contractor agrees that the scope of ane Agreement will be limited to Nose bei and materials which may be lawfully Provided and that me Ctty shall not be responnhle for any lost profs or losses claimed by contractor to acme on of monarchy of the scope of the Agreement set been herein In such an event, it shall he the responslNlhy of Contrachor to minimize the financial Impact of such future judicial lnumaretaaiom or new lam. 4.6 OWNERSHIP OF MATERIALS Once Permitted Materials are placed In a It Off Comment for Collection by Contractor, ownership and Ne right to posmion of such materials fiall transfer dlretlly from the CURomer W computer. On a short-term basis nottexceed more than five (5) calenry dar days per year, Omay obtain Ownership Or posseslon of Permitted Materials placed In Me ROTI -Off Container for Collection, fair numerous of waste charecterizabon studies, upon written notice to Contactor M its intent to do so. However, reaming In this Agreement shall be construed as giving the to any inference that [Icy has such ownership or possession unless sum written notice has been given to Cantrattor. Cry of Fresno Roll Off Agreement Page 13 0/8/11 4.7 NOTIFICATION TO CITY OF NON -FRANCHISED HAULERS If Contractor can produce evidence that other Persons are Collecting Permitted Mahal and do net have all to 60 so as granted by non exclusive franchise agreement wttM1 we Oty or otherwise, or in a manner that Is not consistent wish the Ory 's MunitlWl Code, Contractor shall notify the Oty In wrl[hlg, va lnten(10)calendar days o(Contrzttor witnessing suchdi-mmstances. The Contractor'snoticeshall Include the name and telephone number of Ne Person or company Collecting Permitted Materials (It known(, the date the Contractor witnessed the event, the location of the Roll Off Container along with Contractors endenceof the vlolmon of the rights granted bythis non- exclusive franchise. ARTICLE 5 COLLECTION, PROCESSING, AND DISPOSAL SERVICES 5.1 COLLECTION Contractor Is hereby authorized to Collect Permitted Materials from residents and businesses In the City using Roll -0R CanGlne¢ Contractor shall COMM Permitted Mrtemns from Curtwners chat voluntarily subscribe to Or rem,est Sol OR Container Collation services from Contractor. Contractor shall trades its Customers wish a Roll Off Container for Permitted Materials Collection or shall allow its Customers to provide a Roll -Ory Control Contractor shall Cdletl Pe,mltted Materials from Premises as frequently 25 scheduled by Contractor or as muWagi agreed with Customer, but rim less than onee a week for Sedd Waste and Organic Materials Centiliter shall provide requested service M Its Customers and shall charge Customers for ervice at Rates mutually agrtM by Customer and Contractor. Contractor shall Transport Solid Waste Collected pursuant to this Agreement to the Deslgnal Disposal 9h and other materials to an Approved Processing Me than has been selectedby the Contractor and approved by the any. The Removed Processing SON) must be able to demonstrate Diversion rates In accordance with Sections 4.1 and 5.3. Contractor may enter Into contracts with CURwners for CoueRloo sem[es rounded that no case shall the term of such contracts refund beyoTom nd the Teof this ARreem and standard that In the event the Cry terminates hs Agreement the contracts with any and all Customers shall terminate on the termination date of this Agreement. 5.2 PROCESSING AND MARKETING SERVICES A. Prottsslq. Computer agrees to Transport and deliver (I) all US It COIIetu In the Oty t0 the Approved CAD Pool Site, (III all Rerytlable Materials as Collette In the Ory to the Approved Recyclable Processing Site, and (511 all Organic Matadi it Colleen In the City to the Approved Orin Proprogng Slte, Residue hero she UD, Recyclable Materials, and Chang¢ Postal and Composting activities shall be Disposed M by Contractor or Its Approved Processor at an Approved Disposal Site selected by Contractor In accordance with Scratch SA. Contractor selected the Approved Processing SIte(sl and Approved Disposal SRe(sl, which are Identified In Ory of Frame ROTIl Agreement Page lI a/g/11 Exhibit D. Contractor shall permit Or arrange far the they to ini the Approved Processing Sitelsd and Observe operations atanythae duringtbe Term. Contractor or its Approved Procest shall posses all permits and approvals necessary for use of the Approved Processing Stools)in full regulatory compliance. Contractor shall, upon Gy, request, provide or request from its Approved Processal and provide copies of notion; Of violation or permits to the City. Upon request of the City, Contractor shall provide a traded statement from Its Approved Processors) documenting its OPrerslon rate. If Contractor s all to use a Processing Sil that is dlfferert than the Approved Processing SI[e(s) spectfled in Cannot O; it shall request written apwval from the Try slaty(g0) calendar days prior to use of the site and obtain the Curtis written approval no later than Win 1101 calendar dayspnor to use of Me site. 0 Contractor is unable to use an Approved intersect Site due to an emergency Or sudden n unfore closureContractor the Approved Processing Site, may use an alternative Processing Site provided that(I)Ne Contractor Provides verbal and written notice to the City within twenty -four {341 hours M use M an alternative Processing Site, and pp the alternative Processing Site is fully permitted and In compllance With all Applicable laws. The written notice shall include a docalption Of the reasons the Approved Processing Ste Is not feasible and the period of time Contractor proposes to use the ahemaUve Processing Site. Contactor shall use the alternative Processing Site for no more than twenty-four(24)hours without obtalnNg Clty's written approval B. Marketing. The Contractor Or Its Approved Processor shall be reasonable for marketing I Rerygahle Materials, and Organic Mad lals Collected In the are and reversed. Contractor and/or its Approved Processor may call 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 M sales recop s shoving end used to the Clry Nat all C&D, Recyclable Materials, and Organic Materials Crushed are marketed for buyedbg or reuse In such a manner that materials shall be nsidered as Diverted Inaccordance with the Spite regulations established by the Art. All residual material from the Processing arllvl[les that is not marketed for use shallW accounted for as Disposal Tonnage at a permitted Disposal Site No Permitted Maeda] shall be transported to a domestic or forell location If Said Waste Disposal of such material Is its Intended use. Contractor or its Approved Processor shall noduled the Cry, upon written request, with a un M broker/buyers It uses to market C&C, Recydable Materuds, and Organic Materials Diverted. City may audit brokers or buyers to confirm that materials are being Recy[letl and Diuehed from Disposal. If Contractor becomes aware Nat a broker or buyer has Illegally handled Or 0isposed of material generated by the Cry or elsewhere, Contractor shall Immediately lnfarm the aty and terminate its contract or working relationship with such party mmedlatefp C Processing and Marketing Costs. Contractor shall pry all costs weakened with Protestant and marketing M Principal Materials housing payment of any We fees charged at the Approved Processing Sites. City of Fresno Ra toff Agreementpage IS 4/8/11 5.3 DIVERSION REQUIREMENT Contractor shall Di from landfill disposal at least III W%by weight of all C&D It Collects within ]he City, III) 701% by weightol all Rttytlable Materials It COIIMs WI[Mn the City, and di1190%by weight of all Organic Materials It Collects within the City during each control month by Processing, Reryding, or Compostingsame oral) of the C&0, Recyclable Materials, and Organic Materials CalledM, If Contractor falls to meet the Olverslon requirements; stated in the Preceding; paragraph during a calendar month, the City mayterminate the Agreement n accordance with Section 11.5. 5.6 DISPOSAL A. okposal of Solld Waste Colleped, Contractor shall Transport all Solid Waste Collected In the GN to the Designated Disposal Site, which the City spedfles shall be Ne Armenian Avenue Deal in Tramblllry, California. Contractor shall pay all sorts assscated with Transporting and Disposal of Solid waste including payment of any gate fees charged at the Designated Disposal She. g. Dkpoatl of noressmg Residue. Contractor shall, of shall require tts Approved Processor to, Dispose of real from Processing M C&o, Renclame Materials, and Organic Materials Collected within the C", that are not Diverted through Processing activil by Transporting the residue to an Approved Disposal Site specified In Exhibit 0, which Is lawfully authorities to accept such material. C Permitted Sher. Contractor or Its Approves Processor shall only Dispose of materials at a permitted Disposal She that Is In full regulatory compliance. Contractor, or Its Approved Processor, shall beep or confirm all eadding permits and approvals necessary far use M the Disposal S i In full regulatory compliance. Contractor shall, upon request, provide copies of nmkes of violation or permlis to the City. D. lnmpllancewlM RerylaDons. Contractor shall observe and romply with all regulations In effect at the Designated Disposal Site and Approved Dispovl Suits) and wweote with the operator thereof with respect to delivery MSolie Waste, including directions to united Collealon vehicles In deognated areas, accommodating operations and maintenance>ttlNtles, and complying with Haram mus Waste exclusion programs. E Disposal at Approved Site. Contractor, or i6 Approved Processor, ahall not Dispose of such real by deposltlng It on any public or private land, In any rlvv, stream, or other waterway, o In any Sanitary sewer or storm drainer system or -in any other manner aLkh violrt Applicable Deas. Contractor, or Its Approved Interval selected the Approved Disposal Shots). for residue disposal specimen n in Exhibit D. Comraclar shall arrange for One Clry to Inspect she Approved Disposal Slima) and observe Mmtlons at anytime during the Tem. I . MMmodve olspoxl Site. If Contractor, or Its. Approved Processor, slants to use a disponi Sitels) that Is different than the Approved Dlspasd Ste lsl listed In Exhibit o, It shall request written approval from the Oly 60 calendar days pnar to use of the site and obtain the Citys written approval no laterthan 10calendardays Ontario use of the site. City of Fresno Roll-0HAgreemmt Page 16 6/8/11 If Contractor, or its Approved procassor, Is unable to use me APPrwdd oispo al Site due to an emergency or sudden unforeseen down of the Approved Disposal Site, Contractor, or Its Approved Processor, may use an alternative Disposal Ate provided that pl we CPntrMm provides verbal and writes notice to the Cry wltmn twenty-four Cal hours or use or an altemative Disposal Site, and (II) the alternative Processing Site Is fully permMed and In compliance with all Appbcable Laws. The written notice dull Include a description of the ns the Approved Disposal Ste Is not feasible and the term M time Cnntattaq or in Approved Processor, proposes use Me altemasn Dispoal Site. Contactorwe shall e the alternative Dispical Site forno more than twenty-four 1301 hours without obtalnings6y/s written approval. 5.5 BILLING Contractor shall bill all Customers and rolled filings in accordance vdq Contraror-established Rates, which are set In a manner consistent wish provisions of Section 93, The Contractor shall prepare, mall, and collect bills for shall Issue written receipts for cash payments) for CdleNon services provided by Contractor Contractor shall be responslble for dlladmn of payment from Customers with past do, accounts. Contractor shall maintain copies of all billings and recelpts, each In chronological order, for fin (5) fears after expiral or terminatlon of this observers. Contractor shall retrieve and make available to the City copies Of the billings and receipts within five (S) days of the Director's written request for the billings and receipts. The Contractor may, at its option, malntain Mose records In computer form, an crofide,or any other manner a , provided that the records n be perceived and rttdeved for Inspection and vmficatlon In a timely manner. 8.6 CUSTOMER SERVICE Contractor shall maintain a business office within the Coy or wIUIn a reasonable distance of the Cry limits approved by the Dil Me twill olfica shall staff at least one Customer servPa representative capable of accepting payments "As Customers, answering service questions, and salving Customerservla Issues. Contradorshall haw a toll hee Customer service telephone number and shall have staff avallable to answer calls frim at least 8:D0 a.m. to 5:W p.m., Monday through Friday. An answering madiine shall record Customer calls and new messages between 6:00 per and SLOW a.m. ARTICLE 6 STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT, AND PERSONNEL &I OPERATING DAYS, HOURS, AND SCHEDULES A Days and Houn of Collection City of Fresno Roll -Off Agreement Page 17 C/8/ll L Resldentlal Premlms. pellvery or Collection Ma Roll- OR Container to or from Residentlal Plateaus shall Only occur between the mum of 60p a.m. and 6:W P.M., any day of the week. 2. COMr"Am PMmIb Defve"rC011eRlonafo RNi-0R nOinertoorftmCommercial Premises that are 2W feet or less from Residential Premises shall only pour between the hours of 6:00 am. and 6Wp.m., any day Ofthe week. Delivery or COIMCUMn of a Rolldff Carl to or from Commercial Prell that are more than 2W feet from Residential Premises shall only OCmr between the hours Of 5:00 a.m. and ]:W p t.; any day Of the eek. The Director may mairre modifications to hours for denbery and Collection from Commercial Premises to resolve noise complaints. and. N such case, the Director may change me allowable Operating hours. 3. Car ici In the event of an unforeseen tlrcvtRamse, the Contractor may deliver or Collect a Roll Container from RUIdeMlal or Commercial Premises that are 2W feet or less from Residential Premises between the hours of 5:W a.m. and W:W p. m., upon print wrden approval from the Parlor. 0. Failure to Comply. If the Contractarfales to comply with the Collection hours demanded In this f oNoq the Contractor shall pay the Cry Gquldated Damages as desvlbed In Station 11.0 and Fah@I[0. 6.2 COLLECTION STANDARDS 6.2.1 Instructions to Customer Contractor shall InStruct Customers as to any preparation of Permitted Materials necessary prior to placing In the RoILOff Container. Contractor shall, In written form, Inform all Customers as to me acceptable materials Mat ran be Included In the Poll -0B Cantalnerand any unacalatablemandals to be ezcludedfram Collection. 6.3.2 Care W Prh'aR PropeRy Contractor shall not damage move property. Contractor shall ensure that Its employees: 111 close all gates opened In making Collecbans, unless othem'ise directed by the Customer; rye do not army landscaped areas; and 11111 do not club arjump over Mdges andfer ass. City shall refer complaints about damage to private property to Contractor. Contractor shall repair all damage to pnvrte and public property caused by Its employees to Its creul Condition, 6.3.3 Mer"2te M A- MInimWWA&SPI11s. Contractor shall use due are M prevent vehicle of and vehitle fuel franc being Spilled or scattered during Collection and Transportation operaWns. If any terminal Materials are spilled or scattered during Collection or Transportation operations, the Contractor Shall promptly dean up all spilled and ssettered materials. Cry, of Fresno Roll Off Agreement Page 18 A/g/11 Contractor shall not transfer loads from one vehicle to another on any public street, unless It is necessary to do so because of mechanical failure, hat load (Distribution of material In the truck), accidental damage to. a vehicle, or unless approved by the CIA. If Contractor falls to perform wine or all of the requirements described in this Sectlw, the Contractair shall pay the Cry iogri ted Damages as desnlbM In SeRIm 11.4 and Exhibit A. B. Claan-Op. Each Collection vehicle shall carry protective gloves,a broom, and shoved a all times for dewing up lltler and absorbent material for cleaning up liquid spills. The Contractor shall discuss Instances Of repeated spBlage not caused by It with the Customer of the formulas where Spillage Occurs, and Contractor shall report such Instances to City, If the Contractor has attempted to have a Customer stop creating spillage bon Is unsuccessful, the pry wBl attempt, upon notice by the Contractor, to rectify, such situation with the Customer. C. Covering Of Wascs. Contractor shall cover all full Cry Containers at the pickup location Wore Trimurt log materials to prevent Permitted Materials from sampling during Tmrsporroion. 61.4 Noise All Collection operations shall be conducted as quietly as possible and shall conform to Applicable law. Contractor will promptly resolve any Complaints Of noise during the morning or evening boom of the clay to the satisfaction Of the Cindy. In the event M repeat occurrences of noise levels In excess of 75 tlb(A), the Contractor shall pay liquidated Damages in accordance with SMion 11.4 and Exhml k 6.3 VEHICLE REgUIREMENTS A. Ground. Vehicles used to provide services under this Agreement shall he kept in a safe, neat, clean, and operable condition at all times. HConVa pr falls to keep Collection whiles in a safe and unitary condition, the Contractor shall pay the dry Equmated Damages as described in Section 114 and Exhibit A. B. SpetlOatlans. Contractor shall register all vehicles with the Cagliari Department of Motor whites. All such vehicles shall comply wish California Environmental protection Agency (EPA) noise sandwich and air malty reNlations and obberappliabie noise wmal regulations. (1 Vehicle IdentMcattin. Contractors name, foal telephone number, and a unique ldentlfi000n .umber for each vehicle used to provide services under this Agreement, shall be prominently displayed on all vehicles, In letters and numbers that are a minimum of 4 Inches high. Contractor shall not place the 0" lognnn Its vehicles. D. Cleaning and Maintenance 1. Cleaning. Collection vehicles shall be thoroughly washed and thoroughly steam cleaned as frequently as necessary to present a clan appearance of the exterior and Intetlwrompartment of the vehicle. 3. Maintenance. Contractor shall Illi each vehicle dally 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 Cry of Fresno Ra l-0ff Agreement page ly 4/8/11 functions In accordance with the manufacturer's specification and About or in accordance with California High" Pavni standards. whichever are more stringent Contractor shall keep accurate records of all vehicle maintenance, recorded according to date and mileage, and mall make such records avanabm ie to the City upon request to the extent necessary to perform e e pest described in Sections 6.31 and @g, 3. Repairs. Contractor shall repair, or arrange for the repair of, all of Its vehicles and equipment for which repairs are needed because a accident, breakdown, or any other rause, so m to mall all equipment In a safe and operable local COM2ttw shall maintain attvrate source of repair, which mall Include the date/mileage, nature of repair and the signature of a cruntervi mpmvvorthatthe repair has been properly performed. a. Somaga Contractor shall arrange to store all vehicles and ocher equipment in safe and secure Iocatlpnls) In accordance with Cey'sappliceble zoning offulatlons. E. General Vehicles shall be operated In compliance with the CalOomla Vehicle Cede, and all applicable safety and local oMinances. Contractor mall not load vehicles In excess Mthe manufacturers recommendations or limitations Imposed by State or It weight restrictions for vehicles and roads. Contractor shall have ad& COIIethoun vehicle weighed at each Approved Processing Sites or Designated Disposal Site to determine the unloaded weight fume weight"I of the vehicle, and the total loaded weight of earn load delivered to the Approved Processing Sues and designated Disposal site. F. Vehicle lmp¢ on. CRY may inspect veh@les at any time to determine mmppanw with the requirements of this Agreement. Contractor shall make vehicles available W the City and/or Fresno County Health Departmentfor inspection, at arryhequenry Gty reasonably requests. 6.4 ROLL -OFF CONTAINER REQUIREMENTS A. General. All Roll- OB Containers shot meet applicable federal, State, City and most regulations Smothery. i Specifications 1. Prevent teaeage, If the type of materials placed In the container may result in leakage or liquids, Contactor shall take precautions to prevent the leakage of liquctls. In Accordance with Section 17315 of Chapter 3 of ➢tie 14 athe CWHOM a Code of Regulations, Roll -M Conferees Load to Collett garbage and Murrelble materials sector garbage and putresobles mixed weh rubbish shall be non-absorbent, watertight, wonder resistant, durable, easily Cleanable, and shall be designed for safe handling and the mnminment of refuse. i. Pmalslon OF Sufficient Capacity. 1n accordance with Sealon 17315 of Chapter 3 OF Title 14 of the Califamia Code Of Regulations, Comments; for garbage and mbbkh should be of an adequate she and In sufitlent numbers to moon without werlloslng all the refuse that a household or other establishmentgenerates within the designated removal "clock 1 use Of Conallners with less Nan Ten (10) cube YeNr of Caparlty. Roll Conscious; with capatltles of less than ten I10j whit yards may Doty be used forthe purposes of retesting Mo. Gly of Fresno ROIIAR Agreement Page 30 6/8/11 C' "Roll Conhaer ldenMl tan, AT Co rranorymvidm RaLLOff Containers shall prominently display the Contractor's name, Incl telephone number, a unique RabOfl Container identification number, and al list M acceptable materials. As appropriate, Rolil Contain¢ shall be labeled for: Sold Waste, Thrift Materials, Organic Matelots, orC&O. Sucilabeling maybe temporary labeling In the form of magnetic or detaboahle sign If Contractor his TO comply with the provisiorss of thin section 6A, the ComrecIDnhall wV the City ligWdated Damages as described! In Section 11.0 and Exhlblt A. D. Cleanimb Palntil and Malnbnance.. All Rail Of Containers shall be main0alned In a We, none tile, and functional condition. Contractor shall steam dean and repaint all RoIll Containers at least every two years, or more frequently, to present a dean, grMitl free appearance. F. Roll-0FF Container Insp ons. City may inspect ROlbff Containers at any time a determine compliance with sanitation requirements. Contractorsball make Containers availability the City at any frequency it requests. line Cry shall have the right to prohibit Me use of any RollDiff Container that fails to comply with the provisions in this Section 6.4. F. Abandoned Roil OR Contalnen Contractor shall nm Atiandon any Rolll Container out to provide Permitted Materials CAlettlon series under this Agreement, If the Contrzetar Abandons a ContractorearnedRall-Off Container, CRY may remove the Roll-0ff Container and Profsss and Distance d the contents. If the any removes a Rall -0H Container Abandoned by Contractor, the City may charge Contractor for the Cirri cents Incurred removing such Roll-0ff Continuer, iransportin& Processing, and Disposing of Its contents, and/or the cost M during such Rl Container Contractor shall reimburse the Clef far sUN costs action fourteen IMI calendar days of the date Of the Chris i ce to the Contractor for such comps. IF the Contractor does not pay the Involve amount within Randall (14) days, the City shall becwne Me ROTI MI, Container owner if the invoice stated the City's Intent to become the Container owner In letanne of at least 12 point font. Forme purposes of this Sectnon dA.f, •Abmdon' means the following: 1. Contractor's failure to Formwe a Contioaorawned Rol fF Container within five (s) calendar days of receMng a written request from a Customer ler the Cry or within five (s) calendar days after the termination of the customer service agreement between Contractor and the customer, or 2. Contractor's failure to remove a Contractor ownN ROIIOff Container within ten (10) calendar days upon expiration or termination of this Agreement, except in the case where Contractor has been granted an extension of One from If the Agree eat or Comnnor has been granted a subsequent agree mmor ring Control m Cdlett and transport the type or types of materials for which the gollO Container was used pursuant to Mrs Agreement. Cry of Eresel RollOffAgreement Page 21 4/8/11 6.5 PERSONNEL A. General. Contractor shall health so& qualified drivers, maintenance. supenWsory, Customer service, clerical and other personnel as may be necessary to provide the services requbed by tMSAgrtemem In a safe and eRGent manner. B. Driver Quallfl VOM. All drivers shall be trained and Qualified in the operation OF ColleNon vehicles and must have in effeaa said license, Ofthe RaP apna a class, issued by Me California Department of Motor Vehicles. Contractor shall use the Class B Callfomla Department of Motor Vehicles employer -Pull Notice Program' to monitor its drivers faciafety. C. Safety Training. Contractor shall provide suitable operational and safety training for all of its employees who operate Chill vehicles or equlpment or who are otherwise directly Involved In such Collection, Disposal, or Processing. Contractor shall train As employees Involved In Couectmn to mentifv, and net to collect, Hazardous Waste or mtWiwu Waste. upon the Oty's request, Contractor shall Pmede a cope of its safety pollry and safety training program, the name of Its safety Officer, and defrequencyof its tralnings. D. Employee Conduct and Cour . Contractor shall use Its best efforts to en um that an employees Present a neat appearance and conduct themselves In a rqurteaus m Contractor shall regularly train its employees In Customer roumoV, shall prohibit the use of loud or profane language, and shall Instruct Collection employees to Perform Me week as quietly as possible. 4 any employee N found not to he courteous or not to be performing se es In the manner required by this Agreement, Contractor shall take all appropriate rreRNe measures and shall pay Me City Liquidated Damages as described In Section 114 and Exhibit A E Employee IdentNwtlon. Wille performNg services under this Agreement, all of the Contractors employees performing field service shall be crossed in clean clothes and shall wear badges that Include the employee's name and/or employee number, and Conommor s name, az approved by the City. 6.6 HAZARDOUS WASTE INSPECTION AND HANDLING a Responu to Hazardous Waste Ident6led during Colbalon. a Contractor determines that Madrid placed In any Roll Off Container for CalleRlon is a Hazardous Waste Mat may net legally be Disposed of at a Disposal Htt or handled at the Pmcming She, or formal a hazard to Conbattw's employees, the Contractor shall refuse to accept such material. The ContraRp shall contact the Curtomer and request Me Customer to aoange proper Disposal. If the Generator Wood be reached ImmedlIINy, the Ci ntractor shall, bloom leaving Me Premises, leave a tag at least two Inches by six Inches 1]"x 6"I In size, whom, indicates the reason for refusing to Collect the material and hatsa phone number for obtaining lnformalion on proper disposal of the Hazardous Waste. under no tlrtumstances shall Cantreff emplwees knowingly Collect Hazardous Waste. It Hazardous Waste H found in a Noll Off Container that mould possible resift In Imminent danger o Ample Or property. the Contractor shall immediately notify Me City's Fire Department using the 911 emergency number. City of Fresno Polbff Agreement Page 31 a/e/u The tormentor shall notlfy the city M any Hazardous Waste Identified In Polll Cmtalners or left at any Premises within N M1ours of IdeMlflatmn of such material. R. Respome to Nazandous Wags Idenfified M Disposal SIM or Protesting SIM. The Contractor,. or Its Approved Processor, or Disposal Site operator shall provide load N¢kers and equipment operators at the Processing or Disposal di to Identify Hazardous Wastes for storage In teachers, an site, hazardous materials storage mntainer(sh Commerce shall make inspection efforts to Identify and nanfy the Customer. Contractor Shan aoange for re awl of the Hazardous Wastes by persomi haulers in accordance with Applicable Um and regulatory requirements. If the Hazardous Wastes delivered to a Disposal site or Processing site by Contractor before His prep ee Is detected, and the Generator cannot be Identified or fadm s to remove e material after being requested to do so, the Control shad arrarvge for Its proper Dispose. The Contractor may make a good faith effort to recover the net of Discoid from the Generator, and the cost a this effort. as well as the cmt of Disposal shall be urati le to the Generator. C Rnula b S and Record Keepm& ContmRor shall comply with emergency notification Procedures required by Applicable Laws and regulatory, requirements. NI records required by regulations shall he mamilmi ed at the Contractor's fatuity. ThMerecords shaunclude: waste ambers, waste Inventories, mate characterization recoop,mspectate records, Incident reports, and scalping records. 0'.7 NON-DISCRIMINATION Contractor shall not discriminate In the pmmslon of service or the employment m Persons engaged In performance of this Agreement on account of race. calor, natural origin, ancestry, religion, gender, marital status, sexual orientation,age, Physical or mental disability In shall of any Applicable law. 9.8 COMMUNICATION AND COOPERATION WITH CITY A. Communigtlons. If requested, the Contractor shall meet with the OW or Its agent to discuss service issues. 0. Inspection by City. The Chi or its dregnated representatives, shall haw me right to observe and re W Contractor operators, Proposal fiber and Disposal Sites used by Co marmot. and enter Contractors Promises for the purposes of such observation and review during reasonable hours without advance notice. C. Cooperate with ChwAnitlated Studies. Contractor shall cooperate with and sill the Chy or Its agent with the performance of City-Inhlated studies of Permitted Materials such a, but not limited to, waste characterization and camposblon studies. CRY of Fill I UP Agreement Page 33 4/1 ARTICLE 7 RECORD KEEPING AND REPORTING 7.1 GENERAL 7.1.1 MilMeman¢of Records Contractor agrees to U rdim late collection, Information and record keeping and reporting ae0vll ceded to comply ran and to meet the reporting and Permitted Materials programnagement needs of City the Att m and other Applicable Laws, and the mmulneents of this Agreement m This Article is intended to highlight the general naNre of records and reports to be maintained by Contractor, and their minimum content This Anlcle is not meant to comprehensively deme what the cords and reports are to be and their content With the written dlrenlon by or apprOml of Clry, the ecoMs and reports to be maintained and provided by Contactor in accordance wird this and other Articles of the Agreement shall be adjusted In number, formal, or frequency. Records and reporting may be revised to reit¢[ current record keeping and reporting requirements. To the extent such requirements are set out In this and other Ankles of this Agreement, they shall not be moldered lima or necessarily complete. 7.15 Retention of Records Unless RM1erwlse required in this Article, Contractor shall retain all records and tlata required to be malmalned by this Agreement for the Term of ins Agreement plus five IS) Were after Its expansion or earner termination. Records and data shag he in ehranmcglGl cader and readily and easily Interpreted. 7.1.3 Inspection of Records The City, its auditors and other egenn, shell have the fight, during regular business houq fo Impact specific documents or records required by this Agreement or other similar records or«pMs of the Contractor that the City shall deem, at its sole discretion, necessary tovalmte the Erroneously performance provided for In this Agreement The Ory may make copies caftan documents it deems relevant to this Agreement The City shall provide Contactor written notice at leas[ three (3) Leeness Days teem to any Inspection m these remrtls, and Contractor shall honest and make available to the Ciry the requested documents and records at that time. The City reserves the tight to Inspect records for Me pu mem of cudgel the Contractors reports reported Investor level, and fee payments to the City. If an audit conducted by the City, or I% representation, finds III that the Contractor has made any Intentional misrepresentation with respect mthefeesdues tithe Cry(e.g., Fancrie Feesor Mberfeeeduetsthe Ery) In an amount greater than S1p00 or 10% of the fees due to the City during the Pernod covered by the audit, whichever Is greater, or al that the Diversion level Is 5%dlHeren than the Diversion level reported by the Contractor, teen In addition to any other Damages syllable to the ary, Contractor shall reimburse the Cry for the Citirs cash Incurred in the performance of the audit, such reimbursement shall be paid by Contractor, along with any underpaid fees and llquadmind Damages required by Section 114 and Exhibit A, within Rail 130)calendar days of the date the City nnl0es the Cvntmctor of the amount due. Cry of Fresno Rall -Off Agreement Page 24 4/9111 7.1.4 Recordsecurny Contractor shall maintain adequate record security to preserve records from events that am be reasonably anticipated such as fire, theft, and earthquake. Electronically maintained data and records shall beprotetletl and backed up. 7.3 RECORDS 7.2.1 Flnan[Ial and Opxatlonal Records Contractor shall maintain accurate and complete accounting records ainlng the underlyng ima nal and counting data relating to and movi the basis for composition of all revenues associated with Providing Permitted Materials Collection, Transportation, Processing, Rerytllig, Composting, and Disposal services. The account ng records shall be prepared In accordance with Generally Auepted Accounting Principle; (CR P) consistently applied. At a minimum, thefollowing Operational records shall be maintained! by Contractor for City relating to: A. Customer account Information and billing records: 8. Tannage of material Collected by type (e.g., SoIId Waste, Recydable Material, Organic Material, or C&D) listed by Processing Site or Disposal Site where such materials were Mohamed, Where pmsRle, Information Is to be separated by Residential and Commercial Customers. C. Tonnage of Recyclable Materials, Organic Material, and CAD Diverted from Disposal by communes and supPortng documentation. O, Diversion level, which shall equal Tonnage Dlvertetl by Contractor divided by the Tannage Collecttd by Continuum, multiplied by 100, listed separately by month for Me previous quartet Tonnage Diverted shall reflect Permitted Materials processed less residue Dlspased. E Residue levels M Processed or Comported materials. F. Weight tickets from (i) Designated Disposal Site documenting the Tonnage of Sells! Waste Collected within the Cry, and dalivems! to the De9gnated Disposal Site; Ilii Processing Sites documenting the Tonnage of Permitted Materials Collected within the City and delivered to the Approved Processing Sites; and, hall Approved Disposal Sites documenting the Tonnage of residue delivered to Approved Disposal Sites by velsde, date, and time. G. End use and markets for recovered materials. Contractor shall make records available to tat Gty upon request 73.1 Customer Records Contractor shall maintain accurate and complete records containing the number and Twice of accounts served by the Contractor The records shall contain, at a minimum; the Customers name, type of business, phone number, address of Rolloff Container delivery and Collection lacadon, date of delivery and Collection, itemlaed lying of services performed, type of Permitted Material Callen ed, Tonnage Carty of Fresno Rdl-0H Agreement Page 15 4/8/11 Collected, and the amount charged to provide services. The Information shall be provided to the Chy upon ttyuest. 7.1.3 CERM.Defense Records Clry views Its ability to defend Itself against Comprehensive Environmental Respome. Compensation ant Liability Act ICERCLAI, and related litigation as a matter of great importance. Fw this reason, the Gry regards Its ability to prove where Permitted Materials COIIMed by the Contractor are taken for Processing, Rery4ing Compostinb Transfer, or Disposal, as well as where they are not taken, to be matters of comm. Contractor shall maintain, retain and pres cords Which can establish where Permitted Materials Cdletted were Processed, Completed, and DlsposM (and therefore establish where they were notf. Th4 provision shall survive the expiration or earlier termination of this Agreement. Contractor shall malnGm these records for a minimum of cell pal years beyond expiration or earlier termination of the Agreement Contractor shall provide these rewards to City(upon real or at the end tribe record location period) in an organized and indexed manner rather han denoroying or d'rspmingofthem. 7.3 GENERAL REPORTING REQUIREMENTS The format of each orders shall be approved by city. Cmax ttor may propose report formats that are nesponsive m the objectivesforma the agrees t0 mall a copy mall reports and submit all reports on computer dlsa, by email, or by modem in a format compatible with City's software and computers at o addldanal charge. Contrattw will provide a combination statement, under penalty or perjury, by the responsible Copulation official, that the report Wing submMM Is true and correct to the best knowledge M such official after their reasonable inquiry. Contractor shall submit monthly repass within Mean (15) calendar days of Me end of each month. H Contractor does hot submit the monthly reports by Me Mores required In this Al Contractor shall pay the Ury Liquidated Damages as described In Swrion 11.1 and Exhibit A. Contractor shall submit (via mall and a -mall) all reports m: Solid Waste Division Manager CIN of Prison 1335 EI Dorado Street Fremq C, 93706 7.4 MONTHLY REPORT The monthly report shall present Me follmonglnfarmadan. A. Total Tannage. Total Permittetl Materials Tannage Collected by Cenci within the any duringthe previous quarter, listed separately by material hope and by month. B. Diverted Tannage. Permitted Materials Tonnage Cadenced by Contactor within Me Clry Mat was favored during the previous quarter,((sled separatelyby, material type and by month. city of puna Ral Agreement Page 26 6/8/11 C Disposed Tonnage. Permitted Materials Tonnage Collected by Contractor within the City that was Disposed during the Religious quarter, llstetl separately by month. U. Diversion Cal Tonnage Diverted by Contractor divided by the Tonnage Collected by Contractor multiplied by 100, listed separately by month far the previous pull Tonnage Diverted shall reiett Permitted Materials Pmussed less residue Ganong. E. MO. Tonnage generated from construction and demolition Permitted site&, noting the permit umber, the site address,. the Tonnage hauler, the date hauled, and the Ni to wbkh }he material was hauled. F. Disposal and Proposing tomtbm. Contractor shall provide a list of the names and addresses Of where Permitted Materials Widened within the Ciry during the previous quarter was Diverted and (asposed. SuchIPit shall include the amount of Permlttetl Materials Tonnage DlvertvW and/or Disposed at each location during the previous quarter, listed separately by material type and by manor. G. Reverms. Gros (e.g. cash dozins) earned On all Roll OH Container Coll¢Non, Transportation, processing, Recyclln& Composfinb and/or Disposal services provided to Customers within the Clty during me previous quarter, listed separMely by heard. H. Insurance. Updated Insurance ceNfiates. I. Account Information. In table f rmaq the number of Customers within the City bmlrs served and number of Rol Containers servked per month listed by RoILOR Container type Damp are or Compactor), Roll OR Container size, and listed separately by Permitted Material type, and regularly schedule service and unscheduled ba 1115eram. J. CorNaatar CRcers and Spend Members. Provide a lit of Contractor's officers and members of As board of directors (only required with she December monthly report each year, or In the event of a change in the officers or board members). The Cry reserves the right to request additional reports from Contractor, and union City's request, Contractor shall provide iMormation required above for the time period requested by the Clty. it is the desire of the City to trail the above required Information on an ongoing bails throughout the term of this Agreement. 7.5 AS 939 COUNTY SURCHARGE REPORTING Contractor acknowledges that Cis is a party to that gWln AS 939 Memorandum of Understanding with the County of Fresno and various other jurisdictions deed sentry 6, 2009 (the "AS 939 MGU"j, and further acknowledges having re¢Ived and reviewed a CON a the AD 939 MOU. The PaNes agree that Contractor is a 9urlsdfttlun's Hauler", as that term Is used In Part IV, Section H M the A0 939 MOU. Contractor shall wmply with all requirements of Part IV, Section H M the AS 939 MOU thatare appRob(e to alurisdlaiono Hauler, Including but not Railroad submittal of repoR and payment ofthe AS 939 Surcharge (as that term is defined In the AS 939 MOU). Gy 0 Fresno RiffINf Agreement Pi I/S/il ARTICLE 8 FRANCHISE FEES AND OTHER FEES Contractor shall color the fees desmbed In this Section from Customers through Contractor's regular hflill and remit collected amounts ro City on a monthly basis as described in Section 8.5. 82 FRANCHISE FEE In consideration of the exclusive rights provided Contractor hereln Contractor shall pay Franchise hu to the Cry each month equal to IM of actual gross I revenues (e, g. ash receipts) remitted to Contractor by CurtomersfwzeMces provided by Contractor underthiz Agreement B.8 OTHEA FEES The Oh may set homes' additional fees, as it deems necessary . The amount, time, and method of payme and adjustment prod111 s he set In a manner similar to mOm at for er fees described o this Article t 8.0 ADJUSTMENT TO FEES City may adjust rife fees established In this Ahead annually at any time during the Tam of this Agreement. 8.5 PAYMENT SCHEDULE AND LATE FEES On or before the 300 day of each month during the Term of this Agreement, Contractor shall remit to City Franchise Fees and other fees as counted In this Article. If such momenta Is not Paid to the Ory on or before the Doth day of any month, Contractor shall pay, in addition m the amount owed to Oty, 2% of the amount swung for that month; plus an additional 2% del an any unpaid balancf for each fdlowingthlrty (301 calendar day period the fee remains unpaid Each monthly remittance to City shall beamnmpanied by a statement Ilemlzingeach fee paid; detailing variational of all fees; divingaaual gross revenues (e.g. cash receipts) for the monthly period wllected from. all operations conducted orpermine i by this Agreement, and slating the number and site of Containers serviced by Contractor for me monthly pedotl. Each Rmltlance including all supporting documentation shall be pmece t to Attn: City. Controller. Flnana Department Croy of Fresno iFFO Fresno Street Fresno, CA 93]31-3624 City of Fresno goiblf Agreement page a a/8/1a 8.6 OVERPAYMENT OF FEES If Contractor believes it has paid Franchise Fees or other fees as punctured in this Article, In excess of the fees clue to the City, Contractor may submit a request for refund to the Director . If proof of overpayment Is satisfactory to the Dvedcr, the (hector shall admorce the City to refund the overpayment to the Contractor, Contractor shall not apply any cherpaymem as a credit against any Franchise Fee or other amounts payable to ♦he Ciry, unless specifically authorised to do so by the Dlrettorinwrting. 8.7 NONi FEES; AS 939 COUNTY SURCHARGE Pursuant to sei 9.5, Contractor shall pay the County of Fresno an All 939 surcharge as applicable In accordance with the All 939 MOO, ARTICLE 9 CONTRACTOR'S COMPENSATION AND RATES 9.1 CONTRACTOR'S COMPENSATION Contractors compensation for performance of all Its obligations under this Agreement shall be: (I) actual Rate revenues Paid to Contractor full cash once pts) by Customers that obtained Contractors Collection services less fees dues to the Ory In accordance inch Article 8, and pp revenues generated by the sale of Collected materials Diverted from O spool. Coninttons compensation provided for In this Artide shall be the full, entire, and complete compensation due to Contractor pursuant to this Agreement for all labor, equipment, materials and supplies, Proceraing, fnmpicei and Disposal fees, regulatory fees, One fees, taxes, insurance, bonds, overhead, operations, Prof and all other things necessary to perform all the services in the manner required by this Agreement. If Contranar's man are more than Contractor's compensation, Contractor shall not be compensated for the difference In casts and revenues. If Contractors poen are less than Connors compensation, Contractor shall retain the difference. 9.2 CITY'S RIGHT TO SET MAXIMUM RATES The Ory reserves the right to establish maximum hates for PermMed Materlds Collection services provided under this Agree ent In the event thaC (a) there are three or fewer companies holding no exclusive franchise agreements for Collection of Permitted Materials, or Ib) me Rates coupon by the companies holding non exclusive francMse agreements for CDlkctlon of sentenced Materials are no longer comparable to Nose of other)urisdictlons, as Osumi determined by Ory. fftbe City Nooses to exercise Its right to set maximum Rates, City shall nmlty Contractor at least fall calendar days pont to the daze that maximum Rees became eH¢Nve. In So& case, ON will set maximum Rates with Orygf Fresnolbafl fAgreement Page 29 41 consideration of reasonable and necessary costs for Collection, Processing, CompostlnR and Disposal and with the Intention of sMmg maximum Rates that will enable W Ilia , including the Contractor, that have executed Non-Extloslve Franchise Agreements with Ne Clly bar Roll -Off Container Cdlettlon Services the ability to recover reasonable and necessary wstsand a reasonable profit. 9.3 CONTRACTOR'S RATES Contractor shall set the Rates it charges itsCustomers for RdlOF Collection services. The Command's Rates shall not exceed Cary -established me nc um Rates, If the City exercises Its rights under Section 9.3. ARTICLE 10 INDEMNITY AND INSURANCE 10.1 INDEMNIFICATION Contractor shall Indemnify, tlefentl with demand acceptable to the Ury, Protect and hold farmers Me Oily and each of Its expert, officals, employees, factories, and agents (collectively, Postponed) from and against all claims, damages (including but not IImNM to ipepal, presentimental. natural resources and punitive damaged, injurkR co es, (Including without limit any and all response, remedladon and prooval opi losses, demands, cents, (lens, Ilabllltles, dof action, suits, legal or administrative oses proceedings, Interest, Few, charges, pena dens, and expenses (Including wlthout limit attorneys' expert witness fees and mats Incurred innection defending palmier any of the foregoing or in enforcing this Indemnilyf, (mllettivelyo"�Damages"I w of any kind whatsoever paid, Incurred or suffered by, or asserted against, IndemnRews arising from or attributable to the acts or omissions of Contractor whether or not negligent or corrosion culpable, In connection with or related to the Performance of this Agreement, exapl such loss or damage which was caused bethe sole negligence or willful misconduct of the City. Contractors dory to defend and indemnify hertin shall include Damages adsing from or attributable to any operations,repair, cleanup or Modification, or other plan pegartlled of whether undertaken clue to gov ntal attionl concerning any Haaardous Waste Collected In the City. Contractor shall he required to Indemnify the M for the tend for any More; arising from Me Prmewi Comystog, or Disposal of Permltdtl Materials, including, but nm limited to, claims arking under he Comprehensive Environmental Response, Compensation and liability Act (CERCIAf. The foregoing isnended to operate a n agreement to defend and indemnify and hold harmless indemnities to the Cap extent permitted for Ilabillry pursuant to Saturn 10i of CERCIA, @ JI section 9601 and California Health and Safety Code SeNon 35364. In modern, ContnRols duty to defend and intlemnify herein Includes all fines and/or penaltles Imposed by the California Department of Resources Reclai and Recovery, subject to the restrictions set forth N Public Resources Code Section 4 59.3, If the requirements of the Act are not met by Me Contractor with respect to Me Permitted Materials Cdlecurd under this Agreement, and such failure is clue to ContraMr delays In proNtling information that Prevents Contractor or City from submining reports required by too Ado a timely manner. Career Fresno Rail Of Agreement Page 30 4191 I'll provision will survive the expiration or earlier nomination or this Agreement and mail lice be mdstruM as a waiver ofrights by Ory to conblhution or Indemnityfrom third parties. 111.2 INSURANCE 1a.x1 minimum Lnceof hourame Coverage man be at least as broad as: A. Insurance Services Office Commercial General Liability, coverage. 1. personal Injury 2. Contractual liability B. Insurance SeMtts Office covering Automobile Llablllty, code I -any aurae, A. Wmker's Compensation Insurance as moduli by the Later Code of the Some of Callfprnla and Employers Llablllty Insurance. B. Such other insurance coverages and limits as may W required by the CIW 10.2.2 minimum Unni W Insurance Cuntractorsmu maintain limits no lessthan: A. General uabillly: $1,000,000 each occomence for bodily injury and property damage; $1,WGODD for personal and advertising Injury; $2,001 products and completed operations aggregate, and $2,1100,00t) general aggregate. MCommercial General Oainflryinsuranceorother form with a general aggregate liability Is used, either the general aggregate limit shall apply separately to this project/Ipratlon or the general aggregate limit shall be twice the reduced occurrence limit. B. Aulomobilellabillry:$,(K oper acddentfm boilly Injury and property damage. C Workers Compensation: Workers' compensation limits as required by the labor Code of the State of"Womla. 0. Employes s tiabllltyt $1,011pLW each accident for bodily injury. $1,000,00 disease each employee. 51,000,000 obscure policy limit E. Pollution Legal Uablllry: $1,CW,oW per claim/occurrence and $2,0(l aggregate for bodily Injury, property damage, and remedladpn of contaminated she. 10.2.3 Deductibles and Sell Insured Rate a rays Any deductibles or self retenimm must be declared to and approved by the Ory. At the option of the Ulf, either: the insurer shall reduce or eliminate Such deductibles or sdansured retentions as respects the City, Its officials and employees; or the Contractor shall procure a bond guaranteerl payment of losses and related investigations, claim administration and defense expenses. Clry of Force Roll -OR Agreement Page 31 9/8/11 10.2.4 cher Insurance Pool The policies are to col or be endorsed to contain. the following provisions: A. General liability and Automobile LiabilityCoverages 1. The City, Its ofllaech aRciak, employees, agents and volunteers are to be covered as additional imureds as respects; liability arising out of activities Conformed by or on behaN of the Contractor; products and completed operations of the Contractor; premises owned, leased or used by the Contractor; or automobiles owned, leaned, hired or borrowed by the Contractor. The coverage shall contain no special limbaeons on the scope of prpir all to the Cry, its officials, employees, or wmnteers. The automobile liabuity 6 endorsed to contain MCAgocoverage. 3. The Contractor's Insurance Coverage shall be primary Insurance as respects the Cty, M Officials, employees, and vc unteers. Any insurance or self Insurance maintained by the City, its officials, employees, or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 3_ Any failure to Comply with reporting proyslons of The pWlcies shall not affect ceverage provided to the City M officials, employees, or volunteers. 4. Coverage shall state that the Commences Insurance shall apple separately to each Insured against whom dorm is made or suit 6 brought, except with respect to the limits of the Insurer's hablllty. lk Aud i Compensation and Employers LIatiIINy Coverage. The Insurer shall agree to waive all rights of submigatlon against the Cty, Its officers, employees, and volunteers fpr losses arising from Werk performed by the Contractor for the CAP C. All Coverages. Each Insurance polfq required by this clause shall be endorsed to state that Coverage shall not be suspended, shifted, canceled by either party, reduced In coverage or In Imrts except after 30 calendar daysprior wrmer notice N commit mall, return receipt requested, has been given to the Cry. 1i Atteptablllty nl 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 wish a mtlng In the mosvecent edMon of Si Insurance Reports of size Category Vll or larger and a rating clowil on of A or better. 10.2.6 Vershationol Coverage Contractor Shall furnish Contractors insurance agent a ropy of these spetl cations, and tllrcet the agent ro provide the City with certificates of Inwrance and with original en forsemeri affecting coverage required by this clause Issuance of eocurcentavon Indicates the Contractors Ivurance mmplles with these provisions. The Certificates and endorsements for earn Insurance policy are to be signed by a Person authorized by that insurer to bind coverage on its behalf. The cenlficates and endorsements are to be received and approved by the City before work Commences. The Cry may require Complete, cei copies of all required Insurance polWeS Manythan, C1ty, of Fresno RAWIFf Agreement Page 32 4/11/11 10.2.7 Required gntivsemeMs A. The Workers Compensation policy shall contain an endorsement to substantially The following form. "IFIrTy calendar days' poor will notice shall he given W the all of Fresno In the event of cancellation, reduction in coverage, ornon renewal of arts policy." Olrettarof Public Wines Clay of Fresno 2600 Fresno Street Fresno, CA 93721-3620 B. The Commercial General liability, Business and Automobile Liability, and Pollution Legal Llablllty policies shall contain mdorsemm[s In substamlally the following form: 1, "Thltry calendar does' prior allow notice shall be given to the Pty of Fresno In the event of cancellation, redurron In coversge, or roll renewalof this purioy" mrector of Public Lilllllea Cory of Fresno 26M Frain Street Fresno, CA 93721-3620 2. 'The Cory of Fresno, Its officers, employees, and agents are additional Insureds on this ponce 3. 'This melt' shall W considered primary Insurance as respects any other valid and collectible Insurance maintained by the Clty of Fresno, including any sell Insured retention or program of seWnsurance, and any other such insurance shall W considered excess Insurance only 6. "Inclusion of the Cary of Fresno as an Insured shall not affect the City's rights as respects any claim, demand, suit or judgment brought or recovered against the Contractor. This"Urry shall protect Contractor and the pry In the same manner as though a separate policy had been Issued to each, but this shall cot operate to increase the Contractor's liability as set forth in the policy beyond the amount shown or to which one Contractor would have been liable of only one party had been named as an Insured" 20 Z-9 Delivery of Proof of Coverage Simultaneously with the execution of this Agreement, Contractor smil furnish the Clty, Rrtifl of each policy of Insurance required hereunder, in form and subztlnm satisfactory to pry. Such ertaFlotes shall show the type and amount of manage, effective dates and dates of expiration of Polemic and shall have all required endorsements. If the Crry requests, copies of each "Icy, tmemer with all endorsements, shall also be promptly delivered City. Renewal certificates will be furnished annuatly to Clry to demonstrate maintenance of the required coverages throughout the Term. Flux of Fresno ROIIAR Agreement page 33 4/8/11 10.2.9 Gal Insurance Reyulremenh A. If any services are delegated to a Subcontractor, the Contrartorshalbequire such Subcontractor to provide statutory Workers' Compensation Insurance and employer's pabillry Insurance for all of the Subcontractor's employees engaged In me work in accordance with Sections 10.2.2.0 and 102.2.D and 102.4.11, line liability Insurance required by Seri 10.2.2.A shall over all Subcantramors or the 5mcontratter must furnish evidence Of Insurance provided by it meet, all of the requirements of this Section 103, IS. If at any time during the life of fine Agreement of any exteroon, Contractor or any of Its Subcontractors fall to maintain any required Insurance in full Anne and effect, Contractor shall be In breach of the Agreement until notice Is received by Off that the required insurance has been restored to full force 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 use for Cry to terminate this Agreement No action taken by Clry pursuant to this Section shall In anyway repave Contractor of its responsibilities underthis Agreement. C IDe Contractor shall comply with all requirements of the Insurers Issuing policies. The carrying of Insurance shall noffelleveCommethrfrom any obligation under this Agreement. Ifamoblm racreeding the amount of any deductibles or self -Inured reserves is made by any third Person against the Contractor orany Subcontractor because of any o related to this Agreement, the Contractor shelf promptly reportMe facts In wrong to thelnurance artier and to the City D. The Commercial General pabilky, Automobile liability, and Pollution Legal Usably insurance policies shall be written on an -occurrence,- rathttthan a'Claims made" basis. If Contractor is unable to purchase Pollution Legal Liability Insurance an an Occurrence Form and must purchase such Insurance on a claims made form: 1. The "Petro Date" must to shown, and must be Wore the effective date of the Agreement or the commencement of work by Contractor. 2. The poGry shall be endorsed to provide net lass than a 5 -year discovery period This requirement shall urriveeaplratlon discrimination of the Agreement. 3. If coverage Is canceled or non renewed, and not replaced with another dalms-made policy farm with a `Retro Date` mum to the effective date of me Agreement, Convector must purchase "extended repral coverage No a minimum Of 5 years fallowing the expiration or temnnatlon of Agreement. 4. A copyof the claims reporting requirements most he submitted to Ciryfor review. S. those mouirementsmall survive expiration interminatiOO Of this Agreement- City greement Clry of Fresno Rolf OR Agreement Page 34 4/8/11 ARTICLE 11 DEFAULT AND REMEDIES 11.1 EVENTSOFDEFAULT Each of the follOwing shall constitute an event of default("Event of Debra it' Ideal A. CgntmGor falls to perform Its obligations under they Agreeor future amendment to this Agreement, inclul but not limited to, Cantra ter's failure to pay Franchise Fees and other ON fees In accordance with Article 9 of this Agreement, and fie breach continues for more than 10 Business Days after written notice from the Oty for the corrmlan thereof; B. Ommal failure to Given 50% of the Cal ]a% of the Recyclable Materlals, and 906 of Organic Materials Collocated in the OW as required by Shaman 5.3 of this Agreement after Contractor k given an opportunity to remedy the nonperformance as described in SMion 115; C Any representation, warranty, or disclosure made to City by Contractor In connection with or as an inducement to entering into this Agreement or any future amendment to this Agreement, which pmv6 to be false or misleading In any material respect as of the Fre such reprecoommon or disclosure Is made, whether or not any such representation, warranty, or disdasu a appears as part of this Agreement, D. There isar allachment (other man a ora-judgevy ment aftadval of, or laffecting possession on, the operating equipment M Carma foq Intluding without limit Its vehicles, maintenance or office fatllltiq or any partHereof of such proportion as to substantially Impair central s display to perform under this Agreement and whim cannot be released, handed, or Otherwise Ilhed WMIn Ad hours excluding weekends and Holidays: E. Contractor Tdes a vital pell0on far 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 poi essms by ar er, llquldator, assignee (other Man as a pact of a transfer OF equipment no longer Usefulto Commador or necessary for this Agreement,, trience, (other than As Usua lty for an abllgatiw under a daE of hard, mvodiao sequestrator jar similar offical) of Ilse control for any part 0 Contractor's operating assets or any substantial "M of Dentinal property, w shall make any geneol assignment for the henelh 0 Central creditors, or shall fail generally to Fully Contractar's debts as they became due or shall i any action in furtheranceof anyaf the foregolog: F Acvan having jurisdiction shall enter a decree or orderfor relief In respect of the Connector, In any involuntary case brought underany bankruptcy, Imadvenry, debtor rellef. or sirl law now orhereafter neReq or Contractor shall consent to or shall bit to oppose any such proreedlny or any Such court shall enter a decree or order appointing a Musever, liquidator, assignee, Mstaaian, [mese, sequestrator (or similar official) of the Contractor or for any part of the Contractor's operating equipment or assets, or orders the winding up or liquidation of the aiofContractor; Oty of Fresno Roll-0ff Agreement page 35 0/11/11 11.2 RIGHT TO TERMINATE UPON DEFAULT Upon a default by Contractor, the Gry may terminate this Agreement witMn 10 calendar days Of the default but n0 later than 18o calendar days after the default. Such SmearMlon Well be effective 10 mlendn days following the Clhns written notice to Contractor, and Such termination shall be effective vai the need for any heai suit, or legal action. 11.8 CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE We City's right to terminate the Agreement under Section 11.3 is not exclusive, and the City's termination of the Agreement and/of the Imposition of Uquldated Damages shall not example an election of remedies. Instead, these rights shall be In addition to any and all other legal and equllable rights and remedies which the City, 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 granted by City In the Contractor, the remedy Of damages for a. breach hereof by Contractor 6 inadequate and City shall be entitM t0 InluMlve relief. 11.4 LIQUIDATED DAMAGES A. General. The Parties find that as of the time M !fie execution of this Agreement, It is Impractical, If not Impossible. to reasonably Amertaln We extent of damages which shall be incurred by City as a result of a breach by Contractor of Ib obllgatlons under Nis Agreement. The factors relating to the Impracticability of ascertaining damages income, but are not limited to, the fact that: III substantial damage results to members of Ne public who are denied Sevices or denied quality or reliable service; llil such breaches cause Inconvenience, anxiety, irradiation, and deprivation of the benelib of the Agreement to Individual members of the general public for whose bereft this Agreement exists, In subjective ways and in varying degrees of interelry which are Incapable of measurement in predne monetary terms; Bill than services might be availahie at substantially lower colts than alternative xrvkas and the Onetary lass resulting from denial of services or denial of quallry, or reliable services is Impossible to calculate In gree M em monetary terms; and Uvl the termination this Agreent for such bleaches, and other Will are, at bat, aeans of h,mre correction and not remembers which make the public whole for past breaches. m B. Silvia Perfomu Standards; Uquica ed Oamaga Tor Failure to Meet Standails. The Parties further acknowledge that consistent, reliable III Collection, Pm . cepar and Disposal service is M utmost immortanatoOnly and Nat Chy has considered and felled un Contractor's representations as to ler quality Of sei commitment in executing this Agreement me PadiarecognlzeNatsomequantMed#andaNsofpertnrmanceareneceuary and appropriate to ensure consistent and reliable service and perlorm w. The Partly former recognize Nat If Connector fails to achieve the Performance standards, or falls to submit required documents In a timely manner, City and Its residents and businesses will suffer damages, and that it Is, and will be^impracticel and extremely difficult t0 attertaln and determine the exact amount of damages that Cry AIII suffer. TherMore, without prejudice w City's right to treat such nonperformance as an event of default under N6 Article, the Parties Cmy M Friend Roll -0H Agreement Page 36 4/8/11 agree that the tiquldated Damages amounts established In Exhibit A of this Agreement and line following Liquidated Damage amounts represent a reasonable estimate of the amount of such damages considering all of the circumstances am cumstances existing on the Effective Date of this Agreement, including the relationship of the sums to the range of harm to pry Mat reasonably could be anticipate! and the amicication that Arcot of actual damages would be cosily or Impractical. Contractor agreesto My (as Liquidated Damages and not as a penalty) the amounts set forth In the Schedule of UsuitlalM Damages, Ex l A. City may determine the Octvnence of events giving rise to Decidable! Damages through the observation or its been employees or sessional or Imat esdgfon of Complaints by Customers, occoW tib, and Generators. Liquidated Damages will only be disposed after ontractor has been given the opportunity but failed to rectiy the damages as desv0eb In this Agree stir. Before assessing Liquidated Damages, CNy snail give Contactor notice of les intention to da AN. me notice will Include a brief description of the mddengn)rad/w non cedorm . me City may review land make copies at 6 awn expense) an lnfonnatlon In the pns maidn of Contractor relating to pull and win perform , City may, within 10 calendar days after issuing the notice, request a eetfingwith Contactor. Ory may presentevidenee of non-performance In Darling and through testimony of Its employees and others relevant to the lncident)s) and non-performance. City will provide Contractor with a written explanation of its determination on each ingdl and non performance phor to iuthorlaing the asmslment of Liquidated Damages under MIs Sector L14. The decision of GN shall be final and Cry shall not be subject to, or required to exhaust, any further administrative precious. C AMouM. Cry may assess Uquldated Damages for each calendar day or event, as appropriate, that Contractor Is determined to be liable In accordance with this Agreement in the amounts specifietl In Exhibit A subject to annual adjustment deunbed below. The amount M incubated Damages spe[ibed In Exhibit A shall be adjusted annually an the anniversary of the Effective Date. The adju4ment shall be rounded to the nearest sent. Liquidated Damage amounts shall be adjusted to coal changes In the ConsumerPdceIndex- MIUrban Consumers iCPFul compiled and published by the U.S. Department of Labor, Bureau of tabor Statistics or its successor aill using the followNg Bureau of Labor Statiami parameters. • Not Seasonally Midled • Area- los AngelesANpside-Drange County, CA hem -All Items • Base Permit -198b80.1N lbeformula for annual adjustment is as follows: Adjusted Liquidated Damage Tlrervmnent Uquldated Damage Amounts Amount mon current CPI -U/previousld-month CPIL Cry MFral Rci Agreement Page 37 4/8/11 For example: Current usual Damage Account =$15100 Most recently published Index uanuary x0101=224.610 Index opposed 12 months prior to most recently published index uanuary 20091=220A39 Adjusted uyuldated Damage Amount= $150,00x1224.630/220.7191 -S152.µ If the GI -0 Is discontinued or revised during the Term by the Drifted States Deparament of Labor, such other government index or computation with whim 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. Turing ofPo and. Contractor shall Pay any Liquldatetl Damages mosped by Ory within 10 calendar days of the date the topical Damages are assessed If they are not Ford within the 1"ay period, City may order the Demarcation of Ne rights or "franchise" granted by this Agreement 11.5 DIVERSION NONPERFORMANCE If the Contractor's Diversion level Is less than Still for C&D, less than ID%for Recyclable materials, and/or less than 9094 for Organic MMends COIIMed In the CI1y Fora monthly reporting period, the follgwldgsteps shall befollosed bytbe City and Contractor. A seaming. The Cox shall Issue a writteowaming to the Contractor wlMln 30 alendar days M receipt of the Contractor's monthly report documenting are WveNon level for the monthly reporting perlod. The warning notice shall modify Ne amount of time (i.e. "conMlan per ci the City grantsmeContractor to Improve Its performance and meet the Dlversian requirements defined in Section S.A. D. Op ftnity to Improve Performance The Contractor shall modify Its Coleman, Processing, Diversion, and public etluatlon and outreach programs (subject to the Clry's approval) to Improve the Dlvenion level. At me end of the Connote petlod, Contractor shall submit a written report to the City identlfying the Divined level and providing the supporting ornamental If the Oly mmormines that me Diversion level ready or exceeds Diversion requlrements defined In Section 5.3, the Contractor shall continue to perform aeMces in such a manner as to maintain or improve me Wwwre on level and the Ory, shall waive In rights to proceed with steps outlined in submtllons C and D of this Section 11.5 during the remainder of men cunentrepie ing period. C. Ileuldeted Damages. If the Contractor falls to improve the Diversion level sa that It is equal to or greater than Diversion requirements deflnetl In Seaton 5.3 by the end of the mrrecrom period granted In subsection A of this SecOpn, the Gry may levy, and Contractor shall pay, uquldated Damages described In Section 11.4. D. Tmminatlan of blue Agreement. If Contractor's falls to achieve a Diversion level that equals or deeds Diversion requirements dented in Section 53 within six months of the date the Ory levied Unrelated Damages, the failure to meet the Diversion requirements defined In Section Ciry of Fresno Iti Agreement Pagirm 4/a/11 5 shall be considered an event of default and the City may terminate the Agreement In arcarmance with Section 112. 11.6 CONDITIONS UPON TERMINATION In the event this Agreement is terminated under the previsions Of this Action,, the following conditions shall be effective: A. Prohibit DAWN Collection Services. Contractor shall have no right or aommy to engage in Roll gf Collection services in the Chy for a period of five years from the data of termination. After five aus years, should the Contractor provide proof that the event ing the Contractor to default under this Agreement has been correcred, the Contactor may reapply fee a nom exiduslve ROIbIXf Calectlon service franchise, and the City, at fine sale and complete discretion of the Ciry, may reinstate the Contractor based on review of its reapplication. B. ContlnuinguablWes. Contractor shall remain liable to the Cry for: 1. Fees due in accordance with Article 8chat would otherwise be payable by the Contractor. 2. liquidated Damages abeaed pursuant to 5ettlpn 11.6. 3. Reports repaired by Article T for ROltOf Wlemmm attivies performed by Contractor up to and Including the date of termination. 4. Indemnity obligations under Section 10.1. S. broil verb Ing and retention obligations under fathom 2.1 and 7,2, C Release Curtamers and Generators ban ObRial ns. Contactor shall allow PermlttM Materials Generators served by Contractor to orange for permitted Materials Collection servlres whh a hauler supported to perform such services, without Pirelli gasify for breach Of any answers between Contractor and Its Cuslamers or Generators. D. Remove Ill Containers Contractor shall remove all of Computer's RoIIDff Containers from Al of Commissions Collection locations and shall property Rttyde, herself, Compost, or Dimmay of permitted Materials In such pollORConditions. ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES 12.1 RELATIONSHIP OF PARTIES The Parties intend that Contractor shall perform me sellas required by this Agreement as an independent Contractor ngaged by Orrantlrw nafflce employee oltbe Cloy, notes apartner a,, Or joint samurai with, the City. No employee or agent ofContractormail be, or ahall be deemed to Chy orFremo Roll -OX Agreement pal 4/8/v be an employee or agent Of the City. Eaczpt as etpresly provided herein, Contractor Shall have contml over the manner and mem sofnduchng the Rai fOff Conta in IS Cnlleradon, Transportation, Processing, getydin& ComposWg,and Disposal services peetormed under this Agreement, and all Pers ons performing such Services. Contactor shall be solely responsible for the acts and omissions of its Officers, employees. Subcontractors, and agents. Neither Contactor nor Its officers, employees Subcontractors and agents shall obtain any 61 to retirement benefits, worlery compensation burl or any other benefl6 which Same to City, employees by Wase of their employment with Ne OW 12.2 PERMITS AND LICENSES Contractor shall Obtain and maintain, at Contrattons site cost and espense, all permits and licenses applicable to Carnations operations under this Agreement which are resident by any governments agen[y. 12.3 COMPLIANCEWITNLAW Connector shall; M all times, at its sale cost, comply with all Applicable laws. 12A GOVERNING LAW India Agreement shall be pro med by, and construed and enforced in accordance with, the laws of the State of Callfornla. 12.3 JURISDICTION Any lawsuits between the Partles arising Out of this Agreement shall be brought and concluded in the courts of Fresno County In the State of California, which shall have eeduslve jurisdiction over soon lawsuits. With respect to venue, the PaNes agree they this Agreement Is made In and wlll be performed In Fresno County. 12.6 BINDING ON SUCCESSORS The provisions M this Agreement shall Inure to the benefit to, and be binding on, the successors and permitted assigns ori Parties. 12.7 ASSIGNMENT Children Parry Shall assign its rights nor delegate or Otherwise transfer its obligations under this Agreement to any other Person without the prior wrinen consent of the other Party. Any such smognmmt made without the Cement of the Other Perry shall be vtitl and the allempted assignment Use of Fresno Rolloff Agreement Page All shall constitute a material breach of this Agreement. Under no circumstances shall any assignment be considered by from if Contractor Is In defauh at any time during the penpd of wmideralim, 13.3 PARTIES IN INTEREST Nothing in this Agreement, whether express or Implied, Is Intended m confer any rights on any Persons other than the Parties to It and their reprexntatives. successors and dernmed assigns. 13.9 WAIVER The waiver by armor Party of any breach or neremen of any amounted of this Agreement shall not be deemed to be a waiver of any breach or wolation of any other Prov6lon nor of any subsequent breach Of violation of me same or any other provision. The subsequent acceptance by etther Parry of any monies which become due hereunder. shall not be deemed to be a waWer of any pre evening o concurrent bread or violation bythe other Parti any provision of Agreement. 15.10 NOTICE PROCEDURES All notices, demands, requests, proposals, approvals, consents, and either communications which this Agreement recruit authorities or contemplates all, shall be in willing and shall either be personally delivered to a representative of the Parties at the address below or deposited In the United States mail, fielders posbge Prepard, addressed as follows: A. ifto C9: Public UtllMes diameter Oty of Fresno Win iremo St., Rmm 3065 Resent, fA 93721-3624 B. If to Contractor: �\IG'46 P>oK 0 '111 The address to which mmmuntrauone may be delivered may be changed from home to dare by a notice given In accordance wall this section Notice shall be deemed given on the day It is personally dervered or, If meted, three rest days from the date Itis deposited in the man. cty of Fresno Roll off Agreement Page 41 4/g/11 11.11 REPRESENTATIVES OF THE PARTES References In this Agreement to the 'C4' shall mean the OIY Council and all salons to be taken by the Cry shall be taken by the Ory Council except as provided tol The Ory counsel may delegate, In w mrsit, authodry to the Director and/or to other City Offir and may permit such officials, In turn, to delegate In writing some orail of such authority to subordinae officers. The Cpntrancor may rely upon actions taken by such delegates if they are within the scope Of the aulhodry propedv delegated to Nem. The Contractor shall, by the Effenlae Date, designate in wrRing a responsible officer -who shall sense as the representaVveof the Contractor in all matters headed to the Agreement and shall Inform the GTy in voting of such deslgnMlcn nor Of any Ilmitatiom upon his or her authority to bind the Conttxtor. The City may rely upon action taken by such conignaletl representative as actions of the Contractor unless they areoutside the coupmortality,e of the mortality, to him/her by the Contractor as mmmunicalMM Own 13.11 CRIMINALACTWIW OF CONTRACTOR 12.13.1 cr<mmal ActlWry For Wrpmeof MisSesl hlminal Activity shall mean any of the following events or no:umAaner A. Contrail The entry against any Contractor Party or Its officers, OF a criminal conviction ora Permanent mandatory or prohibitory Injunction from court, munldpallry, or regulatory agency of compe nt jurisdiction, based on acts taken In his or her oMml capacity on behalf of Contractor all respect to: 1. Fraud or criminal offense In connection with obtaining, anefidling to obtain, pmcuring or performing a public or private agreement related to municipal SoW Wage services of any kind (Including Collection, Transportation, transfer, Processing. Recychrr& Componing or Disposal), Including this Peniemenlorany amendment therl 2. Bribery or artemWing to bribe a public officer or employee of a local, State, or Federal agency 3. Embe:demem, ext rtlon, racketeeomg, fidw dams, him statements, forgery, falsification or destruction of records. Obstruction of junme, knoydngly reveiving semen property or misprision (failure to diceroval of a Won, e, unlawful disposal of Naurdous Wasces, the occurrence of whim any Contractor Pony knew or should have known; s. Aomori of antitrust lam, Including laws relxmg of micec0ving, bidkrlggmg, and sales and market Vibration, and of unfair and antl.mmced[ve trade Practices lam; 6, addition of scrolles lam; and ]. Felonles. Cry of Fresno Roll Off Pgreement Page42 a/g/11 g. Pleair Entry Of plea Of ri lty,' "nob contendere," or 'no mncest' by a Contractor Parry Waco on acts taken in his, her, or Its pill capacity on behalf of Contractor MI respected the conduct desvlbcd In preceding Section 13:12A.A. 12.12.2 Notice Contactor shall notify CItY In writing within five calendar days of Occurrence of any Criminal Activity by any Contractor parry. 12.12.3 Conceded's Cum Upon occurrence of any Cnmlnal Afifix Wntmctor shall immediately do or cause to be done all of the following: a Terminate from employment or remove from office any offending mdMdual Contractor Pam, un;essamerwlse directed or Ordered bye court or regulatory agency of competent)udsa;coon r authority, and unless that termination would constitute a breach of any labor agreement entered Into by Contractor, and B. Eliminate participation by any offending Individual Untractor Perry in any management, o pervlslon, or decision WmAty that affects or mulct affect, directly or Indirectly, the performance of the Contractor under this Agreement. 12.12.9 Transferand Wrog Contractor shall not allow or cause to be allowed to hire or trancer any Individual from any Parent Company or subsidiary company or business entity 0 Dampen who has committed Criminal AttNHy of a Contractor representative, field superseder, officer, or dVettor who Is directly or adbegly responsible for performance M this Agreement almost obtalning prior written consent M City, followingfull disclosure to City ofthe facts and Ncumftances surrounding such Criminal Activity. 12,12.$ City's Remedy In the event of any Occurrence of Criminal Aalvlty, the Cly, In Its sole direction, may terminate the Agreement within 30 calendar days farmers noottW Contractor, or may Impose other sanctions (which may Induce financial sancil temporary suspensions, or any other mndltbn deemed appropriate short of termination) as [twill deem proper, In thefollowbrg events: A Canmaorfalls to complywith the fomgoingobllgadon of thlsSMlon, or e. The criminal salary concerns orretates directly orindirettly tothis Agreement. Contractor shall be given the opportunity to present evidence In mitigation during the 30.mlendar day notice period 12.13 ACUOWLEDGMENTOF PUBLIC RESOURCES CODE SECTIOU49520 NOTICE If Contractor has lawfully provided solid waste pull services In the Gty for more than three (3) years prior to July 1,2011(and Istherefore eddied to me notice provided for In Public Resources Code 495201, (broader shall consider execution of this Agreement by the Clay as OW5 node to Contractor, pursuant to Public Resources Code 49520, that Contractor may protide service for a period N five )5) City of Fresno ROU MAgreement Page 43 4/8/11 Years hryond lulu 1, 2011, after which time the City has the right to establish an excJui franchise correction system. ARTICLE 13 MISCELLANEOUS AGREEMENTS 13.1 ENTIREAGREEMENT This Agreement, including the ixidbi , represents the full and entire Agreement between the parties with respect to the mall covered herein. 13.2 SECTION HEADINGS The article heathens and section headings In this Agreement are for convenience of reference only and are not Intended to be used In Ne construction of this Agreement net to alter or affect any of It previsions. 13.3 REFERENCES TO LAW$ All references in this Agreement to taws shall be understand to Include such laws as they may be subsequently amended or remained, unless dibenvlse spedflemly pruwded. 13.4 INTERPRETATION Tris Agreement shall be interpreted and convicted reasonably and neither for dor against either parry regardless of the degree to which either Party parthipated In in drafting. 13.5 PRONOUNS AND PLURALS; TENSE When not inconsistent who Ne ovi words and phrases used In Me present tense metal the future, and words and phrases used in the singular numbest Include the plural number. Whenever the contest may require, any pronoun used In this Agreement shall Inaude the corresponding masculine. feminine and neuter forms, and the singular farm of nouns, pronouns and verM shall Include Ne plural and vice versa. [1N of Fresno Roll OF Agreement Page W 4/8/11 13.8 TEXTTOCONTROL The options of tMMldes or SeNons In this reservoir are formnvenleme only and In noway define, Ill extend or desnlbe the scope or Intent of any of the pro hares hereof. shall not be deemed pan of this Agreement and shall net be used In construing or interpreting this agreement 13.7 AMENDMENT This Agreement may not be modified or amended In any respect except In ending signed by the Printer. 13.8 SEVERAINUTY If any norrinnartairral Prowsmn of this Agreement Is for any real deemed to be real and enfnrceaae, the Invallmty or marrhar¢amlir, of coin mora len shall not feel any of the remaining provisions or this Agreement, whim shall be enmrsed as If such Invalid or uneMotteable provision had not been contained herem. 13.9 COUNTERPARTS This Agreement may be exerted in counterparts, each of whim shall be considered an anginal. 13.10 EXHIBITS Each of the ExNplfs Identified as Exhibit 'A' through "0" Is attached hereto and Incorporated hil In and made a pan h rral lhls rNerence. CRyof Fresno golbHAgreement Page 45 4/8/11 IN WITNESS WHEREOF, the Parties have sauced the Agreement No be MICIld on the Jay and year first above written. CITY OF FRESNO A Municipal Corporation Director APPROVED AS TO FORM: A pmN ATTEST: . _ r CONfMCFOR { � 3 Name nIUYP r Title emirs fw(i Morass Tema n,A �37ZS Oty Boslnev License Elly 0 Edwin Roll -0x Agreement Page 46 a/B/v SCHEDULE FOR LIgU1DATEU DAMAGES Contractor may be assessed Uomdated Damages If Contractor has to fuMll its obligations with regards to the events listed In bus LxM1ibk in accordance with the terms and canddlons of the Agreement win regards to the time frame for accomplishing each event and nature of fire responsibility associated with the evert unless oNerwke stated in this Exhibit. 1. Diversion. Failure to amleve and maintain a minimum of Al no Meter of$5,pp or Diversion per month of all C&D Collected within the Otey, 70% 1016 of the gross Rate Diserslon per month of all Recyclable Materials Cdled d MMIn the slued ter CI[µ and 90% of all organIc Materials Call with In the Clty, pmNtlNg C&D, Recyclable Materials, and Ogatllc Materials ervlces in the city, for the most recent 13- month Period 3. leaks, Utterwspills. For each a[[unence war five duringaol¢nddr W M year of unreasomble lea", Ilater, or sells of Permitted Materials near Or on public streets and fallure W pick Per or clean up such material mmedlatel . 3. UnautM1Mmd Colludged Hours. For acid Documents, mar flue tlutlng $3C0/eveM calendar year of Colliding Permitted Matmal during unauthomed hours. <. Ea ive Nolle. Film each occurrence over 10 during a calendar year $3W/event OF excessive rope. S. Clearbass Whenon Vehicles. For each CCWw"ce over five during SSW/event calentlar year for fallure W keep C l(e on veMdes In a safe and sannamicGraidurn. 6. labeling of Rolll COMaNers. Fm each C=ff reof Contacto(s $5W/event failure to mnectly label Contarderpmed ROIll Containers fin mndre w¢M1 Section 6.4 Cl. ). Dlsmurteaus geM1aWan For eacM1 pmchol of Nsmurteous behavior SSCD/eeM by Collection added Personnel, Customer SerNce Personnel, or Other m Ioyees of CnnUattor. S. Injuries to Others For each Incident of persmul Injury to a Person $5,003/Intltled womi medical treatment or M1oadmibatlon, where Me negligence of the Contactor or Its personnel was a contributing factor to Me Injury. 9. MwMly Pepons. "llme to submit monthly reports In the timeframe $3001 el Athis Agreement. 10. Report Hazardous Warte. For each fzlure to "i the appmptlate $SCOrerent authorities of resportabibe euafrtNes0 Hazardous Wgste. A-1 11. ganureaOlM1eroNlptlons. yuure eo perform any orihe obligations 5150/preach set brtM1 in IM1is Agreement not spalflpllV stated abma and not obbgim ni daymmil corrected M proceeding In good faith to correct within 24 hours upon obligation is pertormed 24 hour notification by MonshlY reports fish be considered late final such time as a eonM and mmpleR mmm�ly report h receluM by Gry, fvr eacM1 olendrt day a rtpon Is Irt; iae di Gquldh oamyeshallbeas IndkIIed Inthemomhfyrepomsectiona ", In placing Designee's initials at Me places compact, each patty specl0nlly wMrms the security of Me statements made above and the fact that each party has had ample opporturyry to consult wkM1 legal counsel and obtain an eeplarmlon of Liquidated Damage pmWslpm of Me tlmethat the Agreement was made. Gntractp InIHal Here: \"6r InIIIaI Here: �'V A2 EXNIRITR SECRETARY'S CERTIFICATION IDe underslgneQ being blue Secretary of C,-.er �,I a California corporation ("the Company"), do hereby certify that [he f,"Imee� as adopted by the Board of Directors of the Company and that such resolution has not been amended, modified or rescinded and Is in full fora and agent as of the date hereof: RESOLVED, InatYl Q<I I �p r(A0 _ be, and hereby Is, authorized to ear eaeMe by and on behalf of the Company any and all agreements, instruments, documents or papery as he/she may deem appropriate or nemuary, pertaining to or relating to the Non Exclusive Franchise Agreement heramen the City of Fresno and Company for Ri Container Collection, Tranapminy Processing, Recyclng, Compostln8. and Disposal of permitted! Materials and that any such Mion taken Iodate le hereby ratified and approved. Dated: y—D'X—ll B-1 Signature B P� vele This page intentionally blank EXHIBIT C STATEMENT OF APPIICANYS UNDERSTANDING AND REPRESENTATIONS The undersigned (who Is duly authorized to had the company submltXng this applirationl has reviewed the requirements of then eacluslve franchise agreement for Roll -Off Collettlory Transporting Proussing, Recycling Composting, and Disposal services for Solid Waste, Recyclable materials, Organic Materials, and C&O. As explain, and reference Comments. In addition, the underslgnetl afteIls that this appllcatmn and any other supplementary Information submltlet win ibis appllation do not himntaln any untrue statement do material fact, till contain inaccurate or militating Innermost, or fill OMt to state a matetlal Out that Is necessary W make the statements made, in light of the Circumstances in which they were made, not misleading. MP k6nPg30 r—a8—e 1. Print Name. Dee Me 6e,a eVct�IPU � L Company Na ��— C1 This page intentionally blank EXHIBIT D "PROVED PROCESSING Thefollpwing fadlWes were selectrd by the l ntracmr and approved by the CEy. Fe name Ke clee Foeft seems '3 ('� S� See✓ar �NQ .•�$ G S e ..• h` AN' ocr C F) 93725 F l CR 9 377 SIMS number firmer D tor aWInamed Facility aches �489> dvcln�k qre_ iS<s�w CA y 3725 scars number Owner O razor Fatllltylume "offhaya ldreas Ms memhar Owner D emtof D'eposM of ttHx Designated Oispaaal Facility, Cantra[tor City /��/) INBal Here: i1L- Initial Here: /2* D This page intentionally blank