HomeMy WebLinkAboutIndustrial Waste and Salvage - Non-Exclusive Franchsise for Roll-Off Collection Servicesn
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NON-EXCLUSIVE FRANCHISE AGREEMENT
�S
BETWEEN
THE CITY OF FRESNO
AND
lwasrA144 AU45 Te A*'D SAL mA e, (r.4/ -S,)
FOR U
Is
ROLL-OFF COLLECTION SERVICES
It A ;Z3 12011
0
•
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40
0 Table of Contents
ARTICLE 1 DEFINITIONS
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THECONTRACTOR................................. a
2.1 REPRESENTATIONS AND WARRANTIES _............. ...... ...... ....... ....... ..... ,....... ..... ...... . _.___. __a
10
30
11
FROM SCOPE OF FRANCHISE ...... ...13
ARTICLE 5 COLLECTION, PROCESSING, AND DISPOSAL SERVICES ............................................ 14
5.1
ARTICLE 3 TERM OF AGREEMENT ....................................
...... ........ ._.. 1114
3.1
EFFECTIVE DATE .......................................................
.... ........ ...... .__._14
32
CONDITIONS TO EFFECTIVENESS OF AGREEMENT...
_. _. ___.116
3.3
INITIALTERM...... ...... ...... ....... ........ ...... ...... ....... ,....,.
...................... .... ...... ..... 16
30
OPTION TO EXTEND ... ...... ......... .... ........ ...... ..... ........ .
............... ............... 17
ARTICLE 4 SCOPE OF AGREEMENT ..................................
CUSTOMER SERVICE ............ ....... ...... ._..
4.1
SCOPE OF AGREEMENT...__........._ ..........................
......... 22
4.2
LIMI FATTENS TO SCOPE ....... ............. ...... ...... ............
HAZARDOUS WASTE INSPECTION AND HANDLING......... ...........
4.3
CITY'S RIGHT TO GRANT MULTIPLE NONEXCLUSIVE
67
44
CIMS RIGHT TO EXCLUDE NEWLY ANNEXED TERRIT
•
4.5
AGREEMENT CONSISTENT WITH APPLICABLE TAW,.
...... ...... _.._...23
46
OWNERSHIP OF MATERIAE __1 1.1-
.....4]
24
4 7
NOTIFICATION TO CIT' OF NONFRANCHISEDHAUL
10
30
11
FROM SCOPE OF FRANCHISE ...... ...13
ARTICLE 5 COLLECTION, PROCESSING, AND DISPOSAL SERVICES ............................................ 14
5.1
COLLECTION... . 11 .. .....
...... ........ ._.. 1114
5.2
PROCESSING AND MARKETI NG SERVICES ...... ...... .......
.... ........ ...... .__._14
5.3
DIVERSION REQUIREMENT .............. ..... ..... ......
_. _. ___.116
5.4
DISPOSAL........ ....... .._...
...................... .... ...... ..... 16
5.5
BILLING........... ........ __„__
............... ............... 17
5.6
CUSTOMER SERVICE ............ ....... ...... ._..
__. _. ._... 17
ARTICLE 6 STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT, AND PERSONNEL 17
City of Fresno NoroExclusive Rall OH Agreement Page 1
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6.1
OPERATING DAYS, HOURS. AND SCHEDULES _......
_...- _.......1Z
63
COLLECTION STANDARDS _..._. ..... .... ... .......
....... . _.....11 18
6.3
VEHICLE REQUIREMENTS .. _... ...............
................ 19
64
ROLL- OFF CONTAINER REQUIREMENTS .......... ....
.... ..._11.20
6.5
PERSONNEL.. _.. ............
......... 22
6.6
HAZARDOUS WASTE INSPECTION AND HANDLING......... ...........
......22
67
NON P15CRIMINATION ......... .--- .... - ......... ... .........
...... ..._.._23
6.8
COMMUNICATION AND COOPERATION WITH CRY ..... ............. .....
...... ...... _.._...23
.
ARTICLE 2 RECORD KEEPING AND REPORTING.......................................................................
24
City of Fresno NoroExclusive Rall OH Agreement Page 1
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J.1
GENERAL ...... 11...11.
24
• 21
RECORDS ...... .1...111 1.....111
. ........ .... .... 25
1.3
GENERAL REPORTING REQUIREMENTS....................................................................................
26
7,4
MONTHLY REPORT ................. ..... ....... ...... ......
.... ....... ...... 1...111......26
].5
AS 939 COUNTY SURCHARGE REPORTING ..... ............. ........ ...... ..... ........
........ ...... ...... ...... ....... 27
ARTICLE 8 FRANCHISE FEES AND OTHER FEES........................................................................ 28
ARTICLE 11 DEFAULT AND REMEDIES.................................................................................... 35
111
8.1 GENERAL ..... 11._. .... ... ...... .1 ..... 11..... .1....11.....1
..... ............ ...... ... 28
112
8 2 FRANCHISE FEE ........ .....111..1..... .1...... 11....
_1_ 111_1_,28
11.3
8.3 OTHER FEES.... 1_111.. _.__.
_1111_.1 11____.28
114
8.4 ADJUSTMENT TO FEES __1111 111_1... ..............
.11....11..... 28
11.5
8.5 PAYMENT SCHEDULE AND LATE LEEK— ............ ..... ...... ......
... ..... .... .... ... 28
11.6
8.6 OVERPAYMENT OF FEES _111.1.. ... .... ..... ......... .1,1....11,,.....
................ 29
12.2
8.7 NON CITY FEES; AS 939 COUNTY SURCHARGE.........................................................................
29
12.8
ARTICLE 9 CONTRACTOR'S COMPENSATION AND RATES .......................................................
29
129
9.1 CONTRACTORS COMPENSATION ...... ...... ....... ...... ....... ...... ........ ...... .............
....... ...... ........ _... 29
12.10
92 CITY'S RIGHT TO SET MAXIMUM RATES ........ ... .............
I .......... 29
12.11
9.3 CONTRACTORS RATES... ..... ...... ... .... ........ --- .....,,
.... ....... ....... ...... . 30
• 12.12
ARTICLE 10 INDEMNITY AND INSURANCE..............................................................................
30
12.13
10.1 INDEMNIFICATION .11....11............ ........... ............. 11.. ....
........ ....... 30
•
10.2 INSURANCE... ..11....11................... ...... 1... 11..... .. __..,_
........ ........... 31
ARTICLE 11 DEFAULT AND REMEDIES.................................................................................... 35
111
EVENTS OF DEFAULT .... ...... ...... ............ ... _.._,......
...,.............. 35
112
RIGHT TO TERMINATE UPON DEFAULT..... .......... 111..... 1.. 11__1,1
.................36.
11.3
CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE_....._,............ ...............................
36
114
LIQUIDATED DAMAGES ___ .......... .... .... ........ ......
.. ..... 36
11.5
DIVERSION NON PERFORMANCE 11....11....... 1__111
11_11......38
11.6
CONDITIONS UPON TERMINATION...... ...... .... .. _..........
11..11.......... 39
ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES................................................................ 39
121
RELATIONSHIP OF PARTIES............ ....11...11..... ._........ ..............39
12,2
PERMITS AND LICENSES .__. _.1 111...,.....11..... .111...1......
___. 40
123
COMPLIANCE WITH LAW ................. ..... ....... ....... ____
..... 40
12.4
GOVERNING UW ._1111 _..... ....... ......11...1..1...
1111.__..40
125
JURISDICTION ................ __. _. 1...............
1111__.40
12.6
BINDING ON 5UCCE55OR5 -__._ .. ............. __._
...........40
12.2
ASSIGNMENT. 1 11111__1,, ............. ... ..._... ...
___AO
12.8
PARTIES IN INTEREST ...................... ...... ...... ........ ....._.... ................
41
129
WAIVER.. 111__1. .. 11....11........ ...,__.._....... ...
... ........ 41
12.10
NOTICE PROCEDURES ,,1 ... ,,111... ......1.11.
- 41
12.11
REPRESENTATIVES OF THE PARTIES ..11....11.... ......_ .._..
.... ....42
• 12.12
CRIMINAL ACTIVITY OF CONTRACTOR .,_............ _ .................
42
12.13
ACKNOWLEDGMENT OF PUBLIC RESOURCES CODE SECTION 49520 NOTICE
.....43
CAYx Of Fresno NonExclusiveRoll OH Agreement Page li
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•
L J
L J
ARTICLE 13 MISCELLANEOUS AGREEMENTS ........................................ 44
13.1
ENTIRE ACRE EMENT ... __ _. _._ .. ......
1 1144
13.2
SECTION HEADINGS ................ .... ....... ...... ................
............... W
13.3
REFERENCES TO LAWS _....._. 11 . ....
- ..... 44
134
INTERPRETATION .._....
_.SE
.._.
..... .....___...44
13.5
PRONOUNS AND PLURALS; TENSE .__..
......_ _. __.44
13.7
TEXT TOAMEND CONTROL .__.... .._._
__..._ _..........._... 45
13>
AMENDMENT. _. _.... _..._
_..—. ......... 45
13.9
........... .............. ....
SEVECOUNTERPARTS
...... ._.. .................. 45
13.9
COUNITS... T.. .............. .......... .................
................AS
13.ID
E%N18ff5._...... ............. ._.....
......... _..___45
List of Exhibits
A SCM1etl Fie for Liquidated Damages
a Secretary's Cerification
C Statement of Applicant s Understanding and Representations
D Approved Processing and Residue Disposal Facilities
City of Fresno Non-Exdaslve RollOffAgreement Page III
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0
Is
NON-EXCLUSIVE FRANCHISE AGREEMENT
• BETWEEN
THE CITY OF FRESNO
AND
FOR ROLL -OFF COLLECTION SERVICES
Thisnon-exclusive franchise agreement (Agrro menry Is made and entered Into this aZiAOtlay of
�LpJ 5
,/ _ by and between the City of Fresno, a municipal cultural (City( and
. (Contractor.)
RECITALS
This Agreement s: entered into with reference In the following fans and circumstances:
WHEREAS, the Legislature of the Slate of California, by enactment of the California Integrated Waste
Management AR of 1989, codified at California Public Resources Code Section 40000 in seq. i"Acf I I,
has declared that it is In the public interest to authoti a and require local agencies to make adequate
provisions for Solid Waste Collection wlMin their ryrisdimon; and
Is WHEREAS, the State of California rStare") has fauna and deduced that the amount of Solid Waste
generated in California, coupled with diminishing landfill spars and potential adverse environmental
Impacts from landfilling and the need to conserve natural resources, have created an urgent need for
State and local agencies to enact and implement an aggressive integrated waste management program.
The State has, through enactment of the Act, directed the responsible State agency and all local
agencies, to promote Disposal Site Diversion and to maximize the use of feasible Said Waste reduction,
to e, Reerchng, and Composting options in order to reduce the amount of Solid Waste that must be
Disposed of in Disposal Sites; and
WHEREAS, the Act equires local agencies to divert 50% of discarded materials from landlillr, and
WHEREAS, the City Councll established goals of achieving 75% diversion by 201E and zero waste status
by 2025 on lune 26, ECOT, and approved a Zero Waste Strategic Action Plan on February 11, 2009; and
WHEREAS, the City finds that reusing, Reryding, and Composting Recyclable Materials, Organic
Materials, and Construction and Demolition Debris (C&D) and beneficial use or composting of Organic
Materials is essential to further the City's efforts to reduce Solid Waste Disposal and comply with the Act
and the City's aero waste goals: and
WHEREAS, pursuant to the powers granted the City as a charter city by Article XI, Section 5(al of the
CalRormar Constitution and Article XIII M the Fresno Cry Charter, the Chy has determined that the public
health, safety, and well require that a franchise agreement defining non exclusive rights be
• awarded to qualified ormFanies to provide for the roll off container collection of Permitted Materials
City of Fresno Roll OH Agreement Page 1
4/9/11
except for collection of materials excluded In the City's Municipal Code, and other services caused to
• meeting requirements of the AR; and
WHEREAS, the City requires all haulers providing Roll Off Collection services for Permitted Materials in
the City to obtain a-exc usive franchise in order to regulate this business, en a Its orderly
operation,. achieve its tlrversion gosh. and to minimize the potential for adverse effects It may have on
me local environment; and
WHEREAS, the City Council has determined through an application processthat the Contractor, by
demonstrated experience, reputation, and capacity, is qualified to provide for the Roll -off Container
Collection of Permitted Materials within the corporate limits of City and the Transportation of such
material to appropriate places of Recycling, Pro essin& and/or Disposal, and an provide Insurance
consistent with the Csry's requirements. The City Council desires that Contractor be engaged to perform
such services on the basis set forth in this Agreement; and
WHEREAS, Contractor intends to use me Gtys streets, alleys, other public rights of way, and
Infrastructure to provide Holl -Off Collection services to the City's residents and businesses; and
WHEREAS, the City Intends to receive just and re tunable fees from the Contractor for Curtis
administration of the Agreement and for Contractors use of the City streets, 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 fiddisergood and valuable consideration, the Parties agree as follows'.
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, unless a different meaning Is clearly rewired, the following words and
phrases shall have the following meanings respe ively ascribed to them by this Article and shall be
capitalized throughout this Agreement
"Ale means the California Integrated Waste Management Act of 1989 (Division 30 of the California
Public Resources Code), as amended, supplemented, superseded, and replaced from time to time.
"Agreement" means this Agreement between the City and Contractor for Pall -Off Container Collection,
Processing, and Disposal of Permitted Materials including all exhibits, and any future amendments
hereto.
"Applicable Laws means all Federal, State, and local laws, regulations, rules, orders, judgments,
degrees, permits, approvals, or other requirements of any governmental agency having jurisdiction over
• the Roll Off Container Collection, Transportation, Recycling Pmauln& and Disposal of Permitted
Materials that are In force on the Effect eDate and as they may be Inherent issued, or amended during
the Term of this Agreement.
City of Fresno Roll Off Agreement Page ]
4/g/11
• 'Approved C&D Processing Site' means the processing site specified in Exhibit D, which was selected by
Contractor and approved by the City.
'Approved Disposal Site' means a Disposal Site selected by the Contractor or Its submnn a torPl and
approved by the City for Disposal of residue from Approved Processing Sltelsl, Approved Oisposal Sitelsl
are listed In Exhibit D.
'Approved organics Processing Sine" means the processing site specified In Exhibit D, which was
selected by Contractor and approved by the Can,
"Approved Processing Sltelsl" means the Approved C&D Processing Site, Approved Organics Processing
Site, and/or Approved Recyclable Processing Site.
"Approved Processor means the operator. of an Approved Processing Site.
mrsproved Reeyclables Processing Site" means the processing site specified In Exhibit O, which was
selected by Contractor and approved by the City.
'El means a container with capacity of approximately one 111 to eight 187 cubic yards, with a hinged
lid, and with wheels, that is typically serviced by a front end -loading Collection vehicle.
'Business Days' mean days during which City offices are open to do business with the public
• " Con' means a plastic container with a hinged lid and wheels that is typically serviced by an automated
or semi automated Collection vehicle. A Cart has capacity of E0, 35, 64, or 96 gallons (or similar
vola esl.
'C&D' means Construction and Demolition Debris.
'Change in taw' means any of the following events of conditions that have a material and adverse
effect on the performance by the Parties of their respeclNe obligations under this Agreement (except
for payment obligatlonsl:
a. The enactment, adoption, promulgation, issuance, metrication, or written change In
administrative or judicial interpretation on or after the Effective Date of any applicable
Law; or
I. The order or judgment of any governmental hotly, on or after Ref EffeRlve Date, to the
extent such order or judgment t the result of willful or negligent action, error
r lack of re nable diferen of the City o of the Contactor. whichever 55
omission o
erbng the occurrence of a Change In Law; provided, however. that the contesting in
good faith or the failure in good faith to contest any such order or judgment shall not
constitute or he construed as such a willful or negligent action, error or emission or lack of
reasonable diligence.
• 'City' means the City of Fresno. California, a municipal corporation, and all the territory lying within the
municipal boundaries of the City as presently existing or Soni boundaries may be modified during the
Term.
City of Fresno ROTI -Off Agreement Page 3
418/11
• "City's Municipal Conde" means the City of Fresno Municipal Code
"Collect" or "Collection' means the act of reflecting Permitted Materials and other material at the place
of generation in the Cry.
"Commercial" shall mean of, from or pertaining to non Residential Premises where business activity is
conducted, including, but not limited t0, recall safes, services, wholesale operations, manufacturing and
industrial Operations, but excluding businesses conducted upon Residential property which are
permitted under applicable zoning regulations and are not the primary use Of the property.
"Compactor" means a mechanical apparatus that compresses materials Into a container, which
container may he detachable. For the purposes Of this Agreement, Compactors shall Include only
Compactors with container capacities of ten 110) to filly (50) cubic yam that are serviced by Roll -off
Collection Trucks.
"Compost" or 'Campbell inmates a controlled biological decomposition Of Organic Materials
yielding a safe and nuisance free Compost Product.
'Compost Product` means the product resulting from the controlled biological decomposition of
Organic Materials that are Source Separated from the Solid Waste stream, or which are separated at a
centralized facility
'Construction and Demolition Debris fCBof' means materials resulting from construniom remodeling,
• repair, cleanup, or demolition Operations that are not hazardous as defined In California Code of
Regulations, Title 32 Section 66261.3. This term includes, but is not limited to, asphalt, concrete, cement
concrete, brick, lumber, gypsum wallboard, concrete board, onboard, and other associated pockaging,
roofing material, ceramic tile, carpeting, plastic pipe and steel, as well as vegetative matter resulting
from land clearing and landscaping including but not limited to rock, soil, tree stumps. Construction and
Demolition Debris excludes comestible wastes.
°w Irannr' ns Z WS• (insect contraaora name), a
ea finsen corpoatiri role proarietherahip, partnership as appropriate) organized and
cresting under the laws of the State of California and its ORcers, directors, employees, agents,
companies, and Subcontractors.
'Contractor Party(les(" shall mean Contractor, officers, directors, management employees, or fiscal
employees (where "managementemplimi means any employee with direct or indirect responsibility
for direction and control over the Contractors activities under this Agreement and 'fiscal employee"
means employee with direct or indirect responsibility and control duties relating m financial matters
under this Agreement).
"Crlminal Activity" means those activities described In Section 12.12.1.
'Customer' means the Person whom Contractor submits billing Invoice to and collects payment from
for Collection services provided
• "Designated Disposal Site" means the American Avenue Landfill at 18950 W American Avenue In
Tranquility, California for the purposes of disposing Solid Waste.
City of Fresno Roll Off Agreement Page 0
E/8/11
• "Designated Waste' means non-Hatarisr Wastes that may pose special Disposal problems because Of
its potential to contaminate the environment and which may be Disposed of only in Class 11 Disposal
Sites or Class III Disposal Sites pursuant to a variance issued by the California Department of Health
Services.
"Director shall mean the Public UBlDles Director of the City or an authorized representative of the
Public Utilities Director.
"Discarded Materials" means Solid Waste, Recyclable Materials, Organic Materials, or C&D placed by a
Generator In a receptacle and/or ata location that is designated for Collection pursuant t0 the City's
Municipal Code.
"Disposal or Dispose (or variation thereof(" means the final disposition of Solid Waste at a Disposal
Site.
"Disposal Site" means a facility for ultimate Disposal of Solid Waste.
"Diversion" means
activities that reduce or eliminate the amount of Solid Waste from Solid Waste
Disposal including but not limited to, Recycling, and Composting.
"Drop Box^ means an open -top container with capacity from six (6) to fifty ISD) cubic yards that is used
for Collection of Permitted Materials and that is serviced by a Roll -Off Collection Truck: Drop Bexeswah
capacities of less than ten (10) cubic yaNs may only be used for the purposes of Collecting MAD, A Drop
• Box, which is also known as a roll -off box and/or debris box, b a type of Rall -Off Container.
"Effective Date" means the data set forth in the Introductory paragraph Of this Agreement.
"Federal" means belonging to Or pertaining to the national general government of the United States.
"Food &raps" means those discarded materials that will decompose and/or needs includingpl all
kitchen and table food waste, (ii) animal or vegetable waste that is generated during or results from the.
storage, preparation, cooking or handling of food stuffs, hill discarded paper that is contaminated with
Food Scraps; llvl fruit waste, gain waste, dairy waste, meat and fish waste, and, (vl non Recyclable
paper or contaminated paper. Food Scraps are a subset of Organic Materials,
"Franchlse Fee" means the fee paid by Contractor to Clry for the privilege to hold the non-Beluslve
rights granted by mar Agreement.
"Generator means any Person whose so or process produces Permitted Materials, or whose act first
causes Permitted Materials to become subject to regulation.
'Green Waste Material" means any materials generated from the maintenance or alteration of public,
tial, or residential landscapes that will decompose and/or putrefy including, but not limited to,
yard lippings, grass, leaves, shrub/tree trimmings or prompts (less than a" in diameter 1, brush flow
weeds, dead plants, small pieces of unpainted and untreated wood, and other types of organic waste,
For purposes of this Agreement, such materials shall he Source Separated and placed by a Generator
• n a receptacle and/or at a location that is designated for Collection. Green Waste Material is a subset
of Organ it Materials.
City of Fresno RollOffAgreement Page S
0/0/11
• 'Hazardous Wastes means all substances defined as Hazardous Waste, acutely Hazardous Waste, or
extremely Hazardous Waste by the State in Health and Safety Code §25110.02,§25115, and §25117 or
In the future amendments to or recodifications of such statutes or identified and listed as Hazardous
Waste by the U.S. Environmental Protection Agency (EPA), pursuant to the Resource Conservation and
Recovery Ad 142 DSC §5901 d sJ, all future amendments thereto, and all rules and regulations
promulgated thereunder.
"HolMays" are defined as New Year's Day, Thanksgiving Day, and Christmas Day.
'Infectious Waste" means biomedical waste generated at hoePhals, public or private medical clinic,
dental offices, research laboratories, pharmaceutical Industries, blood banks, mortuaries, veterinary
facilities and other similar establishments, as defined In Health and Safety Code Section 25112.5.
"Dredged Damages" means the amounts due by Contractor to City for failure to meet specific
quantifiable standards of performance as described in Section 11.4 and E.vhibtt A.
"Organic Materials" means those discarded materials that will decompose and/or putrefy Including
Green Waste Material and Food Scraps such as, but are not limited to, green trimmings. grass, weeds,
leaves, pinnings, branches, dead plants, brush tree trimmings, dead trees, small wood pieces, other
types of organic yard waste, vegetable waste, fruit waste, grain waste, dairy waste, meat waste, fish
waste, paper contaminated with Food Scraps, pieces of unpainted and untreated wood, and pieces of
unpainted and untreated wallboard No discarded material shall be considered to he Organic Materials.
unless such material is Source Separated from Solid Waste, Recyclable Materials, CSI or other
• materials.
"parent Cam Wily" refers to a company owning more than fihy, percent (50%) of the shares of another
company subsidiaryl or a company that has management control over such subsidiary.
'Party or Pines' refers to the City and Contractor, impolitically or together
"Permitted Materials' refers to Solid Waste, Source Separated Recyclable Materials, Source Separated
Organic Materials, and C&D. Permitted Materials excludes Source Separated Food Scraps.
"Person(sl" means any individual, firm, association, organization, partnership, corporation, business
trust joint venture, the United States, the State of Californlu the County of Fresno, and special purpose
districts.
"Premises" means any land or building in the City where Permitted Materials are generated or
accumulated.
"Processing" means to prepare, treat or convert through some special method.
"Processing Site" m any plant o site used for sorting, cleansing, treating, or reconstituting
Permitted Materials for the purpose of making such material available for reuse.
"Putresdble Waste" means Solid Wastes engineered from living organisms and their metabolic waste
• products and from Petroleum, which contains naturally produced organic compounds and which are
City of Fresno Roll -Off Agreement Page 6
418111
biologically decomposable by microbial and fungal action Into the constituent compounds of water,
• carbon dioxide and ether simpler organic compounds.
"Rates" means the charges and fees Contractor bills and collects from each Customer receiving service
pursuant to this Agreement.
"Recyclable Materials" means those Discarded Materials that the City Code permits, directs and/or
requires Generators to set out In Recyclables Materials containers for Collection for the purpose of
Re[yding. 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 inserts, coupons, and store advernoments); mined paper (including
offs Paper, computer paper, magazines, junk mall, catalogs, brawn paper bags, brown paper,
paperboard, paper egg cartons, telephone books, grocery bags, colored paper, construction paper,
envelopes, legal pad backings, shoe bones, soap boxes, cereal and other similar food boxes(; chipboard;
ardboarQ paper milk occurs, glass containers of any color (including glass bottles and jars all colors);
aluminum cans; fabric softener containers; steel, tin or elmetalcans; plastic containers least or green
plastic soda and water bottles, plastic containers and battles and plastic bags with no. 1, 2 ora on the
boftoml; and food containers from Potato salad, pasta sand, whipped cream, etc.
`Recycle or Recycling" means the process of collectingh sortin& cleansing, treating, and reconstituting
materials for the purpose of using the altered form In the manufacture of new product. Recycling does
not include burning, Incinerating or thermally destroying solid waste.
'Residential' shall mean of, from, or pertaining to a single-family Premises, multiplex, or Main family
• Premises including single-family homes, apartments, condominiums, townhouse complexes, mobile
home parks, cooperative apartments, and yacht harbors and marinas where residents live aboard boats.
"Rall -Off Container' means a Orap Box or Compactor used for Collection of Permitted Materials and
seraced by a Rolloff Collection Truck. Roll -Off Containers with capacities of less than ten (101 cubic
yards may only be used for the purposes of Collecting C&0.
"11011U11 Collection Trucki means a collection vehicle with a mechanical device such as a. winch that
pulls or leads a Roll -Off Container onto the truck bed or attached trailer and separately transports each
RollOffContainer to a Disposal Site or Processing Site.
'Solid Waste' means solid waste as defined In California Public Resources Code, Division 30, Part 1,
Chapter 2. 440191 and regulations promulgated thereunder and those Discarded Materials that the City
Code requires Generators within the City to set out for Collection. Excluded from the definition of Solid
Waste are C&D, Hazardous Waste, Infectious Waste, Designated Waste, Source Separated decidable
Materials, Source Separated Organic Materials, and radios Waste. Notwithstanding any
to the contract,"Solltl Waste" may include de Problems volumes or concentrations of waste of a type provision
ProblemsProblemsnd
amount normally found In Residential Solid Waste after Implementation of programs for the safe
collection, recycling, treatment and disposal of household hazardous waste In compliance with Section
41500 and 41802 of the California Public Resources Code.
"Source Separated' means the segregation, by the Generator, of materials designated for separate
• Collection for some form of Recycling, Processing, Compostin& reedy", or reuse.
"state' means the State of California.
City of Fresno Rolbff Agreement Page
4/8/11
• "subroritnRof means a party who has entered into a contact express or Implied, with the Contractor
for the performance of an act that is necessary for the Contractor's fulfillment of Its obligations under
this Agreement.
4erm" means the Term of this Agreement, including extension Periods if granted, as provided for in
Article 3.
"fon" means a unit of measure for weight equivalent to 2,000 standard pounds where each pound
contains 16 ounces.
"Tonnage" means the total weight In Tons Collected, Recycled, Composted, Diverted, or Disposed of, as
the context requires.
'Tansportatlon" means the act of transporting or state of being transported
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR
2.1 REPRESENTATIONS AND WARRANTIES
• The Contractor, by execution of this Agreement, represents and warrants the following to Cby, for the
purpose of Inducing City to enter into this Agreement and to consummate the transactions
contemplated hereby:
A. Coryorate gtaNs. Contractor Is duly organized, validly existing and In good standing underthe
laws of the Stateif is qualified to transact business In the City and State and has the power to
own Its properties and to cams an its business as now owned and operated and is required by
this Agreement.
0. Authorization. Contracmr has the authority to enter this Agreement and perform Its obligations
Under this Agreement. The Board of Directors of Contractor for the shareholders, If necessary),
sole proprietor, or partners have taken all actions required by law, its articles of incorporation,
Its bylaws, or otherwise, to authorize the execution of this Agreement. The Person signing this
Agreement on behalf of Contractor represents and warrants that they have authority to do so
and the corporate secretary's certificate In Exhibit B confirms This. This Agreement constitutes
the legal, valid, and binding obligation of the Contractor.
C. Agreement WIII Not Cause Breach. To the best of Contracmr's knowledge after reasonable
Investigation, the execution or delivery of this Agreement or the performance by Contractor of
its obligations hereunder does not conflict with, violate, or result in a breach: (I) of any law or
governmental regulation applicable to Contractor, (ii) any term or condition of any judgment,
order, or decree of any court. administrative agency or other govemmental authority or, Dllj
• any Agreement or Instrument to which Contractor is a party or by which Contractor or any of its
properties or assets are bound, or constitute a default thereunder.
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D. No lhigalion. To the best of Contractor's knowledge after reasonable lnvestlgatioq there is no
• action, suit, proceeding or Investigation, at law at in equity, before or by any court or
governmental authority, commission, board, agency or Instrumentality decided, pending or
threatened against Contractor wherein an unfavorable deli ruling or finding, in any single
case or in the aggregate, would'.
I. Materially adversely affect the performance by Contractor of its obllgations hereunder;
2. Adversely affect the validity or enforceability of this Agreement; or
3. Have a material adverse effect on the financial condition of Contractor, or any surety or
entity guaranteeing Contractors performance under this Agreement.
E. No Adverse Judicial Decisions. To the best of Contractor's knowledge after reasonable
-investigation, there is no judicial decision that would prohibit this Agreement or subject this
Agreement to legal challenge.
F. No legal ProbibDlon. To the best of Contractor's knowledge after reasonable investigation,
there is no Applicable Use in effect on the date Contractor signed this Agreement that would
prohibit the Contractors performance of Re obligations under this Agreement and the
transactions contemplated hereby.
G. Contractor's Statements. The Creation's Application and any other supplementary
Information submitted to the City, which the City has relied on In entering this Agreement, do
•
not: (I) contain any untrue statement of a material fact, or HI) omit to state a material fan that is
necessary in order to make the statements made, in light of fire circumstances In which they
were made, not misleading.
H. Contractors Investigation. Contractor has made an independent Investigation (sansfanpry to
IH of the conditions and circumstances surrounding the Agreement and the work to be
performed hereunder. Contractor has considered such matters in entering this Agreement to
provide servicescompensation in exchange for the provided for under the terms of this
Agreement.
I. Ability to Perform. Contractor possesses the business, professional, and technical expertise to
Collect, Transport, Recycle, Process. and Dispose Permitted Materials generated in the Clry.
Contractor possesses the equipment, facillryliesl, and employeeresources required to perform
Its obligations under this Agreement.
ARTICLE 3
TERM OF AGREEMENT
3.1 EFFECTIVE DATE
• Contractor may provide the RollOffContainer Collection, Transportation, Recycling, Processing,
Composting, and Disposal services authorized by this Agreement commencing on the EffeRrve Date,
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3.2 CONDITIONS TO EFFECTIVENESS OF AGREEMENT
• The obligation of City to permit this Agreement to become effective and to perform Its orientakings
provided for In this Agreement is subject to the satisfaction of all the conditions below, each of which
may he waived, in written form, In whole or in part by City
A. Atonal of Representations. The representations and warranties made In Armde 2 of this
Agreentenaare true antl correct on and as of the Effective Date.
B. Absence of Litigation. There is no litigation pending on the Effective Date in any court
challenging the award or execution of this Agreement or seeking to restrain or enjoin its
performance.
C Furnishings of Insurance. Contractor has furnished evidence of the Insurance required by
Article 10 that is satisfactory to thecity.
D. Effectiveness of Cdy Campbell Action, The City Council action approving this Agreement shall
have become effective and all Parties shall have signed the Agreement pursuant to Applicable
Law prior to or an the Effective Date, provided that no restraining order of any and has been
Issued.
xt!•L`WLdt�7;1
• The Initial Term of this Agreement shall commence on the Effective Dale and continue In full force for
five (5) years, until lune 30, 2016, The Term may W extended pursuant to Section 3.40r terminated
early In accordance with Section 11.2.
3.4 OPTION TO EXTEND
Subject to City Council approval, the City shall have the option to extend this Agreement for an
additional term of up to five (5( years. If the City extends the Agreement, It shall give written notice to
Contractor at least one hundred eighty (1801 calendar days prior to expiration of the Initial Term. The
Cit✓s written notice shall specify the number of years by whim it elects to extend the Term of this
Agreement and the replaced expiration date of the Agreement. Any such extension shall not become
effective unless Contractor agrees to the extension, in writing, at least one hundred fifty (150) calendar
days prior to expiration of the Initial Term.
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• ARTICLE 4
SCOPE OF AGREEMENT
4.1 SCOPE OF AGREEMENT
This nonexclusive franchise, granted to Contractor, authorizes Contractor to Collect, Transport, Recycle,
Process, Compost, and Dispose of Permitted Materials placed by Residential or Commercial Generators
In Roll off Containers for Collection, provided that the Customer has voluntarily arranged for Contractor
to provide Collection services.
The Contractor shall be responsible for the following services.
A. Collecting Permitted Materials placed by each Customer in a RollOffContainer for Colle¢lon as
requested by Customer.
S. Providing each Customer, upon delivery of Roll Off Container, a printed list that specifies the
materials that cannot be placed In the Rall -Oft Container f e., Hazardous Wastes) and a list of
acceptable Reryclable Materials, Organic Materials, and C&D that may be placed in the Roll Off
Container.
C. Transporting Collected Solid Waste to the Designated Disposal Site and transporting other
materials to an Approved Processing Site.
• D. Furnishing all labor, supervision, vehicles, Roll 00 Containers, other equipment, materials,
supplies, and all bMer items and services necessary to perform its obligations under this
Agreement
E Paying all expenses related to provision of services required by this Agreement including; but
not limited to, Franchise Fees, taxes.regulatory fees, Collection costs, Transportation costs,
Processing costs, Disposal costs, utilities, etc.
F. Providing all services required by this Agreement in a thorough and professional manner so that
residents, businesses, and the Cry are provided timely, reliable, courteous and high-quallry
service at all times
G. Performing all services In substantial accordance with this Agreement at all times using best
industry practice for comparable operations.
H Complying who Applicable Law.
I. Performing or providing all other services necessary to fulfill Its obligations under this
Agreement
I . ONermng a minimum of SM of the C&O Collected from Disposal. The Diversion rate shall be
calculated each month based upon the weights of C&D Collected and Diverted'.
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N. Diverting a minimum of 70% of the Recyclable Materials Collected from Disposal. The Diversion
. rate shall be calculated each month based upon the weights of Recyclable Materials Collected
and Diverted.
L Diverting a minimum of g0% of the Organic Materials Collected from Disposal. The Diversion
rate shall be calculated each month based upon the weights of Grit l< Materials Collected and
Diverted.
The enumeration and specification of particular aspects of service, [door, or equipment requirements
shall not relieve Contractor of the duty of accomplishing 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 non exclusive. Permitted Materials may be Collected and
Transported by other Persons provided that such Persons do so In accordance with the City's Municipal
Code, including but not limited to the following.
A. Permitted Materials Collected by Other Non -Exclusive irznchise Haulers. Permitted Materials
Collected by a party that has executed a Non Exclusive Franchise Agreement with the City far
Roll Off Container CoRectlon Services.
• B. Permitted Materials Collected by City. Permitted Materials collected by the City's municipal
collection operation Including'. 111 materials Collected using equipment, such as Carts and Bins,
not regulated by this Agreement (2) materials Collected from City facilities, and special events
and venues sponsored by the City, which may be collected in Carts, Bins, or Roll Off Containers
by the City 5 municipal collection operation or City crews.
C. Donated Recyclable Materials. Recyclable Materials Generated in the City that are Spume
Separated and donated by the Generator to youth, civic, charitable, or other nonprofit
organizations,
D. Materials Hauled by Owner or Occupant, or its Contractor, Permitted Materials that are
removed from any Premises and are Transported to a Disposal Site or Processing Site by(i)rhe
Owner or Occupant of Such Premises. (li)byfull-time employee of Owner r Occupant that uses
the Owner's or Occupant's equipment to transport materials; or [iii) by a construction or
remained contractor performing construction or demi work at the Premises, whose
remval of the Permitted Materials 15 incidental to the service being performed (as defined in
Section 6-305lflllll) of the City's Municipal Code) and such contractor removes materials at no
additional or separate fee using contractions employees and contractors equipment.
E. Green Waste Material. Private collection of Green Waste Material resulting from landscaping
or gardening service performed by the person collecting such materials.
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F, Other Recyclable Materials. Private collection by any person or company that transports
• Recyclable Materials through use of its own vehiclelsl, and receives no compensation for such
Collection or Transportation.
G. Materials from Public Schools and Other Government FaAlRies. The removal of any materials
generated by public schools; cities, the County, or federal faclltties hisch the exception Of those
facilities subject to 42 O.S.C. faction 691.
4.3 CITY'S RIGHT TO GRANT MULTIPLE NON-EXCLUSIVE AGREEMENTS
The City may grant to an unlimited number of additional Persons similar no exclusive franchise
agreements for Roll Off Container Collection, Transportation, Recycling, Processing, Composting. and
Disposal of Permitted Materials.
4.4 CITY'S RIGHT TO EXCLUDE NEWLY ANNEXED TERRITORY FROM SCOPE OF
FRANCHISE
The City reserves the right to exclude territory that is annexed into the corporate limits Of the City
subsequent to the Effective Date from the scope of this franchise.
4.5 AGREEMENT CONSISTENT WITH APPLICABLE LAW
• This Agreement and scope Of this franchise shall be interpreted to be consistent with Applicable taw,
now and during the Term. If future Judicial Interpretation of current law or new laws, regulations, or
Judicial Interpretations limit the ability of the Giy, to lawfully pravitle for the scope of services as
specifically set forth herein, Contractor agrees that the scope of the Agreement will be limited to those
services and materials which may be lawfully provided and that the City shall not be responsible for any
last pmfts or losses claimed by Contractor to arise out of limitations of the scope of the Agreement set
forth herein. In such an event, it shall be the responsibility of Contractor to minimize the financial
impact of such future jud'mial Interpretations or new laws.
Ll
4.6 OWNERSHIP OF MATERIALS
Once Permitted Materials are placed in a Roll Off Container for Collection by Contractor, ownership and
the right to possession of such materials shall transfer directly from the Customer to Contractor.
On a short-term basis not to exceed more than five 151 calendar days per year, City may obtain
ownership or possession of Permitted Materials placed in the RollOffContainer for Collection, for
purposes of waste characterization studies, upon written notice to Contractor of its intent to do so.
However, nothing In this Agreement shall be construed as giving rise to any inference that City has such
ownership or possession unless such written nonce has been given to Contractor.
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4.7 NOTIFICATION TO CITY OF NON -FRANCHISED HAULERS
• If Contractor can produce evidence that other Persons are Collecting Permitted Materials and do not
have rights to do so as granted by nonexclusive franchise agreement with the City or otherwise, or In a
Insurer that is not consistent with the City's Municipal Code, Contractor shall notify the City In writing,
within ten (ID) calendar days of Contractor enrolling such circumstances. The Contractors notice shall
Include the name and telephone number of the Person or company Collecting Permitted Materials if
known), the date the Contractor witnessed the event, the location of the Rall-0ff Container along with
Contractors evidence of the violation of the rights granted by this non exclusive franchise.
ARTICLE 5
COLLECTION, PROCESSING, AND DISPOSAL SERVICES
5.1 COLLECTION
Contractor is hereby authoril to Collect Permitted Materials from residents and businesses in the City
sing Roll Off Containers. Contractor shall Collect Permitted Materials from Customers that voluntarily
subscribe to or request Roll -Off Container Collection services from Contractor. Contractor shall provide
Its Customers with a RollOffContainer fur Permitted Materials Collection or shall allow its Customers to
provide a Roll Off Container. Contractor shall Collect Permitted Materials from Premises as frequently
• as scheduled by Contractor or as mutually agreed with Customer, but not less than once a week for Solid
Waste and Organic Materials. Contractor shall provide requested service to Its Customers and shall
charge Customers for service at Rates mutually agreed by Customer and Contractor.
Contractor shall Transport Solid Waste Collected pursuant to this Agreement to the Designated Disposal
Site and other materials to an Approved Processing Site that has been selected by the Contractor and
approved by the City. The Approved Processing Spain)must he able t0 demonstrate Diversion rates in
accordance with Sections 4. l and 5.3.
Contractor may enter into contracts with Customers for Collection services provided that in no case shall
the term of such contracts extend beyond the Term of this Agreement, and provided that in the event
the City terminates this Agreement the Contracts with any and all Customers shall terminate on the
termination date of this Agreement.
6.2 PROCESSING AND MARKETING SERVICES
A. Processing. Contractor all"s to Transport and deliver ))all MID It Collects in the City to the
Approved C&D Processing Site, (id all Recyclable Materials it Collects In the City to the Approved
Recyclable Processing Site, and rip) all Organic Materials It Collects in the City to the Approved
Organics Processing Site Residue from the C&D, Recyclable Materials, and Organics Processing
and Composting activities shall be Disposed of by Contractor of its Approved Processor at an
Approved Disposal Site selected by Contractor In accordance with Section 5.4. Contractor
• selected the Approved Processing Short)and Approved Disposal 5lte(s), which are iterated In
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Exhibit D, Contractor shall permit or arrange for the City to Inspect the Approved Processing
• Sachs)and observe operations atony time during the Term.
Contractor or its Approved Provessm)s) shall possess all permits and approvals necessary for use
of the Approved Processing Sites) In full regulatory compliance. Contractor shall, upon City
request, provide or request from its Approved Pmcessar)s) and provide copies of notices of
violation or permits to the City upon request of the City, Contractor shall provide a conined
statement from Its Approved Processors) documenting Its Diversion rate.
If Contractor elects to use a Processing Saris) that Is different than the Approved Processing
Slte(s) spetlged in Exhibit D, it shall request written approval from the City sixty (W) calendar
days prior to use or the site and obtain the City's written approval no later than ten (101
calendar days snorts use of the site.
If Contractor h unable to use an Approved Processing Site due to an emergency or sudden
unforeseen closure Of the Approved Processing Site, Contractor may use an alternative
Processing Site provided that R) the Contractor Provides verbal and written notice to the City
within twenty four (za) hours ofuse of an alternative Processing Site, and hq the alternative.
Processing Site is fully permitted and in compliance with all Applicable Laws. The written notice
shall Include a description of the reasons the Approved Processing Site is not feasible and the
period of time Contractor proposes to use the alternative Processing Site. Contractor shall use
the alternative Processing Site for no more than twenty four (24) hours without obtaining City's
written approval.
• B. Marketing. The Contractor or Its Approved Processor shall be responsible for marketing C&D,
Recyclable Materials, and Organic Materials Collected in the City and Diverted. Contractor
and/or its Approved Processor may retain all revenues generated from the sale of Permitted
Materials that are Diverted.
Upon request, Contractor or its Approved Processor shall provide proof (in the form of asks
receipts showing end user) to the City that all C&D, Recyclable Materials, and Organic Materials
Diverted are marketed for Reryding Or reuse In such a manner that materials shall be
considered as Diverted in accordance with the State regulations established by the Act. All
residual material from the Processing activities that is not marketed for use shall be accounted
for as Disposal Tonnage at a permitted Disposal Site. No Permitted Material shall be
transported to a domestic or foreign location If Sora waste Disposal Of such material Is its
Intended use
Contractor or Its Approved Processor shall provide the City, upon written request, with a list of
broker/buyers it uses to market C&D, Retytlable Materials, and Organic Materials Diverted. Clry
may audit brokers or buyers to confirm that materials are being Recycled and Diverted from
Disposal. If Contractor becomes aware that a broker or buyer has Illegally handled or Disposed
of material generated by the City or elsewhere, Contractor shall immediately inform the City and
terminate its contract or working relationship with such party immediately.
C Processsirq and Marketing Costs. Contractor shall pay all costs associated with Processing and
marketing of Prominent Materials including payment of any gate fees charged at the Approved
• Processing Sites.
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6.3 DIVERSION REQUIREMENT
IS Contractor shall Divert from landfill disposal at least (i) SIH6 by weight of all C&D it Collects within the
City, (it) 70% by weight of all Recyclable Materials it Collects within the Cloy, and )lit) 90% by weight of all
Orlsolc Materials it Collects morin the City during each calendar month by Protesting, Recycling, or
Composting some or all of the C&D, Recyclable Materials, and Organic Materials Collected.
a Contractor fails to meet the Diverstun requirements stated In the preceding paragraph during a
calendar month, the City may terminate the Agreement in accordance with Section 11.5.
5.6 DISPOSAL
A. Disposal of Said Wage Estleded Contractor shall Transport all Solid Waste Collected in the
City to the Designated Disposal Site, which the City specifies shall be the American Avenue
Landfill in Tranquilly, California. Contractor shall Pay all costs associated with Transporting and
Disposal of Solid Waste including payment of any gate fees charged at the Designated Disposal
Site.
R. Disposal of Processing Residue, Contractor shall, or shall require its Approved Processor to,
Dispose of residue from Processing of C&D. Recyclable Materials, and Organic Materials
Collected within the CRY, that are not Diverted through Processing activities, by Transporting
the residue to an Approved Disposal She specified to Exhibit D, which is lawfully authorized to
• accept such material.
C. Permifted Site. Contractor of its Approved Processor shall only Dispose of materials at a
permitted Disposal Site that is in full regulatory compliance. Contractor, or its Approved
Processor, shall keep or confirm all existing persons and approvals necessary for use of the
Disposal Sitelsl in full regulatory compliance. Contractor shall, upon request, provide copies of
notices of violation or Permits to the City,
D. Compliance with RelvAbalem. Contractor shall observe and comply with all regulations ineffect
at the Designated Disposal Site and Approved disposal Sitels) and cooperate with the operator
thereof with respect to delivery of Solid waste, including directions to unload Collection vehicles
in designated areas,
accommodating operations and maintenance whippies, and complying with
Hazardous Waste oxidatioprograms.
E Disposal at Approved Site. Contractor, or Its Approved Processor, shall not Disease of such
residue by depositing It on any public or private land, in any river, stream, or other waterway, or
in any sanitary see (
r storm drainage system o in
any other m which violates
n
Applicable Laws. Contractor, is Approved Processor,selectedthe Approved Disposal Sttels)
for residue Disposal specified In Exhibit D. Contractor shall arrange for the City to Inspect the
Approved Disposal 5ieak s) and observe operations at any time during the mi
F. Allem rtNe Disposal She, If Contractor, at its Approved Processor, elects to use a Disposal
Shensi that is different than the Approved Disposal Sltels) listed In Exhibit D, it shall request
. written approval from the City 60 calendar days prior to use of the site and obtain the Units
written approval no later than 10 calendar days prior to use of the site.
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0
If Contractor, or Its Approved Processor, is unable to use the Approved Disposal size due to an
emergency or sudden unforeseen closure of the Approved Disposal site; Contractor, or its
Approved Processor, may use n alternative Disposal Site provided that fl the Contractor
provides verbal and written notice to the CIN within twenty-four (go) hours of use of an
alternative Disposal Site, and 17t) the alternative Processing Site 1s fully permitted and in
compliance with all Applicable Laws. The women notice shall Include a description of the
reasons the Approved Disposal Site is not feasible and the period of time Contractor, or its
Approved Processor, proposes to use the alternative Disposal Site. Contractor shall use the
alternative Disposal Site for no more than twenty-four (da) hours without oMaining City's
written approval.
5.5 BILLING
Contractor shall bill all Customers and collect billings in accordance with Contractor established Rates,
which are set in a manner consistent with provisions of Section 9.3. The Contractor shall prepare, mall,
and collect bills lar shall issue written receipts for cash payments) for Collection services provided by
Contractor. Contractor shall be responsible for collection of payment from Customers with past due
accounts.
Contractor shall maintain copies of all billings and receipts. each in chronologlnl order, for five (5) years
after expiation or termination of this Agreement, Contractor shall remains and make evallable to the
Clry copies of the billings and renders within five 15) days of the Diectur written request for the
pipings and receipts. The Contractor may, at its option, maintain those records In computer form, on
• mlcrofcbe, or In any other manner, provided that the records can be preserved and retrieved for
inspection and verification in a timely manner.
5.6 CUSTOMER SERVICE
Contractor shall maintain a business once within the City or within a reasonable distance of the Ory
limits approved by the Director. The business office shall staff at least one customer service
representative capable of accepting payments from Customers, answering service questions, and
resolving Customer service issues. Contractor shall have a to0dree Customer service telephone number
and shall have staff available toanswer
.m
calls from at least 8.00 dam, to 6'.00 p., Monday through
Friday. An answering machine shall record Customer calls and voice messages between 690 p in. and
swam
ARTICLE 6
STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT,
AND PERSONNEL
6.1 OPERATING DAYS, HOURS, AND SCHEDULES
• A. Days and Hours of Collection
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• 1. Residential Premises. Delivery or Collection of RollORContainer to Or from Residential
Premises shall only occur between the hours of 6:00 a.m. and 6:00 p.m., any clay of the
week.
2. Cense al Premises. Delivery or Collection of a Roll OR Container to or from Commercial
Premises that are 20D feel or less from Residential Premises shall only occur between the
hours of 6:00 a.in and 6:00 p. m., any day of the week. Delivery or Collection of a RolW f
Container to or from Commercial Premises that are more than 200 feet from Residential
Premises shall only occur between the hours of 5.00 a.m. and 2:00 p.m., any day of the
week. The Director may require modifications to hours for delivery and Collection from
Commercial Premises to resolve n complaints, and, m such case, the Director may
mange the allowable operating hours, nose
3. Exceptions. In the event of an unforeseen circumstance, the contractor may deliver or
Collect a Roll -Off Container from Residential or Commercial Premises that are 2W feet or
less from Residential Premises between the hours of 5:00 a.m. and 1D: W p.m., upon prior
written approval from the Director.
4. Failure to Comply. If Contractor fails to comply with the Collection hours described In
this section, the Contractor shall pay the City liquidated Damages as described In section
11.4 and Exhlbtt A.
• 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 Roll Off Container. Contractor shall, In written form, inform all Customers as to the
acceptable materials that can be included in the Rohl Container and any unacceptable materials to be
excluded from Collection.
6.2.2 Care of Private Propedy
Contractor shall not damage private property. Contractor shall ensure that Its employees: III close all
gates Opened in making Collectors, vnless otherwise directed by the Customer. pp do not cross
landscaped areas: and Bill do not climb or jump over hedges and fences.
0
City shall refer complaints about damage to prMte property to Contractor. Contractor shall repair all
damage to private and public property caused by Its employees to Its previous condition.
6.2.3 Offer Abatement
A. Mlnimbatlon ofSpills.Contractor shall use due care to prevent vehicle oil and vehicle fuel from
being spilled or scattered during Collection and Transportation operations. If any Permitted
Materials are spilled or scattered daring COIIMion or Transportation operations, the Contractor
shall promptly clean up act spilled and scattered materials.
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Contractor shall not transfer loads from one vehicle to another on any public street, unless It is
• necessary to do so bemuse of mechanical failure, hot load (combustion of material in thetruck),
accidental damage to a vehicle, or unless approved by the City.
If Contractor fails to Perform some or all of line requirements described in this Section, the
Contractor shall pay the City Liquidated Damages as described in Section 11.4 and Exhibit A.
6. Clean -Up. Each Collection vehicle shall carry protective gloves, a broom, and shovel at all times
for cleaning up litter and absorbent material for cleaning up liquid spills. The Contractor shall
discuss instances of repeated spillage not mused by It with the Customer of the Premises where
spillage occurs, and Contractor shall report such Instances to City If the Contractor has
attest ed to have a Customer stop creating spillage but Is unsuccessful, the Clry will attempt,
upon notice by the Contractor, to rectify such situation with the Customer.
C. Covering of Leads. Contractor shall cover all Rall -Off Containers at the pickup location before
Transporting materials to prevent PermRted Materials from escaping during Transportation.
6.3.4 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 hoursof the
day to the satisfaction of the City. In the event of repeal occurrences of noise levels in excess of 75
dh(Al, the Contractor shall pay Liquidated Damages In accordance with Section 11.4 and Exhibit A.
• 6.3 VEHICLE REQUIREMENTS
A. General. Vehides used to provide services under this Agreement shall be kept in a safe, neat,
clean, and operable condition at all times. If Contractor fails to keep Collection vehicles in a sate
and sanitary Condition, the Contractor shall pay the City Liquidated Damages as described in
Settlor 114 and Exhibit A.
a. Specifications. Contractor shall register all vehicles with the Coodornla Department of Motor
Vehicles. All such vehicles shall comply with California Environmental Protection Agency(EPA)
noise emission and air quality regulations and other applicable noise control regulations.
C. vehicle idem icatbn. Contractors name, loped telephone number, and a unique idents ical
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 City's logo on Its vehicles.
0. Cleaning and Maintenance
1. Cleaning. Collection vehicles shall be thoroughly weshed and thoroughly steam cleaned as
frequently as necessary to present a clean appearance of the exterior and Interior compartment
of the vehicle:
• I. Maintenance. Contractor shall inspect each vehicle daily to ensure that all equipment is
operating Properly. Vehicles that are not operating properly shall betaken out of service until
they are repaired and operating properly. Contractor shall perform all scheduled maintenance
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functions in accordance with the manufacturers specifications and schedule or In accordance
• with California Highway Patrol standards. whichever are more stringent. Contractor shall keep
accurate records of all vehicle maintenance, recorded according to date and mileage, and shall
make such records available to the City upon request to the extent necessary to perform the
inspections described In Sections 6.3.F and 6.8.
3. Repairs. Contractor shall repair, or arrange for the repair of, all of its vehicles and equipment
for which repairs are needed because of accident, breakdown, or any other cause, so as to
maintain an equipment in a safe and passable sorption. Contractor shall maintain accurate
records of repair, which shall include the date/mileage, nature of repair and the signature Of
maintenance supervisor that the repair has been properly performed.
4. Storage. Contractor shall arrange to store all vehicles and other equipment in safe and secure
locationlsl in accordance with City's applicable zoning regulations.
E Operation. Vehicles shall be Operated In compliance with the California Vehicle Come, and all
applicable safety and local ordinances. Contractor shall not load vehicles in excess of the
manufacturer s recommendations Or limitationsiaposed by State or local weight restrictions for
vehicles and ones. Contractor shall have each Collection vehicle weighed at each Approved
Processing Sites or Designated Disposal Site to determine the unloaded weight -tare weight')
of the vehicle, and the total loaded weight of each load delivered to the Approved Processing
Sites and Designated Disposal Site.
E Vehicle Inspection. Cry may inspect vehicles at any time to determine mmplbnce with the
• requirements of this Agreement. Contractor shall make vehicles available to the City and/or
Fresno County Health Department for inspection, at any frequency City reasonably requests.
6.4 ROLL -OFF CONTAINER REOUIREMENTS
A. General. All Roll Off Containers bull meet applicable Federal, State, City and local regulations
for safety.
B . Specifications
1. Prevent leakage. H the type of materials placed In the container may result in leakage of
liquids, Contractor shall take precautions to prevent the leakage of liquids. In accordance with
Section 17315 of Chapter of Title 14 of the California Code of Regulations. Roll Containers
used to Collett garbage and putresclble materials and/or garbage and successions mixed with
rubbish shall be nam absorbent, water -tight, vector -resistant durable, easlly cleanable, and shall
be designed for safe hunching and the containment of refuse.
2. Pmvlslal of Sufficient Operettas. In accordance with Section 17315 of Chapter of Title 14 of
the California Cade ofRegulations, Containers for garbage and rubbish should be of an adequate
size and In sufficient numbers to contain without overflowing, all the refuse that a household or
other establishment generates within the designated removal period.
• 3. use of Ordaining wpb Was than Ten I10l Cubic Yards of Capacity. Roll Off Containers with
capachiesaf less than ten (lot cubic yards may only be used for the purposes of Collecting MD.
City of Fresno Rall -Off Agreement Page 20
4/8/11
• C.
Roll -Off Container ldentguation. All Contractor -provided RallOff Containers shall prominently
display the Comrai name, local telephone number, a unique Rail Off Container
identification number, and fist of acceptable materials. As appropriate, Roll Off Containers
shall be labeled for Solid Waste, Recyclable Materials, Organic Materials, or C&D. Such labeling
may be temporary labeling In the form of magnetic or detachable signs.
If Contractor fails to comply with the provisions of this Section 64, the Contractor shall Pay the
City Liquidated Damages as described In Section 11.4 and Exhibit A,
D.
Cleaning. Painting, and Maintenance. All ROTI -Off Containers shall be maintained in a safe,
serviceable, and functional condition. Contractor shall steam clean and repaint all Roll Off
Containers at least every two years, or more frequently,. to present a clean, graffiti -free
appearance
E
Roll -0M Container Inspections. City may inspect Roll -Off Containers at any time to determine
compliance with foundation requirements. Contractor shall make Containers available to the City
at any ffequi It requests. The City shall have the right to prohibit the use of any Pall -Off
Container that falls to comply with the provisions In this Section 64.
F.
Abandoned Roll Off Containers. Contractor shall not Abandon any Roll Off Container used to
provide Permitted Materials Collection services under this Agreement If the Contractor
Abandons a Contractorowned RollOffContainer, Ory may remove the Roll Off Container and
Process and Dispose of the contents. If the City removes a Roll Off Container Abandoned by
•
Contractor. the City may charge Contractor for the City's costs incurred removing such Rall Off
Container, Transporting, Processing, and Disposing of Its contents, and/or the cost of storing
such Roll Off Container. Contractor shall reimburse the City for such costs within fourteen (14)
calendar days of the date of the City's Invoice to the Contractor for such costs. If the Contractor
does not Pay the invoice amount within fourteen 114) days, the City shall become the Roll -Off
Container owner If the Invoice stated the Cltys intent to hecome the Container owner In
lettering of at least 12 point font.
For the purposes of this Section CIO. F,'Abandod' means the following:
1. Contractors fallure to remove a Contractor -owned 3011-011' Container within five (5)
calendar days of receiving a written request from a Customer or the City or within flue (5)
calendar days aper the termination of the customer service agreement between Contactor
and the Customer, or
3, Contractor's failure to remove a ContractorownedRoll Off Container within ten (101
calendar days upon expiration or termination of this Agreement, except in the case where
Contractor has been granted an extension of the Term of the Agreement or Contractor has
been granted a subsequent agreement uniforking Contractor to Collect and transport the
type or types of materials for which the Roll Off Container was used pursuant to this
Agreement.
•
City of Fresno Roll Off Agreement Page 21
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6.5
PERSONNEL
•
A.
General. Contractor shall furnish such rumored drivers, maintenance, supervisory, Customer
service, clerical and other personnel as may be necessary to provide the services requlred by
this Agreement In a safe and efficient manner.
B.
Driver Quaffiica6ons. All drivers shall be banned and qualified In the operation of Collection
vehicles, and must have In effect valid license, of the appropriate class, issued by the California
Department of Motor Vehicles. Contractor shall use the Class B California Department of Motor
Vehicles employer "Pull Notice Program' to monitor its drivers for safety.
C.
Safety TmMil Contractor shall provide suitable operational and safety training for all of its
employees who operate Collection vehicles or equipment or who are otherwise directly involved
in such Collection, Disposal, or Processing. Contractor shall train its employees involved in
Collection to Identify, and not to collect, Hazardous Waste or Infectious Waste. Upon the City's
request, Contractor shall provide a copy of its safety policy and safety training program, the
name of its safety officer, and the frequency of Its Fairings.
D.
Employee Conduct and Courtesy. Contractor shall use Its best sports to ensure that all
employees present a neat appearance and conduct themselves In a courteous manner
Contractor shall regularly Gain its employees In Customer courtesy, shall prombt the use of loud
or profane language, and shall Instruct Collection employees to perform the work as quietly as
possible. If any employee Is found not to be courteous or not to be performing servicesn the
manner Unearned by this Agreement, Contractor shall take all appropriate corrective measures
•
and shall pay the City Liquidated Damages as described in Section 11.4 and Exhibit A.
E.
Employee Identification. While performing services under this Agreement, all of the
Contractor's employees performing field service shall be dressed in clean clothes and shall wear
badges that include the employee's name and/or employee number, and Courtratols name, as
approved by the City.
[Afz>_lrsviy:lsPlgby:GF9l�1.F9asLNl[P.I_l.T•].IT:i ]61:[d
A. Response to Hazardous Waste Identified during Collection. If Contractor determines that
material placed In any Hall4ff Container for Collection Is a Hazardous Waste that may not
legally be Disposed of ata Disposal Site or handled at the processing Site, or presents a hazard
to Contractor's employees, the Contractor shall refuse to accept such material. The Contractor
stall contact the Customer and request the Customer to arrange proper Disposal. If the
Generator cannot be reached immediately, the Contractor shall, before leaving the Premises,
leave a tag at least two inches by six Inches (2" x 6") In size, which Indicates the reason far
refusing to Collect the material and Ilsts a phone number for obtaining information on proper
disposal of the Hazardous Waste. Under no circumstances shall Contractor's employees
knowingly Collect Hazardous Waste.
If Hazardous Waste is found in a RoilOffContainer that could possibly royaltln imminentdanger
• to people or property, the Contractor shall Immediately notify the City's Fire Department using
the 911 emergency number.
City of Fresno full Agreement Page 22
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The Contractor shall notify the Chy of any Hazardous waste identified In Ro1l-0R Containers or
• left at any Premises within za hours of identification of such material.
3. Response to Hazardous Wastes ldeNKed at Deposal Ske or Processing Site. The Contractor,
or its Approved Processor, or Disposal Site operator shall provide load checkers and equipment
Operators at the Processing or Disposal Sitels) to identify Hazardous Wastes for Manage In
approved, on-site, hazardous materials storage comaii. Contractor shall make reasonable
efforts to identify and notify the Customer. Contractor shall arrange for removal of the
Hazardous Wastes by permitted haulers in accordance with Applicable Laws and regulatory
requirements.
If the Hazardous Wastes delivered to a Disposal Site or Processing Site by Contractor before its
presence Is Repeated, and the Generator cannot be identified or falls to remove the material
after being requested to do so, the Contractor shall arrange for Its proper Disposal. The
Contractor may make a good faith enact to recover the cost of Disposal from the Generator, and
the Lost of this effort, as well as the cost of Disposal shall be chargeable to Me Generator,
C. Regulations and Record keeping. Contractor shall comply with emergency notification
procedures required by Applicable Laws and regulatory requirements. All records required by
regulations shall be maintained at the Contractors facility. These records shall include: waste
manifests, waste Inventories, waste characterization records, inspection records, Incident
reports, and training records.
• 6.7 NON-DISCRIMINATION
Contractor shall not discriminate In the provision of service or the employment of Persons engaged In
Performance of this Agreement on account of race, color, natural origin, ancestry, religion, gentler.
marital status, sexual orientation, age, physical or mental disability In violation of any Applicable Law.
6.g COMMUNICATION AND COOPERATION WITH CRY
A. Communications. If requested, the Contractor shall meet with the City or its agent to discuss
service issa95.
B. propetlion by City. The City, or its designated representatives, shall have the rlgbt to observe
and review Contractor operations, Processing Sites and Disposal Ates used by Contractor, and
enter Contractor's Premises for the purposes of such observation and review during reasonable
hours without advance nonce.
C Cooperate with Guy Initiated SWtlles. Contractor Shan cooperate with and assist the City or Its
agent with the performance of City initiated studies of Permitted Materials such as, but not
umiled to, waste characterization and composition studies.
City of Fresno Roll -Off Agreement Page 33
al ll
• ARTICLE 7
RECORD KEEPING AND REPORTING
7.1 GENERAL
7.1.1 Maintenance of Records
Contractor agrees to conduct data collection, Information and record keeping, and reporting activities
needed to comply with and to meet the reporting and permitted Materials program management needs
of City, the Act and other Applicable taws, and the requirements' of this Agreement.
This Article is Intended to highlight the general nature of records and reports 10 be maintained by
Contractor, and their minimum content. This Article is not meant to comprehensively define what the
records and reportsare to be and their content. With the written direction by Cr approval of City, the
records and reports to be maintained and provided by Contractor In accordance with this and Other
Articles of the Agreement shall be adjusted In number, format, or frequency Records and reporting
may be revised to reflect current record keeping and regarding requirements.
To the extent such requirements are set out In this and other Articles of this Agreement, they shall not
be considered limiting or necessarily complete.
7.1.2 Retention of Records
• Unless otherwise required in this Article, Contractor shall retain all records and data required to be
maim i ned by this Agreement for the Term of this Agreement plus five (S) years after Its expiration or
earlier termination. Records and data shall be In chronological order and readily and easily interpreted.
2.1.3 Inspection of Records
The City, its auditors and other agents, shall have the Mehl timing regular business hours, to Inspect
specific coca cents or records required by this Agreement or any other similar records or reports of the
Contractor that the City shall deem, at Its sole secretion. necessary to evaluate the Contractor's
perfor a Provided for In this Agreement. The City may make copies of any documents it deems
vans to this Agreement. The City shall provide Contractor written notice at least three 13) guslness
Days prior to any inspection of these records, and Contractor shall retrieve and make available to the
City the requested documents and records at that time.
I l
U
The City reserves the right to Inspect records for the purposes of auditing the Contractors reports,
reported Diversion level, and fee payments to the City. If an audit conducted by the City, or its
representativesfinds: til that the Contractor has made any Intentional misrepresentation with respect
to the lecterns to the tiffleg., Franchise Fees or other tees due to the City) In an amount greater man
51,000 or 10% of the Pies due to the City during the period covered by the audit, whichever Is greater,
or fill that the Diversion level is 5% different than the Diversion level reported by the Contractor, then in
addition to any other remedies available to the City. Contractor shall reimburse the City for the City's
costs incurred In the performance of the audit such reimbursement shall be paid by Contractor, along
with any underpaid fees and Liquidated Damages required by Section 11.4 and Exhibit A, within thirty
(30) calendar days of the time the City notifies the Contractor of the amount due.
Clry of Fresno FeltOffAgreement page 2E
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7.1.4 Record security
• Contractor shall maintain adequate record security to preserve records from events that can be
reasonably anticipated such as fire, theft, and earthquake. Electronically maintained data and records
shall be protected and backed -up.
7.3 RECORDS
7.1.1 Financial and Operational Records
Contractor shall maintain accurate and complete accounting records containing the underlying financial
and operating data relating to and showing the basis for computation of all revenues associated with
providing Permitted Materials Collection, Transportation, Processing, Recycling, Composting, and
Disposal services. The accounting records shall be prepared In accordance with Generally Accepted
Accounting Principles( GAAP) consistently applied.
At a minimum, the following operational records shall be maintained by Commutator City relating to:
A. Customer account Information and billing records;
IT Tonnage of material Collected by type leg., Solid Waste, Revocable Material, Organic Material,
orC&D7 listed by Processing Site or Disposal Site where such materials were delivered Where
possible, information is to be separated by Residential and Commercial Customers,
• C Tonnage of Recyclable Materials, Organic Material, and C&O Diverted from Disposal by
Contractor and supporting documentation,
D. Diversion level, which shall equal Tonnage Diverted by Contractor divided by the Tonnage
Collected by Contractor multiplied by loo, listed separately by month for the previous quarter.
Tonnage Diverted shall reflect Permitted Materials Processed less residue Disposed.
E. Residue levels of Processed or Demanded materials -
F. Weight tickets from d Designated Disposal Site documenting the Tonnage of Solid Waste
Collected within the City and delivered to the Designated Disposal Site; ilii Processing Sites
documenting the Tonnage of Permitted Materials COIIec ed within the City and delivered to the
Approved processing Ates; and, Illi) Approved Disposal Sites documenting the Tonnage of
residue delivered to Approved Disposal Sites byvehide, date, and time.
G. End use and markets for recovered materials.
Contractor shall make records available to the City upon request.
7.1.1 Customer Records
Contractor shall maintain accurate and complete records containing the number and types of accounts
served by the Contractor. The records shall contain, at a minimum, the Customers name, type of
• business, phone number, address of Roll Off Container delivery and Collection location, date of delivery
and Collection, itemized listing of services Performed, type of Permlttetl Matergl Collected, Tonnage
City of Fresno Roll' OR Agreement Page 15
yg/11
Collected, and the amount charged to provide services. The information shall be provided to the city
• upon request.
7.2.3 CERCUS Defense Records
City views its ability to defend Itself against Comprehensive Environmental Response, Compensation and
Liability Act(CERCIA), and related litigation as a matter of great importance. For this reason, the City
regards its ability to prove Where Permitted Materials Collected by the Contractor are taken for
Processing, Recycling, Composting, Transfer, or Disposal, as well as where they are not taken, to be
matters of concern. Contractor shall maintain, retain and preserve records which can establish where
Permitted Materials Collected were Processed Composted, and Disposed (and therefore establish
where they were not), This provision shall survive the expiration or earlier termination of this
Agreement. Contractor shall maintain these records for a minimum often (10)years beyond expiration
or earlier termination of the Agreement. Contractor shall provide these records to City (upon request or
at the end of the record retention period) In an orgamaed and Indexed manner rather than destroying or
disposing of them.
7.3 GENERAL REPORTING REQUIREMENTS
The format of each report shall be approved by City. Contractor may propose report formats that are
responsive to the objectives. Contractor agrees to mail copy of all reports and submit all reports on
computer discs, by a -mail, or by modem In a format compatible with Cry's mftware and computers at
o additional charge. Contractor will provide a certification statement, under penalty or perjury, by the
• responsible Contractor official, that the report being submitted Is true and correct to the best
knowledge of such official after heir reasonable inquiry.
Contractor shall submit monthly reports within fifteen (15) calendar days of the end of each month. If
Contractor does not submit the monthly reports by the dates required In this Article, Contractor shall
pay the City Liquidated Damages as described in Section 110 and Exhibit A.
Contractor shall Submit via mall and a -mail) all reports to'.
Solid Waste Division Managef
City of Fresno
1335 EI Dorado Street
Fresno, Coi 93706
7.4 MONTHLY REPORT
The monthly reports hall present the following Information.
A Total Tonnage. Total Permitted Materials Tonnage Collected by Contractor within the City
during the previous quarter, listed separately by material type and by month.
R. Diverted Tannage. Permitted Materials Tonnage Collected by Contractor within the City that
• was Diverted during the previous quarter, listed separately by material type and by month.
City of Fresno flail Off Agreement Page 26
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C Disposed Tonnage. Permitted Materials Tonnage Collected by Contractor within the City that
• was Disposed during the previous quarter, listed separately by month.
D. Diversion Level. Tonnage Diverted by Contractor divided by the Tonnage Collected by
Contractor multiplied by TDD, listed separately by month for the previous quarter. Tonnage
Divertetl shall reflect Permitted Materials Processed less residue Disposetl.
E C&o. Tonnage generated from construction and demolition permitted sites, noting the permit
umber, the site address, the Tannage hauledr the date hauled, and the facilities to which the
material was hauled.
F. Disposal and Processing Locations. Contractor shall provide a list of the names and addresses
of where Permitted Materials Collected within the Oty during the previous quarter was Divertetl
and Disposed Such list shall Include the amount of Permitted Materials Tannage Diverted
and/or Disposed at each location during the previous quarter, listed separately by material type
and by month.
G. Revenues. Gross revenues (e.g. cash receipts) earned on all RollOffContainer Collection,
Transportation, Processing, Recycling, Compostog, and/or Disposal tender provided to
Customers within the City during the previous quarter, listed separately by month.
H. Insurance. Updated insurance certificates.
I. Account Information. In table format, the number of Customers within the City limits served
is and number of Rolb% Containers serviced per month listed by Roll Off Container type )omit
Box or Compactor), ROTI Off Container size, and listed separately by Permitted Material type,
and regularly schedule service and unscheduled(on -call) service
J. Contractor officers and Board Members. Provide a list of Contractors officers and members of
its board of directors (only required with the december monthly report each year, or In the
event of a change in the officers or board members).
The City reserves the right to request additional reports from Contractor, and upon City's request,
Contractor shall provide information required above for the time period requested by the City Itis the
desire of the City to track the above required information on an ongoing basis throughout he term of
this Agreement.
7.5 AS 939 COUNTY SURCHARGE REPORTING
Contractor acknowledges that City is a party to that record AB 939 Memorandum of Understanding with
the County of Fresno antl various other jurisdictions dated January 6, 3000 (the "AB 939 MOD"), and
further acknowledges having received and reviewed a copy of the AB 939 MOIL. The Parties agree that
Contractor is a "Jurisdictlon's Hacier', as that term is used In Part IV, Section H of the AB 939 MOO.
Contractor shall comply with all requirements of Part IV, Section H of the AB 939 MOO that are
applicable to a Jurisdiction's Hauler, including but not limited to submittal of reports and payment of the
. AB 939 Surcharge (as that term is defined in the Ad 939 MOU).
City of Fresno Roll -OR Agreement Page Iy
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ARTICLE 8
• FRANCHISE FEES AND OTHER FEES
8.1 GENERAL
Contractor shall collect the fees described in this Section from Customers through Contractols regular
billings and thrust collected amounts to City on a monthly basis as described in Section 8.5.
8.2 FRANCHISE FEE
In consideration of the exclusive rights provided Contractor herein, Contractor shall pay Franchise Fees
to the City each month equal to 10% of actual grass Rate revenues leg cash receipts) remitted to
Contractor by Customers for services provided by Contractor under this Agreement
8.3 OTHER FEES
The City may set "other" additional fees, as it deems necessary. The amount, time, and method of
payment and adjustment process will be set in a manner similar to that for other fees described in this
Article.
• 8.0 ADJUSTMENT TO FEES
City may adjust the fees established In this Article annually at any time during the Term a this
Agreement.
8.5 PAYMENT SCHEDULE AND LATE FEES
On or before the 20th day of each month donne the Term of this Agreement, Contractor shall remit to
cry Franchise Fees and other fees as described In this Article. If such remittance Is not paid to the CIN
on or before the 20th day of any month, Contractor shall pay, In addition to the amount owed to City,
2% of the amount owing for that month; plus an additional 2% owing on any unpaid balance for each
fodoi thirty (30) calendar day peri0d the fee remains unpaid
Each monthly remittance to City shall be accompanied by a statement itemizing each fee paid; detailing
calculation Of all fees; stating actual gross revenues he S. cash receipts) for the monthly period collected
from all operations conducted or permitted bytbis Agreement, and stating the number and sloe of
Containers secured by Contractor for the monthly period Each remittance including all supporting
documentation shall be provided to:
Alm City Controller, Finance Department
€iry of Fresno
• 2600 Fresno Street
Fresno, CA 93721-3620
City of Fresno Roll -0H Agreement Page 28
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6.6 OVERPAYMENT OF FEES
• If Contractor believes it has paid Franchise Fees or other fees as described in this Article, in excess of the
fees due to the Cite Contractor may submit a request for refund to the Director, if proof of
overpayment Is satisfactory to the Director, the Director shall authorise the City to refund the
overpayment to the Contractor. Contractor shall not apply any overpayment as a credit against arty
Franchise Fee or other amounts payable to the CRY, unless specifically authorized tit do so by the
Director In writing.
8.7 NON -CITY FEES; AB 939 COUNTY SURCHARGE
Pursuant to Section 7.5, Contractor shall pay the County of Fresno an AS 939 surcharge as applicable in
accordance with the AS 939 MDU
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 (e.g. cash reanx is) by Customers that obtained Contractor's
Collection services lass fees dues to the City In accordance with Article 8, and pp revenues generated by
the sale of Collected materials Divorced from Disposal.
Contractor's compensation provided for In this Article shall he the full, entire, and complete
compensation clue to Contractor pursuant to this Agreement for all labor, equipment, materials and
Supplies, Processing, Composting and Disposal fees. regulatory fees, City fees, taxes, Insurance, bonds,
overhead, operations, profs and all other things necessary to perform all the services In the manner
required by this Agreement
It Contacirt costs are more than Contractors compensation, Contactor shall not be compensated for
the difference in costs and revenues. If Contractor's costs are less than Contractor's compensation,
Contractor shall retain the difference
9.2 CITY'S RIGHT TO SET MAXIMUM RATES
The City reserves the right to establish maximum Rates for Permitted Materials Collection services
provided under this Agreement in the event that: (at there are three or fewer companies holding noir
exclusive franchise agreements for Collection of Permitted Materials, or IF) the Rates charged by the
companies holding non-exclusive franchise agreements for Collection of Permitted Materials are no
longer comparable to those of other jurisdictions, as reasonably determined by City If the Gry chooses
• to exercise its right to set maximum Rates, City shall notify Contractor at least 180 calendar clays prior to
the date that maximum Rates become effective. In such case, Cry will set maximum Oates with
City of Fresno Roll -Off Agreement Page 39
A/1
consideration of reasonable and necessary costs for Collection, Processing, Composting, and Disposal
• and with the intention of setting maximum Rates that will enable partes, Including the Contractor, that
have executed Non Exclusive Franchise Agreements with the City for Roll Off Container Collection
Services the ability to recover reasonable and necessary costs and a reasonable profit.
9.3 CONTRACTOR'S RATES
Contractor shall set the Rates it charges Its Customers for RollOffCollection services. The Contractor's
Rates shall not exceed City -established maximum Rates, If the City exercises Its rights under5ection. 9, 3.
ARTICLE 10
INDEMNITY AND INSURANCE
10.1 INDEMNIFICATION
Contractor shall Indemnify, defend with counsel acceptable to the Cary, protect and hold harmless the
City and each of its officers officials, employees, volunteers, and agents (collectively, indemnitees) from
and against at claims, damages (including but not limited to special, consequential, natural resources
and punitive damages(, Injuries, costs, llncluding without limit any and all response, renunciation and
• removal costs). losses, demands. debts, liens, Impilties, auaes of action, suits, legal or administrative
proceedings, interest, fines, charges, penalties, and expenses Including without limit attorneys' expert
witness fees and costs incurred In connection with defending against any of the foregoing or in
o
enforcing this indemnity), llec[ivelDamages') of any kind whatsoever paid, incurred or suffered
by, or asserted against, indemnitees arising from or attributable to the acts or omissions of Contractor
whether or not negligent or otherwlm culpable, In connection with or related to the performance of this
Agreement, except such loss or damage which was caused by the sole negligence or willful misconduct
of theory.
Contractors duty to defend and Indemnify herein shall Include Damages arising from or attributable to
any operations, repairs, clean up or detoxification, or other plan iregardless of whether undertaken due
to governmental action) concerning any Hazardous Waste Calletted In the City. Contractor shall be
required to Indemnify the City for the costs for any claims arising from the Processing, Compelling, or
Disposal of Permitted Materials, including, but not limited to, claims arising under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCIA). The foregoing Is Intended to
operate as an agreement to defend and Indemnify and hold harmless accountants to the mu "tent
permitted for hatchet pursuant to Section IDi of CEI IA 43 D.S.C. Section 91 and California
Health and Safety Code Seaton 35364.
In addition, Commences duty to defend and indemnity herein includes all fines and/of Penalties
imposed by the California Department of Resources Recycling and Recovery, subject to the restrictions
set forth in Public Resources Cade Section 4001 If the requirements of the Act are not met by the
Contractor with respect to the Permitted Materials Collected under this Agreement, and such failure is
• clue to Contractor delays in providing Information that prevents Contractor or 04 from submitting
reports required by the Act in a timely manner.
City of Fresno Roll Off Agreement Page 30
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I • This provision will survive the expiration or earlier termination of this Agreement and shall not be
Construed as awaiver Of Tights by City to contribution or indemnify from third parties.
10.2 INSURANCE
10.2.1 Minimum Scope of Insurance
Coverageshall be at least as broad as'.
A. Insurance Services Office Commercial General liability coverage.
1. Personal injury
2. Contractual liability
B. Insurance Services Office covering Automobile Uablley, code l"any auto'.
A. Workers Compensation insurance as required by the Labor Code Of the State of Czllfornia and
Employers. Liability Insurance.
B. Such Other Insurance coverages and omits as may be required by the CITY.
10.23 Minimum Llmi of Insurance
Contractor shall maintain limits no less than:
• A. General Liability; $1pW,000 each occurrence for bodily injury and property damage;
$1,000.000 for personal and advertising injury, 52,000,000 products and completed operations
aggregate. and 52,000,0008eneral aggregate. If Commercial General Llablllty insurance or Other
form with a general aggregate liability is used, either the general aggregate limit shall apply
separately to this project/19i or the general aggregate limit shall be twice the required
occurrence limit.
B. Automobile Liability: $1,000,000 per accident far bodily Injury and properly damage,
C, WorkersCompensation: Workers' compensation limits as expired by the Labor Code of the
State of California.
D. Employer's Liability. $1,000,000 each accident for bodily Injury.
51,000,000 disease each employee.
51,000,000 disease policy limn.
E. Pollution Legal Gablllry: $1,000,000 per claim/occurrence and $2.000,000 aggregate for bodily
Injury, property damage, and remediation of contaminated site.
10.2.3 Deductibles and Self Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. At option
Of the City, either; the Insurer shall reduce or eliminate such deductibles or self-insured retentions as
. respens the city, its officials and employees; or the Contractor shall procure a bond guaranteeing
payment of losses and related investigation, claim administration and defense expenses.
City of Fresno RollOffAgreement Page 31
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10.2.4 Other Insurance Provisions
•The policies are t0 contain, or be endorsed to contain, the following provisions.
A. General babilliy, and Automobile Liability Coverages
1. The City, its officers, officials, employees, agents and volunteers are to be covered as
additional insureds as respects, liability arising out of activities performed by or on behalf
of the Contractor; products and completed operations of the Contractor; premises owned,
leased or used by the Contractor, or automobiles owned, leased, hired or borrowed by the
Contractor. The coverage shall contain no special limitations on the scope of protection
afforded to the Lifts, Its officials, employees, or volunteers. The automobile Ilablllry Is
shal etl to contain MCA 90 coverage.
2. The Contractor's Insurance coverage shall be primary Insurance as respects the Ciry, as
officials, employees, and volunteers. Any insurance or self insurance maintained by the
(Try, 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 provisions of the policies shall not affect coverage
provided to the City its officials, employees, or volunteers.
4. Coverage shall state that the Contractor's Insurance shall apply separately to each Insured
against wham claim Is made or suit Is brought, except with respect to the limits of the
. insurer's lAblllty.
D. WorkersCompensation and Employers Llabllay Coverage. The Insurer shall agree to waive all
rights of subrogation against the City, its officers, employees, and volunteers for losses arising
from work performed by the Contractor for the Ciry.
C All Coverages, Each Insurance policy required by this clause shall be endorsed to state that
coverage shall not he suspended, voided, canceled by either part, reduced In coverage or in
limits except after 30 calendar days' prior written notice by certified mail, return receipt
requested, has been given to the Cit.
10.2.5 Acceptability of Insurers
Me insurance policies required by this Section shall be Issued by an Insurance company or companies
authorized to do business in the State of California and with a rating in the most recent etl0ion of Ben's
Insurance Permits of size category V11 or larger and a rating classification of A or better.
10.2.6 Verification of Coverage
Contractor shall furnish Contractor s Insurance agent a copy of these specification, and direct the agent
to provide the City with certificates of insurance and with original endorsements affecting coverage
required by this clause. Issuance of documentation indicates the Contractor's Insurance complies with
these provisions. The certificates and endorsements for each Insurance policy are to be signed by a
Person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are
• o be received and approved by the City before work commences. The City may require complete,
certified copies of all required insurance poticies, at any time.
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10.2.7 Required Endorsements
• A. The Workers' Compensation point shall contain an endorsement in substantially the following
form.
"Thirty calendar days' prior written notice shall be given to the City of Fresno In the event of
canceration, reduction in coverage, or non renewal of policy."
Director of Public Utilities
Cay of Fresno
2600 Fresno street
Fresno, CA 932213620
B. The Commercial General Liability, Business and Automobile Uabllity, and Pollution Legal Liability
policies shall contain endorsements in substantally the following form:
1. "Thirty calendar days' prior written notice shall be given to the City of Fresno In the event
of czncellatmn, reduction'm coverage, or non renewal of this policy."
Director of Public Utilities
City of Fresno
2600 Fresno Street
Fresno, CA 93221-3620
• 2 "The City of Fresno, its officers, employees, and agents are additional Insureds on this
Policy
3. 'TM1Is policy shall be considered primary in respects any other valid and
colleague insurance maintained by the City ofFresno,nduding any seffrocured retention
or program of self -Insurance, and any other such Insurance shall be considered excess
Insurance only °
4. "Inclusion of the City of Fresno as an Insured shall not affect the Cry's rights as respects any
claim, demand, suit or judgment brought or recovered against the Contramor. This policy
shall protect Contractor and the Ciry in the same manner as though a separate policy had
been Issued to each, but this shall not operate to Increase the Contractor's rmblllty as set
forth in the policy beyond the amount shown or to which the Contractor would have been
liable IT only one party had been named as an Insured "
30.2.9 Delivery of Proof of Coverage
Simultaneously with the execution of this Agre ent, Contractor shall furnish the Ccertificates of
each police of Insurancerequiredhereundere ry n form and substance satisfactory to Ciry. Such
certificates shall show the two and amount of coverage, effective dates and dates of expiration of
pollcies and shall have all required endorsements If the City requests, copies of each policy, together
with all endorsements, shall also be promptly delivered to Ciry.
Renewal certificates will be furnished annually to CRY to demonstrate mainenance of the required
is
coverages throughout the Term,
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418111
10.2.9 Other Insurance Requirements
• A. If any services are delegated to a Subcontractor, the Contractor shall require such Subcontractor
to provide statutory Workers Compensation insurance and employer's Ilablllty Insurance for all
of the Subcontractor s employees engaged In the work in accordance with Sections 10.2.2.c and
10.2.3.D and 10.2.0.9. The liability insurance required by Section 102 2.A shall Cover all
Subcontractors or the Subcontractor must furrish evidence of insurance provided by it meeting
all of the requirements of this Section 10.2.
9. If at any time during the life of the Agreement or any extension, Contractor or any of Its
subcontractors fall to maintain any required insurance In full force and effect, Contractor shall
be In breach of the Agreement until notice is received by City that the required insurance has
been restated 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
cause for City to terminate this Agreement. No action taken by City pursuant to this Section
shall in any way relieve Contractor of its responsibilities under this Agreement.
KI
C, The Contractor shall comply with all requirements of the insurers Issuing policies. The carrying
of insurance shall not relieve Contractor from any obligation under this Agreement. If any claim
exceeding the amount of any deductibles or seW insured reserves
made by any third person
r
against the Contractor o any Subcontractor because ofe
any o related to this
Agreement, the Contractor shall promptly report the fats In wrong to the insurance carrier and
to the CIN
D. The Commercial General Liability, Automobile Liability, and pollution Legal LlatilliM Insurance
policies shall be written on an "Occurrence,' rather than a "claims made" basis. If Contractor is
unable to purchase Pollution Legal Liability Insurance on an occurrence form and must purchase
such insurance on a claims made form
1. The "Petro Date" must be shown, and must be before the effective date of the Agreement
or the commencement of work by Contractor,
2 The policy shall be endorsed to provide not less than a 5 year discovery Period. This
requirement shall survive expiration otermination of the Agreement
3. If coverage Is canceled or nostrenewed, and not replaced with another claims made policy
form With a "Retro Dale" prior to the effective date of the Agreement, Contractor must
purchase "extended reporting" coverage for a minimum of 5 years following the expiration
or termination of the Agreement.
0. A copy of the claims reporting requirements must be stemmed to Cny for review.
5. These requirements shall survive expiration or termination of this Agreement.
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• ARTICLE 11
DEFAULT AND REMEDIES
11.1 EVENTS OF OEFAULT
Each of the following shall constitute an event of default ('Event of Default') hereunder.
A.
Contractor fails to perform Its obligations under this Agreement, or future amendment to this
Agreement, including, but not limited to, Contractor's failure to pay Franchise Fees and other
City fees In accordance with Article 8 of this Agreement, and the breach continues for more than
10 Business Days after written notice from the City for the correction thereof;
B.
Contractors failure to Divert 50% of the C&D, 7M of the Recyclable Materials, and B0% of
Organic Materials Collected In the City as required by Section 5.3 of this Agreement after
Contractor Is given an opportunity, to remedy the nonperformance as described in Section 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 proves to be false or misleading In any material respect a of the time such
representation or disclosure Ismade, whether or not any such representation, warranty, or
disclosure appears as pad of this Agreement;
D.
There is a seizure or attachment (other than a pre -judgment attachment) of, or levy affecting
•
possession on, the operating equipment of Contractor, Including without limit Its vehicles,
maintenance or office facilities, or any part thereof of such proportion as to substantially impair
Contractor's ability to perform under this Agreement and which cannot be released, bonded, or
otherwise lifted within 48 hours excluding weekends and Holidays;
E.
Contractor files a voluntary petition for debt relief under any applicable bankruptcy, insolvency,
debtor relief, or other similar law now or hereafter In effect, or shall consent to the
appointment of or taking of possession by a receiver, liquidator, assignee (other than as a part
of transfer of equipment no longer useful to Contractor or necessary for this Agreement),
trustee (other than as security for an obligation under a deed of trust), custodian, sequestrator
for similar official) of the Contractor Far any part of Contractors operating assets or any
substantial part of Contractor's property, or shall make any general assignment for the benefit
of Contractor's creditors, or shall fall Generally to pay Contractor's debts as they become due or
shall take any action In furtherance of any of the foregoing;
F.
A court having jurisdiction shall enter a decree or order for relief In protectaf the Contractor, in
any involuntary case brought under any bankruptcy, Insolvency, debtor relief, or similar law now
or hereafter'n effect, or Contractor shall consent to or shall fail to oppose any such proceeding,
or any such court shall enter a decree or order appointing aer, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Contractor or far any part of th
Contractors operating equipment or assets, or orders the winding up or liquidation of the
affairs of Contractor;
•
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11.2 RIGHT TO TERMINATE UPON DEFAULT
• Upon a default by Contractor, the City may terminate this Agreement within 10 calendar days of the
default but no later than 180 calendar days after to default Such termination shall be effective 10
calendar days following the City's written notice to Contractor, and such termination shall be effective
without the need for any hearing, suit, or legal action.
11.3 CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE
The City's right to terminate the Agreement under Section 11.2 Is not exclusive, and the City's
termination of the Agreement and/or the Impoffilon of Liquidated Damages shall not constitute an
election of remedies. Instead, these rights shag be in addition to any and all other legal and equitable
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 OW to the Contractor, the
remedy of damages for a breach hereof by Contractor is Inadequate and City shall be entitled to
injunctive relief.
11.4 LIQUIDATED DAMAGES
• A. General. The Parties find that as of the time of the execution of this Agreement, R is
Impractical, if not impossible, to reasonably ascertain the extent of damages which shall be
incurred by City as a result of breach by Contractor of its obligations under this Agreement.
The factors relating to the Impractlnbiliry, of ascertaining damages include, but are not limited
to, the fact that (i) substantial damage results to members of the public who are denied
services or denied quality or reliable service; (II) such breaches cause Inconvenience, anxiety,
frustration, and deprivation of the henets of the Agreement to individual members of the
general public for whose benefit this Agreement exists, subjective ways and In varying
degrees of intensity which are incapable of measurement In precise monetary terms; di)that
services might be available at substantially lower costs than alternative se and the
s
monetary los resulting from denial W s Mas or denial of quality o reliableeservices Is
impossible to calculate in precise monetary terms; and (Iv) the termination of this Agreement
for such breaches, and other remedies are, at best, am eans of future correction and nut
remedies which make the public whole for past breaches.
g. Xrvite Performance Standards; Liquidated Damages lir Failure to Meet Standards. The
Parties further acknowledge that consistent, reliable Roll Off Collettlon, Processing, and
Disposal service Is of utmost importance t0 City and that City has considered and relied an
Contractors representations as t0 Its quality Of service commitment in executing this
Agreement. The Parties recognize that some quantified standards of performance are necessary
and appropriate
to consistent and reliable service and performance. The Parties further
cognize that If Contractr fails to achieve the performance standards, or tails to submit
required documents In a timely manner, City and its residents and businesses will suffer
• damages and that it is and will be, Impractical and extremely difficult to ascertain and
determine the exact amount of damages that City will &offer. Therefore, without prejudice to
City's right to treat such non-performance as an event of default under the Article, the Parties
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agree that the Liquidated Damages amounts established in Exhibit A of this Agreement and the
• following Liquidated Damage amounts represent a reasonable estimate of the amount of such
damages considering all of the circumstances existing on the Effective Date or this Agreement.
ntluding the relationship of the sums to the range of harm to City that reasonably could be
anticipated and the anticipation that proof of actual damages would be costly or Impractical.
Contractor agrees to pay (as Liquidated Damages and not as a penalWl the amounts set forth In
the Schedule of Liquidated Damages, Exhibit A.
Ciry, may determine the occurrence of events giving rise to Liquidated Damages through the
Observation of Its own employees or
representative or Investigation of complaints by
Customers, occupant, and Generators.
Liquidated Damages will only be assessed after Contractor has. been given the opportunity but
failed to rectify the damages s described in this Agreement. Before assessing Liquidatetl
Damages, City shall give Contractor notice of Its Intention to do so. The notice will include a
brief description of the incn engs) and/or minsiderformance. The City may re w (and make
copies at its own expense) all information in the possession of Contractor relating to Incident(s)
and non-performance. City may, within 10 calendar days after Issuing the notice, request a
meeting with Contractor. Cry may present evidence of mor-perbrmance in writing and through
testimony of Its employees and others relevant to the 'mcidengs) and non-performance. City
will provide Contractor with a written explanation of its determination on each incidents) and
oroperformance prior to authorizing the assessment or Liquidated Damages under this Secii
114 The decision of City shall be final and City shall not be subject to, or required to exhaust,
• any further administrative remedies.
C, Amount. Ciry may assess Liquidated Damages for each calendar day or event, as appropriate,
that Contractor is determined to he liable in accordance with this Agreement In the amounts
Specified in Exhibit A subject to annual adjustment described below.
The amount of Liquidated Damages spMfied In Exhibit A shall be adjusted annually on the
adversary of the Effective Date. The adjustment shall be rounded to then rest cent.
Liquidated Damage amounts shall be adjusted to reflect changes In the Consumer Price Index—
All Urban Consumers (CPI -U) compiled and published by the U.S. Department of Labor. Bureau
of Labor Statistics or Its successor agency, using the following Bureau of Labor Slatlstici
parameters.
Not Seasonally Adjusted
Area — Los Angeles -Riverside -Orange County, CA
Item—All Items
Base Period —198]A4=3oo
The formula for annual adjustment is as follows'.
Adjusted Liquidated Damage. Then -current Liquidated Damage Amount
Amount most current CPI-U/preacus 12monthCPI
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For examix
• Current Liquidated Damage Amount =$150.00
Most recently published Index 111 2010) =224.610
Index published 12 months prior to most recently published Index
(lanuary 2011=220.719
Adjusted Liquidated Damage Amount = $15000 x (224.5 30/2 20 719) =$152.64
If the CPI -U is discontinued or revised during the Term by the United States Department of
Labor, such other government index or computation with which Itis replaced shall be used In
order to obtain substantially the same result as would be obtained if the CPI had not been
discontinued or revised.
D. Timing of Payment. Contractor shall pay any Liquidated Damages assessed by Clry within 10
calendar days of the date the Liquidated Damages are assessed. If they are not paid within the
10 day period, City may order the. termination of the rights or "franchise" granted by this
Agreement.
11.5 DIVERSION NON-PERFORMANCE
If the Contractor's Diversion level is less than 5036 for C&D, less than 70% for Recyclable Materials,
and/or less than 90% for Organic Materials Colledeb in the City for a monthly reporting period, the
• following steps shall be followed bythe City and Contractor.
A. Warning, The City shall Issue a written warning to the Contractor within 30 calendar days of
receipt of the Contractor's monthly report documenting the Diversion level for the monthly
reporting period. The warning notice shall specify the amount of time fie. "Correction period")
the City grants the Contractor to improve hs performance and meet the Diversion requirements
defined In Section 5.3.
& Opportunity to Improve Performance. The Contractor shall modify Its Collection, Processing
Diversion, and public education and outreach programs (subject to the City's approval) to
Improve the Diversion level. At the end of the correction period, Contractor shall submit a
written report to the City identifying the Diversion level and providing the supporting
documentation. If the Cry determines that the oiversion level equals n exceeds Diversion
requirements defined in Second 5.3,the Contractor shall continue to perform services in sucha
manner s to maintain or Improve the Diversion level and the City shall waive its rights to
proceed with steps outlined in subsections C and D of this Section 11.5 during the remainder of
men current reporting period.
C. Liquidated Damages. If Contractor fans to improve the Diversion level so that It is equal to
or greater than Diversion requirements defined In Section 5.3 by the end of the correction
period granted In subsection A of this Section, the City may lI and Contractor shall pay,
Liquidated Damages described in Section 11A.
• D Termination 0the Agreement. If contractors fails to achieve a Diversion level that equals or
exceeds Diversion requirements defined In Section 5.3 within six months of the date the City
levied Liquidated Damages, the failure to meet the Diversion requirements defined In Section
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• 53 shall be considered anvent of default and the City may terminate the Agreement in
accordance with Section 11.]e
11.6 CONDITIONS UPON TERMINATION
In the event this Agreement is terminated under the provisions of the Article, the following conditions
shall be effective:
A. PmhibR ROIFOl Collection Services. Contactor shall ban no. right of authority to engage In
Roll -Off Collection services in the City for a period Of five years from the date of termination.
After five years, should the Contractor provide proof that the event causing the Contractor to
default under this Agreement has been c rreaeQ the Contractor may reapply for a
exclusive Holl -Off Collection service franchise, and the City, at the sole and complete discretion
of the City, may reinstate the Contractor based on revardi lis reapplication.
R. Continuing Uabliltes. Contractor shall remain liable to the Cityfor:
1. Fees clue in accordance with Article 8 that would otherwise be payable by the Contractor.
2. liquidated Damages assessed pursuant to Section 11.0.
3. Reports required by Aside? Or Roll- Off Collection activities performed by Contractor up to
• and including the date of termination.
a. Indemnity obligations under 5ectlon 10.1.
5. Record keeping and retention obligations under sessions 7.1 and 7.2.
C Release Customers and Generators from Obligations. Contractor shall allow Permitted
Materials Generators served by Contactor to arrange for Permitted Materials Collection
services with a hauler authorized to perform such services without penalty or liability for breach
of any contract between Contractor and Its customers or Generators.
D. Remove ROII-Off Containers. Contractor shall remove all or Contractors Roll -0H Containers
from all of Contractors Collection locations and shall properly Recycle, Process, Comment, or
Dispose Of Permitted Materials in such pall -OH Containers.
ARTICLE 12
OTHER AGREEMENTS OF THE PARTIES
12.1 RELATIONSHIP OF PARTIES
is
The Parties intend that Contractor shall perform the servlces required by this Agreement as an
independent Contractor engaged by City and not as an officer nor employee Of the City, nor as a partner
Of, or joint venturer with, the City. No employee or agent of Contractor shall be, or shall be deemed to
City of Fresno Roll -Off Agreement Page 39
9/8/11
be, an employee or agent of the City Except as expressly provided herein, Contractor shall have control
• over the manner and means of conducting the Roll Off Container Callectlon, Transportation, Processing,
Recycling, Composting, and Disposal sees performed under this Agreement, and all Persons
Performing such se Contractor shall acts be solely responsible for the and omissions Of Its
officers, employee; vSubcontractors, and agents. Neither Contractor nor Its officers,employees,
Subcontractors and agents shall obtain any rights to retirement benefits, workers' compensation
benefits, or any other benefits which accrue to City employees by virtue of their employment with the
City.
12.2 PERMITS AND LICENSES
Contractor shall obtain and maintain, at Contractor's sale cost and expense, all permits and licenses
applicable to Cuntrdet0/s operations under this Agreement which are required by any governmental
agency.
12.3 COMPLIANCE WITH LAW
Contractor shall, at all times, at Its sole cost, comply with all Applicable Laws.
12.6 GOVERNING LAW
• This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the
State ofCalifornia
-
12.5 JURISDICTION
Any lawsuits between the Parties arising out of this Agreement shall be brought and concluded in the
courts of Fresno County In the State of California, which shall have exclusive Jurisdiction over such
lawsuits
With respect to venue, the parties agree that this Agreement Is made In and will be performed in Fresno
County.
12.6 BINDING ON SUCCESSORS
The Provisions of this Agreement shall inure to the benegt to, and be binding on, the successors and
Permitted assigns of the Parties.
12.7 ASSIGNMENT
• Neither Parry shall assign its rights nor delegate or otherwise transfer Its obligations under this
Agreement to any other Person without the prior written consent of the other Party. Any such
assignment made without the consent of the other Party shall be suit and the attempted assignment
Ory of Fresno Roll -Off Agreement Page ED
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shall constitute a material breach of this Agreement. Under no circumstances shall any assignment be
• considered by City if contractor is In default at anytime during the period of consideration.
12.0 PARTIES IN INTEREST
Nothing in this Agreement, whether express or implied, is intended to confer any rights on any Persons
other than the Parties to it and their representatives, successors and permitted assigns.
12.9 WAIVER
The waiver by either Party of any breach or violation of any provisions of this Agreement shall not be
deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach
of violation of the same or any other provision. The subsequent acceptance by either Party of any
monies
which become due hereunder, shall not be deemed to be a waiver of any pre-existing or
concurrent breach or violation by the other Party of any provision of this Agreement.
12.10 NOTICE PROCEDURES
All notices, demands, requests, proposals, approvals, consents, and other communications which this
Agreement requires, authorizes or contemplates all, shall be in writing and shall either be personally
•
delivered to a representative of the Parties at the address below or deposited In the United States mail,
Orn class postage prepaid, addressed as follows:
A. If to CIN:
Public Utilities Director
my of Fresno
2600 Fresno 51., Room 3065
Fresno, CA 93721-3624
R. If to Contractor:
R lc/lOky �A�yWq
759 S cC 1�baB
C2el.✓'c4 9rf35r
The address to which communications may be delivered may be changed from time to time by a notice
given In accordance with this Section.
Notice shall be deemed given on the day It is personally delivered or, if mailed, three calendar days from
• the date It is aepoWed m the mail.
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Page 41
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12.11 REPRESENTATIVES OF THE PARTIES
• References in this Agreement to the i shall can the City Council and all anions to betaken by the
City shall he taken by the City Council except as provided below.. The City Council may delegate, in
writing, authority to the Director and/or to other City officials and may permit such officials, In turn, to
delegate in writing some or all of such authority to subordinate officers. The Contractor may rely upon
actions taken by such delegates if they are within the scope of the authority properly delegated to Form.
The Contractor shall, by the Effective Date, designate in writing a responsible officer who shall serve as
the representative or the Contractor in all matters related to the Agreement and shall inform the City In
writing of such designation and of any limitations upon his or her authority to bind the contractor. The
City may rely upon action taken by such designated representative as actions of the Contractor unless
they are outside the scope of Fare authority delegated to him/her by the Contractor as communicated to
City.
12.12 CRIMINAL ACTIVITY OF CONTRACTOR
1212.1 Criminal AaMity
For purpose of this Section, Criminal Activity shall mean any of the following events Or circumstances:
A. Convictions. The entry against any Contractor party, or its officers, of criminal conviction or a
permanent mandatory or prohibitory injunction from a court, municipality, or regulatory agency
• of competent Jurisdiction, based on acts taken in his or her offltlal capacity on behalf of
Contractor with respect to'.
1. Fraud or criminal offense in connection with obtaining, attempting to obtain, procuring or
Performing a public or private agreement related to municipal Solid Waste services of any
kind (Including Collection, Transportation, transfer, processing, Recycling, Composting, or
Disposal), including this Agreement or any amendment thereto;
2. Bribery or attempting to bribe a public officer or employee of a local, State, or Federal
agency;
3, Embezzlement, indiction, racketeering, false claims, false statements, forgery, falsifmation
of destruction of records, obstruction of justice, knowingly receiving stolen projects, theft
or misprision (failure W disclose) or a felony;
4. unlari disposal of Hazardous Wastes, the occurrence of which any Contractor Fatty,
knew or should have known;
5. violation of antitrust laws, including laws relating to price-fil bid riming, and sales and
market allocation, and of unfair and mut ompetbive toads pradrees laws;
6. Violation of securities laws; and
is
7. Felonies.
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B. Pleas. Entry of a she of "guilty;' "nolo contendere,° or "bo contest" by a Contactor Party
• based on acts taken in his,her, or its official capacity on behalf of Contractor with respect to the
conduct described in preceding Section 12.II.1.A.
12,12.2 Notice
Connector shall notify City in writing within five calendar days of occurrence of any Criminal Activity by
any Contractor party.
12.U3 camotlora cpre
Upon occurrence of any Criminal Activity, Contractor shall immediately do or cause to be done all of the
following:
A. Terminate from employment or remove from office any offending individual Contractor Party,
unless otherwise directed or ordered by a court or regulatory agency of competent jurisdiction
or 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 Contractor Parry In any management,
sopemislon, or decision activity that affects or could affect, directly or indirectly, the
performance of the Contractor under this Agreement.
12.12.4 Transfer and Hiring
• Contractor shall not allow or cause to be allowed to hire or transfer any individual from any Parent
Company or subsidiary company or business entity of Contractor who has committed Criminal Activity
as a Contractor representative, field supervisor, aRcer, or director who Is directly or indirectly
responsible for performance of this Agreement without obtaining prior written consent of Ctty,
following full disclosure to City of the facts and circumstances surrounding such Criminal Activity,
12.12.5 City's Remedy
In the event of any occurrence of Criminal Activity, the Ory, In Its sale discretion, may terminate the
Agreement within 30 calendar days written notice to contactor, or may Impose other sanctions (which
may include financial sanctions, temporary suspensions, or any other condition deemed appropriate
short of termination) as it will deem proper, in the following events:
A. Contractor falls to comply with the foregoing obligation of this Section, or
B. The Criminal Activity concerns or relates directly or Indirectly to this Agreement.
Contractor shall be given the opportunity to present evidence in mitigation during the 30calendarday
notice period.
12.13 ACKNOWLEDGMENT OF PUBLIC RESOURCES CODE SECTION 49520 NOTICE
If Contractor has lawfully provided solid waste collection services in the Clry for more than three (3)
• years prior to July 1, 2011 (and is therefore entitled to the notice provided for In Public Resources Code
49520), Contractor shall consider execution of this Agreement by the City as City's notice to Contractor,
pursuant to Public Resources Code 49520, that Contractor may provide service fora period of five (5)
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years beyond July 1, 1011, after which time the City has the right to establish an exclusive franchise
• collection system.
11
ARTICLE 13
MISCELLANEOUS AGREEMENTS
13.1 ENTIREAGREEMENT
This Agreement, Including the Exhibits; represents the full and entire Agreement between the Parties
with respect to the matters covered herein.
13.2 SECTION HEADINGS
The article headings and section headings In this Agreement are for convenience of reference may and
are not intended to be used in the coasts loo of this Agreement nor to alter or affect any of hs
provisions.
13.3 REFERENCES TO LAWS
All references in this Agreement to laws shall be understood to Include such laws as they may be
subsequently amended or recodified, unless otherwise specifically provided
13.4 INTERPRETATION
This Agreement shall be interpreted and construed reasonably and neither for nor against either Party,
regardless of the degree to which either Party participated In Its drafting.
115 PRONOUNS AND PLURALS; TENSE
When not Inconsistent with the context, words and phrases used In The present tense Include He
future, and words and phrases used In the singular number include the plural number. whenever the
contest may require, any Pronoun used In this Agreement shah mnode the corresponding masculine,
feminine and neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural
and vice versa.
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13.6 TEXTTOCONTROL
• The captions ofthe Articles or Sections N this Agreement are for convenience only Intl in no way define,
limit, extend or describe the scope or intent of any of the provisions hereof, shall not be deemed part of
this Agreement and shall not be used in constrmng or interpreting this Agreement.
13.7 AMENDMENT
This Agreement may not be real ed or amended In any respect except In writing signed by the Paries.
13.8 SEVERABILITY
If any non material provision of this Agreement is for any reason deemed to be Invalid and
unenforceable, the Invalidity or unenforceability of such provision shall not affect any of the remaining
provisions of this Agreement which shall be enforced as if such Invalid or unenforceable provision had
not been contained herein.
13.9 COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be considered an original.
•
13.10 EXHIBITS
Each of the Exhibits Identified as Exhibit "A" through "D" Is attached hereto and Incorporated herein and
made a Pon hereof by this reference.
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IN WITNESS WHEREOF, the parties have arced the Nareemen[In be executed on the day and year first
above written.
CITY OF FRESNO CONTRil
A Municipal Corpn'Tlon
ZWS.
DirectorMaine
(/
CpKF. Q'U
OVEO ASTOFORM: Title
3S'r7 S. hdon
Admen
cry Att Prey 'i 7 F>2ex4cs
ChY
Business Lirense
Risk Manager
A=T:
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City of Fresno Rolbfl Agreement Page 06
4/8/11
• EXHIRITA
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SCHEDULE FOR LIQUIDATED DAMAGES
Contractor may be assessed Liquidated Damages if Contractor fails to fulfill its obligations with regards
to the events listed in this Exhibit In accordance with the terms and conditions of the Agreement with
regards to the time frame for accomplishing each event and nature of the responsibility associated with
the event unless otherwise stated in this Exhibit.
1.
Diversion. Failure to achieve and m minimum of 50%
TM1e greater o($S,LCo nr
Diversion per month of all C&O Collectedwithinthe City, 70%
Itl% ofthe gross Rate
Diversion per month Of all Recyclable Materials Collected within Me
rand
vert for
City 90% Of all Organic Materials Collected within the City ,
pe0vidrng C&0.
Recyclable Materials,
antl Organic Materials
ices re in Meary, for
rM1e most recent l2.
ad OntM1petlod
2
Leaky Utter or 5pllls. For each occurrence over Me tluring a calendar
$300/ event
year of unreasonable leaks, litter, or seals of Permitted Materials near
Or on public streets and failure pick up Or dean up such material
mediately.
9.
unaumadam wnemon xpurs. Fpr earn occur er five during
SBDo/event
calendar rear pf <Onerbng Permitted Materials unauthorized
hours.
4.
Excessive Nolse. For each occurrence Over 10 during a calendar year
5300/event
of excessive
5,
Cleaning Collectlon Vehicles. For each occurrence over five during a
$150/event
calendar year for Failure to keep Collection vehicles In a safe and
sanitary condition.
6.
labeling of Roll -ON Containers. For each Occurrence of Contractors
$500/event
failure to correctly label Contractor owned Roll -Off Containers lin
accordance with Section 6.4.Q.
T
Discourteous Behavior. For each occurrence of discourteous behavior
$500/event
by Collection vehicle perso nes, Customer all personnel, or 0ther
mployees of Contractor
g.
Injuries to Others. For each Incldent of personal injury to a Person
$5,01 Incident
requiring medical treatment or hospitalization where the neolliumpe
of the Contractor or its personnel was a contributing factor to the
u
9.
Monthly Reports. Failure to submit monthly reports In the timeframe
$300/tlay'
specified in this Agreement
10.
Report Hazardous Waste For each failure to notify the appropriate
5500/event
authorities of reportable quantities of Hazardous Waste.
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• 11. Failure of OHter ObFISApns. Failure to perform any of the obligations $150' On
each
set form In this agreement not spooifialty stated above and not obligation per day until
meeted or proceeding in good faith to col yommn 26 hours upon obligation is performed
24 hour nonflAcoution by City
Monthly reports shall be central we until curb tlme as a mnetl and complete
monthly rtFop 5 received by QW. For each okndar day a recon is late, the deny
Muidul Damage shall be ondicated in the mdn[M1ly repnrp ietllon above.
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In placing Deall initials a the places provided. each only specifically conflicts the accuracy of the
statements made aWve and the fact that each party has had ample opportmety to mnsuk with legal
nsel and obtain an explanation of Liquidated Damage provisions of the time that me agreement was
made
Contractor
any
Il Al
r�/
Iw
Immil Here:
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EXHIBIT
SECRE ARMS CERTIFICATION
The undersigned, being the Secretary of Z" w S'
Cellfomla corporation (-the Company', do hereby Imply that the folloWng resolution was adopted by
the Board of btreRors of the Company and that such resolution has not been amended, modified or
rescinded and Is In NII force and effect as of the date herroE
FESOLVER,that Qf CH'9 A be, and hereby is, authorized to
execute by and on behalf of the Company any and all agreements, Instruments, documents or pacers, as
Fe/sere may deem appopdate or necessary, Partners! to or reel to the Non{edmive Franchise
Agreement between the City of Fresno and Company for Ri Container Collection, Transporting
• Processing Recycling. Commostuy, and Olspoal of permMed Matmals and that any such action taken
to date is hereby ratified and approved,
wted
y
Z3 0///
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ai
rade /O• _ ���
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E%NIRITC
STATEMENT OF RPPUCANT'S UNDERSTANDING
AND REPRESENTATIONS
The undersigned (who is duly autM1anae! to bind the company submitting this application) has revlewetl
the requirements of the non - elusive fran olse agreement for Roll -Off Collection, Tnmporting,
Processing, Rerytling, ComlID#inb and Psposal services for Solid Wane, Reryclable Materials, Organic
Ma(ena4 and CEO, is cudiles. and reference documents. In addition, the undenlgned aDons that dis
application and any other supplementary, Information submitted with Nls application do not (1) o ntam
any untrue statement or a Formai fact. Irl conton inaccurate or misleading Mistrial or III) omit at
Rate a matetnl fact that is necessary to make the sGteTents made, In light of the urcumarancss In
which they were made, not m sicatling.
Pont Name Date
• C�_ue. A17i,
SIBnaZ7�;
C
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EXNISITO
APPROVED PROCESSING AND RESIDUE ORPOSAEPA[IIRIES
The following nm¢Ig were aeledea of f11e ContraRor and approved b the Gry.
Connaaer afy
Will Here mlNal Here:
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