HomeMy WebLinkAboutKroeker Inc. - Non-Exclusive Franchsise for Roll-Off Collection ServicesKroeker, Inc
Roll -Off Franchise
NON-EXCLUSIVE FRANCHISE AGREEMENT
BETWEEN
THE CITY OF FRESNO
AND
KROEKER INC
FOR
ROLL -OFF COLLECTION SERVICES
APRIL 29, 2011
This page Intentionally blank
Table of Contents
RECITALS.................................................................................................................................1
ARTICLE 1 DEFINITIONS...........................................................................................................3
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR.................................8
21 RE PRESENTATIONS AND WARRANTIES.... .......... ........... .......... ........................8
ARTICLE 3 TERM OF AGREEMENT............................................................................................9
3.1 EFFECTIVE DATE ................. __........ .................. .. .............9
3.E CONDITIONS TO EFFECTIVENESS OFAGREEMENT.... _..........._.......... .................. ..............
...... 10
33 INRIAL TERM ..................... ........... ....._.......... ........ ......,..._..... ........ .................. .........
.... 1D
CREN.D
3AOPTION i0 EMENO.......... .____ ........... .......... ........... ......... ................
.10
ARTICLE 45COPE OF AGREEMENT.........................................................................................
11
41 SCOPE OF AGREEMENT ............... .. .............. .. ......_...
11
4.2 LIMITATIONS TO SCOPE..... ..... .......... ........... ............
12
6.3 CITY'S PIGHTTO GRANT MULTIPLE NON-EXCLUSIVE AGREEMENTS ... ..... ...... .................. ......
.. 13
44 CITY'S RIGHTTO EXCLUDE NEWLY ANNEXEDTERRITORY FROM SCOPE OF FRANCHISE.........
13
4.5 AGREEMENT CONSISTENT WITH APPLICABLE LAW...............................................................
13
4.6 OWNERSHIP OF MATERIALS ..... ....... ................ ....... _....... ............. ....._.._..............................
13
47 NOTIFICATION TO CITY OF NON- FRANCHISED HAULERS..... ............. ......
.... 14
ARTICLE 5 COLLECTION, PROCESSING, AND DISPOSAL SERVICES ............................................
14
5.1 COLLECTION ..... .......... .......... ..._........... .......... .................
14
5.2 PROCESSINGAND MARKETING ............... ....._................. ......
SE..
14
53 DNERSAL flEOUIREM..
ENT ........._._ __.......... ...... .
.....16
56 DISPOSAL__ ......
55 BILLING......_. .......... .. .. .. .......... ........ .. ....,...........12
5.6 CUSTOMER SERVICE ...... .......... 1
......lI
ARTICLE 6 STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT, AND PERSONNEL 17
CA OPERATING DAYS, HOURS, AND SCHEDULES ...... ........ ........... ..... ........._....... ................. ...
... _ 17
6.2 COLLECTION STANDARDS ......... ...._............ .................. ...............
18
6.3 VEHICLE REQUIREMENTS,_ ...... .... ........... ......... ......... ....... .............. .................... ............ .........
19
64 ROLL -OFF CONTAINER RECUIREMENTS........... ................... ...........
20
65 PERSONNEL...... ... ........ ................. .._................. .... .......
22
fifi HA2ARODUS WASTE INSPECTION AND HANDLING. __
..22
62 NON DISCRIMINATION _.. _. .....,..,._23
......... ......
6.8 COMMUNICATION AND COOPERATION WITH CITY ... _......................................................._...23
ARTICLE 7 RECORD KEEPING AND REPORTING.......................................................................
M
City Of Fresno No, Extlus ve B111 -0H Agreement Page I
4/B/11
7.1
GENERAL.. .... -- .......... ...................... ........................ ....... ...... ..... - ..... ........
....... .. ...... 24
7.2
RECORDS. ....--- .......... ....................... ...... ........... ......_....._
..... 5
3
GENERAL REPORTING REQUIREMENTS...._._ . ......... ........... .................. ..... ...,...................
....... 26
7A
MOMHLY REPORT. ................... . ......... ......................
26
7.5
AD 939 COUNTY SURCHARGE REPORTING............ ........._ ........................
27
ARTICLES
FRANCHISE FEES AND OTHER FEES........................................................................
28
FIT
GENERAL... __......... ................. ... ...............
_..........28
BYFRANCHISE
FEE.... ........._..... ......... ...... ............ .... .............................. .__..................
...... ......... 28
8.3
OTHER FEES_................................_......................................._ ........................ _ ..............
...
.. .. .2a
84
ADJUS
ENTIM ................EES.. ...,..........__._............ ...............,38
8.5
PAYMENT LEA TATE FEES ....... .... ........ _.._........................ ....
PAYMFNTSCHEOULEES
28
OVER PAY MEET OF FEES ................
-
........
FIT
07
NONCITYFEES; A0939 COUNTY SURCHARGE ................ .......... ....._.......... .... ...........
..... ........29
ARTICLE
9 CONTRACTOR'S COMPENSATION AND RATES .......................................................
29
9.1
CONTRACTOR'S COMPENSATION............ __I... ............. .
29
9.2
CITY'5 RIGHT TO SET MAXIMUM RATES...... .... .--- .. .........
_ .......... 29
93
CONTRACTORS RATES ..... ...... ................_.................... ....................... _............ .... ........
........ .... 30
ARTICLE
10 INDEMNITY AND INSURANCE..............................................................................
30
10.1
INDEMNIFICATION .................. .... ...... ...... ................ ................
.............30
10.2
INSURANCE.
........ 31
ARTICLE
11 DEFAULT AND REMEDIES....................................................................................
35
11.1
EVENTS OF DEFAULT ................. ....----
..,.35
11,2
RIGHT TO TERMINATE UPON DEFAULT--- .......... ......... ...__...
............ 36
11.3
CIMS REMEDIESCVMU LATIVE; SPECIFIC PERFORMANCE...........,
36
114
LIQUIDATED DAMAGES ... ..... ............._... .............. ........ ..... .--- ..... ......... ...... .........
........... .. 36
11.5
DIVERSION NON-PERFORMANCE..........................................................38
11.6
CONDITIONS UPON TERMINATION..... ...... .. .. .. .. .
..39
ARTICLE
12 OTHER AGREEMENTS OF THE PARTIES................................................................
39
12.1
RELATIONSHIP OF PARTIES .... ....... ......... ........ ......... ...... ..... ................___.__................
.......... .. 39
122
PERM ITS AND LICENSES......... ___... ..............
.........._._..40
12.3
ONE WITH LAW.. ................. ..................... ..... ..................
.AO
134
G
GOVERNING LAW. ........ ........... ................ ...................
40
125
marsNI...................................
40
12.6
BINDINGG ONON SUCCESSORS .... .... .._................. ...................
_... _.... _....40
123
ASSIGNMENT ................
_.. 40
123
PANES IN INTEREST _..... ........... ......_. ........
.............41
129
WAIVER_.. ............................ ....
.
. ........... 41
12.11
NOTICE
PROCEES __E .......
................ 41
12.11
REPRESENTATIVES THE PARTIES,_._._ ................... ........ _.................. ...................
........... .42
1212
CRIMINENTATIVI5 C
CRIMINALACTIVIEN ...............
..._.....42
II.13
O PUBLIC
ACKNOWLEDGMENT OF PVBLIC RESOURCES CODE SER10H 49520 NOTICE ..........................43
Ciry of Fresno NOmEeolusive Rolf OH Agreement
Page II
4/e/11
ARTICLE 33 MISCELLANEOUS AGREEMENTS.......................................................................... M
13.1
ENTIRE AGREEMEM................................. ...... ......... ..... ..... .--- ....... ...
... ............... ....,.......... 44
13.2
SECTION HEADINGS, ...............
44
133
REFERENCES TO LAWS ......... ............. ._......._...... ................... ............ ....................................
44
136
INTERPRETATION ..........................................
44
13.5
PRONOUN5 AND PLURALS; TENSE ........ ............... .... ..................... .—.... ............_.
........... ....... 44
US
Ti TO CONTROL...----- ......... .. ..
.. _
..............,........ 45
13.8
AMENDMENT. . ....... — ................. ....................... ...
........ ....--- ............ 45
13.9
......................_......._...._......
.............. ....._. 45
13.9
CUNTERPIARTS..........._
COUNTERPARTS ............_.................. ..................................... ..... ................_._...._...........
45
13.30
E%HIBffS...... .... .......... .......__.. ................
........... _..AS
Ust of EeMbits
A Schedule for liquidated Damages
9 Secretary's Certificanon
C Statement of Applicant's Understanding and Representations
D Approved Processing and Residue Disposal Fa<illtles
ON of Fresno NomEldusive Roll-WAgreement Page RI
4/9/11
Thls page imentlonallY blank
NON-EXCLUSIVE FRANCHISE AGREEMENT
BETWEEN
THE CITY OF FRESNO
AND
FOR ROLLOFF COLLECTION SERVICES
wn"Tins luswe franchise agreement (Agreement) k made and entered into this 2916 day of
r , 20 �f by and between the Clty of Fresno, a municipal corporation, (City) and
RECITALS
nils Agreement i, entered into with reference to the following facts and circumstances
WHEREAS, the teglslature of the State of California, by enactment of the California Integrated Al
Management Act of 1989, codified at California Public Resources Code Settlors 40WO at seq. ("qct") ),
has declared that it Is In fire public Interest to authorize and require local agencies to make adequate
provisions for Solid WasteCollector within their jurisdiction:and
WHEREAS, the State of California "State") has found and declared that the amount of Solid Waste
generated In California, coupled with diminishing landfill space and potential adverse environmental
impacts from Iandflll'mg and the need to conserve natural resources, have created an urgent need for
State and local agencies to enact and Implement an allressive Integrated waste management program.
The State has, through a of the Act, directed the responsible State agency and all local
agencies, m promote disposal Site Diversion and to madmlze the use Of feasible Solid Waste reduction,
ranuse, Recycling, and Composting options in order to reduce the amoOM of Solid Waste that must be
Disposed of Disposal Innes; and,
WHEREAS, the Act requires local agencies to divert 50K of discarded mafedals Tom landfills; and.
WHEREAS, the Clty Council established goals of achieving 75% diversion by 2017 antl zero waste status
by 2025 on lune 26, 2007, and approved aZero Waste Strategic Acton Plan On February ll, 2009; and
WHEREAS, the One, Onds that reusing, Recycling, and Composting Recyclable Materials, Organic
Materials, and Combative, antl Demallnan Debris D&0) and beneficial use or compressing of Organic
Materials is essential to further the Cory's efforts to reduce So11d Waste Disposal and comply with the. Act
and the sty's tern waste gook; and
WHEREAS, pursuant to the powers granted the City as a charter city by Article Xt SeRlon 5(a) of the
California COnatntm on and Article XIII of the Fresno. ClN Charter, the City has determined that the public
health, safety, and well require that a franchise agreement defining non exclusive rights be
awarded to qualified companies to provide for the roll off container mllealon of Permitted Materials
CIN of Fresno RolbH Agreement Page 1
</8/11
except for collection of reatenals excluded be the art's Musel lCode, and other Services related to
meeting requirements of the Act; and
WHEREAS, the City requires all haulers providing Roll0H Collection services for Permitted Materials in
the Clry to obtain a marreencluive franchise In order to regulate this business, ensure Its artistry
operation,achieve its diversion goals, and to minimize the potential for adverse effects it may have on
the loal environment, and
WHEREAS, the Ciry, Counsel has determined through an appliwpan process that the Contractor, by
demonstrated experience, reputation, and Cammity, is qualified to provide for the Roll -Off Contalner
Collection of Permitted Materials within the corporate limits of She OW and the Transportation of such
material to appropriate places of Rew i0b Processing, and/or Disposal, and can provide Insurance
consistent wlN the Cltys requirements. The CIN Coundl desires that Contractor be engaged to perform
such services on the bask set forth In this Agreement; and
WHEREAS, Contractor Intends to use the Gty's streets, alleys, offer public rights of way, and
infrastructure to provide RoilOffCollection services to the Cttys residents and businesses; and
WHEREASS, the Clty Intends to receive lust and reasonable fees from the Contractor for Cann
administration of the Agreement and for Contractors use of Ne 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 mnbtlermi of the mutual promises, covenants, and Sanctions contained In this
Agreement and for other good and valuable mrrsldeladeart the Ramps agree as follows:
ARTICLE 7
DEFINITIONS
For purposes of this Agreement, unless a different meaning is Clearly required, die fallowing words and
phrases shall have the fallowing meanings respectively ascribed to them by this Article and shall be
Capitalized throughout this Agreement.
'Acte means the California Integrated Waste Management Act of 1999 (Division 30 of Callbrnla
Public Resources Cade(, as amended, supplemented,superseded, and replaced from time to time.
°Agreementu means this Agreement between the Char and Contractor for Roll -Off Container deduction,
Processing, and Disposal of Permitted Materials Including all amibiq and any junior amendments
hereto.
"Appllfable lave means all Federal, State, and local laws, regulations, rules, orders, judgments,
degrees, permits, approvals. a, other requirements of any governmental agency having ludadlrtlan over
She Poll -Off Container Collection, Transportation, 0.eryding. Processing, and Disposal of Permitted
Mattdals that are In force an the EffeRlve Date and as Ney may be enacted, Issued, aramended during
the Tenn of this Agreement.
City of Fresno Roll -01f Agreement Page i
419/11
"Approved C&D Pmoessmgffie'/means the processing site specifled in Exhmrc D. which was selected by
Contractorand approved bythe City.
'Approved O spnal Shia means a Disposal Site selected by the Contactor or its Submnmacmr(s) and
approved by the City for 0lsposal of residue from Approved Processing Site(s). Approved Disposal Ship)
are listed in Exhibit D.
'Approved Organics Processing Shell means the processing site specified in Exhibit D, which was
selected by Contractor and approved by the City.
'Approved Processing She(si" means the Appealed C&D Processing She, Approved organics Pmcesiug
Site, and/or Approved Recyclable Processing Site.
"Approved processor means Ne operator of an Approved Processing Site.
"Approved Raeydables Processing Site" means the processing site specified In Exhibit D, which was
selected by Contractor and approved by the City.
"Bin" means container with capitol of approximately one (1(to eight(8)cubic words, wild a hinged
lid, and with wheels, that is typically serviced by a front end - loading Collection vehicle.
'Buslness Oul mean clays during which City offices are open 0 do business with the public.
Kart" means a plastic deal with a hinged lid and wheels that is typically serviced by an automated
or trial automated Collection vehicle. A Cart has capacity of 30, 35, 64, or 96 gallons for similar
volumes).
-C&D' means Constructor, and Demolition Debris,
'Change In Law" means any of Ne following events or conditions Nat have a material and adverse
effect on the performance by the Parties of their respective obligations under this Agreement (except
for payment obligations)
a. The enactment, adoption, premeditation, issuance, modification, or written change in
administrative or judicial Interpretation On or after the Difference Date of any Applicable
Law, or
E. The order or judgment of any governmental hotly, on or after the Detective Date, to the
extent such ortler or judgment Is not the result of wdllfud or negligent act e
omission or lack of reasonable diligence of the City or of the Contractor, whichever Is
assuming the occurrence of a Change in Law, powder, however, that Ne contesting In
good faith or the failure In goad faith to content any such order or judgment shall not
constitute or be construed as such a willful or negligent eerier,, error or omission or lack of
reasonable diligence.
-OW maim the City of Fresno, California, a municipal corporation, and all Ne teM[ory lying within the
municipal boundaries of the City as presently existing or as such boundaries may be modified dutlngthe
Term.
One of Fresno Roll -OH Agreement Page 3
4/8/11
"City's MuniI Cade" means the Clay of Fresno Municipal Code
'Collett'or"Collettlon" meansthe ace of call rural Permitted Mated aIs. and other material at the place
of generation In the Clty
"Commar lal" shall mean of, from or penalning to non -Residential Premises where business activity Is
conducted, inducing. but nut limbed to, retail sales, service, wholesale operations, manufacturing and
Industrial operations, but secluding husinesses conducted upon Residential property which are
permitted under appllcehle zoning regulations and are not primary use of the property.
"Compactol' means a mechanical apparatus that compresses
materials Imo a container, which
container
may he detachable. For the purposesof this Agreement, Compactors shall Include only
Compactors with container capacities of Ten (10) to frhy (50) cubic yard that are serviced by Rall Off
Collection Trucks.
"Compass" or 'Compos0n(' Includes a controlled biologlnl decomposition of Organic Materals
yielding a safe and r aces ee free Compos Product.
'Compost Produce' means the produA resulting from the contralled Noopl cal decomposition of
Organic Materials that are Source Separated from the Solid Waste stream, or which are separated at a
centralized failure
"Constinsci and Demolltlon Dabds ICI means
materials resulting from consolidated, reodeling,
repair, cleanup, or demolalan operations that are hamrsaus as defined in California[aliform Code of
Regulations, Title 335ectlon 66361.3, Thls term Includes, but is not limited to, asphalt, concrete, cement
concrete, brick, lumber, gypsum wallboard, concrete board, cardboard, and other associated packagiry,
Doling material, ciC tile, Carpeting, plastic pipe and steel, 39 well as vegetative matter resulting
from land clearing and landscaping Including but not limited to read sell tree stumps. Coastal and
Demolition Debris excludes admirable wastes.
'Contrattar• meansKroeKer I
organized and
operating under the laws of the State of Guforri and 16 officers, directors. employees, agents,
companies, and Subcontractors.
'Contractor Partvllesl" shall mean Contactor, officers, directors, management empmrees, or fisal
employees (where "managermaitt employee' means any employee with direct or Insect responsibility
for didditon and control over the Contracto/s activities under this Agreement and 'fiscal employee'
aan employee with direct or Indirect responsibility and control duties relMing w-Francial matters
under this Agreemem).
'Criminal Activity means mase acciJi described In Section 13.1 .1
'enstamery means the Person whom Contactor model a muirp invoice to and mueN payment from
for Cnllectlao services provided.
"D¢Ignated Disposal She" means the American Avenue Wa l at 18950 W American Avenue In
TangWliry, California focthe purposes of Disposing Solid Waste.
City of Fresno Rail Off Agreement Page 0
4/8/11
"Dmigneled Waite^ means non Hazardous Wastes that may pose special Dispoul problems because of
Its potential to contaminate the environment and wM<M1 may be Disposed of only in Class. Il Disposal
Sites or Class 111 Miami Sizes Final to a variance Issued by the California Department of Health
Services.
'Director shall mean the Public Utilities friction of the City Oran authorized representative of the
Public Utilities Director.
"Dluarded Materials' means Solid Waste, Recyclable Materials, Organic Materials, or C&D placed by a
Generator In a receptacle and/or at a location that Is designated for Collector pursuant to the City's
Municipal Code.
'Dispo al or Dispose (or variation thereof' means the final disposition of Solid Waste at a Disposal
Site.
"Disposal Site" means a faclliryfor ultimate Disposal of Solid Waste.
'Diversion' means activities that reduce or eliminate the amount of Solid Ware from Sold Waste
Disposal Inte ln& but not limited tW RecycMg. and Composting.
'Drop BmP means an open -top container with capacity from six (6) to fifty(50) ui Parrs that is used
for Collection of Permitted Materials and that is presided by a Poll Off Collection Truck. Drop Boxes with
opacities of less than ten (10) cubic yards may Only be used for the purposes of Collecting C&D. PDmp
0m, which is also known as a roll -off box and/or debris box, Is a type of Roll -Off Container.
'EHecrove Date' means the date set forth in the introductory paragraph of this Agreement
"Federal" means belonging to or pertaining to the national general government of the United states.
"Food Soaps" means those discarded materials that WIII decompose and/or putrefy Including (I) all
kitchen and table food waste, 1111 animal or vegetable waste that Is generated during or esult from the
storage, preparation. cooking or handling of food stuffs,(iii) discarded paper that is contaminated with
Food Snaps; (Iv)fruit waste, grain waste, dairy waste, meat and OSM1 waste; am, (v) non-Reryclabie
paper or ontaminated paper. Food Scraps are a subset of Organic Materials.
'Franchise Fee' Means the fee paid by Contractor to Clty for the privilege to hold the non-canalve
rights granted by this Agreement.
'Generstof means any Person whose act or process produces Permitted Materials, or whose act first
causes Permitted Materials to become subject to regulation.
'Green Warte Material' means any materials generated from the maintenance or alteration of public,
commercial, or residential landscapes Nat all decompose and/or putrefy Intel but not limited to,
yard clippings, grass, leaves,shrub/tree trimmings or prumngs(less than 4" in Fail brush, flowers,
weeds, dead plants. small pieces of unpainted and untreated wood, and other types of organic waste.
For the purposes of this Agreement such materials shall be Source Separated and placed by Generator
In a receptacle and/or at a lam Ion that Is designated for Collection. Green Waste MMerial Is a subset
Of Organic Materials.
City of Fresno Roll OR Agreement Page 5
4/8/11
attempted; Wastes means all substances defined as Hazardous Waste, acutely Hazardous Waste, at
eIIremely Hazardous Waste by the State In Health and Safety Code §25110.02, §25115, and §25117 or
In the future amendments to or nooddications of such Ratters or Identlned and listed as Hazardous
Waste by the U.S. Environmental Proportion Agenry(EPad, pursuant to the Resource Conservation and
Recovery 9tt (02 USC §6901 of orgJ, all Future amendments thereto, and a I rules and regulations
promulgated thereunder
'Holidays' are armed as New Year's Day, Thandghong Day,. and Christmas Day.
"Infectious Wast' means biomedical waste generated at hospltats, public or private medical dames,
dental offices, research laboratories, pharmaceutical Industries, blood banks, mortuaries, veterinary
fadlRlesand oNerslmllare ablishments,asdefrned in Healthand Safety Code Section 2511].5.
"Uqutated Fiscal means the amounts due by Contractor to CW for failure to meet spMFlf
quantifiable standards of performance as described rn5ettlonl3Aand Exhlblt A.
'Organic Materlak' means those discarded materials that will decompose and/or putrefy Including
Green Waste Material and Food Scraps such se, but are not limited to, green trimmings, grass, weeds,
leaves, prunings, branches, dead plants, brush, tree trimmings, dead trees, small wood pieces, other
types of organic yard waste, oriented waste, hurt wast, grain waste, carry wast, meat waste, fish
waste, paper mntammated with Food Scraps, pieces of unpainted and untreated wood, and pieces of
unpainted and untreated wallboard No dlsardee mutual shall be camideree to be Organic Materials,
unless such material is Source Separated from Solid Waste, Rerydable Materials, (&D, or other
materials.
"Parent CamWny" refers to a company awning more than fifty percent SDI of the shares of another
company(subsldlaryl or company that Has management control over such subsidiary.
'Party or Parties' refers to the Ory and Contractor, lndivlduarly or together,
'Permitted Materiall refers to Solid Waste; Source Separated Recyclable Matebak, Source Sista d
Organic Materials, and C&D. Permitted Materials excludes Source Separated Food Steps.
"Persanlsl" means any individual, firm, as oclatil organization, partnership, corporation, business
trust, joint venture, the United States, the State of California, the County of Fresno, and special purpose
districts..
structures means any land at building In the City where Permitted Materials are generated or
accumulated
"Promasings means to prepare, treat, of romertthrough some special method.
'Prxesstng Site' m any plant o used for sorting, cleansing, treating, or reconstituting
Permitted Materials rte the pts Rose of making such material available for reuse.
'Putresdble Waal' means Solid Wastes originated from hung mganlsms and their metabolic waste
produl and from petroleum, which contains naturally produced organic compounds and whom are
CRY of Fresno Ri Pgreement Page 5
a/e/11
biologically decomposable by mil and fungal edged Into the constituent compounds of water,
carbon dioxide andecter sampler organic compounds,
"pales. means the charges and fees Contractor bills and collects here each Customer recaioing sundae
persuaded this Agreement.
'Recyclable Materials' means those Discarded Materials that the CltCliff
Cade remits, Tests and/or
requires Generators to set out in Reryclables Materials containers for Obligation for the purpose of
Rerycling. No Olsarded Materials shall be considered Recyclable Materials unless such material Is
separated from Solid Waste and Organic Materials. Recyclable Materials shall include, but not he
limited to. newspaper (including Inserts, coupons, and store advertisements); mined paper(krduding
office paper, computer paper, magazines, junk mail, catalogs, brown paper bags, brown paper,
paperboard, paper an tartans, telephone books, grocery bags, colored paper, construction paper,
envelopes, legal pad bacarel shoe boxey soap boxes, cereal and other similar food boxes); chlpbeed;
cardboard; paper milk cereal glass containers of any color (Including glass bottles and jars all mlors(;
aluminum cans; fabric softener containers; steel, on or bimetal cans; plastic containers (clear or green
plastic soda and water bottles, plank containers and bottles and plastic bags with no. 1, 2 or 3 on the
Seemed; and food containers from potato salad, pasta salad. whipped cream, etc.
"Recycle or Recycll means the doctors of reflecting, sorting, damping, treating, and reconstituting
serials for the purpose of aling the altered form In the manufacture at new produce Recycling does
of Include troops, incl eratlng, or hermaly destroying solid waste.
'Residential' shall mean of, Drum, or pertaining to a single-family Premises, muldreal or multi -family
Premises Including Ofte family homes, apartments, condominiums, townhouse complexes, moblle
home parks, cooperative apartments, and yacht harbors and marinas where residents live aboard boats.
'Rall -Off Container means a Deep Box or Compactor used for Collection of Permitted Matertffi and
serviced by a Rall -off Collealon Truck. Roll Off Containers whin receptors of less than ten (101 cubic
yards may only be used forthe natural of Collecting C&D.
'Rolll Collection Truck' means collection vehicle wish a mechanical device such as a winch that
pulls or loads Poll Off Container onto the truck bed or attached trailer and separately transports each
Roll -Off Conformer to Disposal Ste or Processing She.
'Solid Ver means solid waste as defined In California Public Resources Code, Division 30, Part 1,
Chapter 2, 440191 and regulations promulgated thereunder and those Pop arded Materials that the Ory
Code requires Generators within the City to set out for Collection. Excluded from the definition of Salle
Waste are C&D, Hazardous Waste, Infectious waste, Designated Waste, Source Separated Recyclable
Materials, Source Separated Organic Materials, and Depositors waste. Notwithstanding any provblon
o the contest, "Solid Waste- may Include de minimis vomeres or concentrations of waste of a type and
amount normally found in lummentlal Solid Waste after hnplementadon of programs for the safe
collection, recycling, treatment and disposal of household haeardous worse In compliance with Sol
41500 and 41802 of the Curfomla Public Resources Code.
'Source Sepaahtl' means the segregation, by the Generator, of materials designated for separate
Collettlonfor some form of Recycling, ProressM& ComphsRng, ocrovery, or reuse.
'State' means the State of California.
City of Fresno RollOffAgreement Page
4/8/11
'Subcontractor' means a pant who has entered Into a contract, 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.
"Term° means the Term of this Agreement, Including extension periods If granted, as school for in
Ani 3.
'Ton unit of measure for weight equivalent to 3,000 standard pounds where each pound
contain 16 ounces,
'Tonnage" means the total weight In Tans Collected, Recycled, Composted, Diverted, of Disposed Of, as
the contest requires,
"Transportation"means the act of transactions or state of being transported
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR
3.1 REPRESENTATIONS AND WARRANTIES
The Cori by veranda of this Agreement represents and warrants the following to Gay, for the
purpose of Inducing City to enter Into this Agreement and to consummate the transactions
contemplated hereby:
A. corporate Status. Contractor Isduly organized. Validly existing and In good standing underthe
laws of the State. Itis qualified to transact business in the City and State and has the power to
own its properties and to carry on Its business as now awned and operated and as required by
this Agreement.
B. Authorization. Contractor has the authority to enter his Agreement and perform las obligations
under this Agreement The Board of Mourners of Contractor (or the shareholdersif necmary),
sole proprietor, or partners have taken oil opens required by law, its artlries of incorporation,
rs bylaws, or otherwise to coahorize the execution of this Agreement the Person signing this
Agreement an behalf of Contractor represents and warrants that they have authority to do so
and the corporate tary'scertificate in Exhibit B confirms this This Agreement constructed
the legal, valid and binding obligation of the Contractor.
C. Agreement III Not Ouse Breath. To the hest of Contractor's knowledge after reasonable
investigation, the execution or delivery of this 48mearreat or the performance by Contrattorof
Its ohligatmns hereunder does not conflict with. Voters, or result In a breach. (p of any law or
governmental regulation motored to Contraction (ii) any term or condlffin of any judgment,
order, or decree of any court, administrative agency or other governmental authority: or, (III)
any Agreement or Instrument to world Contractor is a parry or by which Contractor or any of its
Farrelles or assets are bound, or constitute a default thereunder.
City of Fresno Roll Off Agreement Page g
4/8/11
D. No Otlgatlon. To the best of Continuities knowledge after reasonable Investigation, there if no
action, suit, porcupine or Investigation, rt law or In equity, before or by any court o
governmental authority, commirrom board, agency or ImoumentallN creitor, Pending or
threatened against Contractor wherein an unfavorable decision, ruling or Coding, in any single
case or In the aggregate, would:
1. Materially adversely affect the performance by Contractor of lI obligations hereunder,
g. AdverselyaRe t the valid War enforceablllry ofths Agreement; or
3. Have material adverse offset on the financial condition Of Contractor, or any surety or
thick guaranteeing Cortra Rges performance under this Agreement.
E. No Adverse Judicial Decisions. To the best of Cmtracto/s knowledge after reasonable
Investigation, there Is no Judicial decision that would prohibit his Agreement Or subject this
Agreement to legal challenge.
F No Legal Prohibition, TO the best of COntractti(s knowledge after reasonable Investigation,
firme is no Applicable law in effect on the date Contractor domed this Agreement that would
prohibit the Contractors performance of Its obligations under this Agreement and the
transactions contemplated herebµ
6. Contractors Statements. The Contattoh Application and any other supplementary
Information submitted to the City, which the CN has relied on In entering this Agreement, du
net: (if contain any untrue statement of a matenal fan, or bill War to state a material fast that is
necessary In order to make the statements made, In light of the circumstances In which they
were made, not misleading,
H. Contractor's Investigation. Contractor has made an Independent lnvestigatTon Hatisfacmry to
Itl of the conditions and circurnoryinces surrounding the Agreement and the work to be
Performed hereunder. Ctinnp¢or has considered such matters In entering this Agreemt to
provide se es in exchange for the compensation prorded for under the terms of this
Agreemmit
L Abillry to Perform. Contractor Possesses the fairest, litiol ianak and technical vpertive to
Collett, Transport, perycle, Process, and Dispute Permitted Materials generated In the CIN.
Contractor possesses Ne equipment, fxellryQesl, and empbyee resources required to perform
its obligations under this Agreement
ARTICLE 3
TERM OF AGREEMENT
3.1 EFFELTNE DATE
Contractor may prwlde the golbH Container Collection, Transportation, gecyding, Processing,
Composting, and Disposal services authorized by this Agreement commandng On this Effective Date,
Cry Of Fresno POII{NfAgreement Page 9
all
3.2 CONDITIONS TO EFFECTNENESS OF AGREEMENT
The obligation of CIN to pem9t this Agreement to become effective and to perform Is undertakings
provided for In this Agreement is subject to the sombeffon of all the conditions below, each of which
may be waived, in sides fiber In whole trip partby. Clty.
A. Accuracy of Representations. The representations and warrants made In Article 2 of this
Agreement are one and correct to and as of the Effective 0att.
B. Absence of Ntlgetlon. There Is no Rligation pending on the Effective Date In any court
challenging the award or execution of this Agreement or seeking to restraM or enjoin its
performance.
C Fundmings of Insurance. Contractor has furnished evidence of the Insurance requbed by
Article 10 that is a4faaorym the City.
0. Effectiveness W Clly Council Action. no City Council aimed approving Mls Agreement shall
have become effective and all parles shall have signed the Agreement pursuant to Applicable
law priori to or on the Effective Data. provided that no restraining order of any kind has been
Issued.
The Initlal Term of this Agreement shall commence on the Effective Dee and prepare In full form for
five IS) years, until lune 30, 3010 The Term may be extended pursuant to Settlors 3.4 or terminated
early in accordance with Seal 112.
3A OPTION TO EDITING
Subject to City Council approval, the City shall have the option ttend this Agreement for an
additional term of up to flee (5) wary, If the The extends the Agreement, it shall give written notice t0
Contractor at least one hundred eighty GBOl calendar days prior to revision of the Initial Term. The
City's written notice shall specify the number of years by which it elects to extend the Term of this
Agreement and the revised expiration date of the Agreement Any such extension shall not become
effective unless Contractor agrees to the extension, In writing, at least one hundred fifty (150) calendar
days prior to expiration of the Initial Term.
First of Fresno Fair Agreement page 10
still
ARTICLE 4
SCOPE OF AGREEMENT
At SCOPE OF AGREEMENT
"is non exclusive franchise, granted to Contractor, authorize, Contractor to Collect, Transport, provide,
Process, Compost, and Dispose of Permitted Oil placed by Residential or Commercial Generators
In Roll -Off Containers for Callcrtion, provided that he Customer has voluntarily arranged for Contractor
to provide Collenlon services.
The Contractor All be responsible for following services:
A. Collecting Permitted Materials placed by each Cottonton in a Rdl-Off Container for Collenlon as
requested by Customer
B. Providing each Customer, upon delivery of Ri Container, a printed list that speca es the
materials that cannot be placed In Due RoIIOff Container (I.E., Hazardous Warted and a lin Of
acceptable Recyclable Materials, Organic Materials, And C&O that may be placed In the BallOff
Container.
C. Transporting Collected Solid Waste to the Designated Disposal Site and trampotang other
materials to an Approved Processing site.
O Fumiding all labao supervision, vehicles, Roll Off Containers, other epulpment materials,
supplies, and all other Items and services necessary to perform Its obligations under this
Agreement.
E Paying Al expenses related to provision of services required by this Agreement Including, but
not limited to, Franchise Fees, toes, regulatory fees. Collection cans, Transportation costs,
Processing costs, Disposal costs, utilities, etc
F Providing all services required by this Agreement N a NorOugb and professional manner so that
residents, businesses, and the City are prwltled timely, reliable, courteous and bilatera llry
service at all ones.
G. Performing all services In substantial accordance with the Agreement at all times using best
Industry fiscal for comparable operations.
H, Complying with Applicable law.
I Performing or Providing all Other services nturaary to rulfill its obligations under this
Agreement.
J. Diverting a minimum of 50% of the C&O Collected from Disposal. The Diversion rate shall be
calculated each month based upon Me weights of C&D Collected and Diverted.
Gry Of Oman a Roll -Off Agree mend Page 11
4/8/11
N. olverfing a minimum of 70% of the RecyclableMaterials WneRed from Disposal. The omeralon
rate shall be calculated each month based upon the weights of Recyclable Materials Collected
and Merril
L . Diverting a minimum of 90% of the Organic Materials Collected from Disposal. The Orverslor
rate shall be calculated each month based upon the weights of Organic Materials ColeRetl and
Diverge,
The enumeration and sigul clan of particular aspects of service, labor, or equipment requirements
shall not tripper, 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
42 LIMMATIONS TO SCOPE
The scope of the Agreement shall be n exclusive, Permitted Materials may be Collected and
T2vported by other Persons provided that such Persons do so in accordance with the Cil Municipal
Code, including but not limited to the following:
A. Permitted Materials Collected by Other Nomgcluslve franchise Haulars. Permitted Materials
Calletted by a parry that has executed a Non Exclusive Fanchise Agreement with the City for
Roll off Container Collection Services.
a. Permitted Materials Collected by Choy. Permitted Materials collected by the Ciy, municipal
coffeetion operation lneludlng: (l) materials Collected using equipment, such a$ Carts and gins,
not regulated by this Agreement (2) materials Coll from City facilities, and special events
and venues sponsored by the Cry, which may be Collected In Carts, Bms, or RglAOff Containers
by the City's municipal collection operation many dews.
C. Donated Recyclable Materials. Recyclable Mat rials Generated In the Ory that are Source
Separated and donated by the Generator to youth, civic, charitable, or other nonprofit
organizations.
O. MaroHRU Hauled by Owner or Occupant, or its Campaign. Permitted Materials that are
removed from any Premises and are Trompormed to a Disposal Site or Processing Site by 111 the
Owner or Occupant of such Premises, (ll) Iffmil- time emppoyee of Owner or Occupant that uses
the Causes or Occupant's equipment to transport materlals; or (111) by a corgermton o
demolition contractor Perfomhng construction or demolition work at the Premises, whose
removal of the Penn tied Materials is incidental to the method being performed (as defined In
Section 6-E05p)(1i)0f Ne City's Munldpel Code) and such contractor removes materials at no
additional or separate fee using contractors employees and contractors equipment
E. Green Wage Material. Private collection of Green Wage Material recording from landscaping
mantel service performed bythe person collectingsuch materials.
City of Fresno Roll OffAgieerm nt Page 12
4/8/11
F. Other getytlable Mat Mals, Private mlturian by any person or cormany that fraction
Recyclable Materials through use of Its own scrltle(sll and receives no compensation for such
Collection or Transportation.
G Materials; from Public Schools and Other Government FadllJes. The removal of any materials
generated by public schools, titles, blue County, or federal facilities Fifth the exception of those
firchees subject W OR US.0 Section 61
4.3 CFTY'S RIGHT TO GRANT MULTIPLE NON-EXCLUSIVE AGREEMENTS
The Cry may grant to an unlimited number of addMonal Persons similar nhome duhive franchise
agreements for FallOffContainer Collection, Transportation, Preening, Processing, Composting, and
Disposal of Permitted Materials.
4.4 CITY'S RIGHT TO EXCLUDE NEWLY ANNEXED TERRMORY FROM SCOPE OF
FRANCHISE
The Cry reserves the right to exclude territory that is annexed Into the corporate limits of the Cry
Subsequent o the Effective Date from the scope of this franchise.
4.5 AGREEMENT CONSISTENT WRH APPLICABLE IAW
This Agreement and scope of this franchise shall be interpreted to he mnsl4ent with Applicable Law,
w aM during the Term. If future Judicial Interpretations of current law or new lawy regi laLons, o
judicial Interpretations limit the ablllry of the Only to lawfulty provide for the scope of services a
specifically set forth herein, Contactor agrees that the scope of the Agreement will be limited to those
services and materials which may be lawfully provided and MM the Clry shall not be responsible for any
lost proMs or losses claimed by Contractor to arise out of llmR ons 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 judicial interpretations or new laws.
41 OWNERSHIP OF MATERIALS
Once Dermltted Materials are placed In of IIOff Container for Collectiao by Contraction, ownership and
the right to wasuslon of such m nervi shall transfer fluidity from the Customer to Contractor.
On a short-term basis not to exceed more than gve (5) calendar days per year, City may obtain
oremershm or possession of mentioned Materials placed In the ROIII Container for Collection, for
purposes of waste characterization studies, upon written notice to Contractor of IF Intent to do no.
However, nothing In this Agreement shall he mnstmed as "ng rise m any inference that Cry has such
ownership or Possession unless such written notice has been given to contractor.
Cry of Fresno gollUff Agreement Page 13
4/9111
4.7 NOTIFICATION TO CIT" OF NON -FRANCHISED HAULERS
If Contractor can produce evidence that other Persons are Collecting Permitted Materials and tlo not
have rights to do so as granted by nonrcacluslve franchise agreement with the City or Otherwise, or in a
manner that is not consistent with the OtYt Municipal Code, Contractor shall notify the City in wribcg,
within ten (10) calendar days of Cenna¢or witnessing such circumstances. The Consciences 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 ICcadon of the Roll -Off Container along with
COntrattoes evidence Of the violation of the rights granted by this non¢acluslve franchise.
ARTICLE 5
COLLECTION, PROCESSING, AND DISPOSAL SERVICES
5.i COLLECTION
Contractor is hereby authorized to Callen Permitted Materials from historic and businesses lathe Cry
using RolbN Containers. Contractor shall Coiled Permitted Materials from Customers that valuntinly
subscribe to or request Roll Off Container Collection serviws from Contactor. Contractor shall provide
Its Customers with a Roll -Off Container for Permitted Materials Collection orshall allow In 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 creation Solid
Waste and Organic Materials_ Contractor shall provide requested service to Its Customers and shall
charge Customers forserate at Rates mutually agreed by Customer and Contractor.
Contractor shall Tranepart Solid Waste Collected pursuant to this Agreement to the Designated Disposal
Site and other materials to an Approved Processing Site that has beeselected by the Contractor and
approved by the Ciry. The Approved Processing Siti must be able to demonstrate Diversion ratio in
accordance with Sections 4.1 and 53.
Contractor may enter Into contracts with customers far Collection services Provided that In no case shall
the tern Of such contracts extend beyond the Term or this Agreement, and Provided that in the event
the City terminates this Agreement the contracts with any and all Customers shall terminate on the
terminmion data of this Agreement.
5.3 PROCESSING AND MARKETING SERVICES
A. Processing. Contractor agrees to Transport and deliver III all CAD it Collects in the Cry to the
Approved GID encrusting Site, (II) all Recyclable Materials It Collectsin the UK to the Approved
Recyclable Processing Site, and (iii) all Organic Materials It Collect; In the Ciry to the Approved
Organ)¢ Processing Site. Residue from the CAP, Recyclable Materials, and Organics Processing
and Composting activities &I be Disposed of by Contractor or Its Approved Processor at an
Approved Disposal Site selected by Contractor In accordance with Sector 5.4. Contractor
selected the Approved Processing Sites) and Approved Dhposal Site(s), which are identlfed in
City of Proven RollOffAgreement
Page 14
4/8/11
Exhibit D. Contractor met permit or arrange for the City to Inspect the Approved Processing
deals) and observe Operacoreat any time during Ill.
Contractor or Its Approved Pigcesi shall possess all Permits and approvals necessary for use
Of the Approved Processing Sires) in full regulatory comendrod. Contractor shall, upon City
request, provide or request from its Approved Processions) and provide copies of notices of
Violation Or Permits to the City, Upon request of the City, Contractor shall provide a certified
statementfrom its Approved Prosaically) documenting Its Diversion rate,
If Contractor eleRa to use a Processing Stahl) that is different than the Approved Prosectng
Ste(s)hoofied in Exhibit O, It shall request written approval from the City Pary(601 calendar
days prior to use of the she and obtain the Gty's written approval no later than ten (10)
calendar clays prlmto use of the site
If Contractor is unable tose n Approved Processing Site clue to a emergency o sudden
unforeseen coupon of true Approved Processing Site, COmmi may use an alternative
Processing SRI provided that pl the Contractor provides verbal and written notice to the City
within twentyfour (24) hours of use of an alternative Processing site, and hill the alternative
Processing site is fully permitted and in compliance with all Applicable laws, The wtltten notice
shall lndude a deacniscon of the reasons the Approved Processing Site is not feasible and the
period of time Contractor proposes to use the automotive Processing Site. ContnRor $hall use
the alternative Processing Site for no more than twenty -bur (24) hours without obtaining Cil
Written approval.
8, Marketing. The Contractor or its Approved Provision shall be responsible for marketing C&D,
Recyclable Materials, and Organic Materials Collected In the Gty antl Diverted. Contractor
antlper 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 farm Of sales
receipts showing end user) to the City that all C&0, Recyclable Materials, and Organic Materials
Diverted are marketed for Recycling Or ein n a
such a r that m ls shall be
considered as Divested In accordance with the State regulations established by the Act At
residual material from the Processing activitles that is not marketetl for use shall be accounted
for as Disposal Tonnage at a permitted Disposal Site, No Permitted Material shall be
rinsported to a compete or foreign location IfSolld Waste Disposal bf such material Is Its
intended use.
Contractor or its Approved Processor shall Provide Me Ory, upon written request, With a list of
broker/buyers It uses to market C&D, Rerydffile Materials, antl Organic Materials Diverted, City
may audit brokers or buyers to contra that materials are being Recycled and Diverted from
Disposal. If Contractor becomes aware that broker Or buyer has Illegally handled or Disposed
If ma2rial generated by the City or elsewhere, Contmttarsball Immediately Inform the City and
terminateIts contract or working relationship with such Party Immediately,
L _ Processing and Marketing Costs. Contractor shall pay all costs associated with Processing and
marketing of Prominent Materials III ding Payment of any gate fees charged at the Approved
Processing Sites,
City of Eresno III Agreement
4/8/11 Page 15
5.3 DIVERSION REQUIREMENT
Contractor shall Divert from landfill disposal at least (I) 50% by weight of all C&O it Colletts within the
CI$ till 70% by weight of all Recyclable Materials it Colletts %[thin the City, and full 90% by weight of all
Organic Materials It Collects within the City during each calendar month by Processing, Recycling, or
Composting some mall of the C&D, Recyclable Materials, and Organic Materials Collected.
If Contractor falls W meet the Diversion requirements stated in the preceding paragraph during a
calendar month, the Ciry mayterminate the Agreement in accordance with Section 11.5.
5.4 DISPOSAL
A. Disposal of Solid Waste Collected Contractor shall Transport all Solid Waste Collected In the
City to the Designated Disposal Site, which the Clry specifies shall be the American Avenue
Lendfi111n Tranquility, California. Contractor mall pay all costs associated with Transporting and
Disposal of Solid Waste including payment of any gate fees charged at the Designated Disposal
Site,
0. 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 City, that are not Diverted through Processing activities, by Transporting
Ne residue to an Approved Disposal Site specified In Exhibit 0, which Is lawfully authorized to
accept such material.
C' Permitted SUP. Contractor or Its Approved Processor shall only Dispose of materials at a
permitted Disposal Site that is in NII regulatory compliance. Contractor, or Its Approved
Processor, shall keep or confirm all existing perhaps and approvals necessary for use of the
Disposal Ship) In full regulatory compliance. Contractor shall, upon request, provide copies of
notices of mole orpermkstpth s Cry.
D. Compliance with Regulatlons Contractor shall observe and comply wind all regulations in effect
at the Designated Disposal Site and Approval Disposal SlIUU) and cooperate with the operator
thereof with respect to delivery of Solid Waste, including mremons to unload Collection vehicles
In designated areas, accommodating operations and maintenance activities, and complying with
Hazardous Waste exclusion programs.
E Disposal at Approved Site. Contractor, or Its Approved Processor, shall not Dispose of such
residue by depositing it on any public or private land, in any river, stream, or other waterway, or
an any sanitary sewer or storm drainage system or In any other manner which violates
Applicable Laws. Contractor, on its Approved Processor, selected the Approved DlspoWl Sate(s)
Ed, residue Disposal specified In ExMb¢ O. Contractor shall arrange for the City to Inspect the
Approved Disposal Stuffs) and still operations ad anytime during Pronoun.
F. NtemRNe Disposal Site. If Contractor, or Its Approved Processor, elects to use a Disposal
STAN) that Is different than the Approved Disposal Sltefs) listed in &hurt o, It shall request
written approval from the City 60 calendar days prior to use of the site and obtain the Cry's
Partners approval no later than 10 calendardays prlorto use of the mens.
City of Fresno Roll DO Agreement Page 16
4/8/11
If Contractor, of its Approved Processor, is unable to use the Approved Disposal Site due to an
emergenry or sudden unforeseen closure of the Approved Disposal Site, Contnttw, or Its
Approved Processor, may use alternative Disposal Site provided that R) the Contractor
s
provides verbal and written n o thevOty wiMln Twenty fear (34) hours of a of a
alternative Disposal Site, and lidthe alternative Processing Site Is fully permitted and In
compliance with all Applicable Laws, The written notice shall include a description of the
reasons the Approved Disposal Site is not feasible and the period of time Contractor, or its
Approved Processor, proposes to use the alternative Disposal Site, Contractor shall use
e the
alternative Psposal Site for no more than twenty-four (N) hours without obtaining Ol
written approval.
5.5 BILLING
Contractor shall hill all Customers and collect billings in accordance with ContractorestablishedRates,
winch are set in a manner consistent with provisions of Session 9.3. The Carnitor shall prepare, mall,
and collect bills (or 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 cbmnologirzl order. for five (5) years
after eaprmon or termination of Agreement Contractor shall retrieve and make available to the
City copies of the billings and receipts within Ove (5) clays of the Directors written request for the
billings and receipts. The Contractor may, at its option, maintain those records In computer form, on
microfiche, or In any other manner, provided that the records can be preserved and relieved for
Impureness and venflcation in a timely manner.
6.6 CUSTOMER SERVICE
Contractor shall mountain a humess oPo4 within the Gty or within a reasonable chance of the Cil
limits approved by the Director. The business office shall staff at least one costumer service
representative capable of accepting payments fmm Customers, answering service questions, ntl
use log Customer service Issues. Contractor shall have a toll-free Customer service telephone number
and shall hove staff available to answer calls from at least 8.00 em. to 600 p.m., Monday through
Friday. An amwering machine shall record Customer ells and voice messages between 600 p.m. and
8'00 a.m.
ARTICLE 6
STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT,
AND PERSONNEL
6.1 OPERATING DAYS, HOU HS. AND SCHEDULES
A, Days and Hours of obligation
CIN of Fresno Roll OF Agreement Page 17
6/8/11
1. Residential Premises. Delivery or C0lleorlon of Roll -Def COidabl a or from Residential
Premises shall only occur between the hours of 6:00. a.m. and 6000 p.m., any clay of the
week
2. Commercial Premises. Delivery or Collection of a Rolli Container to or from Commercial
Premises that re 200 feet or less from Residential Premises shall my occur between the
hours of 6 D a.m. and 6:00 p.m., any day of the week Delivery or C0lleNon of a ROIFOff
Container to or from Commercial Premises that are more than 200 feet from Residential
Premises shall only occur between the boort of 5:00 a.m.. and 2:W p.m., any day of the
week. The Director may require modifications to hours for delivery and Collection from
Commercial Premises to resolve noise complaints, and, In such case, the Director may
change the allowable operating hours.
3. Exceptions. In the event of an unforeseen circumstance, the Contractor may deliver or
Collett a Roll -Off Container from Residential or Commercial Premises that are 200 feet or
less from Residential Premises between the hours of S:W a.m. and 20:00 p.m., upon prior
written approval from the Correct.
C Failure to Comply. If me Contractor fails to comply with the Collector, boom described In
this beach, the Contractor shall pay the City DOuldatW Damages as described In SeKlw
11.4 and Exhibit A.
63 COLLECTION STANDARDS
63.1 InstmoNonsto Customer
Contractor shall Instrutl Customers as to any preparation of Permitted Materials necessary prior to
placong in the Roll -Off Contalnec Contractor shall, in written form, inform all Customers as to the
acceptable materials that can be Included In the Roll -0N Container and any unacceptable materials to be
eluded from Collection.
6.2.2 Care of Private Property
Contractor shall not damage private property. Contractor shall ensure Nat its employees:(1) close all
gates opened In molding Collections, unless otherwise directed by the Customer; fill do not cross
landscaped areas; and flip do not climb oqump aver tabby and fences.
City shall refer complaints about damage to private property to Contractor. Contractor shall repair all
damage to private and public property caused by Its employees to its previous condRlon.
6.2.3 DSler AEatement
A Mienniza0on of 3pllb. Contractor shall use due care to prevent vehicle oil andveblde fuel from
being spilled or scattered during Childhood and Transportation operatlans. If any Permitted
Materials are sullied or scattered during Collection or Transportation operations, the Contactor
shall promptly clean up all spilled and scattered materials.
City of Fresno Roll -06 Agreement Page 18
4/8/11
Contractor shall not transfer loads from one vehicle as another on any public street, unless it is
necessary to do so because of mechanical failure, hot load kimahustlon of material in the truck),
accidental damage to a vehicle, or unless approved by the City,
If Contractor falls to perform some or all of the requirements described In this Sooner, the
Contractor shall pay the City Do inated Damages as described In Section 11.4 and Exi A.
B. Clean -Up. Each Collection vehicle shall carry, protective gloves, a creep, and shovel at all times
for cleaning up litter and absorbent material for cleaning up liquid spills. The Contractor shall
discuss instances of repeated eplllage not caused by it with the Customer of the Promises where
spillage occurs, and Contractor shall report such in s to City. If the Con r has
allempted to have a Customer stop creating spillage but Is unsuccessful, the City allll attempt,
upon notice by the Contractor, to rectify such situation with the Customer.
C. Covering of Leads. Contractor shall cover all Roll-0ff Containers at the pickup locoulon before
Transporting materials to prevent Reported! Materials from entsong during Transportation.
6.2.4 Noise
All Collection operations shall be conducted as quietly as passible antl shall conform to Applicable law.
Contractor will promptly resolve any Complaints of noise during she morning or evening hours of the
clay to the satisfaction of the Clty. In the event of repeat occurrences of noise levels In excess of 75
dblAf, the Contractor shall pay Liquidated Damages In accordance with Settlon 114 and Exhibit 1i
6.3 VEHICLE REQUIREMENTS
A. Genal. Vehicles used to pmvlde services under this Agreement shall be kept in a safe., neat,
dean, and operable condition at all tames. If Contractor folk to keep Collection vehicles In a safe
and sanitary condition, the Contactor shall pay the Cry Liquidator! Damages as described in
Section 11.4 and Exhibit A.
B. Spot tions. Contractor shall register all vehicles with the California Component of Motor
Vehicles. All such vehicles shall comply with Callfornla Environmental Protection Agency
,mm mission and air quality regulations and other applicable noise control regulations.
C. VeNde Identification. Contractor s name, local happens numbn. and a unique identification
umber for each vehicle used to provide services under this Agreement, shall be prominemay
displayed on all vehicles, In letters and numbers Nat are a minimum of 4 inches Mgb.
Contractor shall not place the City logo on its vehldes.
D. Cleaning and Maintenance
L Cleaning Collection vehicles shall be thoroughly washed and thoroughly steam cleaned as
frequently asessary to preen a clean appearance of the murder and Location compartment
of the vehicle.ec
E. Malntenanw. Contractor shall Inspect each vehicle daily to ensure that all equipment is
operating properly. Vehicles Nat are not operating properly shall be taken out of servte arms
they are repaired and operating properly. Contractor shall perform all scheduled maintenance
C[ry of Fresno Celli Agreement Page 19
4/11/11
functlons in accordance with Ne man beffeers apetlflafions 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 walkable to the City upon request to the extent necessary to perform the
Inspections dearrlbed In Seam nz6.3.F antl 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, of any other cause, so as to
maintain all equipment in a safe and operable condition. Contractor shall mail aurate
records of repair, which shall include the d to/mdeage, nature of repair and the signature a
maintenance supervisorthattbe repair has been properly performed.
4. Storage. Contractor shall shine to stere all vehicles and otherequlpment in safe and secure
locadonlsl In accordance with Orris applicable zoning regulations.
I . Operation. Vehicles shall be operated In compliance with the California Vehicle Code, and all
applicable safety and local ordinances. Contractor shall not load vehicles In excess of the
manufacturer's recommendations or limitations Imposed by State at local weight estrictians for
vehicles and roads. Contractor shall have each Collection vehicle weighed at each Approved
Processing Sites or Designated Disposal Site to determine the unloaded weight ('tare weigh Cl
of the vehicle, And the total loaded weight Of each load delivered t0 the Approved Processing
Sites and Designated plsposal Site,
I. Vehicle Inspection. City may Inspect vehicles A anytime to determine compliance with the
requirements of this Agreement. Contractor shall make vehicles available to the City and/or
Fresno County Health Department for loca loq at any frequency City reasonahlymments-
6.4 R0LL-0Fp CONTAINER REQUIREMENTS
A. General. All Rolbff Containers shall meet applicable Federal, State. Clry and local remial
forssfety.
rs. Specifications
1. PewR Leakage. If 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 3 of Ptle 14 Of the California Code of Regulations, RailOffContainers
used to Collect garbage and putrestlble materials and/or garbage and putruesubles mixed with
rubbish shall be nonabso bent,water-tlghp water resistant, durable, easily cleanable, and shall
he designed for safe handling and the mntalrmentof refuse.
2, graphite of Sufficient Capacity. In accordance with Seelon 17315 of Chapter3 of Title 14 of
the Callforma Code Of Regulators, Containers for garbage and rubbish should be of an adequate
size and In sufficient numbers to contain without overflowing, all fee refuse that a household or
other establishment generates within the designated removal Form.
3. Lim of Containers with Less than Ten f10f Cubic Yards Of Capacity. RollOffContainers with
opacities of less than ren (Wf cubic yards may onlybe used forthe purposes of Collecting C&D.
Ow of Fresno Rolbff Agreement page 20
4/8/11
C, Roll -Off Container Identification. All Contractor -provided Roll -Off Containers shall prominently
display the Contactors name, local telephone number, a unique Roll -Off Container
pool number, and list of acceptable materials. As appropriate, Rstufff 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 OF detachable signs.
If Contractor fails to comply with the. provisions of this Seaton 6.4, the Contractor shall pay the
City liquidated Damages as described in Seaton 11.4 and Exhibit A.
D. Ckanln& Painting and Maintenance. All Roll -Off Containers shall be matntalmed In a safe,
ervlceable, and functional mndibon. Contractor shall steam dean and repaint all Roll -Off
Containers at least every two years, or more frequently, to present a clean, graffiti free
appearance.
E Roll -off Container Inspections. Our may inspect Roll Off Containers at any time to determine
compliance with sanitation requirements. Contractor shall make Customers available to the Clty
at any frequency It requests. The Ctty shall have the right to pmhlle I the use of any Poll -Off
Container that falls to comply with the provisloru In thisSection 64.
I Abandoned Roll -Off Containers. Contractor shall net Abandon any Roll -Off Container used to
psovlda Permitted Materials Collection Services under this Agreement. If Ne Contractor
Abandons a Contraaorowmed Roll Off Container, City may remove fire Roll Off Container and
Process and Dispose of the cement$. If the OFF norroi
a Roll -06 Container Abandoned by
Contactor, the Clty may charge Contractor for the City's costs incurred removing such Roll -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 casts within fourteen (14)
calendar days of the date of the Ofty invoice to the Contractor for such costs. If Contractor
does not pay the Invoice amount within Wurecan (141 days, the Clry shall become the R albff
Container owner if fire Invoice stated the Our's intent to become the Container owner In
lettering of at lean t] pointfont.
For the purposes of this Seaton Iii 'Abandon" means the following:
1. Comracmfz failure to remove a Contractor owned Roll Off Container within five (5)
calendar days of receiving a written request from a Customer or the City or within five (5)
calendar days after the termination of the customer servlet agreement between Contractor
and the Customer, or
3. Contractors feature to re a Contractor oowned Rolbff Container within ten (lo)
calendar days upon saturation or termination of this Agreement exCept In the ease where
Contractor has been granted an ettemlon of She Term of the Agreement or Contractor has
been granted a subsequent agreement authorizing Contractor to Collect and transport the
type or types of matenes for which are li Customer was used pursuant to this
Agreement.
City of trend RollOffAgreement Page ZI
4/8/11
6.5 PERSONNEL
A. General. Contractor shall famish such qualified drivers, maintenance, supervisory, Customer
serval clerical and other personnel as may he necessary to provide the services required by
ply Agreement in a safe and efficient manner.
6. Dome quall0atlons. All drivers shall be trained and qualified In the moral of Collection
vehicles, and must have in effect a Wild license, of the appropriate class, issued by the Callfornla
Department of Motor Vehicles. Contractor shall use the Class g California Departmentof Motor
Vehicles employer 'Pull Notice Program' to monitor lis drivers for safety.
C. Safety Trelning. Contractor shall provide suitable emotional and safety training for all of Its
employees who operate Collection children or equipment or who are otM1envlse directly involved
In such Collector, Disposal, or Processing. Contractor shall train Its employees Involved In
Collection to identify, and not to collect. Haiardous Waste or Infectious Waste, Upon the Clty's
requert. Contractor shall provide a copy of Its safety policy and safety training program, the
name of its safety affect, and the frequency of its trainings.
D. Employee Conduct and Courtesy. Contractor shall use hs best efforts toe re that all
employees present a eat appearanceand conduct themselves In a courteous
Correction regularly train Its employees In Customer courtesy, shall prohibit the use of loud
or profane language, and shall insVua Collection employees to perform the work as quietly as
possible. If any employee Is found not to be courteous or not to he performing services In the
manner required by this Agreement, Contractor shall take all appropriate corrective measures
and shall mythe Chy Contacted Damages as described In Seaton ILA and Exhlhlt A.
E Employee Identifcation. While performing services
under this Agreement all of the
Contractors employees performingfield wrinceshel�bedressed In clean dothes antlshallwear
badges that Include the employee's name and/or employee number, and Contractors name, as
approved by the Cry.
6.6 HAZARDOUS WASTE INSPECTION AND HANDLING
A. Response to Hazardous Waste Identified during Collection. If Contractor determines that
material placed in any RollOffContainer for Collection Is a Hazardous Waste that may not
legally be Disposed of at a Disposal She or handled at the Prosecutors Site, or presents a hazard
to Contrial employees, the Contractor shall refuse to accept such material. The Contractor
fiall contact the Customer and request the Customer to arrange proper Disposal. If the
Generator cannot be reached Immedletely. the Contactor shi before leaving the Premises,
leave a OR at least two Inches by six Inches (8' x fi") in size, which Indicates the reason for
refusing to Collect the material and Ilsts a phone number for obtaining Information on proper
disposal of the Hazardous Waste. Under no circumstances shall Contractors employees
knowiply Cale rt Hazardous Waste.
If Hazardous Waste is found in a Bolt OR CoutNnerthat could possibly result In Imminent danger
to people or property, the Contractor hall immediately notify the Dr/s has Department using
the 911 emergency emotes.
OW of Fresno Rolbff Agreement Page 22
4/8/11
The Contractor Shall notify the City of any Hazardous Waste identified In RO11-off Containers or
left at any Premises within 34 hours of identification of such material.
S. tompontt t0 Hazardous Wastes Identified at Olsposal Site or Processing Site. The ContraRw,
or Its Approved Processor, or Disposal Site operator shall provide load checkers and equipment
operators at the Processing or Disposal trials) to identify Hazardous Wastes far storage In
approved, on-site, hazardous materials storage cantainegsl. 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 wish Applicable Laws and regulatory
requirements.
If the Hazardous Wastes delivered to a Disposal Site or Processing one by Contractor before Its
consul is detected, and the Generator cannot be identified or alls to remove the materlal
after being requested to do so, the Contractor shall arrange for W proper Disposal. The
Contractor may make a good faith effmt to recover the cost of Disposal from the Generator, and
the cost of this Shod, as well as the test of Disposal shall be chargeable to the Generator.
C Regulations and Record Keeping. Contractor shall comply with emergency Rawcation
Procedures required by Applicable Laws and regulatory requirements, All records required by
regulations shall be maintained at the Contractors fatlllty. These records shall Include: waste
manifests. waste Inventodes, waste characterization records, Inspection records, Incident
repels, and training records.
8.7 HON -DISCRIMINATION
Contractor shall not discriminate In the provision of service or the employment of Persons engaged in
performance of this Agreement on account of race, color, natural origin, ancestry, religion, gender,
marital status, sexual orientation,age, physical or mortal disability In violation of any Applicable Law.
8.8 COMMUNICATION AND COOPERATION WITH CITY
A. Communications. If requested, Use Contractor shall meet with the Cut or ns agent to discuss
service Issues.
B. Inspection by Clty. The Chit or Its designated representatives, shall have the right to observe
and review Contractor operations, Processing Ahs and Disposal Sites used by Contractor, and
enter Contractors Premises for the purposes of such observation and review during reasonable
hours without advance notice.
C. Cooperate with Dart Initiated studies. Contractor shall cooperate with and assist she City oras
agent with the Performance of City initiated studies of Permitted Materials such as, but not
limited to, waste characterization and composition studies;
City Of Fresno RollOffAgreement Page 23
4/8/11
ARTICLE 7
RECORD KEEPING AND REPORTING
7.1 GENERAL
2.1.1 Maintenance of Records
Contractor agrees to conduct data colleRion. Information and rewrd keeping, and reporting attWl6e5
needed to comply with and to meet the reporting and permitted Materials program management needs
of City, the Act and other Applicable Laws, and the requirements of this Agreement.
This Article is intended to highlight the general nature of records and reports to Be Maintained by
Contractor, and their minimum content. This Article Is not meant to comprehensively define what the
cords and reports are to be and their content. Wlih the written direction by or approval of City, the
cords and reports to be maintained and prodded by Contractor In accordance with this and other
Artldes of the Agreement shall be adjusted In number, format, or frequency. Records and reporting
may be revised to el current record keeping and reporing requirements.
To the anent such requlrement5 are set out In this and Met mildly oRM1I{ Agreement, they shall net
be considered limiting or necessarily complete.
7.1.2 Retention of ecoMs
Unless otherwise required in this Artide, Contractor Shall retain all records and data required M be
maintained by this Agreement for Me Term of this Agreement plus five (5) years after its exploited or
eerllerterminatl
lon. Records and data be in chronological order and roughly easily Interpreted.
7.1.3 Inspection of Records
The City, Its auditors and other agents, shall have the right, during regular business hours, to Inspect
specific documents or records fequlred by this Agreement or any other suntan or eports of the
Contractor that the City Shall deem, at Its Sole discretion, necessary to evaluate the Contractor's
performance provided for In this Agreement. The CRy may make copies of my documents It deems
relevant to this Agreement. The Cry shall provide Contractor written notice at least three (3) Business
Days prior to any Inspeden of these records, and Contractor shall retrieve and make avallable to the
Clay the requested documents and records at that time..
The City reserves the right W inspect records for the purposes of auditing the ConVattors reports,
reported Diversion level, and fee payments to She Clear . If an audit conducted by the CIN. or Its
representmlves, finds: (i) that the Contractor has made any intentional misrepresentation with respect
Ice Me fees dues tathe City (e g., Franchise Fees or other fees due to the CAR) in an amount greater than
$1,00 or 10% of the fees due to the City during the period covered by the audit, whichever is greater,
or (,i) that the Diversion level Is 5%different than Me Diversion level reported by the Contractor, then In
addition to any other remedies available to the City, Contractor shall reimburse the City for the Urge
casts incurred In the performance of the audit. Such reimbursement shall he paid by Contactor, along
with any underpaid fees and Liquidated Damages required by 5ettlon ILA and Exhibit A, within thirty
(30) calendar days of the date the Gry notifies the Contactor of the amount due.
City of Fresno Roll OFF Agreement Page2<
A/0/11
7.1.4 Record greater
Contractor shall maintain adequate record security to preserve records from events that can be
reasonably anticipated such as fire, theft, and earthquake. Electronically mortalned data and records
shall he protected and backed up.
7.2 RECORDS
TOE Mandal and operational Rewas
Contractor shall maintain accurate and complete accounting records containing the scro lnl financial
and operating data relating to and showing the basis for computation of all revenues associated with
providing Permitted Materials Collection, Transportation, Processing. Rerytling, Composting, and
Disposal Wastes. The actounting records shall he prepared In accordance with Generally Accepted
Accounting Principles GAAP) consistently applied.
At a minimum, the following operational records shall he maintained by Contractor for Ory, relating to:
A. Customer account nformation and bllllng records;
0. Tonnage of material Collected by type (aR, Solid Waste, Recyclable Material, Searle Material.
orC&O(listed by Processing Site or Disposal Site where such matetlaR were delivered. Where
possible, Information is to be opposed by Residential and Commercial Customers.
C' Tonnage of Recyclable Materials, Organic kil 1, and CROP 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 10q listed separately by month for fire previous quarter.
Tonnage Diverted shall reflect Permitted Materials Processed less residue Disposed.
E. Residue levels of Processed or Compostetl materials.
E Weight tickets from I11 Designated Disposal Site documenting the Tannage of Send Waste
Collected within the City and bellicose to the Designated Disposal She; til) Processing Sites
terrain ting the Tonnage of Peril Materials Collected wichin the City and delivered to the
Approved Processing Sites; and, (Fd) Approved Disposal Sites documenting the Tonnage of
residue delivered to APmoved Disposal sites by vehicle, dam, and time..
G. End use and markets for recovered materials.
Contractor shall make records available to the City upon request.
73.1 Customer Records
Contractor shall maintain accurate and complete records containing the number and types of accounts
sawed by the Contractor. The records shall contain, at a minimum, the Customers name, type of
business, phone number, address of Roll o@ Container delivery and Collection location, date of delivery
and Collection, Itemized listing of services performed type of cookMtl Mal Collected, Tonnage
City of Fresno RogOffAgreement Page 25
dial
Collected, and the amount charged to provide services. me Information shall be provided t0 the at
upon request.
ClryvIiii its ablliryte defend itself against Comprehensive Environmental Response, Compensation and
LIablllty Act ICERC1AI, 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, geryding, Composdng, Transfer, or Disposal, as well as where they are not taken, to be
mothers of ormarn. Contractor shall maintain, retain and preserve records which can establish where
Permitted Materials Collected were Processed, Command. and Disposed (and therefore establish
where they were not). This provision shall survive the expiration or earlier termination of this
Apartment. Contractor shall maintain these records fora minimum often (10)years beyond expiration
or earlier termination of the Agreement Contractor shall provide these records to City l upon reme ter
at the end mine record retention periods In an organized and Indexed manner rather than destr0ying or
disposing oRbem.
7.0 GENERAL REPORTING REQUIREMENTS
The format of each report shall be approved by City. Contractor may propose report formats that are
responsive to the docttfr Contractor agrees W mail a copy of all reports and submit all reports on
computer dlacs by a mall, or by modem In a format compatible with City's software and computers at
no additional charge. Contractor will provide a artiflcatlon statement, under sector or perjury, by the
responsible Contractor ofFltlal, that the report being submitted Is me and correct W the best
knowledge of such official after their reasonablemmilry.
Contractor shall submit monthly reports within fl(teen III calendar days of the end of each month. If
Contractor does not submit the monthly reports by the datesrequired In this Arnold, Contractor shall
paythe City liquidated Damages as described In Settlors 11.6and Exhibit A.
Contractor shall submit (via mall and entad) all reports to:
Solid Waste Division Manager
Cry of frem r
1325 EI Dorado Street
Fresno, Ca 93706
7.6 MONTHLY REPORT
The monthly report shall present the following Information.
A. Total Tannage. Total Permitted Materials Tonnage Collected by Contractor within the City
during the previous quarter, listed separately by magrml type and by month.
3. ONerted Tannage. Permitted Materials Tonnage Collected by Contractor within the Cry that
was Diverted durmithe previous currier, listed separately by material type and by month.
City of Fresno ldll$ Agreement Page 26
4/8/11
C. disposed Tonnage. Permitted Materials Tonnage Colktted by Contractor within the Cry that
was Disposed duringthe previous quarter, listed separately by month.
D, Diversion Level. Tonnage Diverted by Contractor divided by She Tannage Collected by
Contractor multiplied by 100, listed separately by month far the previous quarter. Tonnage
Diverted shall reflect PennMed Materials Processed less residue unpaved.
E C&O. Tannage generated from construction and demolition permltted sites, noting the permit
umber, the site address, the Tannage hauled the date hauled, and the fill licles to which the
material was hauled.
E Disposal and Processing Locations. Contractor shall provide a list of the names and addresses
of where Permitted Materials Collected within the City during the previous quarter was Diverted
and Disposed Such list shall Include the amount of Permitted Materials Tannage Diverted
and/dr Disposed at each locatlon during the previous quarter, listed separately by material type
and by month.
G. Revenues. Grossrevenues (e.g. cash receipts) earned an all RpHHf Container Collector.
Transportation, Processing, Recycling, CompMing, and/or Olspoml Services provided to
Customers within the Clry during the previous quarter, USSR! separately by month,
H_ Insurance. Updated Insurance certificates.
I. Account Information. In table Contact, rho number of Customers within the City limits served
and number of Roll Off Contalners Serviced per month listed by Roil Off Container type (Drop
Dox or Connecter), Roll -Off Container site, and listed separately by Permitted Material type,
and rel Schedule service and unscheduled Un-calq Senate.
1. Contractor OHlurs and Board Members. Provide a list of Contractor's o i¢rs and members of
its board of tllrectars (only required with the December monthly report each year. or In the
event of change in the officers or board members).
The City proposes the right to equal additional reports from Contractor, and upon fli reque4,
Contractor shall provide Information required above far the tlme perlod requested by the Ory, It Is the
desire of the Clry to track the above required Infornatlan on an ongoing basis throughout the term of
Wr Agreement
7.5 AS 939 COUNTY SURCHARGE REPORTING
Contractor acknowledges that City is a party to that normal, AR 933 Memorandum of Understanding with
the County of Fresno and various other junsdiRlons dated January 6. E008 (the "Ag 939 MDU"), and
further acknowledges having received and reolewed a ropy of the AS 939 MOLL The Parties agree that
Contractor is a 9urle mum's Hauler', as that term is used In Part IV, Section H of the AS 939 MOU.
Contractor shall comply win all requirements of Part IV, Section H of the A0 939 MOU that are
applicable to alunsdlction's Hauler, including but net limited to surnames of reports and payment of the
A9 939 Surcharge las thatterm is defined in She AR 939 MOH).
City of Fresno Roll -Off Agreement Page 27
4/0/11
ARTICLE 8
FRANCHISE FEES AND OTHER FEES
8.1 GENERAL
Contractor shall rolled the fees described In this SeRlon from Customers through Commodore regular
billings and remit mlletted amounts to Ciry on a monthly basis as described In 5ectlon 8.5.
8.2 FRANCHISE FEE
In transpiration of the exclusive rights provided Contractor herein, Contractor shall pay Franchise Fees
to the Oty each month equal to 10% of actual gross Rate revenues (e.g. cash remlpts) rammed to
Contractor by Costumers for services provided by Contractor under this Agreement.
8.3 OTHER FEES
The City may set "other" maintained fees, as It deems ne sary. The amount, time, and method of
payment and adjustment process will be set in a manner similar tothet for other fees described In this
Article.
8.4 ADJUSTMENT TO FEES
City may adjust the fees established In this Article annually at any time during the Term of this
Agreement
8.5 PAYMENT SCHEDULE AND LATE FEES
On or before the 201th day of each month during the Term of this Agreement, Contractor shall remit to
Ory Franchise Fees and other fres as tlescribetl In this Article. If such remittance is not paid to the Clry
on or before the 20th day of any month, Contractor shall pay, In addition to the amount owed ra City,
2% of the former awing for that month; plus an additional 2% owing on any unpaid balance for each
fallowing thirty l30j calendar day period the fee remains unpaid
Each monthly remittance to City shall be accompanied by a statement Itemizing each fee paid: detailing
niculampri of all foci crating actual gross reoenues (e.g. cash realptag for Ne monthly period collected
from all operations conducted or connected by this Agreement and dating the number and size of
Containefsserwred by Contractorforthe monthly period Each amlttanre Including all supporting
documentation shall be provided to:
Attn: City Controller, Finance Department
Clay of resno
2600 Fresno Street
Fresno,G 932213624
Cry of Fresno Roll -OR Agreement Page 28
4/8/11
8.6 OVERPAYMENT OF FEES
If Contractor believes it has poid Franeblse Fees or other fees re described In this Aside, In excess of the
fees due to the City, Contractor may submitrequest for refund to the Director. If proof of
overpayment is satisfactory to the Director, the Director shall authorize the City to refund the
overpayment
to the Contractor. Contractor shall not apply any overpayment as a credit against any
Franchise Fee or other amounts payable to the City, unless specifically Authorized to do so by the
Director in writing.
9.7 NONI FEES; AS 939 COUNTY SURCHARGE
Pursuant to SeRlon 75, Contractor shall pay the County of Fresno an Ali 939 surcharge as applicable In
accordance with the AS 939 MDU,
ARTICLE 9
CONTRACTOR'S COMPENSATION AND RATES
9.1 CONTRACTOR'S COMPENSATION
Connotations compensation for performance of all its obligations under this Agreement shall be: (i)
burned Rate re es Palo to Contractor(e. cash receipts) by Customers that obtained Contractor's
Colles rvlces 8less fees dues to City m accordance wttM1 Article 8, and (II)revenues generated by
the saleof Collected materials Inverted form Disposal.
Contractor's compensation pmvlded for in this Article shall be the rub, entire, and complete
compensation due to Contractor pursuant to this Agreement for all labor, equipment, materials and
supplies, Processing, Composting, and Disposal fees, regulatory fees, Ctty, fees, taxes, insurance, bons,
rerhead, operations, pmfrt and all other things necessary to perform all the services In the manner
equired by this Agreement.
If Contrators costs are more than Contractors commensal Combetorsmill not he mmpensatedfar
the difference In costs and revenues. If Contractor's costs are less than Conttm's compensation,
Computer shall cartoonain the dnfferenc¢ tn
9.2 CITY'S RIGHT TO SEF MAXIMUM RATES
The (my reserves fhe right to establish maximum Rates for Parasol Materials Collection services
provided under this Agreement In the event that: (a) there are three or fewer companies holding mon
-
exclusive franchise agreements for Collection of Permitted Materials, or(A)the Rates charged by the
companies holding non exclusive franchise agreements for Collection of Permitted Materials are
longer comparable to these of other Jurisdictional, as reasonably determined by City. tithe City chooses
to se its right to set maximum Oates, CN shall notify Contractor at least 180 calendar days prior to
the datethat maximum Rates become effective. In such case, Clry will set maximum Rates with
City of Fresno Roll Off Agreement Page 39
418/11
consideration of reasonable and n nary costs for Collection, PmassmR composOng, and Disposal
and with the lrrtentlon Of setting maximum Rates that will enable parties including the Contractor, Nat
have executed NOR Exclusive Franchise Agreements with the City for Rolbff Carl Collection
Sennas the abllltyto recover easonable and necessary costs and a reasonable profit.
0.3 CONTRACTOR'S RATES
Contactor shall set the Rates It Charges Its Customers for lblFOff Collection services. The Characters
Rates shall not exceed City established strontium happy, IT the City exercises its rights under Section 92
ARTICLE 10
INDEMNITY AND INSURANCE
10.1 INDEMNIFICATION
Contactor shall indemnOg defend with counsel acceptable to the City, posted and hold harmless the
City and each of Its officers, officials, employees, volumears. and agents Icnuectrvely, mdermi ewl from
and against all claims, damages including but not limited to special, consequential, natural resources
and punmve damaged, InlurleS costs, Including without limit any and all response, remedlatlon and
removal mold, losses, demands, debts, lien; Ilabllltles, causes of action, sults, legal or administrative
proceedings, interest, fine, Charges, penalties, and expenses (including without imit attorneys expert
witness fees and costs Incurred In w with defending against any of the foregoing or In
enforcing this indem ityl, Protectively, -Damages') of any kind whatsoever paid, lnmrred or suffered
by, or asserted against, indemnitees arising from Or attributable t0 the am or Omissions of Contractor
whether or not negligent Or otherwise culpable, in Exporting with or related tithe performance Of Nis
Agreement, exceptsuch loss or damage which was caused by the sole negligence or willful misconduct
Of the Clry.
Cantations duty to defend and indemnify herein shall Include Damages arising from or attributable to
any operations, repairs, room no or detoxlflntlan, or other Plan mgardtess of whether undertaken due
to governmental action) concerning any Hazardous Waste Collected In the City. Contractor sh all be
required to Indemnify the troy for the costs for any claims arising from the Processing, Composting, or
Disposal of Permitted Materials, including, but not limited to, claims arising under the Comprehensive
Environmental Response, Compensation and Crazily Ad RERCIAI. The foregoing Is Intended to
operate as an agreement to defend and Indemnify and hold harmless Indemnities to the full extent
permitted for liab0ty pursuant to Section 10i of CERCI -1, 42. D.5.0 Section 960](e) and California
Health and Safety Code Section 25364.
In Poll Com ado/s duty to defend and Inderl herein includes all fines and/or penakles
Imposed by the California Department of Resources Recycling and Recovery, Hi t0 the rerttldions
set forth In Public Resources Code Section 44DO59.1, If the requirements Of Me Ad are not met by the
Contractor with import to the Permitted Materials Collected under this Agreement, and won failure is
due to Contractor delays In providing Information that prevents Contractor or City from submll
reports noticed by one Act In a timely manner.
City of Fresno Roll -Off Agreement Page 30
4/8/11
This circular will survive the expiration or earlier termination of this Agreement and shall not be
construed As a waiver of rights by Clry to contribution or Indemneyfrom third parties,
10.2 INSURANCE
10.2.1 Minimum Repeat Insurance
Coverage shall be at east as broad as:
A. Insurance Services Office Commercial General Llablllry, coverage.
2. Personal injury
2. Contractual liability
0. Insurance Services Office covering Automobile Liability, mtle I "any autot.
A. Worker's Compensation Insurance as required by are labor Code Of the Scene of Callfomla and
Employers Liability Insurance.
0. Such other insurance coverages and limits as may be required by the Crty.
10.23 Minimum Limits of Insurance
Contractor shall maintain limits no less than
A. General Liabillty: $1,000,000 each oc ce for bodlly injury and property damage;
$1,000,000 for personal and advertising lnjury;$3,000,OW produce and completed operations
aggregate, and $3,000,0008enendaggregate. If Commercial General Liability insurance or other
form with a general aggregate IIablllty is used, either the general aggregate limit shall apply
separately to this project/location or the general Aggregate. limit shall be twice the rcyulred
occurrence lithh
B. Automobile Liability: $1,000,000 per accidentfor bodily ihUrs d property damage.
C. Workers Compensation: Workers' compensation limits as required by the Labor Code of the
State of California.
D. Employees Liability: $1,OOg0J0 each accident for bodily Injury.
$1,000,000 disease each employee.
$1,000,000 disease policy Amit
E. Pollution Legal Liability: $1,0]0,000 per dais/occurrence and $2,000,000 aggregate for bodlly
Injury, properly damage, and remediation of contaminated she.
103.3 deductibles and Self -Insured Retentions
Any deductibles or self Insured retentions must he declared t0 and approved by the Cltf, At the option
of Clry, either: the Insurer shall reduce or eliminate such deductibles or self-insured retentions as
respects the City, its officials and employees; or the Contractor shall procure a bond guaranteeing
Payment of lasses and related investigations, claim administration and defense expenses.
City of Oesno Poll -Off Agreement Page 31
a/8111
10.2.4 char Insurance Provlauns
The policies are to contain, or he endorsed to contain, the following prov6lo es:
A. General Gab111ty and Automobile Ideality Coverages
1. The City, Its officers, officials, employees, agents and volunteers are to he covered a
additional Insureds as respects: llablllry adsing out of activities performed by or on behalf
of the Contractor; protium and completed operations eE 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 Nope of protection
afforded to the Clry, its officials, employees, or volunteers. no automobile Ilabllily Is
endorsed to contain MCA90coverage.
2. The Contractors in coverage shall be primary, Insurance as ¢spoors the City, Its
officials, employees, and volunteers. Any Insurance or self-insurance maintained by the
Card IS officials, employees, or volunteers shall be excess of the Centrattor's Insurance and
shall not contribute with It.
3. Any failure to comply with reporting provision of the polities shall not affect coverage
provided to the Ctg Its amtlals, employees, or volunteers.
4. Coverage shall state that the Contractor's Insurance shall i separately to each insured
against whom claim Is made or suit Is brought except with respect to the limits of the
Insurer's llablllty.
8. WorkersCompensation and Employers uabillN Coverage. The Insurer shall agree to waive all
rights of submgetion against the City, as ofFlcers, employees, and volunteers for losses adsing
from work performed by the Con ecmrhrthe City.
C All Coverages. Each Insurance policy required by this cause shall be endorsed to state Nat
' coverage shall not be suspended, voided, canceled by either party, reduced In coverage or In
limits except after 30 calendar dar prior written mass by cettlfled mall, return receipt
decrease, has been given to the Clty.
10.25 Adoptability of Insurers
The immrsonce policies required by this Section shall be Issued by an Insurance company or companies
authorized to do business In the State of California and with a rating in the most recent edition of Bests
Insurance Reports of she ntegoryVll or larger and a rating classlflation of A access
10.2.6 VerHlatlon of Covenge
Con raaorshall furnish Godavari Insurance agent a copy of these specifications, and direct the agent
to provide the City with certificates of Insurance and with criminal endorsements affei coverage
requbed by this clause. Issuance of documentation Indicates the Contractors Insurance complies with
these provisions. The certificates and endorsements for each insurance policy are to be signed by a
Person authorized by that Insurer to bloc coverage on Its behalf. Fee certificates and endorsements are
' to he received and approved by the City before work commences. The City may require complete,
scroll copies of Al required Insurance policies, atam'time.
tCIN of Fresno Roll -Off Agreement Page 32
4/8/11
10.2.7 Required Endorsements
A. The Workers' Compensation polity shall contain an endorsement in substantially Life following
form:
'Thirty calendar dayi prior written notice shall be given to the City of Fresno in the event of
cancellation, reduction In coverage, or nonrenewal ofthls Fell
olrectorof PublicUtilities
City of Fresno
2600 Fresno Street
Fresno, CA 93721-3620
B. The Commercial Genera1Liability, Business and Automobile Lablllty,and Pollution Legal Liability
policies shall contain endorsements in sub turtlally Ne fallowing farm:
1. "Th6ty calendar days' poor written notice shall he given to the City of Fresno In Ne event
of cancellation, reduction in coverage, or non- renewal of this panty."
Director of Public NIII[les
City of Fresno
2600 Fresno Street
Fresno, U 93721-3620
2. The City of Fresno, Its officers, employees, and agents are additional insureds on this
policy"
3. 'This policy shall be considered primary Insurance as respens any other valid and
collectible Insurance maintained by the City of Fans, including any self Insured retention
or program of selLInsurance, and any other such Insurance shall be considered excess
Insurance only."
q. "Inclusion of the City of Fresno as an Insured shall not affect the City's rights as respects any
claim, demand, suit of Judgment brought or recovered against the Connector. This polity,
shall protect Couturier and the City In the some manner as though a separate policy had
Farm Issued to each, but Cls shall not operate to Increase the Contmttois liability as set
Form In the policy beyond the amount shown or to which the Connector would have been
liable If only one party had been named as an Insured"
10.9.8 delivery of Proof of Coverage
Simultaneously with the execution of this Agreements Contractor shall Senior the Cry cer0nams of
each policy of Insurance required hereunder, In form and substance satisfactory to Cul such
aril shall show the type and amount of coverage, effective dates and dates of expiration of
policies and shall have all required endorsements. If Ce City requests, copies of each pollry, together
with all endorsements, shall also be promptly delivered to Fina
Renewal certificates will he furnished annually to Clry to demonstrate maintenance of the required
coverages throughout the Term.
City of Fresno Rolli Agreement Page 33
all
10.2.9 Other I mance Requirements
A. If any services are delegated to a Subcontractor, the Contractor shall require such subcontractor
to provide statutory Workers' Compensation Insumna and employees Reality Insurance for all
of the SubmntraRar's employees engaged In the work in accordance with Sections 162 3.0 and
30.2.2.0
and 10.2.0.0. The Iiabdury, insurance required by Sermon 3022.A shall cover all
Subcontractors drthe Subcontractor must furnish evidence AT Insurance Provided by it meeting
all of Are requirements of Wh Section 10.2.
B. If at any time during the life of the Agreement or any ertenslom contractor or any of Its
subcontractors fall to maintain any required insurance In full farce and effect, Contractor shall
be In breach of the Agreement until notice Is received by City that the required insurance has
been restored to full fora and effect and that the premiums therefore have been paid fora
forced satisfactory to City. Any failure to maintain the required Insurance shall be sufficient
cause for Clry to terminate this Agreement. No action taken by Ory pursuant to this Section
shall in anyway relieve Contractor of Its remon9bllltles under this Agreement.
C The Contractor shall comply with all requirements of the insurers Issuing policies. The carrying
of Insurance shall not relieve Contractor from any obligation under his Agreement. Ramyclaim
exceeding the amount of any deductibles or self Insured reserves Is made by any third person
against the Contractor ore
any Subcontractor because of any o related to this
Agreement, the Contractor shall promptly report the fads In writing to the insurance carrier and
to the City.
D. The Commercial General Liability, Automobile Llatiillty, and Pollution Legal UahNty insurance
policies shall be written on an "o rather than a"claims made- basis If Contractor is
stable to purchase Pollution Legal Liability insurance an an occurrence form and must purchase
surf insurance on a claims made form:
1. The'Ral Dare"must be shown, and must be before the effeallve date of the Agreement
or the commencement of work byContractor.
2. The Policy shall he endorsed to provide not less than a 5�yew discovery period This
tequlremem shall suaroe exp ration or terminatlan of the Agreement.
3. If coverage A canceled or non renewed, and not replacM with another claims -made pallry
form with a "Retro Date' prior to the effective date of the Agreement, Contractor must
purchase "e#ended reporting' coverage for a minimum of 5 years following the expiration
or termination of the Agreement.
0. A ropy of the claims reporting requirements must he submitted As City for review.
5. These requirements shall survive expiration or termination of this Agreement.
Clry of Nona RollOff Agreement Page A4
0/11/ll
ARTICLE 11
DEFAULT AND REMEDIES
11.1 EVENTBOFEEFAULT
Each of the following shall constitute an event of default ("Event Of Oefault"I hereunder:
A. Contractor fails to perform its obligations under this Agreement, or future amendment ad this
Agreement, Including, but not limited to, Contraaor's failure t0 pay Franchise Fees and other
City fees In accordance with MOtle B of this Agreement and the breach continues for more than
10 Business Dag afterwrltten notice from the Coyfor Me correction thereof,
B. Contractor's failure to 01vert 50% of the C&O, 70% of the 0.ecydable Materials, and 90% Of
Organic Materials Collected in the City as required by Settlon 53 of this Agreement after
Contactor is given an OpportuOltytO remedy the nonperformance as described In Bounce 11.5;
C Any representation, signal or dindosure made toCry, by Contractor in mnneRlbn with or as
an Inducement to entering Into this Agreement or any future amendment t0 this Agreement,
which proves to be false or misleading In any material respect as of the time such
representation or disclosure Is made, whether or not any such representation, warranty, or
dixlosure appears as part of this Agreement;
O. There Is a vessel or attachment (Ober than a pre-fudgment attachment) of, or levy affecting
Possession on, the operating equipment or Connector, Including without limit Ito whir as,
maintenance or0ffce fafllionr or any Part thereof of such proportion as to si bro ntlally Impair
COnvattor's ability to perform under this Agreement and which cannot be raised, bonded, or
otherwise lifted within 48 hours excluding weekends and holidays,
E. Contractor flies 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 lather than as a part
Of a transfer of equipment no longer useful to Contractor or necessary for this Agreement),
trustee (other than as seNrity, for an obligation under a dead of trust), custodian, sequesoatlor
(or similar official) of the Contactor for any part Of Contra¢or's operating asset, or
any
substantial part of Contractor s property. Or shall make any general asLm
gnent for the benefit
Of Contactor's creditors, or shall fall geneally to pay Contactor's debts as they become due Or
shall take any action in furtherance of any of the foregoing:
F. Acourt havingJurisdlttion shall "ter a decree or order for relief in resonant of the Contractor, in
any involuntary Case brought under any bankruptcy, Insolvency, debtor relief, or similar law now
of hereafter In effect, Or Contractor shall mruen( t0 or shall fail to oppose any such proceeding,
or any such mutt shall enter a decree or order appointing a receiver, Indicate, assignee,
custodian, tmstece, sequestrator (or similar Official) of the Contractor or for any part of the
Caron is operating equipment or assets, or orders the winding up Or pquldatlon of the
affairs of Contractor,
City of FresnoAoll-0ff Agreement Page$
A/g/11
113 RIGHT TO TERMINATE UPON DEFAULT
Upon a default by Contrattoq the CIN may terminate this Agreement within 10 calendar days of the
default but no later than 180 calendar days after the default Such termination shall be eNettive 30
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 Days right to terminate the Agreement under Section 11.1 Is not exclusive, and the City's
terminator of the Agreement and/or the Imposition of boundaries! Damages shall not constitute an
election of remedies. Instead, these rights shall 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 qualmrservlce, the
leadtime required to effect alternative service, and the rights granted by Clry to the Contractor, the
remedy of damages for a breach hereof by Contractor Is Inadequate and City shall be entitled to
Injunctive relief.
11A LIGUIDATEODAMAGE3
Ganem. The Parties find that as of the time of the execution of this Agreement, It Is
Imprai If not Impossible, to reasonably ascertain the extent Of damages wM<hIII be
incurred by Clry as a result of a breach by Contractor of its obligations under his Agreement.
The factors relating to the impracticability of ascertaining damages Income, 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 wrVIi (11) Such breaches cause Inconvenience anxiety,
frustration, and deprivation of the beneFlts of the Agreement to individual members of the
learned public for whose benefit this Agreement execs, In subjective ways and in varying
degrees of Intensity whim are Incapable Of measurement In precise monetary terms; (111) that
services might be available at substantially lower costs than alternative s eand the
monetary loss resulting from dental of versions or denial of pualny o rellablese es Iz
impossible to calculate in precise monetary terms: and di the termination of this Agreement
for such breaches, and Other remedies are, at best, a means of tons correction and not
remedleswhlch makethe public whole for past breaches.
g.
Service Performance Standards, Liquidated Damages for Failure to Meet Standards, The
Prow farther acknowledge that consistent. reliable Poll -Off Collection, Processing, and
Disposal service is Of utmost importance to Clry and that Llry has considered and rifted On
Contractors proclamations we t0 its quaury of servla commitment In sarcomas; ng this
Agreement The Fames recognize that some quantified standards of performance are necessary
and appropriate to ensure consistent and reliable serviee and performance. The Parties further
emgnlze that N Contractor falls to common the performance standards. or falls to submit
required documents in a timely manner, Gand 16 residents and businesses will suffer
damages, and that it is and will be,
Impractical and extremely difficult tOscurtain and
determine the exact amount of damages not City will suffer. Therefore, without prejudice to
Cl right to treat such non-performance as an event of default under this Article, the Parties
Ory of Fresno RMI -Off Agreement Page 36
6/8/11
agree that the Liquidated Damages amounts established in Exhibit A of this Agreement and the
following Liquidated Damage aunts represent a reasonable estimate of the amount of such
damages considering all of the circumstances evlsting on the Effective Date of this Agreement,
Including the relationship of Ne sums to the range of harm to Clay that reasonably could be
anticipated and the anticipation that proof of actual damages would be costly or Impractical.
Computer agrees to pay (as Liquidated Damages and not as a penalty) the amounts set form In
the Schedule of Liquidated Damages, Exhibit A.
Cm, may determine the ocmrrence of events giving rise to uquldated Damages through the
observation of its own employees
or representative or Investigation of complaints by
s
Customers, occupants, antl Generator
Liquidated Damages will only be assessed after Contractor has been given the opportunity but
failed to rectify the damages as described In this Agreement. Before assessing Liquidated
Damages, City shall give Contractor notice of IS Intention to do so. The notice will include a
unci description of Inddentlsj and/or non-performance. The Clry may review (and make
copies at its own expense) all Intermedics In the possession of Contractor relating to"mai ngsj
and non-performance City may, within 10 calendar days after Issuing the notice, request a
meeting with Contractor. City may present evidence of non performance in venting and through
testimony of las employees and others relevant to the mclde Las) and non performance. City
will provide Contractor with a venture explanation of to determination en each momengs) and
an performance prior to authorizing me assessment of Liquidated Damages under this Seaton
116. The decision of City shall be final and Clty, shall not be subject to, or required to exhaust.
any further admlmstrtAe remedles.
C. Amount. Cmv may asmss Liquidated Damages for ach calendar day or event, as appropriate,.
that Contractor Is determined to be liable In accordance with this Agreement in the amounts
specified in Exhlblt A subject to annual adjustment described below.
The amount of Lqultlatetl Damages specified In Exhlbft A shall be adjusted annually on the
anniversary of the Efflumes Date. The adjustment shall be rounded to the nearest
cent.
Liquidated Damage amounts shall be adjusted to reflect changes in the Consumer Price Index
All Urban Coneumers )CPI -U) complied and published by the U.S. Department of Labor, Bureau
of Labor Statistic, or 14 successor agency, using the following Bureau of Labor Stations
parameters.
• Not Seasonallygdjusted
• Area—Los Angeles-0lverside-0range County, Cr
• hem—All Items
• Base Period -198300.100
The formula for annual adjustment as as follows.
Adjusted uquldated Damage Then current Uquidated Damage Amounts
Amount most current CPI-U/previous 11 month CPI -U
t]ty, of Group Rall -ON Agreement Page 37
4/B/11
For primarrien
Current Irradiated Damage Amount = $250.00
Most recently published index Rmuary 2010 = 224.610
Index published 12 months prior to most ecently published Index
(January 2WS-UO-019
Adjusted Uquidated Damage Amount= $15000 x1214.610/220.219(=$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 mmputatlon with which It is replaced shall be used in
order to obtiin substantially the same result as would he obtained If the CPI had not been
discontinued or redsed.
D. liming Of Payment. Contractor shall pay any Irquldated Damages assessed by City within 10
calendar days of the date Me Recce e l Damages are assessed. If they are not paid within the
10 day periotl. City may oNer the termination of the rights or `franchise" granted by this
Agreement.
11.5 DNERSION NOfI-FaMFORMANCE
If the Communique Diversion level Is less than 50% for C&D, less than 70% bar Recyclable Materials,
and/or less than 90% for Capri Materials Collected In Ne Gfy fur monthly reporting period, the
fallowing steps shall berollowedbythe Ory and Contractor.
A. warning. The City shall Issue a written warning to the Contractor within 30 calendar days of
receipt of the Contractors monthly repent documenting Na Diversion level for the monthly
reporting period. The warning notace shall spetlfythe amount of time (I.e."c recbgn perlici
the City grants the Contractor to Improve Its performance and meet the Diversion requirements
defined In Section 53.
R. Opportunity to Improve Performance. The Contractor shall modify its Collection, Processing,
Diversion, and public education and outreach programs (subject to the CPVs approval) to
Improve the Diversion level. At the end of the correction period, Contractor shall submit a
winter report to the City Identifying the Diversion level and providing the screening
documentation. K the City accordance that Ne Invariant level equals or exceeds Diversion
requirements defined In Semon 5.3. the Contractor shall continue t0 perfom, semis In such a
manner as to maintain or Improve the Diversion laver and the Car shall waive its nghes to
proceed with steps outlined in subsecalons C and 0 of this Section 11.5 during the remainder of
thencurrent period.
C Uquldated Damages. If the Contractor fails to improve the Diversion level so that It is equal to
or greater than Diversion requirements defined In Semon 53 by the end of the correction
period granted In subsection A of this Section, the Ctry, may levy, and Contractor shall pay,
Liquidated Damages described In Settler 15A.
D. Termination Of the Agreement if COntrattoh fails to achieve Diversion level that equals or
exceeds Diversion requirements defined In Section 53 within six months of the date the City
Irvled Uquldated Damages, the failure to meet the Dlverslon requirements defined In StGion
Cry of Fresno Roll -0R Agreement Page 38
418111
53 shall be considered aneventm
of default and the Cry may terminate the Agreement
accordance with Section lil
11.5 CONDITIONS UPON TERMINATION
In the event this Agreement is terminated under the provisions of this Artch, the following Conations
shall be effective:
A. Prohibit ROTI -Off Collection SeMCn. Contractor shall have no FOR or authority to engage in
Rolloff Collection services In the Clry for a period of five years from the date of termination.
After face yeasthat , should the Contractor provide proof he event causing the Contractor to
default underths Agreement has been corrected, Ne Contractor may reapply for a
man-
exclushoe RollOffCollection servltt franchiser and the Clry, at the sole and complete aievetlon
of the City, may reinstate the Contractor based on review Of its reapplication.
B. Continuing Oablites. Contractor shall remain liable to the Otyfor.
1. Fees due in accordance with Article 8 that would otherwore be payable by theContractor.
3. Umudatea Damages assessed pursuant to Section 11.0.
3. Reports required by Artide7 for Rall -0H Collection activities performed by Contractor up to
and Including the date of termination.
4. Indemnity obligations under Section 10.1.
5. Record keeping and retention obligations under 5ectlore].1 and 7,2
C. Release Customers and Generators from Obligations. Contractor shall allow Permitted
Materials Generators sewed by Contactor to arrange for Permitted Materials Collection
with a hauler nutci-Tred to perform such receives, without Floats or liability for breach
of any contract between Contractor and to Customers or Generators.
O. Remove Rot -Off Container. Commission shall remove all of Co anion's ROIbOH Containers
from all of Commissions Collection locations and shall properly Recycle, Process, Compact or
Dispose of permitted Materials In such Roll-Cff Contalners.
ARTICLE 12
OTHER AGREEMENTS OF THE PARTIES
13.1 RELATIONSHIP OF PARTIES
The Patties Intend that Contractor shall perform the x required by this Agreement as an
Independent Contractor engaged by Cry and not as an officer nor employee of the City, nor as a partner
of, or joint venturer with, the Ory. No employee or agent of Contractor shall be, or shall be deemed to
lots of resno Fall Agreement Page 39.
4/8/11
be, an employee or agent of the Cry. factor as
directly provided here in, Contractor shall have control
over the manner and means of cooduttingthe RolIOff Container Col Iaction, Transpotlatlon. Pmassing,
Recycling, Composting, and Disposal consists performed under this Aereemerth and all Perso
performing such services. Contractor shall be solely responsible for the adds and omkslom of ks
of r employees, Submntentors, and agents. Neither Contractor nor is offlttrs, employees,
Subcontractors and agents shall obtain any rights to retirement benefits, workers' announcement
benefits, or any other benetl6 which accrue to City employees by virtue of their employment with the
City.
12.2 PERMITS AND LICENSES
Contractor shall obtain and maintain, a[ Contractor's sole cost and expense, all permits and licenses
applicable to Contractor's operations under this Agreement which are required by any governmental
agency.
12.0 COMPLIANCE III LAW
Contractor shall at all times, at Its sole cost, comply with all Applicable fawn.
12A GOVERNINGLAW
This Agreement shall be governed by, and construed and enforced In acemdance with, Ne laws of the
State of California.
12.5 JURISDICTION
Any lawsul6 between the Parties arising out Of this Agreement shall be brought and concluded In the
MUM of Fresno County In the State Of California, which shall have eaduslve Jurisdiction over such
handle.
With respect to venue, the Parties agree that this Agreement is made in and will be performed in Fresno
Counry.
12.6 BINDING ON SUCCESSORS
The provinces of this Agree ent shall Inure to the benefit to, and be binding on, the successors and
permitted assigns of me Parties.
12.7 ASSIGNMENT
Neither Party shall assign IB rights nor delegate or otherwise lumber'be obligations under this
Agreement to any other Person orders the prior written consent of the other Party. Any such
assignment made without Me consent of the ether Parry shall bevold and the attempted assignment
City effusions Roll O f Agreement Page op
a/6/11
fiallconstructs a materialbrcacn o/tis Nreamam, under no nrmmstanaes shall any assignment be
considered by ON if Contractor is In Must at any time during the period oftwelderatlon.
12.8 PARTIES IN INTEREST
Nothing In this Agreement, whether express or lmplt", Is Intended to confer any rights on any Persons
other than the Parties to it and there representatives, successors and permitted assigns.
12.9 WAIVER
The walver by either Party of any breach or Weisman of any provisions of this Agreement ship not be
deemed to be a walver of any breach or statement of any other proVsfon rise of any subsequent beach
of vbiation of the same or any other pro"i ton. The Subsequent acceptance ev either Party of any
mwles wash become due hereunder, shall not he deemed to be a waiver of any pre,eWther or
concurrent breach orvlomatim bytbe Other Partyofanyprovlsion of this Agreement.
12.10 NOTICE PROCEDURES
All micro, demands, requests, proposals, approvals, consents, and other communisations were Ups
Agreement requires, swimmers or contemplates 811, 911910 be In writing and shall either he personally
dellveretl to a representative of the haMB at the address below or depoalhd In the United States mall,
fnat daae postage prepaid, addressed as follows:
A. of to Clty;
Public Memos scatter
Cloy of Presno
2600 trema St., Room 3065
Fremo, CiN 93721-3624
F. If to Contractor
Roll -Off /Regdhg Manager
Moaker Inc
4627 Courts Chestnut Ave
Fresno CA 93725
The address to wM<M1 communication may be delivered may be changed from time to time by notlre
given In accordance wish tMzSetlton.
Notice shop be deemed given on the day It Is personally delivered or, If malted, three calendar days from
the date It Is deposited In the mall.
City of Fano RdbN Agree rat Page 41
4/8/11
12.11 REPRESENTATIVES OF THE PARTIES
References in this Agreement to the 'City' Shall can the Cry Council and all actions to betaken by the
Croy shall be taken by the City Council except as provided below. The Clty Council may delegate, In
writing, authariryto the Director and/or to other Cly, officials and may Permit such officials, In tum, to
delegate In wrking some or all of such auNoriry to subordinate officers. The Contractor may rely upon
actions taken by such delegates III are within the scope ofthe authority properly delegated to them.
1Te Contractor shall, by the EHMIve Date, designate In writing a responsible OHar who shall cards as
Ne representative of the Contractor In all matters related to the Agreement and shall Inform are Clt r In
wrI ng of such designation and of any limitations upon his or her authority to bind the Contractor. The
Chi may rely upon around taken by such designated representative as actions of the Contractor unless
thryare ouhldethe scope of the authority delegated to him/her by the Contractor as communicated to
Croy.
12.12 CRIMINAL ACTIVIII CONTRACTOR
"JuLl mMneIActiWry
For purpose of this Search, Criminal Acoviry shall mean any of the Following events orarsnmstanms:
A. ComlNons. The entry against any connector Po" or Its Deicers, of a criminal mnvlcuon or a
Permanent mandatory or pmMhROry Injunction from a court, munitlpality, or regulatory agency
Of competent jurisdiction, based on acts taken In his or her official capacity an behaH of
Contractor with respect to:
1. Fraud or criminal Offense In coresident with obtaining, attempting to obtain, pmrynng or
performing a public of private agreement related to municipal solid Waste services of any
kind (Including Collection, Transportation, transfer, Processing, Totaling, Composvin6, or
Disposal), Including this Agreement or any amendment thereto;
2. Briberyar attempting to mine a Polls officer or employee of a local, State, or Federal
Agency;
3. Embecdement,extortbq racketeering, false claims, false statements, forgery, falsification
or destruction of retards, obswttldn offui knowingly receiving stolen property, theft,
or misprinted (failure to disclose) Of a felany:
4. Unlawful disposal of TaaaMous Wastes, the occurrence of which any Contactor Parry
knew or should have known:
S. V101ation of labor laws, Including laws relating to price by bid-ngging, and year and
market elevation, and of unfair and antkompe glee trade practices laws;
6. Violation of sedritles lawy, and
I. Felonies.
Cry of Friel TDII-0ff Agreement Page 42
4JR111
A . Pleas. Entry of a plea of "guilt, "nolo mntenderd' or fip renlest" by a Computer Party
baled on acts taken In his her, or ib official opacity on behalf or Contractor With respect to the
conduct described In preceding soRlon 12.123 A.
12.12.E Nouse
Centocor shall notify Ury In sending; within five calendar days of occurrence of any Criminal ARlvIW by
any Contractor Party.
12.22.3 Controcor's Cure
Uponcurrence of anyCnminal Activity, Contractor ar shall Immediately do or was to he don a all of Me
following:
A. Terminate from employment or remove from once any offending Individual Contactor Party,
unless otherwise directed or ordered by a coup or regulatory agency of competent lurisdlcbn
or economy, and unlessthat termination would ancltute a. breach of any labor agreement
entered late by Contactor, and
a. Eliminate participation by any offending Individual Contractor Party in any management
supervision, or decision activity that affects or ould affen, directly or ludirecly, the
performance of Contractor under his Agreement,
12.12.0 Tansferandilring
Contractor shall not allow or cause to be unpived to hire or transfer any mdlWdual from arty Parent
Company or subsidiary Company or business entity of ConbaRor who has Committed Criminal Activiy
ra Contractor representative, field supervisor, officer, Or director who is directly Or Indirectly
supervisor,esponsible for performance of this Agreement without obtaining prior. written Consent Of City,
following full disclosure to Clry of the fans and circumstmces surrounding such Criminal Activity.
Ill clay's Remedy
In the event of any Occurrence of Criminal Activity, the Oty, In its sole dimmedn, may terminate the
Agreement Within 30 calendar days written notice to Contractor, 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. Contracermlls to mmplywiththe foregoing obligation Of this Sedlon,or
0. The Criminal Activity concerns Or relates directly orindlreclym this Agreement.
Contractor shall be given Me opportunity to present evidence In mitigation during the 30Calendarday
notice period.
12.13 ACKNOWLEDGMENT OF PUBLIC RESOURCES CODE SECTION 09520 NOTICE
If Contractor has lawfully provided solid waste collection services In the City for more than three (3)
years prlorto Any 1, 2011 hand Is therefore entitled to the notice provided for In Public Resp rise; Code
09520), Contractor shall consider execution of this Agreement by the Our as Cle/s notice
to Contractor,
pursuant to Public Resources Code 09520, that Contractor may provide service for aperiod of live (5)
ON of Frmno Rolbff Agreement Page 03
0/B/11
years beyond July 1, 2011, after whim time the clry has the right to establish an exclusive franchise
solution system,
ARTICLE 13
MISCELLANEOUS AGREEMENTS
13.1 ENTIRE AGREEMENT
This Agreement, including the Exhibits, represents the full and entire Agreement between the Parties
with respect to the matters covered herein.
13.2 SECTION HEADINGS
The article headings and section headings in this Agreement are For convenience of reference only and
are not Intended to be used In the connotation of this Agreement not to alter or affect any of Its
provisions.
13.3 REFERENCES TO LAWS
All references In this Agreement to laws shall he understood to Include such laws as they may be
subsequently amended ar insiders, unless otherwise speca lly provided.
13.4 INTERPRETATION
This Agree en[shall be Interpreted and construetl reasonably and neither For nor against either Parry,
regardless of the degree to whim either Party Functions] In iR drafting.
13.5 PRONOUNS AND PLURALS; TENSE
When no m
inconsistent with thewords and phrases used in the present tense Include the
future, and words and phrases used In the singular number Inclutle the plural number. Whenever the
contest may require, any pronoun used In this Agreement shall Include the corresponding masculine,
Feminine
and neuter Forms. and the singular form of nouns, pronouns and verbs shall Include the plural
and vice versa.
Clay Of Fresno RollOffAgreement Page 44
4/8/11
13.6 TELTTOCONTROL
The captions of Ne Articles or Sections In this Agreement are for concomitance only and In no way define,
limit, extend or describe the scope or Intent of any of the provisions hereof, shall not be deemed part of
fins Agreement and shall not be used in concerning or Interpreting this Agreement.
13.7 AMENDMENT
This Agreement may not be trimmed or amended in any respect except in writngslgned by the Parties.
13.6 SEVERABILITY
If any nonmaterial provision of this Agreement Is for any reason deemed to he Invalid and
enforceable, the toothily or monfirceability of such provision shall oat 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 comforters, each of which shall be rormilood an original.
1110 EXHIBITS
Each of the Exhibits identified as Exh166 "A" through"V is reached hereto and incorporated hereon and
made a part hereof by this reference.
City of Fresno loll-0ff Agreement Page 05
418111
IN WITNESS WHEREOF. the
Parties haveeamed the Agreement to be cranial on the day Rod war Drst
abovewMten.
CITY OF FRESNO
CONTRACTOR
A MucklmalCorporatiioogonn
Kmcker Inc
zl",& /�/ya—
Romney Alnsworm
Director
Name
General Manager
APPROVED AS TO FORK
Title
6831 Earth Coal Ave
Address
ItY Altorney�(
� Fresno CA 93735
Cl
]93611�j/T^/��/
mark Mamget
dose
n
Rus/ �
AA111E/rS/,nT�.��
V
ry Clerk
City of Fresno RolbH Agreement Page 46
0/8/13
E%HISUA
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 evert unless otherwise stated In this Elhlbit.
1.
OMrslao. Failure to achieve and menten a minimum Of 50%
The greater of $5,000 or
Diversion per month of all C&D Collected within the City, ]D%
10% of the gross Rate
Diversion per month Of all Recyclable Materials Collected within the
ceramics received for
Cltg and 90% of all Organic Marerlali Collected within the City.
providing C&D,
Recyclable Materials,
and Organic Materials
services n the Cry, for
the most recent 12 -
month period
2.
Leaks, Utter or Spills. For each occurrence over five during a calendar
$3W/ event
year of unreasonable leaks, litter, or spills of Pent Materials near
or On public streets and failure to pick up or clean up such material
Immediately
3.
Unwarranted C0110011 n Hours. For each occurrenceover five during
$3001 event
calendar year of Collecting Patterned Materials during unauthmlaed
hours.
4.
Eeassion Ni For each occurrence war 10 during a calendar yew
Shod/ event
of sensitive noise.
5.
Cleaning Collection Vehicles. to each occurrence over five during a
$150/event
calendar year for failure to keep Columnar vehicles in a safe and
an0a onditlon.
6.
Labelingof RollOffContainers. For each occurrence of Contractor's
$50/ event
False toerrectly label Contractor -owned Roll -0H terminate lin
mrdancewith Section (i
].
Dirowrteousiefun or. Fortieth occurrence of discourteous behavior
SSCO/event
by Collection vehicle personnel, mstomer service personnel, or other
employees of Contractor
8.
Injuries t0 Others. For each incident of personal Injury to a Person
$SADO/incident
requiring medical treatment or hos misatlan where Me negligence
of the Contractor or its personnel was d cvrtrlbuting factor to the
Infirry
9.
Monthly Report. Failure to submit monthly reports in the timefiame
5but day'
specified in this Agreement.
10.
Report Hacandous wasta. For each failure to nMlly the appropriate
S500? event
authorities ofreportable m anlilies of Hazardous Waste.
A-1
u. manure of Omer obligations. Failure to perform any of the obligations $150/ for each
et forth In this Agreement not specifically stated above and not obligation perdayumll
corrected or proceeding in good faith to correct wlmin 24 hours upon obligation is performed
04 hour notification by City,
Monthly reports shall be considered late well such time a$ a correct and complete
monthly report is received by City For each calendar day a report is latethe daily
Llpuedead Damage shall begs Indicated In the mormly reports woron above.
In placing 0esignee's Initials at the places crowded, each Parry apeclfleally coal the accuracy of the
statements made above and the fact that each Party has had ample opportunity to consult with legal
counsel and obtain on Pplairatiom of m uldated Damage pmNslorrs of the time that the Agmementwas
made.
Contractor Cley \/
Imnal Hem:minal sere: AW
A
EXHIBIT 5
SECRETARY'S CERTIFICATION
The undersigned, being the Secretary of tracker Inc a
CaromI
CalHmnla corporation l"the Company), do hereby certify that the fillowlrlg resolution caps adopted by
the Board of Directors of the Company and that such resolution has not been amended, rubbetl or
mucInded and Is In NII force and effect a,of the date hemof:
RESOLVEO,that Room" AlInherent be, and berebyls, aWhorizedm
uv�re vm tattoo aey,nmsme
exeNR by and on behalf of the Campeau any and all agreements, Instruments, easements or papers, as
he/she may term eppropdate or noes ..in, perhlnlpg to or relating to the Non-&clmNe Franchise
corporate between the Clty of Fresno and Company kr Rail Off Conalnet Callectlon, Transporting.
Presenter, Rerydlne. Composing, and Disposal of Petmleted Materials and that any such action taken
to date is hereby ra fled and approved.
Dated: Apell 39. 2011
6-S
BndNre�
Seel Tres
Title
EXHIBIT[
RMTEMENT M APPPCANPS UNDERSTANDING
AND REPRESENTATIONS
The undersigned(who Is duly aurhorlud to hind the companyoubmltting this sppllcatlanl has reviewed
the settlements of the non exclusive franchise agreement for Roll OR Collection, TmnmoMng,
warceaing. Rerysling, Composting, and Disposal services for Solid Waste, Recyclable Materials, Organic
MatarHls,and C&D,16 exMblts, and reference documents. Inaddltlon,theundemired attmtsthatthls
mialkadon and arty othttsupp amenlary Information submitted with this application do wh (Ilcomain
any ummestatement of material fact, pp remain naacume, or misleading Information, or pip emit to
state material fact Mt is necessary to make the statements maria, In light of circumstances In
which they were made, not misleading.
Rodney Ainsworth AP6129, 2011
Print Name Date
normal Manager
Title
header Inc
Company Namo
b slue
EXHIGrzO
APPROVED PROCESSING ANO RESIDUE DISPOSAL FACILITIES
The rRoxins hellltles were seletted by the Contractor a ad approved by the Clry.
Fa](ty name
NROEKERINC
KROEKERINC
FatlllDo rate
4627 SOUTH CHESTNUT AVE
FRESNO CA 93725
4627600TH CHESTNUT AVE
FRESNO CA 93725
SMS number
tO PA 0192
15-pA-0192
Owner
KROEKER INC
KROEKERINC
Oeralor
Farlifty name
KROEKERINCKROCKER
INC
SAMEASABOVE
Facility address
SVWS number
maw
lator
Fx1Il nam
E AB YE
SAME AS AB WE
Faanityagdrraa
SEND number
Owner
D anter
at iM uepEnetep DDPOaal Facility.
Contrition
Cly
mltlal Here:
Wt al Rare:
DS