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U)U]Í:"ulÞ': NON-EXCLUSTVE FRANCHTSE AGREEMENT>- l.EAO()
(5 BETWEEN
ROLL.OFF COLLECTION SERVICES
November 30, 2014
NON.EXCLUSIVE FRANCHISE AGREEMENT
BETWEEN
THE CIW OF FRESNO
AND
Mini Dumpsters of Fresno
FOR ROII-OFF COLLECTION SERVICES
This non-exclusive franchise agreement (Agreement) is made and entered into this 30 day ofNovember . 2Ol4- by and between the City of Fresno, a municipal corporation, (City) and
Mini Dumpsters of Fresno (Contractor.)
RECITALS
This Agreement is entered into with reference to the following facts and circumstances:
WHEREAS, the Legislature of the State of California, by enactment of the California lntegrated Waste
Management Act of 1989, codified at California Public Resources Code Section 4OOOO et seq. (,1ct,,) ),
has declared that it is in the public interest to authorize and require local agencies to make adequate
provisions for Solid Waste Collection within their jurisdiction; and
WHEREAS, the state of California ("State") has found and declared that the amount of Solid Waste
Senerated in California, coupled with diminishing landfill space and potential adverse environmental
impacts from landfilling and the need to conserve natural resources, have created an urgent need for
State and local agencies to enact and implement an aggressive integrated waste management program.
The State has, through enactment of the Act, directed the responsible State agency and all local
agencies, to promote Disposal Site Diversion and to maximize the use of feasible Solid Waste reductíon,
re-use, Recycling, and Composting options in order to reduce the amount of Solid Waste that must be
Disposed of in Disposal SÍtes; and,
wHEREAS, the Act requires local agencies to divert 5o% of díscarded materials from landfills; and,
WHEREAS, the city Council established goals of achieving 75% diversion by 2ot2 and zero waste status
by 2025 on June 26,2007, and approved a Zero Waste Strategic Action plan on February 11., 2009; and
WHEREA$ the City finds that reusing, Recycling, and Composting Recyclable Materials, Organic
Materials, and Construction and Demolition Debris (C&D) and beneficial use or composting of Organic
Materials is essential to further the City's efforts to reduce Solid Waste Disposal and comply with the Act
and the City's zero waste goals; and
WHEREAS, pursuant to the powers granted the City as a charter city by Article Xl, Section 5(a) of the
California Const¡tution and Article Xlll of the Fresno City Charter, the City has determined that the public
health, safety, and well-being require that a franchise agreement defining non-exclusive rights be
awarded to qualified companies to provide for the roll-off container collection of Perm¡tted Materials
City of Fresno Roll-Off Agreement
4/s/11.
Page 1
except for collection of materials excluded in the City's Municipal Code, and other services related to
meeting requirements of the Act; and
WHEREAS, the City requires all haulers providing Roll-Off Collection services for Permitted Materials in
the City to obtain a non-exclusive franchise in order to regulate this business, ensure its orderly
operation, achieve its diversion goals, and to minimize the potential for adverse effects it may have on
the local environment; and
WHEREAS, the City Council has determined through an application process that the Contractor, by
demonstrated experience, reputation, and capacity, is qualified to provide for the Roll-Off Container
Collection of Permitted Materials within the corporate limits of the City and the Transportation of such
material to appropriate places of Recycling, Processing, andfor Disposal, and can provide insurance
consistent with the City's requirements. The City Council desires that Contractor be engaged to perform
such services on the basis set forth in this Agreement; and
WHEREAS, Contractor intends to use the City's streets, alleys, other public rights-of way, and
infrastructure to provide Roll{ff Collection services to the City's residents and businesses; and
WHEREAS, the City intends to receive just and reasonable fees from the Contractor for City's
administration of the Agreement and for Contractor's use of the City streets, alleys, other public rights-
of-way, and infrastructure which the City may lawfully impose and the companies are obligated to pay;
and,
NOW, THEREFORE, in consideration of the mutual promises, covenants, and conditions contained in this
Agreement and for other good and valuable consideration, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, unless a different meaning is clearly required, the following words and
phrases shall have the following meanings respectively ascribed to them by this Article and shall be
capitalized throughout this Agreement:
'îct" means the California lntegrated Waste Management Act of 1989 (Division 30 of the California
Public Resources Code), as amended, supplemented, superseded, and replaced from time to time.
"Agreement" means this Agreement between the City and Contractor for Roll-Off Container Collection,
Processing, and Disposal of Permitted Materials including all exhibits, and any future amendments
hereto.
"Applicable Law" means all Federal, State, and local laws, regulations, rules, orders, judgments,
degrees, permits, approvals, or other requirements of any governmental agency having jurisdiction over
the Roll-Off Container Collection, Transportation, Recycling, Processing, and Disposal of Permitted
Materials that are in force on the Effective Date and as they may be enacted, issued, or amended during
the Term of this Agreement.
City of Fresno Roll-Off Agreement
4/sht
Page 2
"Approved C&D Processing Site" means the processing site specified in Exhibit D, which was selected by
Contractor and approved by the City.
"Approved Disposal Site" means a Disposal Site selected by the Contractor or its Subcontractor(s) and
approved by the City for Disposal of residue from Approved Processing Site(s), Approved Disposal Site(s)
are listed in Exhibit D.
"Approved Organics Processing Site" means the processing site specified ín Exhibit D, which was
selected by Contractor and approved by the City.
"Approved Processing Site(s)" means the Approved C&D Processing Site, Approved organics Processing
Site, and/or Approved Recyclables Processing Site.
"Approved Processor" means the operator of an Approved Processing Site.
"Approved Recyclables Processing Site" means the processing site specified in Exhibit D, which was
selected by Contractor and approved by the City.
"Bin" means a container with capacity of approximately one (1) to eight (8) cubic yards, with a hinged
lid, and with wheels, that is typically serviced by a front end-loading Collection vehicle.
"Business Days" mean days during whích City offices are open to do business with the public.
"Caft" means a plastic container with a hinged lid and wheels that is typically serviced by an automated
or semi-automated Collection vehicle. A Cart has capacity of 2O, 35, 64, or 96 gallons (or similar
volumes).
"C&D" means Construction and Demolition Debris.
"Change in Lau/" means any of the following events or conditions that have a material and adverse
effect on the performance by the Parties of their respective obligations under this Agreement (except
for payment obligations):
a. The enactment, adoption, promulgation, issuance, modification, or written change in
administrative or judicial interpretation on or after the Effective Date of any Applicable
Law; or
b. The order or judgment of any governmental body, on or after the Effective Date, to the
extent such order or judgment is not the result of willful or negligent action, error or
omission or lack of reasonable diligence of the City or of the Contractor, whichever is
asserting the occurrence of a Change in Law; provided, however, that the contesting in
good faith or the failure in good faith to contest any such crder or judgment shall not
constitute or be construed as such a willful or negligent action, error or omission or lack of
reasonable diligence.
"City" means the City of Fresno, California, a municipal corporation, and all the territory lying within the
municipal boundaries of the City as presently exísting or as such boundaries may be modified during the
Term.
City of Fresno Roll-Off Agreement
4/s/17
Page 3
"City's Municipal Code" means the City of Fresno Municipal Code.
"Collect'' or "Collection" means the act of collecting Permitted Materials and other material at the place
of generation in the City.
"Commercial" shall mean of, from or pertaining to non-Residential Premises where business activity is
conducted, including, but not limited to, retail sales, services, wholesale operations, manufacturing and
industrial operations, but excluding businesses conducted upon Residential property which are
permitted under applicable zoning regulations and are not the primary use of the property.
"Compactor" means a mechanical apparatus that compresses materials into a container, which
container may be detachable. For the purposes of this Agreement, Compactors shall include only
Compactors with container capacities of ten (10) to fifty (50) cubic yard that are serviced by Roll-Off
Collection Trucks.
"Compost" or "Composting" includes a controlled biological decomposition of Organic Materials
yielding a safe and nuisance free Compost Product.
"Compost Product" means the product resulting from the controlled biological decomposition of
Organic Materials that are Source Separated frorn the Solid Waste stream, or which are separated at a
centralized facility.
"Construction and Demolition Debris (C&D)" means materials resulting from construction, remodeling,
repair, cleanup, or demolition operations that are not hazardous as defined in California Code of
Regulations, Title 22 Section 66261.3. This term includes, but is not limited to, asphalt, concrete, cement
concrete, brick, lumber, gypsum wallboard, concrete board, cardboard, and other associated packaging,
roofing material, ceramic tile, carpeting, plastic pipe and steel, as well as vegetative matter resulting
from land clearing and landscaping including but not limited to rock, soil, tree stumps. Construction and
Demolition Debris excludes putrescible wastes.
a
and
nts,
companies, and Subcontractors.
"Contractor Party(ies)" shall mean Contractor, officers, directors, management employees, or fiscal
employees (where "management employee" means any employee with direct or indirect responsibility
for direction and control over the Contractor's activities under this Agreement and "fiscal employee"
means an employee with direct or indirect responsibility and control duties relating to financial matters
under this Agreement).
"Criminal Activity" means those activities described in Section 72.12.L.
"Customer" means the Person whom Contractor submits billing invoice to and collects payment from
for Collection services provided.
"Designated Disposal Site" means the American Avenue Landfill at 18950 W American Avenue in
Tranquility, California for the purposes of Disposing Solid Waste.
City of Fresno Roll-Off Agreement
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Page 4
"Designated Waste" means non-Hazardous Wastes that may pose special Disposal problems because of
its potential to contaminate the environment and wh¡ch may be Disposed of only in Class ll Disposal
Sites or Class lll Disposal Sites pursuant to a variance issued by the California Depaftment of Health
Services.
"Directo/'shall mean the Public Utilities Director of the City or an authorized representative of the
Public Utilities Director.
"Discarded Materials" means Solid Waste, Recyclable Materials, Organic Materials, or C&D placed by a
Generator in a receptacle and/or at a location that is designated for Collection pursuant to the City's
MunicipalCode.
"Disposal or Dispose (or variation thereof)" means the final disposition of Solid Waste at a Disposal
Site.
"Disposal Site" means a facility for ultimate Dísposal of Solid Waste.
"Diversion" means activities that reduce or eliminate the amount of Solid Waste from Solid Waste
Disposal including, but not limited to, Recycling, and Composting.
"Drop Box" means an open-top container with capacíty from six (6) to fifty (50) cubic yards that is used
for Collection of Permitted Materials and that is serviced by a Roll-off Collection Truck. Drop Boxes with
capacities of less than ten (L0) cubic yards may only be used for the purposes of Collecting C&D. A Drop
Box, which is also known as a roll-off box and/or debris box, is a type of Roll-Off Container.
"Effective Date" means the date set fofth in the introductory paragraph of this Agreement.
"Federal" means belonging to or pertaining to the national general government of the United States.
"Food Scraps" means those discarded materials that will decompose and/or putrefy including (i) all
kitchen and table food waste, (ii) animal or vegetable v¡aste that is generated during or results from the
storage, preparation, cookíng or handling of food stuffs, (iii) discarded paper that is contaminated with
Food Scraps; (iv) fruit waste, grain waste, dairy waste, meat and fish waste; and, (v) non-Recyclable
paper or contaminated paper. Food scraps are a subset of organic Materials.
"Franchise Fee" means the fee paid by Contractor to City for the privilege to hold the non-exclusive
rights granted by this Agreement.
"Generator" means any Person whose act or process produces Permitted Materials, or whose act first
causes Permitted Materials to become subject to regulation.
"Green Waste Material" means any materials generated from the maintenance or alteration of public,
commercial, or resÍdential landscapes that will decompose andf or putrefy including, but not limited to,
yard clippings, 8rass, leaves, shrub/tree trímmings or prunings (less than 4" in diameter), brush, flowers,
weeds, dead plants, small pieces of unpainted and untreated wood, and other types of organic waste.
For the purposes of this Agreement, such materials shall be Source Separated and placed by a Generator
in a receptacle and/or at a location that is designated for Collection. Green Waste Material is a subset
of Organic Materials.
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"Hazardous Waste" means all substances defined as Hazardous Waste, acutely Hazardous Waste, or
extremely Hazardous Waste by the State in Health and Safety Code 525110.02, 525115, and 525117 or
in the future amendments to or recodifications of such statutes or identified and listed as Hazardous
Waste by the U.S. Environmental Protection Agency (EPA), pursuant to the Resource Conservation and
Recovery Act (42 USC 56901 et seo.), all future amendments thereto, and all rules and regulations
promulgated thereu nder.
"Holidays" are defined as New Year's Day, Thanksgiving Day, and Christmas Day,
"lnfectious Waste" means biomedical v\raste generated at hospitals, public or private medical clinics,
dental offices, research laboratories, pharmaceutical industries, blood banks, mortuaries, veterinary
facilities and other símilar establishments, as defined in Health and Safety Code Section 2511-7.5.
"liquidated Damages" means the amounts due by Contractor to City for failure to meet specific
quantifiable standards of performance as described in Section LL.4 and Exhibit A.
"Organic Materials" means those discarded materials that will decompose and/or putrefy including
Green Waste Materíal and Food Scraps such as, 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, vegetable waste, fruit waste, grain waste, dairy waste, meat waste, fish
waste, paper contaminated with Food Scraps, pieces of unpainted and untreated wood, and pieces of
unpainted and untreated wallboard" No discarded material shall be considered to be Organic Materials,
unless such material is Source Separated from Solid Waste, Recyclable Materials, C&D, or other
materials.
"Parent Compan¡r¿'refers to a company owning more than fifty percent (50%) of the shares of another
company (subsidiary) or a company that has management control over such subsidiary.
"Party or Parties" refers to the City and Contractor, individually or together.
"Permitted Materials" refers to Solicl Waste, Source Separated Recyclable Materials, Source Separated
Organic Materials, and C&D. Permitted Materials excludes Source Separated Food Scraps.
"Person(s)" means any individual, firm, association, organization, paftnership, corporation, business
trust, joint ventLlre, the United States, the State of California, the County of Fresno, and special purpose
d istricts.
"Premises" means any land or building in the City where Permitted Materials are generated or
accumulated,
"Processing" means to prepare, treat, or convert through some special method.
"Processing Site" means any plant or site used for sorting, cleansing, treating, or reconstituting
Permitted Materials for the purpose of making such material available for reuse.
"Putrescible Wâste" means Solid Wastes originated from living organisms and their metabolic waste
products and from petroleum, which contains naturally produced organic compounds and which are
City of Fresno Roll-Off Agreement
4/s/17
Page 6
biologically decomposable by microbial and fungal action into the constituent compounds of water,
carbon dioxide and other simpler organic compounds.
"Rates" means the charges and fees Contractor bills and collects from each Customer receiving service
pursuant to this Agreement.
"Recyclable Materials" means those Discarded Materials that the City Code permits, directs and/or
requires Generators to set out in Recyclables Materials containers for Collection for the purpose of
Recycling. No Discarded Materials shall be considered Recyclable Materials unless such material is
separated from Solid Waste and Organic Materials. Recyclable Materials shall include, but not be
limited to: newspaper (including inserts, coupons, and store advertisements); mixed paper (including
office paper, computer paper, magazínes, junk mail, catalogs, brown paper bags, brown paper,
paperboard, paper egg cartons, telephone books, grocery bags, colored paper, construction paper,
envelopes, legal pad backings, shoe boxes, soap boxes, cereal and other similar food boxes); chípboard;
cardboard; paper milk cartons; glass containers of any color {including glass bottles and jars all colors);
aluminum cans; fabric softener containers; steel, tin or bi-metal cans; plastic containers (clear or green
plastic soda and water bottles, plastic containers and bottles and plastic bags with no.7,2 or 3 on the
bottom); and food containers from potato salad, pasta salad, whipped cream, etc.
"Recycle or Recycling" means the process of collecting, sorting, cleansing, treating, and reconstituting
materials for the purpose of using the altered form in the manufacture of a new product. Recycling does
not include burning, incinerating, or thermally destroying solid waste.
"Residential" shall mean of, from, or pertaining to a single-family Premises, multi-plex, or multi-family
Premises including single-family homes, apartments, condominiums, townhouse complexes, mobile
home parks, cooperative apartments, and yacht harbors and marinas where residents live aboard boats.
"Roll-Off Containe/' means a Drop Box or Compactor used for Collection of Permitted Materials and
serviced by a Roll-off Collection Truck. Roll-Off Containers with capacities of less than ten (10) cubic
yards may only be used for the purposes of Collecting C&D.
"Roll-Off Collection Ttruck" means a collection vehicle with a mechanical device such as a winch that
pulls or foads a Roll-Off Container onto the truck bed or attached trailer and separately transports each
Roll-Off Container to a Disposal Site or Processing Site.
"Solid Waste" means solid waste as defined in California Public Resources Code, Division 30, Part 1,
Chapter 2, S40191 and regulations promulgated thereunder and those Discarded Materials that the City
Code requires Generators within the City to set out for Collection. Excluded from the definition of Solid
Waste are C&D, Hazardous Waste, lnfectious Waste, Designated Waste, Source Separated Recyclable
Materials, Source Separated Organic Materials, and radioactive waste. Notwithstanding any provision
to the contrary, "Solid Waste" may include de minimis volumes or concentrations of waste of a type and
amount normally found in Residential Solid Waste after implementation of programs for the safe
collection, recycling, treatment and disposal of household hazardous waste in compliance with Section
41500 and 41802 of the California Public Resources Code.
"Source Separated" means the segregation, by the Generator, of materials designated for separate
Collection for some form of Recycling, Processing, Composting, recovery, or reuse.
"State" means the State of California.
City of Fresno Roll-Off Agreement
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Page 7
"Subcontractor" means a party who has entered into a contract, express or implied, with the Contractor
for the performance of an act that is necessary for the Contractor's fulfillment of its obligations under
this Agreement.
"Tetm" means the Term of this Agreement, including extension periods if granted, as provided for in
Article 3.
'"fon" means a unit of measure for weight equivalent to 2,000 standard pounds where each pound
contains 16 ounces.
'Tonnage" means the total weight in Tons Collected, Recycled, Composted, Diverted, or Disposed of, as
the context requires.
'Transportation" means the act of transporting or state of being transported.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE GONTRAGTOR
2.1 REPRESENTATIONSANDWARRANTIES
The Contractor, by execution of this Agreement, represents and warrants the following to City, for the
purpose of inducing City to enter into this Agreement and to consummate the transactions
contemplated hereby:
Corporate Status. Contractor is duly organized, validly existing and in good standing under the
laws of the State. lt is qualifíed to transact business in the City and State and has the power to
own its properties and to carry on its business as now owned and operated and as required by
this Agreement.
Authorization. Contractor has the authorityto enterthis Agreement and perform its obligations
under this Agreement. The Board of Directors of Contractor (or the shareholders, if necessary),
sole proprietor, or partners have taken all actions required by law, its articles of incorporation,
its bylaws, or otherwise, to authorize the execution of thís Agreement. The Person signing this
Agreement on behalf of Contractor represents and warrants that they have authority to do so
and the corporate secretary's certificate in Exhibit B confirms this. This Agreement constitutes
the legal, valid, and binding obligation of the Contractor.
Agreement Will Not Cause Breach. To the best of Contractor's knowledge after reasonable
investigation, the execution or delivery of this Agreement or the performance by Contractor of
its obligations hereunder does not conflict with, violate, or result in a breach: (i) of any law or
governmental regulation applicable to Contractor; (ii) any term or condition of any judgment,
order, or decree of any court, administrative agenc), or other governmental authority; or, (iii)
any Agreement or instrument to which Contractor is a party or by which Contractor or any of its
properties or assets are bound, or constítute a default thereunder.
City of Fresno Roll-Off Agreement
4/s/77
B.
c.
Page 8
No l¡t¡gat¡on. To the best of Contractor's knowledge after reasonable investigation, there is no
action, suit, proceeding or investigation, at law or in equity, before or by any court or
governmental authority, commission, board, agency or instrumentality decided, pending or
threatened against Contractor wherein an unfavorable decisîon, ruling or finding, in any single
case or in the aggregate, would:
7' Materially adversely affect the performance by Contractor of its obligations hereunder;
2. Adversely affect the validity or enforceability of this Agreement; or
3. Have a material adverse etïect on the financial condition of Contractor, or any surety or
entity guaranteeing contractor's perforrn ance unde r th is Agree ment.
No Adverse Judicial Decisions. To the best of Contractor's knowledge after reasonable
investigatíon, there is no judicial decision that would prohibit this Agreement or subject this
Agreement to legal challenge.
No legal Prohibition. To the best of Contractor's knowledge after reasonable investigation,
there is no Applicable Law ín effect on the date Contractor signed this Agreement that would
prohibit the Contractot's performance of its obligations under this Agreement and the
transactions contemplated hereby.
Contracto/s Statements. The Contactor's Application and any other supplementary
information submitted to the City, which the City has relied on in entering this Agreement, do
not: (i) contain any untrue statement of a material fact, or (ii) omit to state a material fact that is
necessary in order to make the statements made, in light of the circumstances in which they
were made, not mísleading.
Contracto/s lnvestigation. Contractor has made an independent investigation (satisfactory toit) of the conditions and circumstances surrounding the Agreement and the work to be
performed hereunder, Contractor has considered such matters in entering this Agreement to
pt'ovÌde services in exchange for the compensation pr.ovided for under the terms of this
Agreement.
Ability to Perform. Contractor possesses the business, professional, and technical expertise to
Collect, Transport, Recycle, Process, and Dispose Permitted Materials generated in the City.
Contractor possesses the equípment, facility(ies), and employee resources required to perform
its obligations under this Agreement,
ARTIGLE 3
TERM OF AGREEMENT
3.1 EFFECTIVE DATË
Contractor may provide the Roil-Off Container Collection, Transpoftation, Recycling, processing,
Composting, and Disposal services authorized by this Agreement commencing on the Ëffective Date.
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4/s/tt
D.
E.
F.
G.
H.
Page 9
3,2 CONDITIONS TO EFFECT¡VENESS OF AGREEMENT
The obligation of City to permit this Agreement to become effective and to perform its undertakings
provided for in this Agreement is subject to the satisfaction of all the conditions below, each of which
may be waived, in written form, in whole or in part by City.
Accuracy of Representations. The representations and warranties made in Article 2 of this
Agreement are true and correct on and as ofthe Effective Date.
B. Absence of litigation. There is no litigation pending on the Effective Date in any court
challenging the award or execution of this Agreement or seeking to restrain or enjoin its
performa nce.
Furnishings of lnsurance. Contractor has furnished evidence of the insurance required by
Article 10 that is satisfactory to the City.
Effectiveness of City Council Action. The City Council action approving this Agreement shall
have become effective and all Parties shall have signed the Agreement pursuant to Applicable
Law prior to or on the Effective Date, provided that no restraining order of any kind has been
issued.
INITIAL TERM
c.
D
3"3
nce on the Effective Date and continue in full force.
ay be extended pursuant to Section 3.4 or terminated
OPTION TO ËXTEND
Subject to City Council approval, the City shall have the option to extend this Agreement for an
additional term of up to five (5) years. lf the City extends the Agreement, it shall give written notice to
Contractor at least one hundred eighty (180) calendar days prior to expiration of the lnitial 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 lnitialTerm.
City of Fresno Roll-Off Agreement
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3.4
Page 10
ARTIGLE 4
SGOPË OF AGREEMENT
4.1 SCOPE OF AGREEMENT
This non-exclusive franchise, granted to Contractor, authorizes Contractor to Collect, Transport, Recycle,
Process, Compost, and Dispose of Permitted Materials pfaced by Residential or Commercial Generators
in Roll-Off Containers for Collection, provided that the Customer has voluntarily arranged for Contractor
to provide Collection services.
The Contractor shall be responsible for the following services:
A. Collecting Permitted Materials placed by each Customer in a Roll-Off Container for Collection as
requested by Customer.
B. Providing each Customer, upon delivery of Roll-Off Container, a printed list that specifies the
materials that cannot be placed in the Roll-Off Container (i.e., Hazardous Wastes) and a list of
acceptable Recyclable Materials, Organic Materials, and C&D that may be placed in the Roll-Off
Container.
C. Transporting Collected Solid Waste to the Designated Disposal Site and transporting other
materials to an Approved Processing Site.
D. FurnÍshing all labor, supervision, vehicles, Roll-Off Containers, other equipment, materials,
supplies, and all other items and services necessary to perform its obligations under this
Agreement.
E. Paying all expenses related to provision of services required by this Agreement including, but
not limited to, Franchise Fees, taxes, regulatory fees, Collection costs, Transportation costs,
Processing costs, Disposal costs, utilities, etc.
F. Providing all services required by this Agreement in a thorough and professional manner so that
residents, businesses, and the City aie provided timely, reliable, coufteous and high-quality
service at all times.
G. Performing all services in substantial accordance with this Agreernent at all times using best
industry practice for comparable operations.
H. Complying with Applicable Law.
l. Performing or providing all other services necessary to fulfill its obligations under this
Agreement.
J. Diverting a minimum of 5O% of the C&D Collected from Disposal. The Diversion rate shall be
calculated each month based upon the weights of C&D Collected and Diverted.
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Page 11
K.
L.
Diverting a minimum of 70% of the Recyclable Materials Collected from Disposal, The Diversion
rate shall be calculated each month based upon the weights of Recyclable Materials Collected
and Diverted.
Diverting a minimum of 90% of the Organic Materials Collected from Disposal. The Diversion
rate shall be calculated each month based upon the weights of Organic Materials Collected and
Diverted.
The enumeration and specification of particular aspects of service, labor, or equipment requirements
shall not relieve Contractor of the duty of accomplishing all other aspects necessary to fulfill its
obligations under this Agreement whether such requirements are enumerated elsewhere in the
Agreement or not.
LIMITATIONS TO SCOPE
The scope of the Agreement shall be non-exclusive. Permitted Materials may be Collected and
Transported by other Persons provided that such Persons do so in accordance with the City's Municipal
Code, including but not limited to the followÍng:
A. Permitted Materials Collected by Other Non-Exclusive Franchise Haulers. Permitted Materials
Collected by a party that has executed a Non-Exclusive Franchise Agreement with the City for
Roll-Off Container Collection Services.
Permitted Materials Collected by City. Permitted Materials collected by the City's municipal
collection operation including: (1) materials Collected using equipment, such as Carts and Bíns,
not regulated by this Agreement (2) materials Collected from City facilities, and special events
and venues sponsored by the City, which may be Collected in Carts, Bins, or Roll-Off Containers
by the City's municipal collection operation or City crews.
Donated Recyclable Materials. Recyclable Materials Generated in the City that are Source
Separated and donated by the Generator to youth, civíc, charitable, or other nonprofit
organizations.
Materials Hauled by Owner or Occupant, or its Contractor. Permítted Materials that are
removed from any Premises and are Transported to a Disposal Site or Processing Site by (i) the
Owner or Occupant of such Premises, (ii) by full-time employee of Owner or Occupant that uses
the Owner's or Occupant's equipment to transport materials; or (iii) by a construction or
demolition contractor performing construction or demolition work at the Premises, whose
removal of the Perrnitted Materials is incidental to the service being performed (as defined in
Section 6-205(fxiii) of the City's Municipal Code) and such contractor removes materials at no
additional or separate fee using contractor's employees and contractor's equipment.
Green Waste Material. Private collection of Green Waste Material resulting from landscaping
or gardening service performed by the person collecting such materials.
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B.
c.
D.
E.
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4.4
F' Other Recyclable Materials. Private collection by any person or company that transports
Recyclable Materials through use of its own vehicle(s), and receives no compensation for such
Collection or Transportation.
G. Materials from Public Schools and Other Government Facilities. The removal of any materials
generated by public schools, cities, the County, or federal facilities (with the exception of those
facilities subject to 42 U.5.C. Section 6961(a)).
4.3 CITY'S RIGHT TO GRANT MULTIPLE NON.EXCLUSIVF AGREEMËNTS
The City may grant to an unlimited number of additional Persons similar non-exclusive franchise
agreements for Roll-Off Container Collection, Transportation, Recycling, Processing, Composting, and
Disposal of Permitted Materials.
CITY'S RIGHT TO EXCLUDE NEWLY ANNEXED TERRITORY FROM SCOPE OF
FRANCHISE
The City reserves the right to exclude territory that is annexed into the corporate limits of the City
subsequent to the Effective Date from the scope ofthis franchise.
4.5 AGREEMENT CONSISTENT WITH APPLICABLE LAW
This Agreement and scope of this franchise shall be ínterpreted to be consistent with Applicable Law,
now and during the Term. lf future judicial interpretations of current law or new laws, regulations, or
judicial interpretations limit the ability of the City to lawfully provide for the scope of services as
specifically set forth herein, Contractor agrees.that the scope of the Agreement will be limited to those
services and materials which may be lawfully provided and that the City shall not be responsible for any
lost profits or losses claimed by Contractor to arise out of limitations of the scope of the Agreement set
forth herein. ln such an event, lt shall be the responsibility of Contractor to minimize the financial
impact of such future judicial interpretations or new laws.
4.6 OWNERSHIP OF MATERIALS
Once Permitted Materials are placed in a Roll-Off Container for Collection by Contractor, ownership and
the right to possession of such materials shall transfer directly from the Customer to Contractor.
On a short-term basis not to exceed more than five (5) calendar days per year, City may obtain
ownership or possession of Permitted Materials placed in the Roll-Off Container for Collection, for
purposes of waste characterization studies, upon written notice to Contractor of its intent to do so.
However, nothing in thís Agreement shall be construed as giving rise to any inference that City has such
ownership or possession unless such written notice has been given to Contractor.
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4.7 NOTIFICATION TO CITY OF NON-FRANGHISED HAULERS
lf Contractor can produce evidence that other Persons are Collecting Permitted Materials and do not
have rights to do so as granted by non-exclusive franchise agreement with the City or otherwise, or in a
manner that is not consistent with the City's Municipal Code, Contractor shall notify the City in writing,
within ten (10) calendar days of Contractor witnessing such circumstances. The Contractor's notice shall
include the name and telephone number of the Person or company Collecting Permitted Materials (if
known), the date the Contractor witnessed the event, the location of the Roll-Off Container along with
Contractor's evidence of the violation of the rights granted by this non-exclusive franchise.
ARTICLE 5
COLLECTION, PROCESSING, AND DISPOSAL SERVICES
5.1 GOLLECTION
Contractor is hereby authorized to Collect Permitted Materials from residents and businesses in the City
using Roll-Off Containers. Contractor shall Collect Permitted Materials from Customers that voluntarily
subscribe to or request Roll-Off Container Collection services from Contractor. Contractor shall provide
its Customers with a Roll-Off Container for Permitted Materials Collection or shall allow its Customers to
provide a Roll-Off Container. Contractor shall Collect Permitted Materials from Premises as frequently
as scheduled by Contractor or as mutually agreed with Customer, but not lessthan once a weekforSolid
Waste and Organic ltrlaterials. Contractor shall provide requested service to its Customers and shall
charge Customers for service at Rates mutually agreed by Customer and Contractor.
Contractor shall Transport Solid Waste Collected pursuant to this Agreement to the Designated Disposal
Site and other materials to an Approved Processing Site that has been selected by the Contractor and
approved by the City. The Approved Processing Site(s) must be able to demonstrate Diversion rates in
accordance with Sections 4.1 and 5.3,
Contractor may enter into contracts with Customers for Collection services provided that in no case shall
the term of such contracts extend beyond the Term of this Agreement, and provided that in the event
the City terminates this Agreement the contracts with any and all Customers shall terminate on the
termination date of this Agreement.
PROCESSING AND MARKETING SERVICES
Processing. Contractor agrees to Transport and deliver (i) all C&D it Collects in the City to the
Approved C&D Processing Site, (ii) all Recyclable Materials ¡t Collects in the City to the Approved
Recyclable Processing Site, and (iii) all Organic Materials it Collects in the City to the Approved
Organics Processing Site. Residue from the C&D, Recyclable Materials, and Organics Processing
and Composting activities shall be Disposed of by Contractor or its Approved Processor at an
Approved Disposal Site selected by Contractor in accordance with Section 5.4. Contractor
selected the Approved Processing Site(s) and Approveci Disposal Site(s), which are identified in
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B.
Exhibit D. Contractor shall permit or arrange for the City to inspect the Approved Processing
Site(s) and observe operations at any time during.the Term.
Contractor or its Approved Processor(s) shall possess all permits and approvals necessary for use
of the Approved Processing Site(s) in full regulatory compliance. Contractor shall, upon City
request, provide or request from its Approved Processor(s) and provide copies of notices of
violation or permits to the City. Upon request of the City, Contractor shall provide a certified
statement from its Approved Processor(s) documenting its Diversion rate.
lf Contractor elects to use a Processing Site(s) that is different than the Approved Processing
Site(s) specified in Exhibit D, it shall request written approval from the City sixty (60) calendar
days prior to use of the site and obtain the City's written approval no later than ten (10)
calendar days prior to use of the site.
lf Contractor is unable to use an Approved Processing Site due to an emergency or sudden
unforeseen closure of the Approved Processing Site, Contractor may use an alternative
Processing Site provided that (i) the Contractor provides verbal and written notice to the City
within twenty-four (24) hours of use of an alternative Processing Site, and (ii) the alternative
Processing Site is fully permitted and in compliance with all Applicable Laws. The written notice
shall include a description of the reasons the Approved Processing Site is not feasible and the
period of time Contractor proposes to use the alternative Processing Site. Contractor shall use
the alternative Processing Site for no more than twenty-four (24) hours without obtaining City's
written approval.
Marketing. The Contractor or its Apþroved Processor shall be responsible for marketing C&D,
Recyclable Materials, and Organic Materials Collected in the City and Diverted. Contractor
and/or its Approved Processor may retain all revenues generated from the sale of Permitted
Materials that are Diverted.
Upon request, Contractor or its Approved Processor shall provide proof (in the form of sales
receipts showing end-user) to the City that all C&D, Recyclable Materials, and Organic Materials
Diverted are marketed for Recycling or reuse in such a manner that materials shall be
considered as Diverted in accordance with the State regulations established by the Act. All
residual material from the Processing activíties that is not marketed for use shall be accounted
for as Disposal Tonnage at a permitted Disposal Site. No Permitted Material shall be
transported to a domestic or foreign location if Solid Waste Disposal of such material is its
intended use.
Contractor or its Approved Processor shall provide the City, upon written request, with a list of
broker/buyers it uses to market C&D, Recyclable Materials, and Organic Materials Diverted. City
may audit brokers or buyers to confirm that materials are being Recycled and Diverted from
Disposal. lf Contractor becomes aware that a broker or buyer has illegally handled or Disposed
of material generated by the City or elsewhere, Contractor shall immediately inform the City and
terminate its contract or working relationship with such party immediately.
Processing and Marketing Costs. Contractor shall pay all costs associated with Processing and
marketing of Permitted Materials including payment of any gate fees charged at the Approved
Processing Sites.
c
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5.4
A.
B.
c.
D.
5.3 DIVERSION REQUIREMENT
Contractor shall Divert from landfill disposal at least (i) 50% by weight of all C&D it Collects within the
City, (ii) 7Ùo/oby weight of all Recyclable Materials it Collects within the City, and (iii) 90%hy weight of all
Organic Materials it Collects within the City during each calendar month by Processing, Recycling, or
Composting some or all of the C&D, Recyclable Materials, and OrganÍc Materials Collected.
lf Contractor faíls to meet the Díversion requirements stated in the preceding paragraph during a
calendar month, the City may terminate the Agreement in accordance with Section 11.5.
E.
DISPOSAL
Disposal of Solid Waste Collected. Contractor shall Transport all Solid Waste Collected in the
City to the Designated Disposal Site, which the City specifies shall be the American Avenue
Landfill in Tranquility, California, Contractor shall pay all costs associated wíth Transporting and
Disposal of Solid Waste including payment of any gate fees charged at the Designated Disposal
Site.
Disposal of Processing Residue. Contractor shall, or shall require its Approved Processor to,
Dispose of residue from Processing of C&D, Recyclable Materíals, and Organic Materials
Collected within the City, that are not Diverted through Processing activities, by Transporting
the residue to an Approved Disposal Site specified in Exhibit D, which is lawfully authorized to
accept such material.
Permitted Site. Contractor or its Approved Processor shall only Dispose of materials at a
permitted Disposal Site that is in full regulatory compliance. Contractor, or its Approved
Processor, shall keep or confirm all existing permits and approvals necessary for use of the
Disposal Site(s) in full regulatory compliance. Contractor shall, upon request, provide copies of
notices of violation or permits to the City.
Compliance with Regulations. Contractor shall observe and comply with all regulations in effect
at the Designated Disposal Site and Approved Disposal Site(s) and cooperate with the operator
thereof with respect to delivery of Solid Waste, including directions to unload Collection vehicles
in designated areas, accommodating operations and maintenance activities, and complying with
Hazardous Waste exclusion programs.
Disposal ât Approved S¡te. Contractor, or its Approved Processor, shall not Dispose of such
residue by depositing it on any public or private land, in any river, stream, or other waterway, or
in any sanitary sewer or storm drainage system or in any other manner which violates
Applicable Laws, Contractor, or its Approved Processor, selected the Approved Disposal Site(s)
for residue Disposal specified in Exhibit D. Contractor shall arrange for the City to inspect the
Approved Disposal Site(s) and observe operations at any time during the Term.
Alternative Disposal Site. lf Contractor, or its Approved Processor, elects to use a Disposal
Site(s) that is different than the Approved Disposal Site(s) listed in Exhibit D, it shall request
written approval from the City 60 calendar days prior to use of the site and obtain the City's
written approval no later than L0 calendar days prior to use of the site.
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5.5
lf Contractor, or its Approved Processor, is unable to use the Approved Disposal Site due to an
emergency or sudden unforeseen closure of the Approved Disposal Site, Contractor, or its
Approved Processor, may use an alternative Disposal Site provided that (i) the Contractor
provides verbal and written notice to the City within twenty-four (24) hours of use of an
alternative Disposal Site, and (ii) the alternative Processing Site is fully permitted and in
compliance with all Applicable Laws, The written notice shall include a descríption of the
reasons the Approved Disposal Site is not feasible and the period of time Contractor, or its
Approved Processor, proposes to use the alternative Disposal Site. Contractor shall use the
alternative Disposal Site for no more than twenty-four (24) hours without obtaining City's
written approval.
BILLING
Contractor shall bill all Customers and collect billings in accordance with Contractor-established Rates,
which are set in a manner consistent with provisions of Section 9.3. The Contractor shall prepare, mail,
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 chronological order, for five (5) years
after expiration or termination of this Agreement, Contractor shall retrieve and make available to the
City copies of the billings and receipts within five (5) days of the Director's 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 retrieved for
inspection and verifícation in a timely manner.
5.6 CUSTOMËR SËRVICË
Contractor shall maintain a business office within the City or within a reasonable distance of the City
límits approved by the Director. The business office shall staff at least one customer service
representative capable of accepting payments from Customers, answering service questions, and
resolving Customer service issues. Contractor shall have a toll-free Customer service telephone number
and shall have staff available to answer calls from at least 8:00 a.m. to 6:00 p,m., Monday through
Friday. An answering machine shall record Customer calls and voice messages between 6:00 p.m. and
8:00 a.m.
ARTICLE 6
STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT,
AND PERSONNEL
OPERATING DAYS, HOURS, AND SC}IEDULES
Days and Hours of Collection
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t. Residential Premises. Delivery or Collection of a Roll-Off Container to or from Residential
Premises shall only occur between the hours of 6:00 a,m. and 6:00 p,m., any day of the
week.
Commercial Premises. Delivery or Collection of a Roll-Off Container to or from Commercial
Premises that are 200 feet or less from Residential Premises shall only occur between the
hours of 6:00 a.m. and 6:00 p.m., any day of the week. Delivery or Collection of a Roll-Off
Container to or from Commercial Premises that are more than 200 feet from Residential
Premises shall only occur between the hours of 5:00 a.m. and 7:00 p.m., any day of the
week. The Director may require modifications to hours for delivery and Collection from
Commercial Premises to resolve noise complaints, and, in such case, the Director may
change the allowable operating hours.
Exceptions. ln the event of an unforeseen circumstance, the Contractor may deliver or
Collect a Roll-Off Container from Residential or Commercial Premises that are 200 feet or
less from Residential Premises between the hours of 5:00 a.m. and 10:00 p,m,, upon prior
written approval from the Director.
Failure to Comply. lf the Contractor fails to comply with the Collection hours described in
this Section, the Contractor shall pay the City Líquidated Damages as described in Section
L1.4 and Exhibit A.
6.2 COLLECTION STANDARDS
6.2.1 lnstructions to Customer
Contractor shall instruct Customers as to any preparation of Permitted Materials necessary prior to
placing in the Roll-Off Container. Contractor shall, in written form, inform all Customers as to the
acceptable materials that can be included in the Roll-Off Container and any unacceptable materials to be
excluded from Collection.
6.2.2 Care of Private Property
Contractor shall not damage prívate property. Contractor shall ensure that its employees: (i) close all
gates opened in making Collections, unless otherwise directed by the Customer; (ii) do not cross
landscaped areas; and (iii) do not climb or jump over hedges 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 condition.
6.2.3 Litter Abatement
A. Mínimization of Spills. Contractor shall use due care to prevent vehicle oil and vehicle fuel from
being spilled or scattered during Collection and Transportation operations. lf any Permitted
Materials are spilled or scattered during Collection orTransportation operations, the Contractor
shall promptly clean up all spilled and scattered materials.
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Contractor shall not transfer loads from one vehicle to another on any public street, unless it is
necessary to do so because of mechanical failure, hot load (combustion of material in the truck),
accidental damage to a vehicle, or unless approved by the City.
lf Contractor fails to perform some or all of the requirements described in this Section, the
Contractor shall pay the City Liquidated Damages as described in Section 11.4 and Exhibit A.
B. Clean-Up. Each Collection vehicle shall carry protective gloves, a broom, and shovel at all times
for cleaning up litter and absorbent material for cleaning up liquid spills. The Contractor shall
discuss instances of repeated spillage not caused by it with the Customer of the Premises where
spillage occurs, and Contractor shall report such instances to City. lf the Contractor has
attempted to have a Customer stop creating spillage but is unsuccessful, the City will attempt,
upon notice by the Contractor, to rectify such situation with the Customer.
C. Covering of Loads. Contractor shall cover all Roll-Off Containers at the pickup location before
Transporting materials to prevent Permitted Materials from escaping during Transportation.
6.2.4 Noise
All Collection operations shall be conducted as quietly as possible and shall conform to Applicable Law.
Contractor will promptly resolve any Complaints of noise during the morning or evening hours of the
day to the satisfaction of the City. ln the event of repeat occurrences of noise levels in excess of 75
db(A), the Contractor shall pay Liquidated Damages in accordance with Section 71,.4 and Exhibit A.
6_3 VEHICLE REAUIREMENTS
General. Vehicles used to provide services under this Agreement shall be kept in a safe, neat,
clean, and operable condition at all times. lf Contractor fails to keep Collection vehicles in a safe
and sanitary condition, the Contractor shall pay the Cíty Liquidated Damages as described in
Section 11.4 and Exhibit A.
Specifications. Contractor shall register all vehicles with the California Depaftment of Motor
Vehicles. All such vehicles shall comply with California Environmental Protection Agency (EPA)
noise emission and air quality regulations and other applicable noise control regulations.
Vehicle ldentification. Contractor's name, local telephone number, and a unique identification
number for each vehicle used to provide services under this Agreement, shall be prominently
displayed on all vehicles, in letters and numbers that are a minimum of 4 inches high.
Contractor shall not place the City's logo on its vehicles.
Cleaning and Maintenance
1. Cleaning. Collection vehicles shall be thoroughly washed and thoroughly steam cleaned as
frequently as necessary to present a clean appearance of the exterior and interior compartment
of the vehicle.
2. Maintenance. Contractor shall inspect each vehicle daily to ensure that all equipment is
operating properly. Vehicles that are not operating properly shall be taken out of service until
they are repaired and operating properly. Contractor shall perform all scheduled maintenance
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E.
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functions in accordance with the manufacturer's specifications and schedule or in accordance
with California Highway Patrol standards, whichever are more stringent. Contractor shall keep
eccurate records of all vehicle maintenance, recorded according to date and mileage, and shall
make such records available to the City upon request to the extent necessary to perform the
inspections described in Sections 6.3.F and 6.8.
Repairs. Contractor shall repair, or arrange for the repair of, all of its vehicles and equipment
for which repairs are needed because of accident, breakdown, or any other cause, so as to
maintain all equipment in a safe and operable condition. Contractor shall maintain accurate
records of repair, which shall include the date/mileage, nature of repair and the signature of a
maintenance supervisor that the repair has been properly performed.
Storage. Contractor shall arrange to store all vehicles and other equipment in safe and secure
location(s) in accordance with City's applicable zoning regulations.
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 or local weight restrictions 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 weight")
of the vehicle, and the total loaded weight of each load delivered to the Approved Processing
Sites and Designated Disposal Site.
Vehicle lnspection. City may inspect vehicles at any time to determine compliance with the
requirements of this Agreement. Contractor shall make vehicles available to the City and/or
Fresno County Health Department for inspection, at any frequçncy City reasonably requests.
ROLL.OFF CONTAINER REQUIREMENTS
General. All Roll-Off Containers shall meet applicable Federal, State, City and local regulations
for safety.
Specifications
Prevent leakage. lf the type of materials placed in the container may result in leakage of
liquids, Contractor shall take precautions to prevent the leakage of liquids. ln accordance with
Section 17315 of Chapter 3 of Title 14 of the California Code of Regulations, Roll-Off Containers
used to Collect garbage and putrescible materials and/or garbage and putrescibles mixed with
rubbish shall be non-absorbent, water-tight, vector-resistant, durable, easily cleanable, and shall
be designed for safe handling and the containment of refuse.
Provision of Sufficient Capacity. ln accordance with Section L7315 of Chapter 3 of Title 14 of
the California Code of Regulations, Containers for garbage and rubbish should be of an adequate
size and in sufficient numbers to conta¡n without overflowing, all the refuse that a household or
other establishment generates withÍn the designated removal period.
Use of Containers with Less than Ten (10) Cubic Yards of Capacity. Roll-Off Containers with
capacities of less than ten (10) cubic yards may only be used for the purposes of Collecting C&D.
6.4
A.
B.
1.
Page 20
E.
C. Roll-Off Container ldentification. All Contractor-provided Roll-Off Containers shall prominently
display the Contractor's name, local telephone number, a unique Roll-Off Container
identification number, and a list of acceptable materials. As appropriate, Roll-Off Containers
shall be labeled for: Solid Waste, Recyclable Materials, Organic Materials, or C&D. Such labeling
may be temporary labeling in the form of magnetic or detachable signs.
lf Contractor fails to comply with the provisions of thîs Section 6.4, the Contractor shall pay the
City Liquidated Damages as described in Section 11.4 and Exhibit A.
D. Cleaning, Painting, and Maintenanco: All Roll-Off Containers shall be maintained in a safe,
serviceable, and functional condition. Contractor shall steam clean and repaint all Roll-Off
Containers at least every two years, or more frequently, to present a clean, graffiti-free
appea rânce.
F.
Roll-Off Container lnspections. City may ¡nspect Roll-Off Containers at any time to determine
compliance with sanitation requirements. Contractor shAll make Containers available to the City
at any frequency it requests. The City shall have the right to prohibit the use of any Roll-Off
Container that fails to comply with the provisions in this Section 6.4.
Abandoned Roll-Off Containers. Contractor shall not Abandon any Roll-Off Container used to
provide Permitted Materials Collection services under this Agreement. lf the Contractor
Abandons a Contractor-owned Roll-Off Container, City may remove the Roll-Off Container and
Process and Dispose of the contents. lf the City removes a Roll-Off Container Abandoned by
Contractor, the City 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 costs within fourteen (14)
calendardaysofthedateoftheCity'sinvoicetotheContractorforsuchcosts. lftheContractor
does not pay the invoice amount within fourteen (14) days, the City shall become the Roll-Off
Container owner if the invoíce stated the City's intent to become the Container owner in
lettering of at least 12 point font.
For the purposes of this Section 6.4.F, "Abandon" means the following:
Contractor's 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 service agreement between Contractor
and the Customer, or
Contractor's failure to remove a Contractor-owned Roll-Off Container within ten (10)
calendar days upon expiration or termination of this Agreement, except in the case where
Contractor has been granted an extension of the Term of the Agreement or Contractor has
been granted a subsequent agreement authorizing Contractor to Collect and transport the
type or types of materials for which the Roll-Off Container was used pursuant to this
Agreement.
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6.5
A.
PERSONNEL
General. Contractor shall furnish such qualified drivers, maintenance, supervisory, Customer
service, clerical and other personnel as may be necessary to provide the services required by
this Agreement in a safe and efficient manner.
Driver Qualifications. All drivers shall be trained and qualified in the operation of Collection
vehicles, and must have in effecta valid license, of the appropriate class, issued bythe California
Department of Motor Vehicles. Contractor shall use the Class B California Department of Motor
Vehicles employer "Pull Notice Program" to monitor its drivers for safety.
Safety Training. Contractor shall provide suitabie operational and safety training for all of its
employees who operate Collection vehicles or equipment or who are otherwise directly involved
in such Collection, Disposal, or Processing. Contractor shall train its employees involved in
Collection to identify, and not to collect, Hazardous Waste or lnfectious Waste. Upon the City's
request, Contractor shall provide a copy of its safety policy and safety training program, the
name of its safety officer, and the frequency of its trainings.
Employee Conduct and CouÊesy. Contractor shall use its best efforts to ensure that all
employees present a neat appearance and conduct themselves in a courteous manner.
Contractor shall regularly train its employees in Customer courtesy, shall prohibit the use of loud
or profane language, and shall instruct Collection employees to perform the work as quietly as
possible. lf any employee is found not to be courteous or not to be performing services in the
manner required by this Agreement, Contractor shall take all appropriate corrective measures
and shall pay the City Liquidated Damages as described in Section 11.4 and Exhibit A.
Employee ldentification. While performing services under this Agreement, all of the
Contractor's employees performingfield service shall be dressed in clean clothes and shall wear
badges that include the employee's name and/or employee number, and Contractor's name, as
approved by the City.
HAZARDOUS WASTE INSPECTION AND IIANDLING
Response to Hazardous Waste ldentified during Collection. lf Contractor determines that
material placed in any Roll-Off Container for Collection is a Hazardous Waste that may not
legally be Disposed of at a Disposal Site or handled at the Processing Site, or presents a hazard
to Contractor's employees, the Contractor shall refuse to accept such material. The Contractor
shall contact the Customer and request the Customer to arrange proper Disposal. lf the
Generator cannot be reached immediately, the Contractor shall, before leaving the Premises,
leave a tag at least two inches by six inches (2" x 6") in size, which indicates the reason for
refusing to Collect the material and lists a phone number for obtaining information on proper
disposal of the Hazardous Waste. Under no circumstances shall Contractor's employees
knowingly Collect Hazardous Waste.
lf Hazardous Waste is found in a Roll-Off Container that could possibly result in imminent danger
to people or property, the Contractor shall immediately notify the City's Fire Department using
the 911 emergency number.
B.
c
E.
6.6
A.
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B.
The Contractor shall notify the City of any Hazardous Waste identified in Roll-Off Containers or
left at any Premises within 24 hours of identification of such material.
Response to Hazardous Wastes ldentified at Disposal Site or Processing Site. The Contractor,
or its Approved Processor, or Disposal Site operator shall provide load checkers and equipment
operators at the Processing or Disposal Site(s) to identify Hazardous Wastes for storage in
approved, on-sÍte, hazardous materials storage container(s). Contractor shall make reasonable
efforts to identify and notify the Customer. Contractor shall arrange for removal of the
Hazardous Wastes by permitted haulers in accordance with Applicable Laws and regulatory
requirements.
lf the Hazardous Wastes delivered to a Disposal Site or Processing Site by Contractor before its
presence is detected, and the Generator cannot be identifÍed or fails to remove the material
after being requested to do so, the Contractor shall arrange for its proper Disposal. The
Contractor may make a good faith effort to recover the cost of Disposal from the Generator, and
the cost of this effort, as well as the cost of Disposal shall be chargeable to the Generator.
Regulations and Record Keeping. Contractor shall comply with emergency notification
procedures required by Applicable Laws and regulatory requirements. All records required by
regulations shall be maintained at the Contractor's facility. These records shall include: waste
manifests, waste inventories, waste characterization records, inspection records, incident
reports, and training records.
NON.DISCRIMINATION
Contractor shall not discriminate in the provision of service or the employment of Persons engaged in
performance of this Agreement on account of race, color, natural origin, ancestry, religion, gender,
marital status, sexual orientation, age, physical or mental disability in violation of any Applicable Law.
COMMUNICATION AND COOPERATION WITH CITY
Communications. lf requested, the Contractor shall meet with the City or its agent to discuss
service issues,
lnspection by City. The City, or its designated representatives, shall have the right to observe
and review Contractor operations, Processing Sites and Disposal Sites used by Contractor, and
enter Contractor's Premises for the purposes of such observation and review during reasonable
hours without advance notice.
Cooperate with City-lnitiated Studies. Contractor shall cooperate with and assist the City or its
agent with the performance of City-initiated studies of Permitted Materials such as, but not
limited to, waste characterization and composition studies.
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ARTIGLE 7
RECORD KEEPING AND REPORTING
7.1 GENERAL
7.I.1 Maintenance of Records
Contractor agrees to conduct data collection, information and record keeping, and reporting activities
needed to comply with and to meet the reporting and Permitted Materials program management needs
of City, the Act and other Applicable 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
records and reports are to be and their content. With the written direction by or approval of City, the
records and reports to be maintained and provided by Contractor in accordance with this and other
Articles of the Agreement shall be adjusted in number, format, or frequency. Records and reporting
may be revised to reflect current record keeping and reporting requirements.
To the extent such requirements are set out in this and other Articles of this Agreement, they shall not
be considered limiting or necessarily complete.
7.1.2 Retention of Records
Unless otherwise required in this Article, Contractor shall retain all records and data required to be
maintained by this Agreement for the Term of this Agreement plus five (5) years after its expiration or
earliertermination. Records and data shall be in chronological orderand readilyand easily interpreted.
7.t.3 lnspection of Records
The City, its auditors and other agents, shall have the right, during regular business hours, to inspect
specific documents or records required by this Agreement or any other similar records or reports 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 City may make copies of any documents it deems
relevant to this Agreement. Ihe City shall provide Contractor written notice at least three (3) Business
Days prior to any inspection of these records, and Contractor shall retrieve and make available to the
City the requested documents and records at that time.
The City reserves the right to inspect records for the purposes of auditing the Contractor's reports,
reported Diversion level, and fee payments to the City. lf an audit conducted by the City, or its
representatives, finds: (i) that the Contractor has made any intentional misrepresentation with respect
to the fees dues to the City (e.g., Franchise Fees or other fees due to the City) in an amount greater than
S1,000 or tO% of the fees due to the City during the period covered by the audit, whichever is greater,
or (ii) thatthe Diversion level is 5% differentthan the Diversion level reported bythe Contractor, then in
addition to any other remedies available to the City, Contractor shall reimburse the City for the City's
costs incurred in the performance of the audit. Such reimbursement shall be paid by Contractor, along
with any underpaid fees and Liquidated Damages required by Section 1L.4 and Exhibit A, within thirty
(30) calendar days of the date the City notifies the Contractor of the amount due.
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7.I.4 Record Security
Contractor shall maintain adequate record security to preserve records from events that can be
reasonably anticipated such as fíre, theft, and earthquake. Electronically maintained data and records
shall be protected and backed-up.
7.2 RECORÐS
7.2.1 Financial and Operational Records
Contractor shall maintain accurate and complete accounting records contaîning the underlying financial
and operating data relating to and showing the basis for computation of all revenues associated with
providing Permitted Materials Collection, Transportation, Processing, Recycling, Composting, and
Disposal services. The accounting records shall be prepared in accordance with Generally Accepted
Accounting Principles (GAAP) consistently applied.
At a minimum, the following operational records shall be maintained by Contractor for City relating to:
F.
Customer account information and billing records;
Tonnage of material Collected by type (e.g., Solid Waste, Recyclable Material, Organic Material,
or C&D) listed by Processing Site or Disposal Site where such materials were delivered. Where
possible, information is to be separated by Residential and Commercial Customers.
Tonnage of Recyclable Materials, Organic Material, and C&D Diverted from Disposal by
Contractor and supporting documentation.
Diversion level, which shall equal Tonnage Diverted by Contractor divided by the Tonnage
Collected by Contractor multiplied by 100, listed separately by month for the previous quarter.
Tonnage Diverted shall reflect Permitted Materials Processed less residue Disposed.
Residue levels of Processed or Composted materials.
Weight tickets from (i) Designated Disposal Site documenting the Tonnage of Solid Waste
Collected within the City and delivered to the Designated Disposal Site; (ii) Processing Sites
documenting the Tonnage of Permitted Materials Collected within the City and delivered to the
Approved Processing Sites; and, (iii) Approved Disposal Sites documenting the Tonnage of
residue delivered to Approved Disposal Sites by vehicle, date, and time.
End use and markets for recovered materíals.
Contractor shall make records available to the City upon request.
7.2.2 Customer Records
Contractor shall maintaín accurate and complete records containing the number and types of accounts
served by the Contractor. The records shall contain, at a minimum, the Customers name, type of
business, phone number, address of Roll-Off Container delivery and Collection location, date of delivery
and Collection, itemized listing of services performed, type of Permitted Material Collected, Tonnage
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Collected, and the amount charged to provide services. The information shall be provided to the City
upon request.
7.2.3 CERCTA Defense Records
City views its ability to defend itself against Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA), and related litigation as a matter of great importance. For this reason, the City
regards its ability to prove where Permitted Materials Collected by the Contractor are taken for
Processing, Recycling, Composting, Transfer, or Disposal, as well as where they are not taken, to be
matters of concern. Contractor shall maintaiñ, retain and preserve records which can establish where
Permitted Materials Collected were Processed, Composted, and Disposed (and therefore establish
where they were not). This provision shall surv¡ve the expiration or earl¡er termination of this
Agreement. Contractor shall maintain these records for a minimum of ten (10) years beyond expiration
or earlier termination of the Agreement. Contractor shall provide these records to City (upon request or
at the end of the record retention period) in an organized and indexed manner rather than destroying or
disposing of them.
7.3 GENERAL REPORTING REQUIREMENTS
The format of each report shall be approved by City. Contractor may propose report formats that are
responsive to the objectives. Contractor agrees to mail a copy of all reports and submit all reports on
computer discs, by e-mail, or by modem in a format compatible with City's software and computers at
no additional charge. Contractor will provide a certification statement, under penalty or perjury, by the
responsible Contractor official, that the report being submitted is true and correct to the best
knowledge of such official after their reasonable inquiry.
Contractor shall submit monthly reports within fifteen (15) calendar days of the end of each month. lf
Contractor does not submit the monthly reports by the dates required in this Article, Contractor shall
pay the City Liquidated Damages as described in Section 11.4 and Exhibit A.
Contractor shall submít (via mail and e-mail) all reports to:
Solid Waste Division Manager
City of Fresno
1325 El Dorado Street
Fresno, CA 93706
7.4 MONTHLY REPORT
The monthly report shall present the following information.
Total Tonnage. Total Permitted Materials Tonnage Collected by Contractor within the City
during the previous quarter, listed separately by material type and by month.
Diverted Tonnage. PermÍtted Materials Tonnage Collected by Contractor within the City that
was Diverted during the previous quarter, listed separately by material type and by month.
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c.
D.
Disposed Tonna6e. Permitted Materials Tonnage Collected by Contractor within the City that
was Disposed during the previous quarter, listed separately by month.
Diversion Level. Tonnage Diverted by Contractor divided by the Tonnage Collected by
Contractor multiplied by 100, listed separately by month for the previous quarter. Tonnage
Diverted shallreflect Permitted Materíals Processed less residue Disposed.
C&D. Tonnage generated from construction and demolition permitted sites, noting the permit
number, the site address, the Tonnage hauled, the date hauled, and the facilities to which the
material was hauled.
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 Tonnage Diverted
and/or Disposed at each location during the previous quarter, listed separately by material type
and by month.
Revenues. Gross revenues (e.9. cash receipts) earned on all Roll-Off Container Collection,
Transportation, Processing, Recycling, Composting, and/or Disposal services provided to
Customers within the City during the previous quarter, listed separately by month,
lnsurance. Updated insurance certificates.
Account lnformation. ln table format, the number of Customers within the City limits served
and number of Roll-Off Containers serviced per month listed by Roll-Off Container type (Drop
Box or Compactor), Roll-Off Container size, and listed separately by Permitted Material type,
and regularly schedule service and unscheduled (on-call) service.
Contractor Officers and Board Mernbers. Provide a list of Contractor's officers and members of
its board of dÍrectors (only required with the December monthly report each year, or in the
event of a change in the officers or board membersi.
The City reserves the right to request additional reports from Contractor, and upon City's request,
Contractor shall provide informatíon required above for the time period requested by the City. lt is the
desire of the City to track the above required information on an ongoing basis throughout the term of
this Agreement.
7.5 AB 939 COUNTY SURCHARGE REPORTING
Contractor acknowledges that City is a party to that certain AB 939 Memorandum of Understanding with
the County of Fresno and varior.rs other jurisdictÍons dated January 6, 2OO8 (the "AB 939 MOU"), and
further acknowledges having received and reviewed a copy of the AB 939 MOU. The Parties agree that
Contractor is a "Jurisdiction's Hauler", as that term is used in Part lV, Section H of the AB 939 MOU.
Contractor shall comply with all requirements of Part lV, Section H of the AB 939 MOU that are
applicable to a iurisdiction's Hauler, including but not limited to submittal of reports and payment of the
AB 939 Surcharge {as that term is definecj in the AB 939 MOU).
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ARTIGLE 8
FRANCHISE FEES AND OTHER FEES
8.I GENERAL
Contractor shall collect the fees described in this Section from Customers through Contractor's regular
bíllings and remit collected amounts to City on a monthly basis as described in Section 8.5.
8.2 FRANCHISE FEE
ln consideration of the exclusive rights provided Contractor herein, Contractor shall pay Franchise Fees
to the City each month equal to LO% of actual gross Rate revenues (e.g. cash receipts) remitted to
Contractor by Customers for services provided by Contractor under this Agreement.
8.3 OTHER FEES
The Cíty may set "other" additional fees, as it deems necessary. The amount, time, and method of
payment and adjustment process will be set in a manner similar to that for other fees described in this
Article.
8.4 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 20th day of each month during the Term of this Agreement, Contractor shall remit to
City Franchise Fees and other fees as described in this Article. lf such remittance is not paid to the City
on or before the 20th day of any month, Contractor shall pay, in addition to the amount owed to City,
2o/o of the amount owing for that month; plus an additional 2% owing on any unpaid balance for each
following thirty (30) calendar day period the fee remains unpaíd
Each monthly remittance to City shall be accompanied by a statement itemizing each fee paid; detailing
calculation of all fees; stating actual gross revenues (e.g. cash receipts) forthe monthly period collected
from all operatÍons conducted or permitted by this Agreement, and stating the number and size of
Containers serviced by Contractor for the monthly period. Each remittance including all supporting
documentation shall be provided to:
Attn: City Controller, Finance Department
City of Fresno
2600 Fresno Street
Fresno, CA 93727-3624
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8.6 OVERPAYMENT OF FEES
lf Contractor belíeves it has paid Franchise Fees or other fees as described in this Article, in excess of the
fees due to the City, Contractor may submit a request for refund to the Director. lf proof of
overpayment is satisfactory to the Director, the Director shall authorize the City to refund the
overpayment to the Contractor. Contractor shall not apply any overpayment as a credit against any
Franchise Fee or other amounts payable to the City, unless specifically authorized to do so by the
Director in writing.
8.7 NON-G|TY FEES; AB 939 COUNTY SURGHARGE
Pursuant to Section 7.5, Contractor shall pay the County of Fresno an AB 939 surcharge as applicable in
accordance with the AB 939 MOU.
ARTICLE 9
CONTRAGTOR'S COMPENSATION AND RATES
9.I CONTRACTOR'S COMPENSATION
Contracto/s compensation for performance of all its obligations under this Agreement shall be: (i)
actual Rate revenues paid to Contractor (e.g, cash receipts) by Customers that obtained Contractor's
Collection services less fees dues to the Cíty in accordance with Art¡cle 8, and (ii) revenues generated by
the sale of Collected materials Diverted from Disposal.
Contractor's compensation provided for in this Article shall be the full, entire, and complete
compensation due to Contractor pursuant to this Agreement for all labol equipment, materials and
supplies, Processing, Composting, and Disposal fees, regulatory fees, City fees, taxes, insurance, bonds,
overhead, operations, profit and all other things necessary to perform all the services in the manner
required by this Agreement.
lf Contractor's costs are more than Contractor's compensation, Contractor shall not be compensated for
the difference in costs and revenues. lf Contractor's costs are less than Contractor's compensation,
Contractor shall retain the difference.
9.2 CITY'S RIGHT TO SET MAXIMUM RATES
The City reserves the right to establish maximum Rates for Permitted Materials Collection services
provided under this Agreement in the event that: (a) there are three or fewer companies holding non-
exclusive franchise agreements for Collection of Permitted Materials, or {b) the Rates charged by the
companies holding non-exclusive franchise agreements for Collection of Permitted Materials are no
longercomparabletothoseofotherjurisdictions,asreasonablydeterminedbyCity. lftheCitychooses
to exercise its right to set maximum Rates, City shall notify Contractor at least 180 calendar days prior to
the date that maximum Rates become effective. In such case, City will set maximum Rates with
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consideration of reasonable and necessary costs for Collection, Processing, Composting, and Disposal
and with the intention of setting maximum Rates that will enable parties, including the Contractor, that
have executed Non-Exclusive Franchise Agreements with the City for Roll-Off Container Collection
Services the ability to recover reasonable and necessary costs and a reasonable profit.
9.3 CONTRACTOR'S RATES
Contractor shall set the Rates it charges its Customers for Roll-Off Collection services. The Contractor's
Rates shall not exceed City-established maximum Rates, if the City exercises its rights under Section 9.2.
ARTICLE 1O
INDEMNITY AND INSURANCE
10.1 INDEMNIFICATION
Contractor shall indemnify, defend with counsel acceptable to the City, protect and hold harmless the
City and each of its officers, officials, employees, volunteers, and agents (collectively, indemnitees) from
and against all claims, damages (including but not limited to special, consequential, natural resources
and punitive damages), injuries, costs, (including without limit any and all response, remediation and
removal costs), losses, demands, debts, liens, liabílities, causes of action, suits, legal or administrative
proceedings, interest, fines, charges, penalties, and expenses (including without limit attorneys'expert
witness fees and costs incurred in connection with defending against any of the foregoing or in
enforcing this indemnity), (collectively, "Damages") of any kind whatsoever paid, incurred or suffered
by, or asserted against, indemnitees arising from or attributable to the acts or omissions of Contractor
whether or not negligent or otherwise culpable, in connection with or related to the performance of this
Agreement, except such loss or damage which was caused by the sole negligence or willful misconduct
of the City.
Contractotrs duty to defend and indemnify herein shall include Damages arising from or attributable to
any operations, repairs, clean-up or detoxifícation, or other plan (regardless of whether undertaken due
to governmental action) concerning any Hazardous Waste Collected in the CÌty. Contractor shall be
required to indemnify the City 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 Liability Act (CERCLA). The foregoing is intended to
operate as an agreement to defend and indemnify and hold harmless indemnities to the full extent
permitted for liability pursuant to Section L07(e) of CERCLA, 42 U.S.C. Section 9607(e) and California
Health and Safety Code Section 25364.
ln addition, Contractor's duty to defend and indemnify herein includes all fines andfor penalties
imposed by the California Department of Resources Recycling and Recovery, subject to the restrictions
set forth in Public Resources Code Section 40059.1, if the requirements of the Act are not met by the
Contractor with respect to the Permitted Materials Collected under this Agreement, and such failure is
due to Contractor delays ín providing information that prevents Contractor or City from submitting
reports required by the Act in a timely manner.
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This provision will survíve the expiration or earlier termination of this Agreement and shall not be
construed as a waiver of rights by City to contribution or indemnity from third parties.
10.2 INSURANCE
t0.2.t Minimum Scope of lnsurance
Coverage shall be at least as broad as:
A. lnsurance Services Office Commercial General Liability coverage.
1. Personal injury
2. Contractualliability
B. lnsurance Services Office covering Automobile Liabílity, code I "any auto".
A. Worker's Compensation ínsurance as required by the Labor Code of the State of California and
Employers Liability insurance.
B. Such other insurance coverages and limits as may be required by the CITY.
10.2.2 Minimum Limits of lnsufance
Contractor shall maintain limits no less than:
A. General Liability: $3,000,000 per occurrence for bodily injury, personal injury, and property
damage. lf Commercial General Liability insurance or other form with a general aggregate
liabílity is used, either the general aggregate limit shall apply separately to this project/location
or the general aggregate limit shall be twice the required occurrence limit.
B. Automobile Liability: 53,000,000 per accident for bodily injury and property damage.
C. Workers' Compensation: Workers' compensation limits as required by the Labor Code of the
State of California.
D. Employer's Liability: Bodily lnjury by Accident: 53,000,000 each accident.
Bodily lnjury by Disease: S3,000,000 policy limit.
Bodily lnjury by Disease: S3,000,000 each employee.
E. Pollution Legal Liability: 53,000,000 for bodily injury, property damage, and remediation of
contaminated site.
10.2.3 Deductibles andSelf-lnsured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. At the option
of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as
respects the City, its officials and ernployeesj or the Contractor shall procure a bond guaranteeing
payment of losses and related investigations, claim administration and defense expenses.
10.2,4 Other Insurance Provisions
The policies are to contain, or be endorsed to contain, the following provisÍons:
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A. General Liability and Automobile Liability Coverages
The City, its officers, officials, employees, agents and volunteers are to be covered as
additional insureds as respects: liability arising out of activities performed by or on behalf
of the Contractor; products and completed operations of the Contractor; premises owned,
leased or used by the Contractor; or automobiles owned, leased, hired or borrowed by the
Contractor. The coverage shall contain no special limitations on the scope of protection
afforded to the City, its officials, employees, or volunteers. The automobile liability is
endorsed to contain MCA-90 coverage.
The Contractor's insurance coverage shall be primary insurance as respects the City, its
officials, employees, and volunteers. Any insurance or self-insurance maintained by the
City, its officials, employees, orvolunteers shall be excess of the Contractor's insurance and
shall not contribute with it.
Any failure to comply with reporting provisions of the policies shall not affect coverage
provided to the City, its officials, employees, or volunteers.
Coverage shall state that the Contractor's insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect to the limits of the
insurer's liability.
B. Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all
rights of subrogation against the City, its officers, employees, and volunteers for losses arising
from work performed by the Contractor for the City.
C. All Coverages. Each insurance policy requíred by this clause shall be endorsed to state that
coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in
limits except after 30 calendar days' prîor written notice by certified mail, return receipt
requested, has been given to the City.
10.2.5 Acceptability of lnsurers
The insurance policies required by this Section shall be issued by an insurance company or companies
authorized to do business in the State of California and with a rating in the most recent edition of Best's
lnsurance Reports of size category Vll or larger and a rating classification of A or better.
10.2.6 Verification of Coverage
Contractor shall furnish Contractor's insurance agent a copy of these specifications, and direct the agent
to provide the City with certificates of insurance and with or¡ginal endorsements affecting coverage
required by this clause. lssuance of documentation indicates the Contractor's insurance complies with
these provisions. The certificates and endorsements for each insurance policy are to be signed by a
Person authorized bythat insurerto bind coverage on its behalf. The certificates and endorsements are
to be received and approved by the City before work commences. The City may require complete,
certified copies of all required insurance policies, at any tíme,
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1o,2.7 RequiredEndorsements
A' The Workers' Compensation policy shall contain an endorsement in substantially the following
form:
"Thirty calendar days' prior written notice shall be given to the City of Fresno in the event of
cancellation, reduction in coverage, or non-renewal of this policy.,,
Director of Public Utilities
City of Fresno
2600 Fresno Street
Fresno, CA93721,-3620
B. The Commercial General Liability, Business and Automobile Liability, and Pollution Legal Liability
policies shall contain endorsements in substantially the following form:
1. "Thirty calendar days' prior written notice shall be gíven to the City of Fresno in the event
of cancellation, reduction in coverage, or non-renewal of this policy.',
Director of Public Utilities
City of Fresno
2600 Fresno Street
Fresno, CA 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 ínsurance as respects any other valid and
collectible insurance maintained by the City of Fresno, including any self-insured retention
or program of self-insurance, and any other such insurance shall be considered excess
insurance only."
4' "lnclusion of the City of Fresno as an insured shall not affect the City's rights as respects any
claim, demand, suit or judgment brought or recovered against the Contractor. This policy
shall protect Contractor and the City in the same manner as though a separate policy had
been issued to each, but this shall not operate to increase the Contractor's liability as set
forth in the policy beyond the amount shown or to which the Contractor would have been
liable if only one party had been named as an insured."
10.2.8 Delivery of Proof of Coverage
Simultaneously with the execution of this Agreement, Contractor shall furnish the City certificates of
each policy of insurance required hereunder, in form and substance satisfactory to City. Such
certificates shall show the type and amount of coverage, effective dates and dates of expiration of
policies and shall have all required endorsements. lf the City requests, copies of each policy, together
with all endorsements, shall also be promptly delivered to City,
Renewal certificates will be furnished annually to City to demonstrate maintenance of the required
coverages throughout the Term.
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B.
10.2.9
A.
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Other lnsurance Requirements
lf any services are delegated to a Subcontractor, the Contractor shall require such Subcontractor
to provide statutory Workers'Compensation insurance and employer's liability insurance for all
of the Subcontractor's employees engaged in the work in accordance with Sections 10.2.2.C and
!O.2.2.D and 10.2,4,8. The liability insurance required by Section 1o.2.2.A shall cover all
Subcontractors or the Subcontractor must furnish evidence of insurance provided by it meeting
allof the requirements of this Section 10.2.
lf at any time during the life of the Agreement or any extension, Contractor or any of its
subcontractors fail to maintain any required insurance in full force and effect, Contractor shall
be in breach of the Agreement until notice is received by City that the required insurance has
been restored to full force and effect and that the premiums therefore have been paid for a
period satisfactory to City. Any failure to maintain the requíred insurance shall be sufficient
cause for City to terminate this Agreement. No action taken by City pursuant to this Section
shall in any way relieve Contractor of its responsibilities under this Agreement.
The Contractor shall comply with all requirements of the insurers issuing policies. The carrying
of insurance shall not relieve Contractor from any obligation under this Agreement. lf any claim
exceeding the amount of any deductibles or self-insured reserves is made by any third person
against the Contractor or any Subcontractor because of any occurrence related to this
Agreement, the Contractor shall promptly report the facts in writing to the Ínsurance carrier and
to the City.
The Commercial General Liability, Automobile Liability, and Pollution Legal Liabílity insurance
policies shall be written on an "occurrence," rather than a "claims made" basis. lf Contractor is
unable to purchase Pollution Legal Liability insurance on an occurrence form and must purchase
such insurance on a claíms-made form:
The "Retro Date" must be shown, and must be before the effective date of the Agreement
or the commencement of work by Contractor.
The policy shall be endorsed to-provide not less than a S-year discovery period. This
requirement shall survive expiration or termination of the Agreement.
lf coverage is canceled or non-renewed, and not replaced with another claims-made policy
form with a "Retro Date" prior to the effective date of the Agreement, Contractor must
purchase "extended reporting" coverage for a minimum of 5 years following the expiration
or termination of the Agreement.
A copy of the claims reporting requirements must be submitted to City for review.
These requirements shall survive expiration or termination of this Agreement.
C.
D.
2.
3
4.
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B.
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D.
ARTIGLE 11
DEFAULT AND REMEDIES
11.1 EVENTS OF ÐEFAULT
Each of the following shall constitute an event of default ("Event of Default") hereunder:
E.
Contractor fails to perform its obligations under this Agreement, or future amendment to this
Agreement, including, but not limited to, Contractor's failure to pay Franchise Fees and other
City fees in accordance with Article 8 of this Agreement, and the breach continues for more than
i.0 Business Days after written notice from the City for the correctíon thereof;
Contracto/s failure to Divert 50% of the C&D, lO% of the Recyclable Materials, and 90% of
Organic Materials Collected in the City as required by Section 5.3 of this Agreement after
Contractor is given an opportunity to remedy the nonperformance as described in Section 11.5;
Any representation, warranty, or disclosure made to City by Contractor in connection with or as
an inducement to entering into this Agreement or any future amendment to this Agreement,
which proves to be false or misleading in any material respect as of the time such
representation or disclosure is made, whether or not any such representation, warranty, or
disclosure appears as part of thís Agreement;
There is a seizure or attachment {other than a pre-judgment attachment) of, or levy affecting
possession on, the operating equipment of Contractor, including without limit its vehicles,
maintenance or office facilities, or any part thereof of such proportion as to substantially impair
Contractor's ability to perform under this Agreement and which cannot be released, bonded, or
otherwise lifted within 48 hours excluding weekends and Holidays;
Contractor files a voluntary petitÍon for debt relief under any applicable bankruptcy, insolvenc¡
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, assígnee (other than as a part
of a transfer of equipment no longer useful to Contractor or necessary for this Agreement),
trustee (other than as security for an obligation under a deed of trust), custodian, sequestrator
(or similar official) of the Contractor for any part of Contractor's operating assets or any
substantíal part of Contractor's property, or shall make any general assignment for the benefit
of Contractor's creditors, or shall fail generally to pay Contractor's debts as they become due or
shall take any action in furtherance of any ofthe foregoing;
A court having jurisdiction shall enter a decree or order for relief in respect of the Contractor, in
any involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now
or hereafter in effect, or Contractor shall consent to or shall fail to oppose any such proceeding,
or any such court shall enter a decree or order appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar offîcial) of the Contractor or for any part of the
Contractor's operating equipment or assets, or orders the winding up or liquidation of the
affaírs of Contractor;
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11,2 RIGHT TO TERMINATE UPON DEFAULT
Upon a default by Contractor, the Cíty may terminate this Agreement wíthin 10 calendar days of the
default but no later than 180 calendar days after the default. Such termination shall be effective L0
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; SPEGIFIC PERFORMANCE
The City's right to terminate the Agreement under Section 11.2 is not exclusive, and the City's
termination of the Agreement andlor the imposition of Liquidated Damages shall not constítute an
election of remedies. lnstead, these ríghts 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 quality service, the
lead time required to effect alternative service, and the rights granted by City to the Contractor, the
remedy of damages for a breach hereof by Contractor is inadequate and City shall be entitled to
injunctive relief.
11.4 LIQUIDATEDDAMAGES
A. General, The Parties find that as of the time of the execution of this Agreement, it is
impractical, if not impossible, to reasonably ascertain the extent of damages which shall be
incurred by City as a result of a breach by Contractor of its obligations under this Agreement.
The factors relating to the impracticability of ascertaining damages include, but are not limited
to, the fact that: (i) substantial damage results to members of the public who are denied
services or denied quality or reliable service; (íi) such breaches cause inconvenience, anxiety,
frustration, and deprivation of the benefits of the Agreement to individual members of the
general public for whose benefit this Agreement exists, in subjective ways and in varying
degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that
services might be available at substantially lower costs than alternative services and the
monetary loss resulting from denial of services or denial of quality or reliable services is
impossible to calculate in precise monetary terms; and (iv) the termination of this Agreement
for such breaches, and other remedies are, at best, a means of future correction and not
remedies which make the public whole for past breaches.
B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The
Parties further acknowledge that consistent, reliable Roll-Off Collection, Processing, and
Disposal service is of utmost importance to City and that City has considered and relied on
Contractor's representations as to its quality of service commitment in executing this
Agreement. The Parties recognize that some quantified standards of performance are necessary
and appropriate to ensure consistent and reliable service and performance. The Parties further
recognize that if Contractor fails to achieve the performance standards, or fails to submit
required documents in a timely manner, City and its residents and businesses will suffer
damages, and that it is, and will be, impractical and extremely difficult to ascertain and
determine the exact amount of damages that City will suffer. Therefore, without prejudice to
CÍty's right to treat such non-performance as an event of default under this Article, the Parties
City of Fresno Roll-Off Agreement
4/s/7L
Page 36
c.
atree that the Liquidated Damages amounts established in Exhibit A of this Agreement and the
following Liquidated Damage amounts represent a reasonable estimate of the amount of such
damages considering all of the circumstances existing on the Effective Date of this Agreement,
including the relationship of the sums to the range of harm to City that reasonably could be
anticipated and the anticipation that proof of actual damages would be costly or impractical.
Contractor agrees to pay (as Liquidated Damages and not as a penalty) the amounts set forth in
the Schedule of Liquidated Damages, Exhib¡t A.
City may determine the occurrence of events giving rise to Liquidated Damages through the
observation of its own employees or representative or investigation of complaints by
Customers, occupants, and Generators.
Liquidated Damages will only be assessed after Contractor has been given the opportunity but
failed to rectify the damages as described in this Agreement. Before assessing Liquidated
Damages, City shall give Contractor notice of its intention.to do so. The notice will include a
brief description of the incident(s) and/or non-performance. The City may review (and make
copies at its own expense) all information in the possession of Contractor relating to incident(s)
and non-performance. City may, within 10 calendar days after issuing the notice, request a
meeting with Contractor. City may present evidence of non-performance in wríting and through
testimony of its employees and others relevant to the incident(s) and non-performance. City
will provide Contractor with a written explanation of its determination on each incident(s) and
non-performance prior to authorizing the assessment of Liquidated Damages under this Section
11.4. The decision of City shall be final and City shall not be subject to, or required to exhaust,
any further administrative remedies.
Amount. City may assess Liquidated Damages for each calendar day or event, as appropriate,
that Contractor is determined to be liable in accordance with this Agreement in the amounts
specified in Exhibit A subject to annual adjustment described below.
The amount of Liquidated Damages specified in Exhibit A shall be adjusted annually on the
anniversary of the Effective Date. The adjustment shall be rounded to the nearest cent.
liquidated Damage amounts shall be adjusted to reflect changes in the Consumer Price lndex -
All Urban Consumers (CPI-U) comp¡led and published by the U,S. Department of Labor, Bureau
of Labor Statistics or its successor agency, using the following Bureau of Labor Statîstics'
parameters.
. Not Seasonally Adjusted. Area - Los Angeles-Riverside-Orange County, CA. ltem - All ltems. Base Period - 1982-84=100
The formula for annual adjustment is as follows:
Adjusted Liquidated Damage
Amount
Then-current Liquidated Damage Amount x
most current CP|-U/previous 12-month CPI-U
City of Fresno Roll-Off Agreement
4ls/77
Page 37
For example:
Current Liquidated Damage Amount = $15o.0o
Most recently published index (January 2010) = 224.6LO
lndex published 12 months prior to most recently published index
(January 2009) = 220.719
Adjusted Liquidated Damage Amount = 5150.00 x 1224.6IO/220J791= S152.64
lf the CPI-U is discontinued or revised during the Term by the United States Department of
Labor, such other government index or computation with which it is replaced shall be used in
order to obtain substantially the same result as would be obtained if the CPI had not been
discontinued or revised.
D. Timing of Payment. Contractor shall pay any Liquidated Damages assessed by City wíthin 10
calendar days of the date the Liquidated Damages are assessed. lf they are not paid within the
10-day period, City may order the termination of the rights or "franchise" granted by this
Agreement.
1I.5 DIVERSION NON.PERFORMANCE
lf the Contractot's Diversion level is less than 50% tor C&D, less than 70% for Recyclable Materials,
and/or less than 90% for Organic Materials Collected in the City for a monthly reporting period, the
following steps shall be followed by the City and Contractor.
Warning. The City shall issue a written warning to the Contractor within 30 calendar days of
receipt of the Contractor's monthly report documenting the Diversion level for the monthly
reporting period. The warning notice shall specify the amount of time (i,e. "correction period")
the City grants the Contractor to improve its performance and meet the Diversion requirements
defined in Section 5.3.
Opportunity to lmprove Performance, The Contractor shall modify its Collection, Processing,
Diversion, and public education and outreach programs (subject to the City's approval) to
improve the Diversion level. At the end of the correction period, Contractor shall submit a
written report to the City identifying the Diversion level and providing the supporting
documentation. lf the City determines that the Diversion level equals or exceeds Diversion
requirements defined in Section 5.3, the Contractor shall continue to perform services in such a
manner as to maintain or improve the Diversion level and the Cíty shall waive its rights to
proceed with steps outlined in subsections C and D of thÍs Section 11.5 during the remainder of
then-current reporting period.
liquidated Damages, lf the Contractor fails to improve the Diversion level so that it is equal to
or greater than Diversion requirements defined in Section 5.3 by the end of the correction
period granted in subsection A of this Section, the City may levy, and Contractor shall pay,
Liquidated Damages described in Section 11.4.
Termination of the Agreement. lf Contractor's fails to achieve a Diversion level that equals or
exceeds Diversion requirements defined in Section 5.3 within six months of the date the City
levied Liquidated Damages, the failure to meet the Diversion requirements defined in Section
City of Fresno Roll-Off Agreement
4ls/17
A.
B.
c.
D.
Page 38
B.
5.3 shall be considered an event of default and the City may terminate the Agreement in
accordance with Section L1.2.
11.6 CONDITIONS UPON TERMINATION
ln the event this Agreement is terminated under the provisions of this Article, the following conditions
shall be effectíve:
Prohibit Roll-Off Collection Services. Contractor shall have no right or authority to engage in
Roll-Off Collection services in the City for a period of five years from the date of termínation.
After five years, should the Contractor provide proof that the event causing the Contractor to
default under this Agreement has been corrected, the Contractor may reapply for a non-
exclusive Roll-Off Collection service franchise, and the Cíty, at the sole and complete discretion
of the City, may reinstate the Contractor based on review of its reapplication.
Continuing tiabilities. Contractor shall remain liable to the City for:
Fees due ín accordance with Article 8 that would otherwise be payable by the Contractor.
Liquidated Damages assessed pursuant to Section 11.4.
Reports required by Article 7 for Roll-Off Collection activities performed by Contractor up to
and including the date of termination.
lndemnity obligations under Section 10.1.
5. Record keeping and retention obligations under Sections 7 .7 and 7.2.
Release Customers and Generators from Obligations. Contractor shall allow Permitted
Materials Generators serued by Contractor to arrange for Permitted Materials Collection
services with a hauler authorized to perform such services, without penalty or liability for breach
of any contract between Contractor and its Customers or Generators.
Remove Roll-Off Containers. Contractor shall remove all of Contractor's Roll-Off Containers
from all of Contractor's Collection locations and shall properly Recycle, Process, Compost, or
Dispose of Permitted Materials in such Roll-Off Containers.
ARTICLE 12
OTHER AGREEMENTS OF THE PARTIES
12.1 RELATIONSHIP OF PARTIES
The Parties intend that Contractor shall perform the services required by this Agreement as an
independent Contractor engaged by CÌty and not as an officer nor employee of the City, nor as a partner
of, or joint venturer with, the City. No em ployee or ägent of Contractor shall be, or shall be deemed to
City of Fresno Roll-Off Agreement
4/s/7r
7
2.
3.
4.
c.
D.
Page 39
be,anemployeeoragentoftheCity. Exceptasexpresslyprovidedherein,Contractorshall havecontrol
over the manner and means of conducting the Roll-Off Container Collection, Transportation, Processing,
Recycling, Composting, and Disposal services performed under this Agreement, and all Persons
performing such services. Contractor shall be solely responsible for the acts and omiss¡ons of its
officers, employees, Subcontractors, and agents. Neither Contractor nor its officers, employees,
Subcontractors and agents shall obtain any rights to retirement benefits, workers' compensation
benefits, or any other benefits which accrue to City employees by virtue of their employment with the
City.
12.2 PERMITS AND LICENSES
Contractor shall obtain and maintain, at Contractor's sole cost and expense, all permits and licenses
applicable to Contractor's operatíons under this Agreement which are requíred by any governmental
agency.
12.3 COMPLIANCE WITH LAW
Contractor shall, at all times, at its sole cost, comply with all Applicable Laws.
12.4 GOVERNING LAW
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the
State of California.
12,5 JURISDICTION
Any lawsuits between the Parties arising out of this Agreement shall be brought and concluded in the
courts of Fresno County in the State of California, which shall have exclusive jurisdiction over such
lawsuits.
With respect to venue, the Parties agree that this Agreement is made in and will be performed in Fresno
County.
12.6 BINDING ON SUCCESSORS
The provisions of this Agreement shall inure to the benefit to, and be binding on, the successors and
permitted assigns of the Parties.
12.7 ASSIGNMENT
Neither Party shall assign its rights nor delegate or otherwise transfer its obligations under this
Agreement to any other Person without the prior written consent of the other Party. Any such
assignment made without the consent of the other Party shall be void and the attempted assignment
City of Fresno Roll-Off Agreement
4/sht
Page 40
shall constitute a material breach of this Agreement. Under no circumstances shall any assignment be
considered by City if Contractor is in default at any time during the period of consideration.
I2.8 PARTIES IN INTEREST
Nothing in this Agreement, whether express or implíed, is intended to confer any rights on any Persons
otherthan the Parties to it and their representatÍves, successors and permitted assigns.
12.9 WAIVER
The waiver by either Party of any breach or violation of any provisions of this Agreement shall not be
deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach
of violation of the same or any other provision. The subsequent acceptance by either Party of any
monies which become due hereunder, shall not be deemed to be a waiver of any pre-existing or
concurrent breach or violation by the other Party of any provision of this Agreement.
12.10 NOTICE PROCEDURES
All notices, demands, requests, proposals, approvals, consents, and other communications which this
Agreement requires, authorizes or contemplates all, shall be in writing and shall elther be personally
delivered to a representative of the Parties atthe address below or deposited in the United States mail,
first class postage prepaid, addressed as follow_s:
A. lf to City:
Public Utilities Director
City of Fresno
2600 Fresno St,, Room 3065
Fresno, CA 9372L-3624
B. lf to Contractor:
The address to which communications may be delivered may be changed from time to time by a notice
given in accordance with this Section.
Notice shall be deemed given on the day it is personally delivered or, if mailed, three calendar days from
the date it is deposited in the mail.
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12,11 REPRESENTATIVES OF THE PARTIES
References in this Agreement to the "City" shall mean the City Council and all actions to be taken by the
City shall be taken by the City Council except as provided below. The City Council may delegate, in
writing, authority to the Director and/or to other City officials and may permit such officials, in turn, to
delegate in wríting some or all of such authority to subordinate officers. The Contractor may rely upon
act¡ons taken by such delegates if they are within the scope of the authority properly delegated to them.
The Contractor shall, by the Effective Date, designate in wr¡ting a responsible officer who shall serve as
the representative of the Contractor in all matters related to the Agreement and shall inform the City in
writing of such designation and of any limitations upon his or her authority to bind the Contractor. The
City may rely upon action taken by such designated representative as actÍons of the Contractor unless
they are outside the scope of the authority delegated to him/her by the Contractor as communicated to
City.
12.12 CRIMINAL ACT¡VITY OF CONTRACTOR
12.l2.l Criminal Activity
For purpose of this Section, Criminal Activity shall mean any of the following events or circumstances:
A. Convictions. The entry against any Contractor Party or its officers, of a criminal conviction or a
permanent mandatory or prohibitory injunction from a court, municipality, or regulatory agency
of competent jurisdiction, based on acts taken in his or her official capacity on behalf of
Contractor with respect to:
L Fraud or criminal offense in connection with obtaining, attempting to obtain, procuring or
performing a public or private agreement related to municipal Solid Waste services of any
kind (íncluding Collection, Transportation, transfer, Processing, Recycling, Composting, or
Disposal), including this Agreement or any amendment thereto;
2. Bribery or attempting to bribe a public officer or employee of a local, State, or Federal
agency;
3. Embezzlement, extortion, racketeering, false claíms, false statements, forgery, falsification
or destruction of records, obstruction of justice, knowingly receiving stolen property, theft,
or m¡sprision (failure to disclose) of a felony;
4. Unlawful disposal of Hazardous Wastes, the occurrence of which any Contractor Party
knew or should have known;
Violation of antitrust laws, including laws relating to price-fixing, bid-rigging, and sales and
market allocation, and of unfair and anti-competitive trade practices laws;
Violation of securities laws: and
Felonies-
City of Fresno Roll-Off Agreement
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6.
7.
Page 42
B. Pfeas. Entry of a plea of "guilly," "nolo contendere," or "no contest" by a contractor party
based on acts taken in his, her, or its official capacity on behalf of Contractor with respect to the
conduct described in preceding Section 72.I2.L.A.
12.12.2 Notice
Contactor shall notify City in writing within five calendar days of occurrence of any Criminal Activity by
any Contractor Party.
12.t2,3 Contractor's Cure
Upon occurrence of any Criminal Activity, Contractor shall immediately do or cause to be done all of the
followÍng:
A. Terminate from employment or remove from office any offending individual Contractor Party,
unless otheruise directed or ordered by a coun or regulatory agency of competent jurisdiction
or authority, and unless that termination would constitute a breach of any labor agreement
entered into by Contractor, and
B. Eliminate participation by any offending individual Contractor Party ¡n any management,
supervision, or decision activity that affects or could affect, directly or indirectly, the
performance of the Contractor under this Agreement.
t2.t2.4 Transfer and Hiring
Contractor shall not allow or cause to be allowed to hire or transfer any individual from any parent
Company or subsidiary company or business entity of Contractor who has committed Criminal Activity
as a Contractor representative, field supervisor, officer, or director who is directly or indirectly
responsible for performance of this Agreement without obtaining prior written consent of City,
following full disclosure to City of the facts and circumstances surrounding such Criminal Act¡vity.
12.L2.5 City's Remedy
ln the event of any occurrence of Criminal Activity, the City, in its sole discretion, 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 foll<lwing events:
A. contractor fails to comply with the foregoing obligation of this section, or
B. The Criminal Activity concerns or relates directly or indirectlr/ to this Agreement.
Contractor shall be given the opportunity to present evidence in mitigation during the 30-calendar day
notice period.
12.13 ACKNOWLEDGMENT OF PUBLIC RESOURCES CODE SECTION 49520 NOTICE
lf Contractor has lawfully provided solid waste collection services in the City for more than three (3)
years prior to July I,2OII (and is therefore entitled to the notice provided for in Public Resources Code
49520l,, Contractor shall consider execution of this Agreement by the CÌty as City's notice to Contractor,
pursuant to Public Resources Code 49520, that Contractor may provide service for a period of five (5)
City of Fresno Roll-Off Agreement
4ls/17
Page 43
years beyond July 1, 2Olt, after which time the City has the right to establish an exclusive franchise
collection system.
ARTICLE I3
MISCELLANEOUS AGREEM ENTS
13.1 ENTIRE AGREEMENT
This Agreement, includlng 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 sectÍon headings in this Agreement are for convenience of reference only and
are not intended to be used in the construction of this Agreement nor to alter or affect any of its
provrstons.
I3.3 REFERENGES TO LAWS
All references in this Agreement to laws shall be understood to include such laws as they may be
subsequently amended or recodified, unless otherwise specifically provided.
13.4 INTERPRETATION
This Agreement shall be interpreted and construed reasonably and neither for nor against either Party,
regardless of the degree to which either Party participated in its drafting.
13.s PRoNoUNS AND PLURALS; TENSE
When not inconsistent with the context, words and phrases used in the present tense include the
future, and words and phrases used in the singular number include the plural number. Whenever the
context 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.
City of Fresno Roll-Off Agreement
4/s/77
Page 44
13.6 TEXT TO GONTROL
The captions of the Articles or Sections in this Agreement are for convenience only and in no way define,
limit, extend or describe the scope or intent of any of the provisíons hereof, shall not be deemed part of
this Agreement and shall not be used in construing or interpreting this Agreement.
13.7 AMENDMENT
This Agreement may not be modified or amended in any respect except ín writing signed by the Parties.
13.8 SEVERABILITY
lf any non-material provision of this Agreement is for any reason deemed to be invalid and
unenforceable, the invalidity or unenforceabilÍty of such provision shall not affect any of the remaining
provisions of this Agreement, which shall be enforced as if such invalid or unenforceable provision had
not been contained herein.
I3.9 COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be considered an original.
{3.10 ËXH|B|TS
Each of the Exhibits identified as Exhibit "A" through "D" is attached hereto and incorporated herein and
made a part hereof by this reference.
City of Fresno Roll-OffAgreement
4/sht
Page 45
Ç,\-/
-$þ _
¿6¿aÅ
EXHIBITA
SCHEDUTE FOR TIQUIDATED DAMAGES
Contractor may be assessed Liquidated Damages if Contractor fails to fulfill its obligations with regards
to the events listed in this Exhibit in accordance with the terms and conditions of the Agreement with
regards to the time frame for accomplishing each event and nature of the responsibility associated with
the event unless otherwise stated in this Exhibit.
1.Diversion. Failure to achieve and maintain a minimum of 50%
Diversion per month of all C&D Collected within the City, 70%
Diversion per month of all Recyclable Materials Collected within the
City, and 9O% of all Organic Materials Collected within the City.
The greater of 55,000 or
7O% of the gross Rate
revenLles received for
providing C&D,
Recyclable Materials,
and Organic Materials
services in the City, for
the most recent 12-
month period
2.leaks, litter or Spills. For each occurrence over five during a calendar
year of unreasonable leaks, litter, or spills of Permitted Materials near
or on public streets and failure to pick up or clean up such material
immediately.
$3oo/ event
3.Unauthorized Collection Hours. For each occurrence over five during
a calendar year of Collecting Permitted Materials during unauthorized
hours.
S300/ event
4.Excessive Noise. For each occurrence over 10 during a calendar year
of excessive noise.
S300/ event
5.Cleaning Collection Vehicles. For each occurrence over five during a
calendar year for failure to keep Collection vehicles in a safe and
sanitary condition.
S150/ event
6.[abeling of Roll-Off Containers. For each occurrence of Contractor's
failure to correctly label Contractor-owned Roll-Off Containers (in
accordance with Section 6.4.C).
5500/ event
7.Discourteous Behavior. For each occurrence of discourteous behavior
by Collection vehicle personnel, customer service personnel, or other
employees of Contractor.
S500/ event
8.Injuries to Others. For each incident of personal injury to a person
requiring medícal treatment or hospitalization, where the negligence
of the Contractor or its personnel was a contributÍng factor to the
injury.
S5,000/ incident
9.Monthly Reports. Failure to submit monthly reports in the timeframe
specified in this Agreement.
Ssoo/ day*
10.Report Hazardous Waste. For each failure to notifli the appropriate
authorities of reportable quantities of Hazardous \¡liaste.
S5oo/ event
A-1
lnitial Here:
7I. I failure of Other Obligations. Failure to perform any of the obligations I SfSO/ for each
set forth in this Agreement not specifically stated above and not I obligation per day until
corrected or proceeding in good faith to correct within 24 hours upon I obligation is performed
24 hour notification by City.
+ Monthly reports shall be considered late until such time as a correct and complete
monthly report is received by City. For each calendar day a report is late, the daily
Liquidated Damage shall be as indicated in the monthly reports section above.
ln placing Designee's initials at the places provided, each Party specifically confirms the accuracy of the
statements made above and the fact that each Party has had ample opportunity to consult with legal
counsel and obtain an explanation of Liquidated Damage provisions of the time that the Agreement was
made.
Contractor City
lnitial Here:
A-2
EXHIEIT B
SECRETARY'S CERTIFICATION
The undersigned, being the Secretary of
Company Name
California corporation (the Company"), do hereby certîfy that the following resolution was adopted by
the Board of Directors of the Company and that such resolution has not been amended, modified or
rescinded and is in full force and effect as ofthe date hereof:
RESOLVED, that be, and hereby is, authorized to
Name of Designated Representative
execute by and on behalf of the Company any and all agreements, instruments, documents or papÊrs/ âs
he/she may deem appropriate or necessary, pertaining to or refating to the Non-Exclusive Franchise
Agreement between the City of Fresno and Company for Roll-Off Container Collection, Transporting,
Processing, Recycling, cornposting, and Dîsposal of Permitted Materials and that any such action taken
to date is hereby ratífíed and approved.
fr¿snò t-
Signature
B-1
EXHIBIT C
STATEMENT OF APPLICANT'S UNDERSTANDING
AND REPRESENTATIONS
The undersigned (who is duly authorized to bind the cornpany submitting this application) has reviewed
the requirements of the non-exclusive franchise agreement for Roll-Off Collection, Transporting,
Processing, Recycling, Composting, and Disposal services for Solid Waste, Recyclable Materials, Organic
Materials, and C&D, its exhibits, and reference documents. ln addition, the undersigned attests that this
application and anyothersupplementary information subrnitted with this application do not: (i)contain
any untrue statement of a material fact, (ii) contain inaccurate or misleading information, or (iii) omit to
state a material fact that is necessary to make the statements made, in light of the circumstances in
which they were made, not misleading.
Print Name
Ovrcr / cco
Date
Tte
Company Name
Signatu re
c-t
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City of Fresno
Non-Exclusive Franchise Agreement for Roll-Off Collection Application
Cover Letter
Submitted: 6124/L4
Applicant lnformation :
A. Companv Name:
B. Form of Business:
C. Contact Name:
Mini Dumpsters of Fresno, LLC
Corporation/LLC
Nate Perry
Title: Chief Financial Office
Phone: (559) 213-0571
Fax: (559) 389-095s
Email: nate@centra lvallevassemblv.com
Mini Dumpster of Fresno
3443 N. Parkway Dr. PMB #1
Fresno, CA93722
D. Mailing Address:
F.
Names of Persons: Nathan Perry
Nicholas Avilia
Names of Members: Not Applicable
Names of Officers: Nick Avila - Chief Executive Office
Nate Perry - Chief Financial Officer
Desired Effective Date: July 1.,201.4
E.
G.
H.
Company Officer Signature:
Notify Erlv¡ronmental Health of any change of ownership, type of
bus¡ness âcl¡v¡ty, business name, or bill¡ng âddress by calling SSg
600-3357. Failure to not¡fy Env¡ronmental Health may result in late
penalties, PemÌit denial or revocalion, and business closure, Permits to
Operate and fee payments are nottransferable or refundable. permits
become vo¡d on change of ownership, New owners must apply and pay
for a new Perm¡l(s) prior to beginn¡ng operation or penalties will be
assessed at 1 0% per month or fracl¡on lhereof.
YOU ARE RESPONSIBLE FOR THE ANNUAL RENEWAL OF YOUR
PERMIT(S) PRIOR TO THE EXPIRATION DATE WHETHER YOU
RECEIVE A RENEWAL INVOICE OR NOI
ATTN : NICHOLAS AVILA
MINI DUMPSTERS OF FRESNO
3443 N PARKWAY DRIVE, PMB 1
FRESNO CA 93722
cT003801
DETACH FORIV HERE AND DISPLAY CONSPICUOUSLY ON THE PREMISES
REGULATED FACILITY:
Department of Public Health
Env¡¡onmental Health Division
P O Box 11867, Fresno CA 93775-1867
559 600-3357
Env¡ronmentalHeàlth@co lresno.æ us
w.fcdph.org
MINI DUMPSTERS OF FRESNO
3443 N PARKWAY DR
FRESNO CA 93722
FacilitylD: FA0283.105
Accounl lD: 4R0033482
lssued: 3/6i2014
OWNER NA¡/E:AVILA, NICHOLAS
Permit to operate #PT00203371PR0072010 - 4403-soltD wASfE coLLEcÏoN vEHtcLE
Permit Valid From 111l20'l4To 1213,11201
David Pomaville, M.B.A., R.E.H.S., Director, Department of Public Health
Permits to operate and fee payments are not transferable or retundable. Perm¡ts referenced above are valid only forthis owner: AVILA,
NICHOLAS' Permits become void on change of owneßh¡p. New owners must apply and pay for a new Permit(s) prior to begjnning operat¡on or
ÞENAII¡ES W|II bE ASSESSEd YOU ARE RESPONSIBLE FOR THE ANNUAL RENEWAL OF YOUR PERMIT(S) PRIOR TO THE EXPIRATION DATE
WHETHER YOU RECEIVE A RENEWAL INVOICE OR NOT.
THIS F YON
90l7ml 632013
.-leconif
\-t'CERTIFICATE OF LIABILITY INSURANCE DATE (MMIDDÍYYYY)
6/L6/20L4
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERT]FICATE HOLDER. IHIS
CERTIFICATE DOES IIOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTI'IORIZED
REPRESENTATIVE OR PRODUCER, AND TH= CERTIFICATE HOLDER.
IMPORTANT: lf the ce¡tificate holde¡ is an ADDITIONAL INSURED, the policy(ies) must be endorsed. lf SUBROGATION lS WAIVED, subject to
the terms and conditions of the policy, certain policies may require an endorsement, A statement on this ceñificate does not confer rights to the
cert¡ficate holde¡ in Iieu of such endorsement(s).
PRODUCER
James G Parker Insurance Associates
License #0554959
P O Box 3947
Fresno CÀ 93650
lËlcr .âny Bonbini
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!!".. a¡o¡r¡ini G'i sparke¡ . con
INSURERISì AFFOROING COVERAGE NAIC #
TNSURERA:ohio securitv Insurance co¡npany 24082
INSURED
Míni Durupsters of Fresno
4623 N. Kavanagh
Fresno CA 93705
nsunen¡Ohio Casualtv Insurance 2407 4
rNslrRER c lFinancial Pacific 11¿53
rr¡sunsnn,united Sr¡ecialtv Insurance t2537
INSIIÞFÞ F
CERTIFICATE NUMBER:14-15 REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANGE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LÍMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
COMMERCIAL GENERAL LIAEILITY
.LA.M'-MADE lxl o."r*
GEN'L AGGREGATE LIMIT APPLIES PER:
L2/20L4
2/20L5
AUTOTOBILE LIABILIÍY
ALLOWNED I I SCHEDULEDAUTOS I I AUTOSI I NON€WNED
HIREDAUTOS I l¡Wos
BODILY INJURY (Per peFon)
WORKERS COMPENSANON
ANDETPLOYERS'LIABTLITY YIN
ANY PROPRIETORiPARTNERÆXECUNVE T---'']
OFFICER/MEMBER EXCLUDEO? I I(¡landatory ln NH)
Aggregate: $3,000,000 Ded: $2 ,
Occrrence: $3,000,000
DESCRIPIION OF OPÊRATIONS / LOCATIONS / VEHICLES (Atlach ACORD 101, Addltimal Remarks Schedule, ¡f mole space ls rcquired) -oiìêèÈor of pu¡fic Utíli€ies CiÈy of Fresno, The City, its'offièers,'officials, eq>loyees, agents and
volunteers are named as Àdditional Insured/Pxinaxy and Non-Contributory rording applies with respecÈs to
General Liability per forn CG2001 0413 aÈtached. tfaiver of Subrogation applies wittr tesPects to General
Liability per fom CG24O4 1093 attached. Per ProjecÈ wording applies with respecÈs to General LiabiliÈy
per for:m Cc 88 70 1208 attached. lûamed as Additi-ona]- Insu¡ed/Prinzry and Non-CottÈributory wording
applies riÈh respects to Business Auto per fo¡rm' CA 88 66 0513 attached. fÍaiver of Subrogation applies
rith respects to Business Auto per fonr CÀ 88 62 0113 aÈtached.
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXP]RATION DATE THEREOF, NOTICE WLL BE DELIVERED IN
ACCORDANCE WTH THE POLICY PROVISIONS,Director of Pr¡blic tlÈilitiesCity of Fresno
2600 Fresno St¡eet
Fresno, CA 9312L-362O
s Parker rrrll¡rr ó{* é &¿
ACORD 25 (20r0105)
lNSfì25 r:ntnnstnr
@'1988-2010 ACORD CORPORATION. All rights reserved.
tha ¡lalÞtl n¡ma ¿n¡{ la¡¡ ¡ra raaiefo¡or{ mâdrc ^f ÀnnÞn
A. Descríptíon of Applícant
1. Nicholas Avila
President and CEO of Miní Dumpsters of Fresno, LLC
Ownership:65%
Residence Address
4633 N. Kavanaugh Ave
Fresno, CA 93705
Phone: (559) 307-8464
Other Business
California Jumping of Fresno
3443 N Parkway Drive PMB #L
Fresno, C493722
Phone: (559) 307-8464
www.ca I iforniaj um pi ng.com
2. Nathan Perry
Vice President and CFO of Mini Dumpsters of Fresno, LLC
Ownership:35%
Residence Address:
6474 N Harrison
Fresno, CA 93711
Phone: (559) 2L3-0571
Other Business Ownership 66% Other Business Ownership 50%
Centrøl Volley Assembly ønd Pøckaging,lnc. Tandem Pøc, LLC
1640 H Street 8601 W Cross Dr. F5#229
Fresno, CA93721. Littleton, CO 80L23
Phone: (559) 436-4260 Phone: (800) 559-3013
Fax: (559) 389-0599 Fax: (720) 259-8777
www.centralvalleyassembly.com www.tandempac.com
B. Experîence:
Mr. Avila has worked in the waste management industry for over 14 years. He was employed at Levi's
lron and Metal in Fresno, CA for over 13 years. While employed at Levi's lron & Metal, Mr. Avila worked
as a full time roll-off dumpster truck driver. Through those years he worked from the bottom up, helping
and learning in any way he could. Mr. Avila took on many extra duties and eventually began to help
ownership with many different management duties. Mr. Avila has an enormous amount of knowledge
and experience in this industry.
C. Municípol References
Kevin Jackson
Commercial Manager
3489 S. Chestnut Ave.
Fresno, CA93725
Phone: 661.-243-6922
D. Customer References
Dan Mortenson
San Joaquin Fig Logistics
3564 N. Hazel
Fresno, C493722
Phone: (559) 905-6291
Chuck Harrison
C &C Productions
1636 H Street
Fresno, Ca9372L
Phone: (5591264-3264
Maria Nagar
Casa Del Sol
1370 N. Fresno St.
Fresno, CA 93703
Phone: (559) 485-1555
E. Proof of lnsurance
Please see lnsurance Certificates.
F. Lítiøotion, Reaulotorv octions and Liquidoted Damaaes
Niether Mr. Avila or Mr. Perry, have any litigations, regulatory actions or liquidated damages
outstanding or pending.
G. CrímínølHistorv
Mr. Avila has no criminal history.
Mr. Perry has no criminal history.
ll, Operations lnformotion
A. Diversion Plan
Before the containers are taken to the correct Certified Proccessing Site for proccessing, a visual
inspection is performed by a Mini Dumpsters of Fresno employee, The visual inspection helps to
evaluate what Proccessing Site would be best for the container to be sent to. The containers that have
collected a mix of different waste materials are transported to the American Ave Landfill in Fresno City.
All containers collected by MDOF are dumped and proccessed at one of the City's designated processing
facilities for proper material diversion. C&D Mater¡als that are collected, will be sent to Cedar Avenue
Recycling & Transfer station. The Recyclable Material that is collect will be taken to Allen Company on
Sunland Ave. or to Bairos Recycling on Orange Ave. All Organic Material that is collect, will be taken to
West Coast Waste Company on S. Golden State. All other waste materials that are collected will be sent
for processing at the American Ave Landfill..
B. Vehícles
2005 Chevrolet Silverado 2500
vt N# LGCHC29UXsE215018
Under 7500 pounds
Roll-off Containers Trailer
AtN# CA1123s22
Lic. Plate # 4KT5868
C. Roll off contoiners
1 X 7 cubic vard containers- L2' x 7.5' x 2'
4 X l-4 cubic vard containers- 12'x 7.5' x 4'
L X 16 cubic vard containers- 13'x 8'x 5'
D. Collectíon Schedule
Containers are rented to residential customers at a 4 day minimum. Most commercial customers rent
containers at a 7 day minimum. Hours of operation will occur Monday through Saturday, 8:00 am to
5:30 pm. Mini Dumpsters of Fresno will make daily pick-ups and drop-offs to different customers. Waste
containers will be inspected and dumped on a daily schedule as required.
E. Permitted Materiøls to be collected
Asphalt
Concrete/Cement
Sheet Rock
Cardboard
Foam
Packing Material
Ceramic Tile
Carpet
Plastic
Lumber/Wood
Grass
F. Processíno ond Disposol Facilitíes
Green trimmings
Shrubs
Weeds
Branches
Dead Trees
U npainted/Untreated Wood
Paper
Aluminum Cans
P lastic Co nta iners/Bottles
Household Trash
1. Cedar Avenue Recvclins and Transfer Station
3457 S Cedar Ave
Fresno, CA93725
(sss) 233-11s8
2. Sunset Waste Transfer Station
272tS.Elm
Fresno, CA 93706
(ss9) 499-1s9s
3. American Avenue Landfill
18950 W American Avenue
Kerman C4,93630
(sse) 600-6L38
4. Allan Companv
2525 S Sunland Ave
Fresno, CA
(ss9) 237-0s90
5. Bairos Recvcling
27885 Orange Ave
Fresno, CA93725
(5s9t,233-Oe22
6. West Coast Waste Companv
3077 S Golden State Frontage Rd
Fresno, CA93725
(ss9) 497-s320
G. Hazardous waste procedures
Mini Dumpsters of Fresno does not accept liquids of any kind. We do not permit any hazardous
materials to be placed in the containers, such as:
All customers will receive a Service Agreement form prior to receiving roll-off container services. The
Service Agreement will be clearly explained before customers sign and receive a copy of their own. The
Service Agreement includes MDOF's procedure on hazardous waste.
When Mini Dumpsters of Fresno's personnel encounters hazardous material or waste during collection
activities or prior to dumping, an attempt will be made to contact the responsible customer
immediately. lf the customer proves unreachable, the hazardous material will be tagged and left. A
Corrective Action Notice will be applied to the container indicating the reason for non-collection. The
Corrective Action Notice directs the customer to contact the appropriate services responsible for
Household Hazardous Waste. This incident will be logged in MDOF's company software. lf the waste
poses an eminent threat to people or property, MDOF will immediately contact the closest Fire
Department. ln the case where the hazardous material is discovered at the landfill or transfer station,
then an attempt will be made to identify the customer responsible, to request removal and proper
disposal. lf identification of the customer is not possible or the customer fails to claim and handle the
material, MDOF will arrange for proper disposal of it. The customer responsible, if known, will be billed
for the proper disposal.
H. Customer Seruice Plons
Our office will be open from 8a-6p daily, Monday through Friday. Staff will be available to provide
customer service including general questions, billing questions, payments and explanations of services
and fees during these hours. After hour business calls will be answered by an automatic answering
device. Customers will be able to listen to basic company contact information and an emergency contact
number as well as, have the option to leave a recorded messages. All customer messages will be
addressed within a24hr time frame.
l. Billino Seruices
Mini Dumpsters of Fresno will issue each customer a service agreement and an invoice before service is
provided. The service agreement explains the service that the customer is agreeing to. The service
agreement includes the obligations of the customer and the rules that apply to renting a roll-off
container from MDOF. The service agreement includes a list of materials that are not allowed in the roll-
off containers. lt also lists the extra charges that may be added to the customer's invoice, if MDOF is
forced to remove the non-authorized items from the containers. MDOF will not provide services to
customers without a signed invoice and a signed service agreement.
Mini Dumpsters of Fresno will enter all billing and invoices through a server based company software.
All billing and invoices are entered and tracked through this software. MDOF will track and record all
incoming weight mater¡al received and weight material dumped. All dumping diversion rates will be
recorded and monitored for each waste material category. All hard copies of invoices and billing are
kept and filled for record. The original hard copies that are filed are kept on hand and on-site for at least
L2 months. The company's software is set to automatically back-up on a cloud based server every 6
hours to reduce the risk of information being lost.
Mini Dumpsters of Fresno has provided different options for our customers to pay for service. MDOF has
implemented an online payment method, where customers can go to the company website online and
pay for services. Customers also have the option of paying by credit card, either by phone or at our
office. For residential customer's using the roll-off containers, a valid credit card number or some form
of payment is required for deposit. All approved commercial customers are billed at the end of each
month and placed on a billing cycle of a Net 20 days. When an account is past due 30 days, a notification
will be sent via mail and phone for collection of payment. An interest charge of 5% is assessed and sent
after 45 days past due.
Mini Dumpsters of Fresno Ownership Signatures
CEO Signature:
COO Signature: