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Home My WebLink AboutPruner Enterprises Inc. - Non-Exclusive Franchsise for Roll-Off Collection ServicesNON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF FRESNO AND (PkuuER ✓ fumtlF'mjry �c FOR ROLL -OFF COLLECTION SERVICES 2011 Table of Contents ARTICLE 1 DEFINITIONS ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR .......... — .................... 8 2.1 REPRESENTATIONS AND WARRANTIES ARTICLE 3 TERM OF AGREEMENT ............................................................................................9 ......................................................................................... 31 EFFECTIVE DATE 4A ,.... 3.2 CONDITIONSTO EFFECTIVENESS OF AGREEMENT ....... y „ED 33 INITALTERM. ....... ...._............. _....._.. ......_... 34 OPTION TO EXTEND _..__... •__ .... 10 ._ ARTICLE 6 SCOPE OF AGREEMENT ......................................................................................... li 4A SCOPE OF AGREE M ENT ....... ...._............. 11 4.2 LIMITATIONS TO SCOPE 4.3 ...__. CITY'S RIGHT TO GRANT M ULTIPLE NON-EXCLU5IVE AGREEM UNITS .... 12 13 64 CITY S RIGHTTO EXCLUDE NEWLY ANNEXED TERRITORY FROM SCOPE OF FRANCHISE ..... 45 _.......13 AGREEMENT CONSISTENT WITH APPLICABLE LAW 4.6 ..... ....... ...... .._ _............. OWNERSHIP OF MATERIALS _... 13 4 __.......- .. _.......... ....... NOTIFICATION TO CITY OF NON- FRANCHISED HAULERS. ,,-,13 ARTICLE 5 COLLECTION, PROCESSING, AND DISPOSAL SERVICES ............................................ SA 5.1 COLLECTION... .... 1 ... ...._.- 14 5.2 PROCESSINGAND MARKETING SERVICES 14 5.3 .,.;....... DIVERSION REQUIREMENMENT... 54 ...... ... ..... _.......16 _.. DISPOSAL...... 5,5 _........... _ ....16 BILLING 5.6 _- _. ...._. .._..... CUSTOMERSERVICE v __. ..17 ARTICLE 6 STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT, AND PERSONNEL 17 63 OPERATING DAYS, HOURS, ANDSCHEDULES .... ..... ...... __yT 6.2 COLLECTION STANDARDS ��„ ._.__ 6.3 VEHICLE REQUIREMENTS 6.4 __..... ROLLOFFCONTAINER REQUIREMENTS �.. _. 19 ._�.�__.20 6.5 PERSONNEL.... 6.6 ........... HAZARDOUS WASTE INSPECTION AND HANDLING.. 22 22 67 NONDISCRIMINATION 6.8 _....... .. COMMUNICATION AND COOPERATION WITH CITY .... ,,.. ,.,33 11 ARTICLE Z RECORD KEEPING AND City of Fresno NonExclusiveRoll OH Agreement Pigg I 4/8/11 7 GENERAL.... ... 7.2 .... _... GENERAL..._ ... .,.. . ___.... 24 7.3 _..,,1. GENERAL REPORTING REQUIREMENTS .... 25 7 4 MONTHLY Y _ 26 ].5 ......_ 80939 COUNTY SURCHARGE PFPORTwu __16 ARTICLE 8 FRANCHISE FEES AND OTHER FEES ........................................................................ 38 0.1 GENERAL...... 8.2 _...,... FRANCHISE FEE _...... 28 8.3 _....... _... OTHER FEES_ ...,...... 28 84 ADJUSTMENT TO FEES _ 28 8.5 ..,,.. ...,._ PAYMENT SCHEDULE AND LATE FEES_ 28 8.6 OVERPAYMENT OF FEES 28 8] ...... NON CITY FEES; AT 939 COUNTY SURCHARGE 29 _��„ 29 ARTICLE 9 CONTRACTOR'S COMPENSATION AND RATES ....................................................... 29 9.1 CONTRACTOR'$COMPENSATION.. 92 CITY'S RIGHTTO SET MAXIMUM RATES _ 29 9.3 _.�.. CONTRACTOR'S RATES _ 29 ,..... ..... .1.-130 ARTICLE 101NDEMBIITY AND INSURANCE ............................................................... .. ._._....... 30 101 INDEMNIFICATION.. 102 _.. INSURANCE._ ..._ 30 _. _... .... 31 ARTICLE 11 DEFAULT AND REMEDIES ................................................................................. 35 11.1 EVENTS OTERMINADEFAULT. 11.2 _,.._ RIGHT TO DEFAULT __.... 35. 11.3 REMEDIES CUMULATIVE, CITY 'SREMEDIA NMUTATIVE SPECIFIC PERFORMANCE __ 36 L ._ UgERSION DAMAGES ..... 3S 11.5 NON DIVECONDITIONS NS ......_.36 11.6 ONNA CON DITIONS UPON TERMINATION. UPON TERMMANCE.INATION-- 38 ARTICLE 12 DINNER AGREEMENTS OF THE PARTES ................................................................ 39 12.1 RELATIONSHIP OF PARTIES 122 ..... _.... PERMITCOMPLISNCE LICENSES _ 39 123 .....,.._ _.,, COMPLIANCE WITH JAW __,....,, 40 124 .._. GOVERNING W .......__..40 12.5 _....... .. PURISOICTION .. 40 12.7 BINDING ON S _._ BINDING ON 40 12J ASSIGNMENT.. .... 40 12.8 .. ..SOPS._........... .. _.. PARTIES IN INTEREST ...........40 12.9 ... .___.. _....... WAIVER......... ..,. 41 �...... 12.10 _ NOTICE PROCEDURES 41 12.11 REPRESENTATIVES OF THE Pi42 _..........._..41 1212 CRIMINAL ACTIVITY OF CONTRACTOR 12,13 ACKNOWLEDGMENT OF PUBLIC RESOURCES CODE SECTION 49520 NOTICE...__........._..__.. 42 43 City of Fresno Non Exdunve RollOffAgreement 4/8/11 Page I, ARTICLE 13 MISCELLANEOUS AGREEMENrS .......................................................................... 44 13.1 ENTIRE AGREEMENT ............ 13.3 SECTION MEANINGS _� _......_.. ...... 133 REFERENCES TO LAWS __ ...4 __........ 13INT .4 INTERPRETATION _ .., 464 ,,SE 13.5 PRONOUNS AND -_ 13.6 TUCT L.... ...........__........._.... 44 .S.... .. AMEND ENrgot .....,_.... 13] AMENDMENT ......_.45 ....___.........__.......A5 _.... 136 SEVERA __. 13.9 LOUNTERPgRTS COUNTERPARTS �� 45 ......... _.... 13.10 EXHIBITS... .,_ ........ 45 _.. ........45 List of Exhibits A Schedule for Liquidated Damages B Secretary's Certification E Statement O Applicant's Understanding and Representations O Approved Processing and Residue Bkposil Facilities Cily of Fresno NonexclusiveFall OR Agreement Page it 4/g/11 NON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF FRESNO AND �.Qu.vC 2. 2Nf-0IJQ112S r i..fG . FOR ROLL -OFF COLLECTION SERVICES This nonexclusive franchise agreement (Agreement) is made and entered Into this 19f day of A09ii, 20 1 ( by and between the City of Fresno, a municipal corporatidq (City) and 2201,6/ hMFai )Corltrattor,l RECITALS This Agreement is entered into with reference to the following facts and onto Instances, WHEREAS, the Legislature of the State Of California, by enactment of the California Integrated Waste Management Act of 1989, codified at California Public Resources Code Seaton 600011 et sec. I'Arr) i, has declared that it Is in the public Interest to authorize and rill local agencies to make adequate Provisions for Solid Waste Collection within their juredlction; and WHEREAS, the State of California "State"l has found and declared that the amount of Solid Waste generated in California, coupled with diminishing landfill space and potential adverse environmental Impacts from landfilling and the need to commerce 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 Art, directed the responsible State agency and all local agencies, to promote Disposal Site Diversion and t0 maximize the use of feasible Solid Waste reduction, da e, Recycling, and Composting options In order t0 reduce the amount of Solid Waste that must be Disposed Of in Disposal Sites; and, WHEREAS, the Act requires Il agenoesto divert 50% of discarded materials from landfills: and, WHEREAS, the City Council established goals Of achieving 75% diversion by 2012 and zero waste status by 2025 On lune 26, 2WI, and approved a Zero Waste Strategic Action Plan on February 11, 2009; and WHEREAS, the City finds that reusing, Recycling, and Computing Recyclable Materials, Organic Materials, and Construction and Demalltion Debris C&01 and benefichal use mpa ting of Organ ic Materials int essential to further the City's efforts to reduce Solid Waste Disposal and comply with the Act and the City is zero waste goals; and WHEREAS, pursuant to the powers granted the City as a charter city by Article in, Setlion Slal of the California Constitution and Article %I I I of Ne 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 rolhoff container collection of Permitted Materials City of Fresno Roll Off Agreement Page 1 6/8/11 rept for couealon of materials excluded in the City s Municipal Code, and other services related to meeting requlrements of the Act; and WHEREAS, the City requires all herders providing Roll Off Collection services for Permitted Materials In the City to obtain a non exclusive franchise in order to regulate this business, ensue its orderly Operator, 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 pross that the Contractor, by demonstrated experience, reputation, am succeed Is pualined m provide for the Roll Off Container Collection of Permitted Materials within the corporate limits of the Clry and the Transproolon of such material m appropriate places of Feathery Processing, and/or Disposal, and can Provide insurance consistent with the City's reun qulremerai The City Council desires that Contractor be engaged to y perform such services on the basis retforth in this Agreement; and WHEREAS, Contractor intends to use the City's streets, alleys, other public rights-ol way, and Infrastructure to Provide Roll-0ff Collection services tothe City's residents antl businesses; and WHEREAS, the City intends to receive lust and reasonable tees from the Contractor for City's administration of TM1e Agreement and for Casseroles use of the cry streets, alleys, other public rights - of- way, and infrastructure whim the City may lawfully Impose and the companies are obligated to pay; and, NOW,THEREFORE, in consideration of the mutual procovenants 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 felt meanings respectively ascribed to them by this Article and shall he capitalized throughout this Agreement "AR" means the California Integrated Waste Management Act of 1989 Division 30 of the California Public Resources Code), as amended, supplemented, superseded, and replaced from time to time. "Agfeennern a means this Agreement between the City and Contractor for Rall Off Container Collection, Processing, and Disposal of Permitted Materials including all exNhRs, and any future amendments hereto "Applicable to all Federal, State, and local laws, regulMlons, rules, orders, judgments, degrees, permits, approvals, or other requirements of any governmental agency having Jurisdiction over the RollOff Container Collection, Transportation, Recycling, Processing, and Disposal of Permitted Materials that are in force on the Effective Dare and as they may he enacted, Issued, or amended dorms the Term of this Agreement. City of Fresno Roll Off Agreement Page 2 4/g/11 "APIProved C&D Processing Site" means the processing site Spectated In Exhibit D. which was selected by Contractor and approved by the City. "Approved Disposal Site" means a Disposal Site selected by the CORrmtoror its Submmractor(s( and approved by the City for Disposal Of residue from Approved Processing Saints), Approved Disposal Slte(si are listed in Exhibit D. "Approved Offers PNceuing Site" means the processing site specified In Exhibit D, which Was selected by Contractor and approved by the Cars "Approved Processing SXets)" means the Approved C&D Processing Site, Approved Organics Processing Site, and/or Approved Recytlables Processing Site. "Approved Procei means theoperator of an Approved Processing Site, "Approved Recytlables Processing SW means the Processing site specified In Exhibit 0, which was selected by Contractor and approved by the City. "Bin" means a container with capacity of approxlmateiy one ill to eight (8)cubic yards, with a hinged lid, and with wheels, that is typically srWced by a front end- loading Collection vehicle_ "Business Days" mean days during which City offers are open to do business with the public. "Cart" means a plastic container with a hinged lid and wheels that typically serviced by an automated OF Whol automated Collecibn vehicle. A Can has capacity of W, 35, 611 or 96 gallons (or similar volumes) "C&D" means Constmttionand Demolition Debris. "Change in Law" means any of the following events or conditions that have a material and adverse effect on the performance dr? the Parties of their respective obligations under this Agreement (except for Payment obligatipnsh a. The enactment, adoption, promblibiory issuance, modification,written change In administrative Or judicial interpretation on or after the Effectie 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 anion, error Dr lack of re nable diligen Of the City o Df the Contractor, whichever Is unlearnassa Is the nc n e Of a Change o Law, provided, however, that the contesting in good faith or the failure In good faith to contest any such order or judgment shall not constitute or be construed as such a willful or negligent action, error or omission or lack of reasonable diligence. "City" Means me City of Fresno, California, a municipal corporatiory and a If the territory lying wiNin the municipal boundaries of the City as Presently existlng or as such boundaries may be mudified during the Tentru City Of Fresno ROTI -Off Agreement Page 3 4/8/11 "Chy's Municipal Grad means the CM of Fresno Municipal Code "Cpllett"ar Ydfectulm eans the act Of ambiIUS Permitted Matm erials and other atelal at the place of gene ration in the City. "Commercial" shall mean of, from or pertalning to non -Residential premises where business activity is conducted, Including, but not limited to, recall sales, services, wholesale operations, manufacturing and industrial Operations, but excluding businesses conducted upon Residential property which are Permitted under applicable zoom& regulations and are net the primary use of the property. °Clumizactor" means a mechanical apparatus that compresses materials into a container, which container may be detachable. Far the purposes of this Agreement, Competitors shall Include only Compactors with container capacities of am (10) to fifty (501 cubic yard that are serviced by Rol[ off Collection Trucks. "Com., or "Corapmtlry" Inclater a controlled biological decomposition of Organic Materials Yielding a safe and nuisance free Compost Product. "Compost Product' means the product resulting from the controlled biological decomposition of Organic Materials that are Source Separated from the Solid Waste stream, or which are separated at a centralized facillity. "Construction and Demolition Debrs(Cci means materials resulting from construction, remodeling, repair, cleanup. or demolition operations that are not hazardous as defined in California Code of Regulations, Title 33 Section 65261.3 This term alluded, but is not llmited 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 flooding but not limited fo rock, soil, tree stumps. Construction and Demolition Debris excludes saturable wastes, 'ton Rpt' ane &(/li e.�?i,RJXj Alk.Incert contractors name(, /Oa(imcrtoprpwmn, sole orepr6Fprshlp, par(neirl asappmphista lorganized and under der the laws of the State of California and its officers, directors, employees. agents, companies. and Subcontractors. "Contractor Partedies • shall mean Contactor, officers, directors, management employees, or fiscal employees (where management employee" means any employee with direct or ind'ued responsibility for direction and control over the Contractor's activities under this Agreement antl',��LL m to e " means an employee with direct or Indirect responsibility and cpnttol tluties reUting [o f'mnermal matters under Agreements. "Criminal Activity" means those activltes Described In Semon 12.12.1. 'Customer" means the Person whom Contractor submits billing Invoice to and collects payment form for Collection services provided. 'Designated Disposal She" means the American Avenue Landfill at 18950 W American Avenue In Trammollty, California for the Purposes of Disposing Solid Waste. City of Fresno Rall Off Agreement Page age G "Designated Wane^ means non -Hazardous Wastes that may pose special Disposal problems because of Its potential to contaminate the environment and which may be Disposed of only In Class II Disposal Sites or Class III Disposal sites pursuant to a variance Issued by the California Department of Health Services. "mrenor' Shan mean the Public utilities Director of the City or an aumorbed representative of the Public utilities Director. "Discarded Matetlals" means Said Waste, Recyclable Materials, Organic Materials, a,C&D placed by Generator in a receptacle and/or at a location that is designated for Collection pursuant to Ne City's Municipal Code. "Disposal or Dispose (or vanatbn thereon" means the final disposition of Solid Waste at a Disposal site. "Disposal site means a faculty for ultimate Disposal of Solid Waste. 'Diversion' means activities that reduce or eliminate the amount of Solid Waste from Solid Waste Dispoul including, hart not limited to. Recycling, antl{omponing. "Drop Box' means an open top container with capacity from six 161 to fifty (50) cubic yards that Is used for Collection Of Permitted Materials and that us Surf ace by a ROTI -Off Collection Truck. Drop Boxes with capacities of less than ten (10) cubic yards may only be used for the purposes of Collecting C&0. A Drop Box, which Is also known as a roll -off box and/or debris box, Iso type Of Roll Off Container. "Effective Date" means the date set forth in the Introductory, paragraph of tor Agreement. 'Federal" means belonging to or pertaining to the national gen ral government of the United States. "Faod Scmps" means those discarded materials that will decompose and/or putrefy including III all kitchen and table feud waste,(ING animal or vegetable waste that u generated during or results from the storage, preparation, cooking or handling of food SHOP, Hit discarded paper that is contaminated with Fo0d Scraps, (Iv1 fruit waste, grain waste, dairy waste, meat and fish waste: and, (v) nom Recyclable Paper or contaminated paper. Food Scraps are a subset of Organic Materials. "Franchise Fee" means Ne 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 Materiate Material" means any materials generated from the maintenance or alteration of public, comcial,or residential landscapes that will decompose and/or putrefy including, but not lmined to, Yard clippings, grass, leaves, shrub/tree trimmings or coatings (less than 0" in diameter), brush, Flowers, Beds, dead plants small pieces of unpainted and untreated wood, and other types of organic waste. tartan purposes of this Agreement, such materials shall be Source Separated and placed by a Generator in a receptacle and/or ata location that is designated for Collection. Green Waste Material is a subset of Organic Materials. City of Fresno Roil Off APreement Pages 4/e%11 "Hazardous Waste" means all substances defined as Hazardous Waite, acutely Hazardous Waste, o extremely Hazardous Waste by the State in Health and Safety Code §2511G.02, §25115, and §25117 or in the future amendments to or recodifications of such statutes or identified and listed as Hazardous Waste by the U5. Environmental Protection Agency IEPAI, pursuant to the Resource Conservation and Recovery Act (oz USC §5901 at all future amendments thereto, and an rules and regulations promulgated thereunder "Hurdays" are Sparred as New year's Day, Thanksgiving Day, and Christmas Day. 'eM ctlous Waste" means biomedical waste generated at hospitals, public or private medical clinical, dental offices, research laboratories, Pharmaceutical iodusMes, blood banks, mortuaries veterinary fadntles and other Oil establishments, as defined In Health and safety Code SeRmn zslms. 'ugmdi Damages" means the amounts due by Contractor to City for tenure to meet spefific quantifiable standards of performance as described in Section 11.4 and Exhibit A, "Chronic Materials" means those discarded materials that will decompose and/or putrefy indud'mg Green Waste Material and Food Scraps such as, but are not limited to, green trimmings, gra wool leaves, prunings, branches, dead plants, brush, tree trimmings, dead trees, small wood pier other types Of Organic yard waste, vegetable waste, frvlt waste, grade waste, dairy waste, meat waste, fish este, paper contaminated with Food Scraps, pieces of unpainted and untreated wood, and pieces of unpainted and untreated wallboard. No discarded material shall he considered to be Organic Materials. unleasuch material Is Source Separated from Solid Waste, Rerytl&D, able Materials, C or other materials. "Parent Company/' refers to a company owning more than rrhy percent (50%) of the shares of another company (subsidiary) or a company that has management control over such subsidlary. "Party or Parties" refers to the City and Contractor, individually or together. "Permitted Materiels" refers to Solid Waste, Source Separated Recyclable Materials, Source Separated Organic Materials, and C&D. Permitted Materials excludes Source Separated Food Scraps. 'Renta l" means any Individual, firm, association, orgainzatiou, enterprise, corporation, bus iness trust Joint venture, the United States. the state of Gufumla the County of Fresno, and special purpose districts. 'Premises" means any land or. building In the City where Permitted!Permitted!Materials are generated or accumulated. "Processing' means t0 prepare, treat, or mnvertthrough 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 Wallaby for reuse. "suppressible Waste" means Solid Wastes originated from living organisms and their metabolic waste products and from Purolator, which contains naturally produced organic compounds and which are City of Fresno RailOffAgrecynent 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 colleRs from each Customer receiving service pursuant to this Agreement "Recyclable Materials" means those Disorded Materials that the Clty Cade permits, directs and/or requires Generators to set out in Reryclable5 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): m'ced paper (Including Office paper, computer paper, magazines. junk mail. catalogs, brawn paperbags, brown paper, Paperboard, paper egg cantons, telephone books, grocery bags, colored paper, construction paper, envelopes, legal pad backings, shoe boxes, soap boxes, cereal and other similar food boxes); chipboard; Cardboard: paper milk cartons; glass containers of any color (including glass battles and jars all colors); aluminum Cans; fabric softener containers; steel, tin or dimetalcans, plastic containers (clear or green plastic soda and water ladles, plartic containers and bottles and plastic bags with no. 1,2 or on the bottom); and load 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, Orthermally destroying solid waste. 'Residential' SPOT mean of from, or pertaining to a single-family Premises, multi -plea, or multi family Premises Including single-family homes, apartments, condominiums, townhouse complexes, m obile home parks, Cooperate, apartments, and yacht harbors and marinas where residents live aboard boats. "Roll aN Container" meals a Drop Box or Compactor used for Collection of Permitted Materials and serviced by a Rolloff Collection Truck. poll -Oft Containers with capacities of less than ten (10) cubic yards may only be used for the purposes of Collecting C&D. "Roll -0(r Collection Truck" m collection vehicle with a mechanical device such a winch that pull or loads a ROTI -OH Container onto the truck bed or attached trailer and separately transports each Roll Off Conte mer to a Disposal Site or Processing Site. "Solid Waste" means solid waste as defined In California Public Resources Code, Division 30, Part 1, Chapter 2, 440191 and regulations promulgated thereunder and those Discarded Materials Nat the City Code requires Generators within the City to set out for Collection. Excluded from the definition of Solid Waste are C&D, Hazardous Waste, Infectious Waste, Designated Waste, 51 Separated Recyclable Materials, Source Separated Organic Materials, and radioactive waste. Notwithstanding any provision to the contrary, 'Sora Wazto" may include de mmimis volumes or concentrations of waste of a type and amount normally found In Residential Solid Waste after implementation of programs for the safe mllection,reryding, treatment and disposal of tumbled harardous waste in compliance with German 41500and41802 Of the California Public Resources Code. "Source Separated -means the segregation, by the Generator, of materials designated for separate Collection for some fom of Recycling, Processing, Composting, recovery, or reuse. "State" means the State of California. City of Fresno Roll Off Agreement Page 2 4/8/ll 'Subcontractor' means a party who has entered 'mm a ccniracc express or Implied, with the Can ractor for the performance of an act that is necessary for the Contractor's fulfillment of its obligations under this Agreement. 'Term" means the Term Of this Agreement Including extension periods if granted, as provided for in Article 3. "TOM" means unit of measure for weight equivalent to 2,WO standard pounds where each pound contains 16 ounces, 'Tonnage" means the total weight In Tans Collected, Peryded, Composted, reelected, or Disposed of, as the context requires. "Transportation' means the act of consporting Or state of being transported. ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR [_riot IS 'A i:Ie_ The Conte actor, bye m codon of this Agreement, represents anad w coning; ants the to] to CI To for the purposeof inducingCity to enter Into this Agreement and to consummate the transactions contemplated hereby'. A. Corporate Status. Contractor is duly organized, validly existing and in good standing under the laws of the 51 It is qualified to transact business In the City and State and has the power to Ts Propertiesrry and to caon Its business as now owned and operated and as required by this Agreement. B. Authorization. Contractor has the authority to enter this Agreement and perform Its obligations under this Agreement The Board of Drectors Of Contractor for the shareholders, If necessary, sole proprietor, or Partners have taken all Scherer required by law, Its wholly; Of incorporation, Its bylaws, or otherwise, to authorize the execution of this Agreement The Person signing this Agreement on behalf of Contractor represents and warrants that they have authorlry to do so and the corporateSecretary's certificate In Exhibit B confirms this This Agreement constitutes the legal, valid, and binding obllgatom of the Contractor. C Agreement Will Not Cause Breach. TO the best of Contractor's knowledge after reasonable investbathron the execution or dellvery of this Agreement or the performance by Contractor of its obligations hereunder does not conflict with, violate, o result In a breach: til of any law or governmental regulation attitude to Contract[; (iii any tem or condition of any judgment, order, or decree of any court, administrative agency or other governmental authority; or, ('rill any Agreement or Instrument to which Contractor is a parry or by which Contractor or any of itz properties Or assets are bound, Or variable a default thereunder. City of Fresno Roll Off Agreement Page 8 4/8/11 D. No Litigation. TO the best of Contractor's knowledge after reasonable Investigation, there is n0 action, suit, proceeding or investigation.at law OF in equity, before r by any Court or governmental authority, agency Or Instrumentality deci0ed, pending O threatened against Contractor wherein an unfavorable decision, ruling or making, In any single case or in the aggregate, woultl'. 1. Materially adversely affect the perform a nae by Contractor of us act gat Ions hereunder, 2 Adversely affect the volafty or enforciabllity of this Agreement or 3. Have a material adverse effect on the financial condition of Contractor, or any surety or entity guaranteeing Contractor's performance under this Agreement E No Adverse Judicial Decisions To e best of Contractor's knowledge after reasonable Inv ztigatum, there Is no judicial decision that would prohibit this Agreement or subject this Agreement to legal challenge. F. No Legal Prohibition. To the best or Contractor's knowledge after re.a5maiefs investigation, there is no Applicable Law In effect on the date Contractor Signed this Agreement that would Prohibit the Contractors performance of its obligations under this Agreement and the trap dctons contemplated hereby. G. Comracor's Statements. The Contacor's Application and any other supplementary Information submitted to the Ciry, which the City has relied on in entering this Agre ent, do not. (,I contain any untrue statement Of material fact, or (11) 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 misleading. H. Contractor's Investigation. Contractor has made an Independent investigation (satisfactory, to IS of the conditions and circumstances surrounding the Agreement and the work to be performed hereunder. Contractor has considered such matters m entering this Agreement to provitlern es in exchange for the compensation provided for under the terms of this Agreement I. Ability to Perform. Contractor possesses the business, professional, and technical expertise to Colletl, Transport, Recycle, Process, and DISPOSE Permitted Materials generated In the Ciry. Contractor Possesses the equipment, facillryQesl, and employee resources required to perform its obligations under this Agreement. ARTICLE 3 TERM OF AGREEMENT 3.t EFFECTIVE DATE Contractor may Provide the POIl Oft Container Collection, Transportation, Recycling, Processing, Comporting, and Disposal services authorized by this Agreement commencing on the Effective Data City of Fresno Roll Off Agreement Page 9 4/g/11 3.2 CONDITIONS TO EFFECTIVENESS OF AGREEMENT The obligation Of City to Permit this Agreement to become effective and to perform its undertakings pravlded 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. A. Accuracy of Representations. The representations and warranties made in Article 2 of this Agreement are true and correct on antl as of the Effective Date. a. Absence of LittSatlon. There is no offintlon pending on One Effective Date In any court challenging the award or execution of this Agreement or seeking to restrain or enjoin Its Performance. C. furnishings of Insurance, Contractor has furnished evidence of the insurance required by Article 10 that is satarachory to the CITY D. Effectiveness of Ciry Council Action. The Ciry Council action approving this Agreement shall have become effective and all Parties shall have signed the Agreement pursuant t0 Applicable Law prior to or on the Effective Date, provided that no restraining order of any kind has been Issued. 3.3 INITIAL TERM The Initial Term of this Agreement shall commence on the Effect lye Date and continue In full force far five(5)years, until lune 30, 2016. The Term may be extended pursuant to Section 34 or terminated early In accordance with Sal 11.2. 3d OPTION TO EXTEND Sub(ett to City Council approval, the City shall have the option to extend this Agreement for an additional term of up to five (5) years If the City extends the Agreement, It shall give written notice to Contactor at least one hundred eighty (190( calendar days starts; expiration of the Initial Term. The City's written notice shall specify the number of years by which It eleRs to extend the Term of this Agreement and the re sed expiation date of the Agreement. Any such extension shall not become effective unless Contractor agrees to the extension, In writing at lead and hundred fifty (150( calendar days prior to expanded of the Initial Term. City of Fresno Roll -Off Agreement. page 10 41 ARTICLE 4 SCOPE OF AGREEMENT 4,1 SCOPE OF AGREEMENT Thisnon-exclusive franchise, granted to Contractor, authorizes Contractor o Collect, Transport, Recycle, Process, Compost, and Dispose of Permitted Materials placed by Residential or Commercial Generators in Roll00 Containersfor Collection, provided that the Customer has voluntarily arranged for Contractor to provide Collecon services_ The Contractor shall be responsible for the following seances. A. Collecting Permitted Materials placed by each Customer in a Roll- OR Container for Collection as requested by Customer. R. Providing each Customer, upon delivery of RatOffCon a printed list that specifies the materials that cannot be placed In the Roll Off Container (1.0., Hazardous Anchor)and a list of acceptable Recyclable Materials, Organic Materials, and C&D that may be placed in the RollOff Container. C. Transporting Collected Solid Waste to the Desigpated Disposal Site and trampmfing Other materials to an Approved processing5lte. D, Furnishing all labor, supervision, version. ROTOR 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 reacted by this Agreement including, but not limited to, Franchise Fees, taxes,regulatory fees, Collection costs, Transportation casts, Processing costs, Disposal costs, utilities, etc. F. Providing all services required by this Agreement in a thorough and professional manner so that residents, businesses, and the City are provided timely, reliable, courteous and hlgF-qualify service at all times. G. Performing all services in substantial accordance with this Agreement at all times using best industry practice for Comparable operations, M. Complying with Applicable Law. 1. Performing or providing all other semces necessary to fulfil its obligations under this Agreement. 1. Diverting a minimum of 50% of the C&D Collected from Disposal. The Diversion rate shall be calculated each month based upon the weights of ORD Collected and Diverted. City of Fresno Roll Off Agreement page 11 418111 R. Diver(mg a minimum of 70% of the Recyclable Materials Collected from Disposal The Diversion rate shall be calculated each month hosed upon the weights of Recyclable Materials Collected and Diverted Mounting a minimum of ill of the Ore lc Materials Collected From Disposal The Diversion rate shall be calculated each month based upon the weights of Organic Materials Collected and Diverted. Theem ation and specification of Particular aspects of serve, labor, ar equipment requirements shall not relieve Contractor of the duty of accomplishing all other aspects necessary to fulfill its obligations under this Agreement whether such requirements are enumerated elsewhere in the Agreement or not. 4.2 LIMITATIONS TO SCOPE The Scope of the Agreement shall be non-exclusive. Permitted Materials may be Collected and Transported by other Persons provided that such Persons do so in accordancewith the City's Municipal Code, Octal but not limited to the fallowing: A. Permitted Materials Collected by Other Non-Eadu9ve Franchise Haulers. Permitted Materials Collected by a party that has executed a Non Exclusive Franchise Agreement with the City for Rall off Container Collection Services: I Permitted Materials Collected by City. Permitted Materials collected by the City's municipal Collection operation including: ill materials Collected using equipment, such as Carts and I not regulated by this Agreement 12) materials Collected from City facilities, and special events and venues sponsored by the Citg which may be Collected In Carts, Blnz. or Poll off Containers by the City's municipal collection operation or City crews C banated Rerytlable Materials. Recyclable Materials Generated In me Clry that are Soma Separated and donated by the Generator to youth, civic, charitable, or other nonprofit organizations. D, Materials Hauled by Owner or Occupant, or Its Contral Permitted Materials that are removed from any Premises and are Transported to a Disposal Site or Processing Site by(l)the Owner or Occupant of such Premises, if by fulltimeemployee of Owner or Occupant that uses the Owner's or occupant's equipment o transport materlals: or (iii) by a construction or demolition contractor performing construction or demolition work a the Premises, whose removal of the Permitted Materials a incidental to the service being performed las defined in Section 6205(fRim) of the City's Mor a l Code) and such contractor removes materials at no additional or separate fee using contractor's employees and comments equipment. E. Green Waste Material. Private collection of Green Waste Material resulting from landscaping or gardening service performed by the person collecting such materials. City of Fresno Roll -Off Agreement Page 12 4/8/11 F. Omer Recyclable Materialsprivate collection by any person or company that supports Recyclable Materials through use of its own oehldelsl, and receives no compensation for such Coll eation or Tran sportation. G. Materials from Public Schools and Other Government Facilities. The removal of any materials generated by public schools, cities, the County, or federal facilires(with the exception of those facilities subject to 42 IT AC. Sidon 69611a11. 4.1 CITYS RIGHT TO GRANT MULTIPLE NON-EXCLUSIVE AGREEMENTS The City may grant to an unlimited number of additional persons similar non -exclusive franchise agreements for RollOffContainer Collection, Transportation, Recycling, Predicing, Composting, and Disposal of Permitted Materials. 4.4 CITY'S RIGHT TO EXCLUDE NEWLY ANNEXED TERRITORY FROM SCOPE OF FRANCHISE The City reserves the right to exclude territory that Is annexed Into the corporate limits of the City subseque oto the Effective Da@tmmthe scope ofthlsfranchlse. 4.5 AGREEMENT CONSISTENT WITH APPLICABLE LAW This Agreementand scope of this franchise shall be Interpreted to be consistent with Applicable taw, now and durg the Term. If future judicial interpretations of correct law or new laws, regulations, or jutlldal interpretations limit the ability of the City to lawfully provide for the scope of surices specifically set Earn herein, Contractor agrees that the scope of the Agreement will be limited to those strinces a and materials which may be wmny provided and that the City shall not be responsible parity lost profits or losses claimed by Contractor to arise out of limitations of the Scope of the Agreement set forth herein. In such an event, R 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 RollOffContainerfor Collenion by Contractor, ownership and the right to possession of such materials shall transfer diresi from the Customer to Contractor. On a short term basis not toexceed more than Flve (5) calendar days per Year, City may obtain ownership or possession of Permtted Materials placed in the Rolloff Container for Collection, far purposes of waste characterization studies, upon written notice to Contractor of its intent to do s0 However, nothing in this Agreement shat l be construed as giving rie to any inference that City has such ownership or possession unless such written notice has been given to Contractor. City of Fresno Roll Off Agreement Page 13 4/8/11 47 NOTIFICATION TO CITY OF NONFRANCHISED HAULERS If Contractor can produce evidence that other Persons are Collecting Permittetl Materials and do not haverights to do so as granted by no exclusive franchise agreement with the City or otherwise, or in mannerhat Is not consistent with the City's Municipal Code. Contractor shall notify the city In wriam& 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 Col@cting Permitted Materials (if known). the date the Contractor witnessed the event the location of the Roll -Off Cmbiner along with Contractor's evidence of the violation of the rights granted by this non-exclusive franchise. ARTICLE 5 COLLECTION. PROCESSING, AND DISPOSAL SERVICES 5.1 COLLECTION Contractor is hereby immonr d m Collect Pmmi ter Matelmb from resider is and businesses in the City sing Roll OH Containers. Contractor shall Collect Permitted Materials from Customers that voluntarily subscribe to. or reqest Roll Off Container Collection services from Contractor. Contractor shall provide Its Customers with a Roll 04 Container for Permitted Materials Collection or shall allow Its Customers to provide a RollOffContainer. Contractor shall Collect Permitted Materials from Premises as frequently as scheduled by Contractor or as mutually agreed with Customer, but not less than once a week for Solid Waste and Organic Materials. Contractor shall provide requested service to Its Customers and shall charge Customers for service at Rates mutually agreed by Customer and Contractor. Contractor shall Transport Solid Waste Collected pursuant to this Agreement to the Designated Disposal Site antl other materials to an Approved Processing Site that has been selected by the Contractor and approved by the City. The Approved Processing Sony) 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 nervous 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 Agree ent the contracts with any and all Customers shall terminate on the termination date of this Agreement, 5.2 PROCESSING AND MARKETING SERVICES A. Processing. Contractor agrees to Transport and deliver III all C&D It Collects In the City to the Approved C&D Processing Site, (11) all Recyclable Materials It Collects in the City to the Approved Recyclable Processing Site, and Ilii) 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 acceptance with Section 5.4. contractor selected the Approved Processing SA(U and Approved Disposal Sltels), which are identified in City Of Fresno Roll Off Agreement Page 14 4/g/1] Exhibit D_ Contractor shall permit or arrange for the Ciry to inspect the Approved Processing Sol and observe operations at any time during the Term. Contractor or its Approved Pmcesmr(s( shall pos Sall permits and approvals necessary for use of the Approved Processing SAIL In full regulatory compbance_ Contractor shall, upon Cry request, provide Or request from its Approved Procreac sf and provide copies of notices Of wearmn or permits tothe Ciry. Upon request of the City. Contractor shall provide a certified statement from Its Approved Pmcesmr(s( documenting Its Diversion rate. If Contractor elects to use a Processing Slte(s( that Is different than the Approved Processing Site(sl specified in Exhibit D, it shall request written approval from the City sixry(6ol calendar days prior to a of the site and obtain the City's written approval no later than ten (10( calendar days prior to use Of the she, if cnnhaomr is unable to use an Approved Processing site due toan emergency o sudden Unforeseendos of Me Approved Processing Site, Contractor may use alternative Processing Site provided that If the Contractor provides verbal and written notice to the City within twenty-four (20) hours Of a of an alternative Processing Site, and (rh 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 me the alternative Processing Site for no more than twenty-fear(24)hours without obtaining Cil written approval. 6. Marketing, The Contractor or its Approved Processor shall be responsible for marketing C&D, Recyclable Materials, and Organic Materials Gallantry In the City and Diverted. Contractor and/or 16 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 CASES Recyclable Materials, and Organic Materials Cleaned 810 marketed for Recycling or reuse in n such a r that materials shall be considered as Diverted In orlon with the State regulations established by the Art. All esidual material from the Processing activities that is not marketed for use shall be accounted for as olsposal Tonnage at a permitted Disposal Site. No Permitted Material shall be transported to a domestic or foreign location if Send Waste Disposal of such material is its Intended use. Contractor or its Approved Processor shall provide the Cry, 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. If Contractor becomes aware that a broker or buyer has Illegally handled or Disposed Of material generated by the City or elsewhere, Contractor shall immediately Inform the City and terminate its contract or working relationship with such party immediately. C. Processing and Marketing Costs. Contractor shall pay all costs associated with Processing and marketing of Permitted Materials including payment of any gate fees charged at the Approved Processing Sites. City of Fresno Roll -off Agreement Page 15 4/8/11 5.3 DIVERSION REQUIREMENT Contractor shall given from landfill disposal at least d 50% by weight of all C&D R Collects within the City, fli)ID% byweightof all Recyclable Materials it Collects within the Chas, and IR) 90% byseeigni all Organic Materials it Collects withln the City during each calendar month by Processing, Recycling, or Composing some or all of the C&q Recyclable Materials, and Organic Materials Collected. If Contractor fails to meet the Diversion requirements stated In the preceding paragraph during a calendar month, the City may terminate the Agreement In accordance with Section 11.5. 56 DISPOSAL A. Disposal of Solid Waste Collected Contractor shall Transport all Solid Waste Collected In the City to the Designated Disposal Site, which the City speefle5 shall be the American Avenue Landfill In Tranquility. California. Contractor shall pay all costs associated with Transporting and Disposal of Solid Waste including payment of any gate fees charged at the Designated Disposal Site. 0. Disposal of Processing Residue. Contractor shall, or shall require Its Approved Processor to, Dispose of residue from Processing of C&D, Recyclable Materials, and Organic Materials Collected within the City, that are not Diverted through Processing activities, by Transporting the residue to an Approved Disposal Site specified In Exhibit D, which Is lawfully authorized to accept such material, C 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 onium all aerating permits and approvals necessary, for u e of the Disposal Sitels) in full regulatory compliance. Contractor shall, upon request, provide copies of notices of violation or permits to the City. D. Compliance with Regulations. Contractor shall Observe and comply with al l regulations In effect at the Designated Disposal Site and Approved Disposal Sitels) and cooperate with the operator thereof with respect to Cauvery of Solid Waste, including directions to unload Collection vehicles in designated areas, accommodating operations and maintenance activities, and complying with Hazardous Waste exclusion programs. E. Disposal at Approved Site. Contractor, or Its Approved Processor, shall not Dispose of such residue by depositing It on any public or private land, in any river, stream, Or Other watervan,o in any sanitary s m drainage system o any other m te which violas ApplicableLaws. Contractor, or its Approved Processor, selected the Approved Disposal Sitefs) for residue Disposal specified In Exhibit 0. Contractor shall arrange for the City to inspect the Approved Disposo l seals) and observe operations at any time during the Term. F. Alternative Disposal Site. If Contractor, or its Approved Processor, elects to use a Disposal Site(s) that is different than the Approved Disposal Sitels) listed in Exhibit D, it shall request written approval from the City 60 calendar clays prior t0 use Of the site and obtain the Ciry's written approval no later the 10 calendar days prior to use of the site. City of Fresno RoilOffAgreement Page 16 d/g/11 If Contractor, or its Approved Processor, is franc 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 air alternative Disposal Site provided that Ip the Contractor Provides verbal and written notice to the City within twenty four (ga) hours of use of a alternative Disposal Site, and (r) the altemac'oe Processing Site Is fully Permitted and In compliance with all Applicable Laws. The written notice shall include a description of the reasons the Approved Disposal Site is not feasible and the period of time Contractor, or its Approved Processor, proposes to use the altermulve Disposal Site. Contractor shall use the alternative Disposal Site for no more than twenty-four (24) hours without obtaining City's written approval. 5.5 BILLING Contractor shall hill all Customers and collect billings in accordance with ContractorestablishedRates, which are et In anner consistent with provisions of Section 9.3. The Contractor shall prepare mail, and collect bills (ori shall Issue written receipts for cash Paymentsl for Collection services provided by Contractor. Contractor shall be responsible for collection of payment from Customers with part 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 filings and receipts within five (5) days of the Piretto;s written request for the billings and receipts. The Contractor may, at its option, maintain those records In computer form, an micronrne, or in any other manner. provided that the records can be traversed and retrieved for inspection and verification in a timelymanner. 5.6 CUSTOMER SERVICE Contractor shall maintain a business office within the City or within aanable distance of the City limitss approved by the Director. The bus of ce shall staff at least one customer service representative capable of accepting e pting payments from Customers. � ring Service questions, and solving Customer sce issues Contractor shall have a toll free Customer service telephone number and shall have staff available to answer calls from at least ar DD 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 6.t OPERATING DAYS, HOURS, AND SCHEDULES A. Days and Hours of Collection City of future Rol I ON Agreement 'rape V </R/11 1. RezldendaI Premises. Del very or Coneamn of a ReII-Off Container o Or from Readential Premises shall only occur between the hours of 600 a.m. and 6 E pre, any day of the week. 2. Commercial Premises. Delivery or Collection of a Roll OR 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.Do P in., any day of M1e week. Delivery or Collection of a RollOffContainer to or from Commercial Premises that are more than 200 fern from Residential Premises shall only occur between the hours of 500 a.m. and 2:00 p.m. any day of the eek. 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. 1 Exceptions. In the event of an unforeseen circumstance, the Contractor may deliver o Collett a Roll04Container from Residential or Commercial Premises that are 200 feet or ss from Residential Premises between the hours of 5'. DO a.m. and 10'M limr, upon pier written approval from the Director. 4. Failure to Comply. If the Contractor falls to comply with the Collection hours described in this Section, the Contractor shall Pay the. City compared Damages as described in Section 114 and Exhibit A. 6.2 COLLECTION STANDARDS 6.2.1 Instructions to Customer Contractor shall Instruct Customers as to any Preparation of Permitted Materials necessary prior to Placing in the Roll Off Container. Contractor shall, in written form, inform all Customers as to the acceptable materials that can he included In the RollOffContainer and any unacceptable materials to be excluded from Collection. 63.2 Care of Private Property Contractor shall not damage private property. Contractor shall ensure that its employees: til close all gates opened in making Collections, unless otherwise directed by .the Customer; (il) do not cross landscaped areas; and (iii) do not climb orjump over hedges and fences. Coy 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. Minimization of Spills Contractor shall use due care to prevent vehicle oil and vehicle fuel from being spilled or scattered during Collection and Transportation operations, If any Permitted Materials are spilled or scattered during Collection or Transportation operations, the Contractor than Promptly clean up all spilled and scattered materials. City of Fresno Roll Off Agreement Page 19 418211 Contractor shall not transfer loads from one vehicle to another on any public street, unless it is necessdry 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. If Contractor falls to perform some or all of the requirements described In INS 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 disc instances of repeated spillage not caused by It with the Customer of the premises he, spillage occurs, And Contractor shall report such Instances to City. If 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 never all Roll Off Containers at the pickup location before Transporting materials to prevent Permitted Materials from escaping during Transportation, 6,]A Noise All Collection operations shall be conducted as quietly as passible and shall conform to Applicable Law, Contractor will promptly resolve any Complaints of noise during the morning Or ning hours of the day to the satisfaction of the City, In the event of epeat occurrences of noise levels of 75 does), the Contractor shall Pay Liquidated Damages in accordance with section 11.4 and Exhibit Af 6,3 VEHICLE REQUIREMENTS A_ General. Vehiclessed to arcane services under this Apparent shall be kept in a safe, neat, clea and operable condition at all times,(( Contactor fails to keep CaleRion vehicles in a safe and sanitary barodd p the Contractor shall pay the City Liquidated Damages as described in Section 114 and Exhl bit A. B. Specifications. Contactor shall register all under with the California Department of Motor Vehicles. All such vehicles shall comply with California Environmental Protection Agency (EPA) rase emission and air quality regulations and other applicable noise control regulations. C Vehicle IdentlficaUon. 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. D_ Cleaning and Maintenance 1. Cleaning. Collection vehicles shall he thoroughly washed and thoroughly steam cleaned a frequently asessary to present dean appearance of the exterior and Interior compartment of the vehicle. ec $. Maintenance, Contractor shall Inspect each vehicle dally to ensure that all equipment Is operating properly. Vehicles that are not operating properly shall be taken out of service until they are repaired and operating Properly. Contractor shall perform all scheduled maintenance City of Fenno RollOffAgreement Page 19 4/g/11 functions Inordance with the manufacturer cations a specifiand schedule or in accordance with California Highway Patrol standards, whichevera stringent Contractor shall keep accurate m cords of all vehicle aintenancee r orded according to date and mileage, and shall make such records available to the CiCityupon Tourist to the extent necessary to perform the inspections described in Sections 6.3.F and 6 8. 3. Repairs. Contractor shall repair, or arrange for the repair of, all of its vehicles and equipment for which repairs are needed because of accident, breakdown, any other ca as to maintain all equipment In safe and operable condition. Contractor shall maintain accurate mors of repair, which shall'Ferry the date/mileage, nature of repair and the signature of maintenance supervisor that the repair has been properly performed. 4. Sto2ge. Contractor shall arrange to store all vehicles and Other equipment in safe and secure contents)in accordance with City s applicable zoning regulations. F. operation. vehicles shall be operated in compliance with the czhlorma vehicle Code, and all applicable safety and local ordinances, Contractor shall not It vehicles In emains of the manufacturer recommendations or limitations Imposed by State or local weight customers 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 ("fare weighYl of the vehicle, and the total loaded weight of each load delivered to the Approved Processing Sites and Designated Disposal Site. F. Vehicle Inspection. City may Inspect vehicles at any time to determine compliance with the requirements of this Agreement. Contractor shall make vehicles available to the City and/or Fresno County Health Department for Inspection, at any frequency City reasonably requests. fib ROLL -OFF CONTAINER REQUIREMENTS A. General. All poll -OH Containers shall meet applicable Federal, Stare, City and local regulations for safety R specifications 1. Prevent Leakage. If the type of materials placed In the container may result In leakage of topics, Contractor shall take precautions to prevent the leakage of liquids. In accordance with Section 17315 of Chapter 3 of Title 10 of the California Code of Regulations, Roll ON Containers used to Collect garbage and putrescible materials and/or garbage and mompacbles 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. 2 Provision of Sufficient Capacity. In accordance with Section 17315 of Chapter 3 or Title 14 of the California Code of Regulations, Containers for garbage and rubbish stated be of an adequate size and In sufficient numbers to contain without overflowing, all the refuse that a household or other establishment generates within the designated removal period. 3. Use of Containers with Less than Ten 110 Cubic Yards of Capacity. Roll 11 Containers with capacities Of less than ten 110) cubic yards may only be used for the purposes of Collecting C&D. City of Fresno Bol l96 Agreement Page 20 4/8/11 C, Rall -Off Container Identification. All Contractorprovided Roll Off Containers shall prominently display the Contractor's came, local telephone number, a unique RollOffContainer Identification number, and alist of acceptable inasmuch As appropriate, Roll Off Con tainers shall be labeled for: Solid Waste, Recyclable Materials, Organic Materials, or C&D. Such label ng may be temporary labeling In the form of magnetic or detachable signs. If Contractor falls to comply with the provisions of this Section 6.q, the Contractor shall pay the City liquidated Damages as described In Section 11.4 and Exhibit A. D. Cleaning, Painting, and Maintenance. All ROTI Off Containers shall be maintained In safe, serviceable, and functional condition. contractor shall steam clean and repaint all RollOffContainers at least every two years, or more frequently, to present a clean,raf0i�free appearance. g E. poll -Off Container Inspections. City may inspect RollOffContainers at any time to determine compilation 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 ROTI -Off Container that fails to comply wnb the provisions In this Secure 6.4. %. Abandoned Ron -Off Containers. Contractor shall not Abandon any RollOffContainer used to provide Permitted Materials Collection services under this Agreement If the Contractor Abandonsa ContractorownedRoll Off Container, City may removethe RollOff Contalmir and Process and Officer of the contents. If the. City removes a Roll Off Container Abandoned by Contractor, the City may charge Contractor for the City's costs incurred removing such RolbOff Contamep transporting Processing, and Dispi of its contents, and/or the cost of storing such For Off Container. Contractor shall reimburse the City for such costs within fourteen (14( calendar days of the date of the Cry/sinvoice to the Contractor for such costs. If the Contractor does not pay the invoice amount within fourteen 115( days, the Cry shall become the RollORContainer owner if the invoice stated the City's Intent to become the Container owner in bitting of at least 12 point font For the purposes of this Section 64. F,'Abandon " means the following; 1. Contractors failure to r a ContractorownedRoll Off Container wagonfive (5) calendar days of receiving a written tten 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 z. Contractors hours to remove a Contractorowned Roll ff Container within ten (10) calendar days upon expiration or termination of this Agre ent except in the case where Contractor has been granted an exami 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 FOR Off Container was used pursuant to this Agreement. City of Fresno R011OffAgreement Page 21 4/8/11 6.5 PERSONNEL A. General. Contractor shall furnish such quallned drivers,supervisory, Customer servicole em is a safe and ed other fficient as manner, be necessary to provide the services required by this Agreement B . Driver Qualification. All drivers shall be trained and qualified in the Operation of Collection vehicles and must have in effect a valid license, Of the appropriate class, sued by the California Department of Motor Vehicles. Contractor shall use the Class 8 CaliforniaDepartment of Motor Vehicles emplOVer "pull Notice Program" to monitor it drivers for safety. C Safety Training. Contractor shall provide suitable operational and safety training for all Of its employees who operate Collection vehicles or equipment or who are otherwise directly Involved in such Collection, Disposal, or Processing. Contractor shall train its employees Involved in Collection to identify, and not t0 mllecp Hazardous Waste or Infectious Waste. Upon the CItVs request, Contractor shall provide a copy of its safety policy and safety training program, the name of its safety officer, and the frequency of Its Fairings. D. Employee Conduct and Courtesy. Contractor shall use its best efforts to ensure that all employees present a appearanceand conduct themselves occupant manner, Contractor shall regularly Fain its employee in Customer courtesy, shall prohibit the use Oloud or profane language, and shall Instruct Collection employees to perform the work as quietly as Pi If any employee Is found not to be courteous Or not to be performing services in the manner required by this Agreement, Contractor shall take all appropriate corrective measures and shall pay the City Liquidated Damages as described In Solution 114 and Exhibit A. E Employee identification. While performing se under this Agreement, all of the Contractor's employees performing field service shall Abe 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 HANDLING A. Response to Hazardous Waste Identified during Collection. If Contractor determines that material placed In any Roil 00 Container for Collection Is a Hazardous Waste that may not legally be Disposed of ata Disposal Site or handled at 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, If the Generator cannot be reached Immediately, the ConVaRor shall, before leaving the Premises, leave a OR at least two Inches by six Inches U' x 6"f In size which indicates the reason for refusing t0 Collect the material and lids a phone number for obtaining Information OO proper disposal of the Hazardous Waste. Under no circumstances shall Contractors employees knowingly Collect hazardous Waste. If Hazardous Waste lsmund In a Roil Off Container that could possibly result in lmminentdanger to people or property, the Contractor shall Immediately notify the Clry's Fire Department using the 911 emergency number. City of Fresno RoilOffAgreement Page R V/8/11 The Contractor shall notify the City of any Hazardous Waste identified in Non -Off Containers or left at any Premises within 24 hours of identification of such material. N. Response to Hazardous Wastes Identified at Disposal Site or Processing Site. The Contractor, or its Approved Processor, or Dlsposal Site operator shall inside load checkers and equipment operators at the Processing or Disposal Shely to Identify Hazardous Wastes for storage in approved, on-site, hazardous materials storagecontainerlsh Contractor shall make reasonable efforts to identify and craft the Customer Contractor shall arrange forrval of the Hazardous Wastes by permitted haulers In accordance with Applicable Laws and regulatory requirements. If the Hazardous Wastes delivered to a Disposal SO or Processing Site by Contractor before its Presence Is detected, and the Generator cannot be Identified or fails to remove the material after being requested to bo so, the Contractor shall arrange for its proper Disposal, The Contractor may make a good faith effort to recover the cost of Disposal from the Generator, and the cost of this effort. as well as the cost of Disposal shall be chargeable to the Generator. C Regulations and Record geepin& Contractor shall comply with emergency notification procedures required by Applicable Laws and regulatory requirements. All records required by regulations shall be maintained at the Contractors facility. These records shall include. waste anifeste, waste inventorle5, waste characterization records, Inspection records, incident reports, and training records 6J NONDISCRIMINATION Contractor shall not discriminate In the provision of se ice or the employment of Persons engaged in Performance of this Agreement on account of race, color, natural origin, ancestry, religion, gentler, marital stat", sexual orientation, age, physical or mental disability In violation of any Applicable Law. 6.8 COMMUNICATION AND COOPERATION WITH CITY A. Communications. If requested. the Contractor shall meet with the City or Its agent to discuss service issues. B. Inspection by City. The City or its designated representatives, shall have the right to observe and review Contractor operations, Processing SIRS and Disposal Sites used by Contractor, and enter Contractors Premises for the purposes of such observation and review during reasonable hours without advance notice. C Cooperate with City Initiated 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 charactenzaffin and composition studies. City of Fresno SolOffAgreement Page 23 4/8/11 ARTICLE 7 RECORD KEEPING AND REPORTING GENERAL Z1.1 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, antl 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 miim French content. ThisAnicle Is not meant to comprehensively define what the records and reports are to be and their contentwith the written direction by or approval of City, the recnets and reports to be maintained and promded by Contractor in accordance with this and other Articles Of the Agreement shall be adjusted In number format, or frequency. Records antlort may be revised to reflect current record keeping and reporting requirements. et, ng To the erten such requirements are set out in this and Other Anodes Of this Agreement, they shall not be considered limiting or necessarily complete. 1.1.2 Retention of Records Unless otherwise required in this Article, Contractor shall retain all records and data required t0 be maintained by this Agreement for the Term of this Agreement plus flue l 5) years after its expiation or earlier termination. Records and data shall be in chrarmogical order and readily and easily interpreted. 7.1.3 Inspection of Records The Cry, its auditors and other agents, shall have the right, during regular business hours, to inspect specific documents or records required by this Agreement many other similar records or repels of the Contractor that the City shall deem, at Its sole discretion, necessary to evaluate the Contractor's pe rfIormance provided for n this Agreement. The City may make copies of any documents It deems ant to this Agreement. The City shall provide Contractor written notice at least three (3) Business Days prior to any inspection of these recoms, 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 oiversmn level, and fee payments to the City If an audit conducted by the City, or is representatives, ands[ Ip that the Contractor has made any Intentional misrepresentation with respect to the tees does to the City Leg., Franchise fees or Other fees due to the CltVl In an amount grecaterthan $L000 or 10% Of the fees due to the City during the period covered by the audit, whichever Is greater, Or fit that the Diversion level is 5% different than the Diversion level reported by the Contractor, then In addition to any other remedies available to the Cry, contractor shall reimburse the City for the City's costs incurred In the performance of the audit Such reimbursement shall be aid b with any underpaid fees and Liquidated Damages p d tA, within along 1301 calendar days h s requited by Section amount and Condit A, wilM1'm thirty ays oRhe date [M1e City notices the Contractor of the amount due. City of Fresno Roll -Off Agreement TFS/11 Page 24 7.1.4 Record Secuary Contractor shall maintain adequate record security to preserve records from ents that can be reasonably anticipated such as fire, theft, and earthquake. Particuiarlly maintained data and records shall be protected and speedup 7.2 RECORDS 7.1.1 Flni nc al and Operational Records Contactor shall maintain accurate and complete accounting records containing the underlying financial and operating data relating to and showing the basis for mmputa0on of all re associated with providing Permitted Materials Consisted, Transportation, Processing, Recycling, and Disposal services pl The lGAAP)consistentlygrecords shall be prepared In accordance with Generally Accepted Accountingap0 Ata minimum, the following operational records shall be maintained by Contractor for City relating to'. A. Customer account Information and billing records, B. Tonnage of material Collected by Noe )e.A, Solid Waste, Recyclable Material, Organic Material, orCAD) listed by Processing Site or Disposal Site where such materials were dellvered Where Possible , information is to be separated by Residential and Commercial Customers, C. Tonnage Of Recyclable Materials, Organic Material, and C&D Diverted from Disposal by Contractor and supporting documentation. D. Diversion level, which shall equal Tonnage Diverted by Contractor divided by the Tonnage Collected by Contractor multiplied by 100, listed separately by month for the previous quarter. Tannage Diverted shall reflect Permitted Materials Processed less residue Disposed. E. Red ce levels of Processed or Composed materials. F Weight tickets from )'d Designated Disposal Site documenting the Tonnage of Solid Waste COlieRed 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, Ilii) Approved Disposal Sites documenting the Tonnage of residue delivered to Approved Disposal Sites by vehicle, date, and time. G. End use and markets for recovered materials. Contractor shall make records available to the City upon request. 7.2.2 Customer Retards Contractor shall maintain accurate and complete records centered 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 City of Fresno RollOffAgreement Page 25 0/8/13 selected, and the amount charged to Provide services. The mmrmatin shall he provided to the City upon request. 7.2.3 CERCU 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 maintain, retain and Preserve records which can es[ablsh where Permitted Materials Collected were Processed, Composted, and Disposed (and therefore establish where they were not). This provision shall survive the expiration or earlier termination of Nis Agreement Contractor shall maintain these records for a minimum of ten (10) Years beyond expiration on oilier termination of the Agreement. Contractor shall provide these records to City (open request or t the end of the record retention period)In an organized and indexed manner rather than destroying or disposing of them. ED GENERAL REPORTING REQUIREMENTS The format of each report shall be approved by Clty. Contractor may propose report formats that are responsive to the obleatives. Contractor agrees to mail a copy of all reports and submit all reports on computer discs, by email, or by modem In a format compatible virth City's software and computers at o additional charge. Contractor will provide a certdication 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. It Contractor does not submit the monthly reports by the dates required in this Apltle, Contractor shall pay the City Liquidated Damages as described In Section 114 and Exhibit A. Contractor shall submit (vla mail and e- mall) ell reports to: Solid Waste Division Manager City of Fresno 1325 EI Dorado Street Fresno , CA 93706 74 MONTHLY REPORT The monthly report shall Present the following information. A. Total Tonnage. Total Permitted Materials Tonnage Collected by Contractor within the City during the Previous quarter, listed separately by material type and by month. 8. Diverted Tonnage. Permitted Materials Tonnage Collected by Contractor within the City that was Diverted during the previous quarter, listed separately by matedal type and by month. Cly of Fresno Roll Off Agreement Page 26 4/8/11 C. Disposed Tonnage. Permitted Materials Tonnage Connecta by Contractor within the City that was Disposed during the previous quarter, listed separately by month. D . Diversion Level. Tonnage Diverted by Contractor divided by the Tonnage Collected by Contractor multiplied by 1W, listed separately by month for the previous quarter. Tonnage Diverted shall reflect Permitted Materials Processed less residue Disposed E C&D. Tonnage generated from construction and straddler Permitted sites, noting the permit tuber, the site address, the Tonnage hauled, the data hauled, and the facilities to Which the material was hauled. F. Disposal and Processing Locations. Contractor shall provide a list of the names and addresses of where Permittetl Materials Collected within the City during the previous quarter was Diverted and Disposed. Such list shall include theamount of Permitted Materials Tonnage Thai and/or Disposed at each location during the Previous quarter, listed separately by material type and by month. G Revenues. Gross revenues le g. cash receipts) ear o all ROILON Container CollTransportation, Processing, Recycling, Composting,nad/or Disposal services provided to Customers within the city during the previous quarter, listed separately by month. h Insurance. Updated insurance Urtlficaws. I. Account Information. In table format, thenumber of Customers within the City limits served and number of Roll -Off Containers serviced per month listed by Roll Off Container type (Drop Bin or Compactor), Roll Off Container size, and listed separately by Permitted Mateml type, and regularly schedule service and unscheduied(on call)service. 1. Contractor Officers and Board Members. Provide a list of Contractors officers and members of Its board of directors )only required with the December monthly report each year, or in the event of a change In the officers or board members). The City reserves the right to request additional reports from Contractor, and upon City's request, Contractor shall provide information required above for time period requested by the City It is the desire of the Gey to track the above required Information on an ongoing basis throughout the term of this Agreement. 7.5 AS 939 COUNTY SURCHARGE REPORTING Contractor acknowledges that lty is a party to that certain AB 939 Memorandum of understanding with the County of Fresno and various other jurisdictions dated January 6, 2008 (the "AB 939 MOU"C and further acknowledges having received and reviewed a copy of the As 939 th The Parties agree that Contractor is a "Jurisdiction's Hauler as that term Is used in Part IV, Section H of the AB 939 MOD. Contractor shall moony with all requirements of Per IV, Section H of the AB 939 MUU that a re applicable to a Turnaround's Hauler, including but not limited to submittal of reports and payment of the AB 93q Surcharge (as that term Is defined In the AS 939 MOU). City of Fresno RoilOffAgreement Page 27 4/11/11 ARTICLE 8 FRANCHISE FEES AND OTHER FEES 8.1 GENERAL Contractor shall reflect the fees described In this Section from Customers through Contractors regular billings and remit collected amounts to City on a monthly basis as described In Section g5. 8.2 FRANCHISE FEE In consideration of the exclusive dish s provided Contractor herein, Contractor shall pay Franchise Fees to the City each month equal to 10% of amual gross Rate revenues le. g. cash receipts) remitted to vided Contractor by Customers for services probyC Contractor under this Agreement. 9.3 OTHER FEES The City may set "other additional fees, as it deems necessary. The amount, time, and method of payment and adjustment process will be seen a manner similar to that for other fees described In this Article. 0.4 ADJUSTMENT TO FEES City may adjust the fees established in this Article annually at any time during the Term of this Agreement. 9.6 PAYMENT SCHEDULE AND LATE FEES On or before the 20th day of each month during the Term of Agreement, Contractor shall remit to City Franchise Fees and other fees as described In this Article. If 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 awed to City, 2% of the amount owing for that month; plus an additional 2% Owing on any unpaid balance fore ach following thirty 1301 calendar day period the fee remains unpaid Each monthly remittance to City shall he accompanied by a statement itemizing each fee paid; detailing calculation of all fees: stating actual gross revenues (e.g. cash receipts) for the monthly period collected from all operations conducted or permitted by this Agreement, and stating the number and size of Containers serviced by Contractor for the monthly period Each remittance including all supporting documentation shall be Provided to: Attn: City Controller, Cap nce Department City of Fresno 2600 Fresno Street Fresno, CA 93721 3620 City of Fresno Roll -Off Agreement Page 28 4/8/11 8.6 OVERPAYMENT OF FEES If Contractor believes it has paid Franchise Fees or other fees as described in this Article, In excess of the fees due to the City, Contractor may submit a request for refund to the Director. It proof of Overpaymentth is satisfactory to e Director, the Director shall authorize the city to refund the overpayment to the Contractor. Contractor shall not apply any overpayment a credit against any Franchise Fee or other amounts payable to the Cray, unless specifically authorizedto do so by the Director In writing. 8.7 NONCITYFEES: AR 939 COUNTY SURCHARGE Pursuant to 5ection 7.5, Contractor shall pay the County of Fresno an AR 939 surcharge as applicable In accordance with the AS 939 MOLL ARTICLE 9 CONTRACTOR'S COMPENSATION AND RATES 9.1 CONTRACTOR'S COMPENSATION Contractors compensation for performance of all Its obligations under this Agreement shall be! (i) actual Pate revenues paid to Contractor leg. cash receipts) by Customers that obtained Contractors Collection services less fees dues to the Cry in accordance With Article 8, and Df 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 ompensation due to Contractor pursuant to this Agreement for all labor, equipment, materials and supplies. Processing, Composting, and Dispocal fees, regulatory fees, City fees, taxes, insurance, bonds, overhead. operations, profit and all other things necessary to perferm all the services in the manner required by this Agreement. If Contractors costa are more than Contractor's compensation, Compactor shall not be compensated for the: difference in costs and revenues. If Contractors costs are less than COnlombers compensation, Contractershall retain the difference. 9.2 CITY'S RIGHT TO SET MAXIMUM RATES The City resseeman the right to establish maximum Rates for Permitted Materials Collection Sunday Provided under this Agreement In the event that: (a) there are three or fewer companies holding nom exclusive franchise agreements for collection of Permitted Maerlakr tor Had the Rates charged by the ompanies holding non exclusive franchise agreements for Collection If Permitted Materials are no longer comparable to those of other jurisdictions, as reasonably determined by City. of the City chooses to exercise In right to set matlmum 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 City of Fresno FROIFOF Agreement Page 29 A/8/11 c nsideratmn of reasonable and necessary costs for Collection, Processing, COmpnsrog, and Disposal and with the intention of setting maximum Rates that will enable parties, including the Contractor, that have ecuted Non -Exclusive Franchise Agreements with the City for RollOffContainer Collection Services the ability to recover reaonable and necessary costs and a reasonable profit. 9.3 CONTRACTOR'S RATES Contractor shall set the Rates It charges its Customers for RollOffCollection services. The Contractors Rates shall not exceed Cityestablishedmaximum Rates, if the City exercises its rights under Section 9.2. ARTICLE 10 INDEMNITY AND INSURANCE 101 INDEMNIFICATION contractor snap Indemmly, defend with rOunsel acceptable to the City, r oleo and hold harmless the City and each Of officer, officials. empkoyees, volunteers, and agents (collectively, lmemmtees) from and against all claims, damages including but not limited to spend), consequential, natural resources and punitive damages), injuries, costs. (including without limit any and all response,mediation and removal costs), losses, demands, debts, hens, fablhNey causes of action, suits. legal Ore administrative proceedings, Interest lines, chargeb penalties, and expenses (including without limit attorneys' expert witness fees and costs incurred Inc fusion with enforcing against any of the foregoing o r in enforcing this Indemnity), (mlletlFely o'Damages'"I of any kind whatsoever paid, incurred or suffered by, or asserted against, independency arising from or attributable to the alts or Omissions of [omfatter whether Or not negligent or othervaise culpable, "m reinsertion with or related t0 the performance of this Agreement, except such loss or damage which was caused by the sole negligence Or willful misconduct Ofthe city Contractor's duty to defend and indemnify herein shall include Damages arising from or attributable to any Operations, repairs, clean up or recombination, Or other Plan (regardless of whether undertaken due to governmental action) concerning any Hazardous Waste Collected in the City. Contractor shall he 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 andmg under the Comprehensive Environmental Response, Compensation and Liability Ann (CERCLA). The foregoing Is intended to operate asagreement mnify to defend and Indeand hold harmless indemnities to the fun extent Permitted for liability pursuant to Section novel of CERCIA, 4y OS.0 Section 91 and California Health and Safety Code Section 25364. In addition, Contractor's duty to defend and indemnify herein Includes all fines and/or penalties Imposed by the California Department Of Resources Recycling and Recovery, subject to the restrictions set forth in Public Resources Code section 4X59.1, if the requirements of the Act are not met by the Contractor with respect to the Permitted Materials Collected under this Agre stat and such failure due to Contractor delays n providing information that prevents Contractor or City from submMkng reports required by the Act in a timely manner. City of Fresno Roll Off Agreement Page 30 4/8/11 This Prov will survive the explratlon o r earlier termination of this agreement and shall not he construed asa waiver of rights by City to contributor o 'mdemndy from third partial 10.2 INSURANCE ID.2.1 Minimum Scope of Insurance Coverage shall be at least as broad as: A. Insurance Services Office Commercial General Liability coverage. 1. personal Injury 2. Contractual Maty, B, Insurance Sciences Chice covering Automobile Liability, code l "any auto- AWorkers Compensator Insurance as resulted by the labor Code of the State of Califarnu and Employers"I tilde insurance. R, Such other insurance coverages and limits as may be required by the Clay. 10.2.2 Minimum Limits of Insurance Contactor shall maintain limits no les man: A. General Liability: $1,000,000 each occurrence for bgmry injury and property damage; $1,008000 for peremal and advertising iojd, $2.000,000 products and completed operations aggregate, and $2,000,000 general aggregate. If Commercial General liability, insurance or other form with a general aggregate liability is used, either the general aggregate limit shall apply separately to this project/locaron or the general aggregate limit shall be twice the required occurrence limit. IL Automobile Liabillty_$1,000,000 per accident for bodily Injury and property damage. C. Wi Compensation: Workers' compensation It as required by the Labor Code of the State of California. 0. Employees liability: $1,000,000 each accident for bodily Injury. $1,000,000 disease each employee. $1,OO .000 disease Fundy limit. E. pollution Legal Liability; $1,000.000 per claim/occurrence and $2,pOl aggregate for bodily Injury, property damage, and remedlation of contaminated site 10.2.3 Deductibles and Self-insured Retentions Any deductibles or self insured retentions must be declared to and approved by the City. At the option Of the GIV, either me insurer shall reduce or eliminate such deductibles or self-insured retentions as respects me Che Its officials and employees: or the Contractor shall procure a bond guaranteeing Payment of losses and related Investigations claim administration and defense expenses. City of Fresno RollOffAgreement page 31 0/8/11 10.2.4 Omer Insurance Provision The policies are to contain, or be endorsed to contain, the mlmwing provisions. A. General Liability and Automobile Liability Coverages 1. The City, Its officers, officials, employees,agents and volunteers are to be c retl a additional In retls a redessi Ilablllty arising c t of afterperformed by o o behalf of the Contractor, products and completed operations of the Contractor: premises owned, leased or used by m'ues e Contractor, or secre owned, leased, hired or borrowed by the Contractor. The coverage shall contain no spend 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. 2. The Contractor's insurance coverage. shall be primary in respects the City, its Officials, employee; nand voluunteers. Any insurance or self ain a as maintained by the City. Its offioals, employee r volunteers shall be excess of the sContracto's insurance and shall not contribute with itf 3. Any failure to comply with reporting provisions of the policies shall not affect coverage Provided to the City, its offldal4 employees, or volunteers. 4. Coverage shall state that the Contractors insurance shall apply separately to each insured against whom claim Is made or sun is brought, except with respect to the limits of the Insurer's liability. B. WorkersCompensation and Employers Liability Coverage. The insurer shall agree tow a all rights of accompanied 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 required 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 aper 30 calendar days prior written notice by certified mail, return receipt requested. has been given to the CION 10.2.5 Acceptability of Insurers The insurance policies required by this Section shall be issued by ancompany or companies authorized to do business In the State of California and with a rating in the most recent edition of 9esPs Insurance Deports of size category VII 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 o provide the City with certificates of insurance and with original endorsements affecting coverage required by this clause. Issuance of documentation indicates the Contractors insurance mmplles wish these provisions. The certiM1cates and endorsements for each Insurance policy are to be signed by a Personauthorized by that Insurer to bind coverage on its behalf. The certificates and endorsements are to receivedbeand approved by the City before work asraces. The Clry may require complete, certified moles of all required insurance policies, at any time m City of r eme RollOffAgreement 4/1 Page 32 10.2.7 Required Endorsements A_ The WadersCompernal polity shall contain an endorsement in substantially the fallowing farm, 'Thirty calendar days' prior written notice shall be given ro the City of Fresno In the event of cammranon, reduction In coverage, or moan enessal of this policy Director of Public Udures City of Fresno. 2600 Fresno Street Fresno, CA 931213620 B. The Commercial General Liability, Business and Automobile Gablllry, add Pollution Legal Llablllty policies shall contain endorsements In substantially thefollowing forrrl'. 1_ 'Thiry calendar days' prior written notice shall be given to the City of Fresno In the event of Cancellation, reduction in coverage, a, 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, employee, and agents are additional insureds on this polity.' 3. "This policy shall be mnspered primary insurance as ns respeany other valid and collectible insurance maintalned by the CM ofo Fre Including any sel4in red retention or program of self insurance, and any other suchInsuranceshall be considered excess insurance only, 4. " I MCI union of the Ciry, of Praised 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 pallCy shall protect Contracrorand the City in the same manner as though a separate POLICY had been Issued in each, but this shall not operate to increase the Contractor i IAblllry as set forth In the policy beyond the amount shown Or to which the Contractor world have been I ame if only One nam had been named as an insured„ 10i oellvery Of Proof of Coverage Simultaneously with the execution of this Agreement, Contractor shall furnish the City certificates Of ach Palley ofii-Armance 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. If the City requests, copies of each policy, together with all endorsements, shall also be promptly delivered t0 City. Renewal certificates will be furnished annually to City to demonstrate maintenance of the Applied coverages throughout he Term. City of Fresno Roll Off Agreement 418111 Page 33 10.2.9 Other Insurance Requirements A. It any services are outputted to a subcontracttContractorre or, e Contractor shall regal such Subcontractor Provide sta utory to the Sub ontracto Workers Compensation hewooinsurance and employers with Sections insurance02.2 for all of r22S and Trip 4 semployees engaged insurance required work re accordance Symce with Sectionsall cover Subcontractors and Trip the B. The liability insurance required by Ssuran ID22 A shall [over all Su of the requirements or IDP S Rhos rape must furnish evidence of insurance provided by it meeting all of me regairemnh orthiz section 10.2. B. If at any time during the life of the Agreement Or any Triumvir vii Common, o of Its Subcontractors fail to maintain an r any y required insurance n full force and effecq Contractor shall be in breach of the Agreement until notice Is received in City that the required Insurance has been restored u full force and effect and that the premiums therefore have been paid for a perio City cause or Cfy to t to terminate Any failure en , No act on required In shall thin n Section e for City terminate this Agreement. si action taken is City reeme pursuant to this Section shall In any way relieve Contractor of its responsibilities under this Agreement. C. The Contractor shall comply with all requirements of the insurers issuing Falicies. The carrying Of Insurance shall not relieve Contractor from any obligation under this Agreement. If any claim exceeding the amount of any deductibles or selhlnzured reserves is matle by any third per son against the Contractor o any Subcontractor because ofany occurrence related to this Agreement, the Contractor shall promptly report the facts In writing to the insurance carrier and to the City. D. The Commercial General Leallry, Automobile Liability, and pollution Legal Liability In surance Policies shall be written on an"occurrence, rather than a"claims made basis, If Contractor is unable to purchase pollution Legal Liability insurance on an occurrence form and must purchase such Insurance on a claims made form: 1. The "petro Date" must be shown, and must be before the effective data of the Agreement or the commencement of work by Contractor, 2. The policy shall be endorsed to provide not less than a 5 -year discovery Period this requ lrement shall survive expiration or termination of the Agreement s . 3. If coveragei canceled or w eed, and not replaced with another driftmadepolicy form with a"Petra Date"npi Prior the effective date of the Agreement, Con must purchase 'extended reporting "c rage for a minimum of 5 years following the expiration or termination Of the Agreement y A. A copy of the claims reporting requirements must be submitted to City for review. 5. These requirements shall survive expiration or termination of this Agreement. City of Fresno Poll Off Agreement page 36 4/8/11 ARTICLE 11 DEFAULT AND REMEDIES 111 EVENTS OF DEFAULT Each of me muowmg shall constitute an event of default ('Event of Default "I hereunder: A. Contractor falls to perform its obligations under this Agreement, or future amendment to this Agreement including, but not limited to, Contractor's failure to Pay Franchise Fees and other City fees in accordance with Article B of this Agreement, and the breach continues for more than 30 Business Days after written notice franc the City for the correction thereof; B. Contractors !allure to Covert 50% of the C&D AI% 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: C. Any representation,warranty, or disclosure made to Cray by Contractor n connection with or as an induc ent to entering into this Agreement or any future amendment to this Agreement, which Proves to he falsemisleading any material respect a of the t such representation or disclosure o made, whether or not any such representation, warranty, or disclosure appears as part of this Agreement; D: There is a seizure or attachment (other than a prejudgment attachment) of, or levy affecting Possession Pos the operating equipmentof Contractor, Including without limit Its vehicles, Or office Tourist. p any Parc thereof of such proportion as to substantially impair Contractomaintenance iability to Perform under this Agreement and which cannot be released, bonded, o otherwise lifted within 48 hours otiosity weekends and statistic, E. Contractor files a voluntary Petition for debt relief under any applicable bankruptcy, insolvency, debtor caue{ or other similar law now or hereafter in effect, or shall consent to the appointment of or taking Of Possession by a receiver, Ilquidat assignee (other than as a part of a transfer of equipment no longer usefulto Contractor or necessary for this Agreement), trustee(other than as security for an obligation under a deed of trust), custodian. seque4rator (Or similar official) of the Contractor for any part of Contactor's opefing assets or any substantial part of Contractors Property, or shall make any general assignment for the benefit of Contractor s creditors, or shall fad generallyto pay Contactors debts as they become due or shall take any action in furtherance Of any of the foregoing; F. A court having judsiiftmn 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 orshall fail a OPpose any such Proceeding, or any such court shall enter a decree or order appointing ae eiv r, Ilquldatop assignee, custodian, trustee, sequestrator far similar official) of the Contractor or for any pan of the Contractor's operating equipment or risers, or orders the winding up or liquidation of the affairs of Contrast City at Fresno Fall Off Agreement 0/8/11 page 35 113 RIGHT TO TERMINATE UPON DEFAULT Upon a default by Contractor, the City may terminate this. Agreement within 10 calendar days of the default but no later than 180 calendar days after the default Such termination shall be effective 10 calendar days following the City's written notice to Contractor, and such termination shall be effective without the need for any hearing, suit, or legal action. 11.3 CITY REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE The City's right to terminate the Agreement under Source 112 fs not exclusive, and the City's termination of the Agreement and/or the imposition of Liquidated Damages shall not constitute a nlection Of remedies Instead, these rights shall be In addition to any and all other legal and equitable ights 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 limited to Injunctive relief. 114 LIQUIDATED DAMAGES General, The Parties find that as of the time of the execution Of this Agreement, it is Impractical, If not impassible, to reasonably ascertain the extent of damages which shall be incurred by City as a result of breach by Contractor of its obligations under this Agreement. The factors relating to the Impracticability of ancertaining damages include, but are not limited to, the fact that: til substantial damage results to members of the Public who are denied or denied quality O reliable service; )'II) such breaches cause Inconsequence, anxiety, services entente, frustration, n, and dr whose of Me his Agreement of the Agreement bj chwe way members of cthe arrying general public far whose at, incapable pabl Agreement exilic, 'm precise ways and s; varying degreesof intensity which are incapable olm ens In pre neea ervii, liiid the might be available as substantially services of dcosts than quality or serv[ and $M1e hat servicemonetarl to slating from senial et s r denial of Quality termination tellable senses$ is mpsuclh beaches,calcuan in pregieiary are. at b and tial an oftureof 1M1rs n a not for die breaches and other remedies a at best, a means of future correction antl not remedies which make the Public whole for past breaches m 8. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The Parties further acknowledge that consistent, reliable RollOffCollection. Processing, and Disposal s Of utmost importance to City and that City has considered and relied On Contractors representations as to its qualityof service commitment h executing sr Agreement. The Parties that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable service and performance. The Parties further cognize that If Contractor fails to achieve the pertormance standards, or fails to submit required documentsna timely manner, City and its residents and businesses will suffer damages, anti that It ls and will be, impractical and extremely dif0cult to ascertain and determine the exact amount of damages that City will confer. Therefore, withoutpreludlce to Court right to treat such non-performance as an event of default under this Article, the Parties City of Fresno Roll -OH Agreement 41 Page 36 agree that the Liquidates oamages amounts established in Exhibit A of this Agreement and the f slowing Liquidated Damageurnn s represent reasonable mate Of the amount of such damages considering all of the rncumstances e, ring on the Effective Date Of this Agreement, including the relationship of the sums to the range of Farm to City that reasonable 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, Exhibit A. City may determine the occurrence erren a of events giving rise to Liquidated Damages through the a obse of Its o r Investigation complaints by or representative o stigation of complainby Customers, roccupants, and Generators Liquidated Damages will only be assessed after Contractor has been thein the ortuNt but failed to rectify the da a Lipp Y Da 1 5 magna s described In this Agreement. Before notice assessing Liquidated Damages City Fall of the Contractor notice of Rs erforman e. do C The notice will include me borers at U Own expense) e) aaemosr anti/or theon Posse The Tact may copies a[i[s own expense) Il Information In the V review (and make and n Performance Possession days p(er issuing relating to lnddent(a nw ahem. Cul may, within to calendar nays after Issuing thein notice, request a meeting with Cs employ. sa maypresenteant to of henon-performance In perorantlthrough testimony of its employees and others relevant m of Inetermi sf and o nonperformance,brmanre. Goy will perform ContPerformance prior with ti written explanation nt ns determination on each erm is 5fi and actin mp Thed on Of(er shall beim and Cloy oft Liquidated to sunaed toexhast, any Ther administrative decision shall be final aria elty mall not be sub)ea t0. or requires to exhaust, ane former aammisnahve rmemes. C Amount. City may assess Liquidated Damages for each calendar day or event, as appropriate, that Contractor is determined to be liable In accordance wTtd this Agreement in the amounts specified in ExibbstA 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 beunded to the nearest cent. Liquidated Damage amounts shall he adjusted to reflect changes n the Consumer Price Index - All Urban Consumers (CPL DI compiled and published by me usr Department of Labor, Bureau of Labor statistics or its successor agency, using the following Bureau of Labor statistics parameters. Not seasonally Adjusted Area- Los Angeles -Riverside Orange County, CA Item -All Items Base Period - 1982-80=100 The formula for annual adjustment Is as follows: Adjusted Liquidated Damage_ Then- current Liquidated Damage Amount Amount most current CAI -U/prenou512-moron CPlO C;Ty of FresnO Dolt Off Agreement 4/8/11 Page 37 For example: Current ran Ida red Damage Amount - $150.00 MOstrecently published Index (January 2010)-224.610 Index published 12 mantes prior to mosneuemiy Published index (January 2009) = 220.719 Adjusted Liquidated Damage Amount =$150,00 x J224 610/220 719) r $152,154 If the CPI -0 Is disco m sled or reused during the Term by the United States Department Of Labor such other government Index or computation with which itis replaced shall be used in Order to obtain substantially the same result as w d Auld be obtained the CPI had not been discontinued or revised. 0. Timing of Payment. contractor shall pay any Liquidated Damages assessed by City within 10 calendar days of the date the Liquidated Damages are aoAdel If they are not paid wlmin the 10 day Period, City may order the termination of the lights or "franc granted by this Agreement. 11.5 DIVERSION NON-PERFORMANCE If the Contractures Diversion level is less than 50% for C&0, less than 70% for Recyclable Materials, and/or less than 90% for Organic Materials Collected In the City for a monthly reporting penotl, the following steps shall be hallowed by the City and Contractor. A_ Warning. The City shall Issue a wretch warningto the Contractor within 30 calendar clays of receipt of the Contractor's monthly report docmenting the Diversion level for themonthly reporting period The warning notice shall specify the amount of time )le.'correction penotl") the City grants the Contractor to improve its performance and meet the Diversion requirements defined in Section 5.3. 0_ Opportunity to Improve Performance. The Contractor shall modify Its Collection, Processing Diversion,and public education and Outreach Prom City's (subject the 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 pr0viding the supporting documentation, If the City determines that the Diversion level equals o exceeds Diversion requirements defined In Section 53, the Contractor shall continue to perform services In such a manner as to maintain or Improve the Diversion level and the City shall waive its rights to Proceed with steps outlined in subsections C and D of this Section 11.5 during the remaider of Men current reporting period C Liquidated Damages. If the Contractor fails to Improve the Diversion level so that It is equal to or greater than Diversion requirements defined in Seaion 5.3 by the end Of the correction period granted in subsection A of this Sectiaq the City may levy, and Contractor shall pay, Liquidated Damages described m Section 11 .4 0. Termination of the Agreement. If Contractor's fails to achieve a Diversion level that equals or exceeds Diversion requirements defined in Scandal 5.3 within months of the date the City levied Liquidated Dsamages, the failure to meet the Diversion requirements defined In Section City of Fresno call OH Agreement 4/8/11 page 38 5 shall be considered an event of default and the City may terminate the Agreement In accordance with Seetlon 11-3, 11.6 CONDITIONS UPON TERMINATION In the event this Agreement is terminated under the Provisions of this Article, the following conditions shall be effective: A. Prohibit RollI Collection Servlaes. Contractor shall have no right or authority to engage in Rall Off Collection services In the City fora period of fire years from the date of termination. Aper five years, should the Contractor provide Proof hat the event causing the Contractor to default under this Agreement has been corrected, the Contractor may reapply for a ma n. exclusive Ridr OH Collection service franchise, and the City, at the sole and complete discretion Of the City, may reinstate the Contractor based On review of Its reapplication. B, Continuing Liabilities. Contractor shall remain liable to the Cityfor. 1. Fees due In accordance with Article g that would otherwise be payable by the Contractor. ], uquented Damages assessed pursuant to Section 11.4 3. Reports required by Article ) for Goal Off pollution ablvidwas performed by Contractor up to and Including the date of termination. 4. Indemnity obligations under Section 10.1. 5, Record keeping and retention obligations under Section].] and].;. C. Release Customers and Generators from Obligations. Contractor shall allow Permitted Materials Generators served by Contractor to arrange for Permitted Materials Collection services with a hauler authorized to perform such services, without penalty or Ilabiliry for breach of any contract between Contractor and its Customers or Generators. O. Remove RolliMf Containers. Contractor shall remove all of COntraROls RollOffContainers from all Of Contractor's Collection locations and shall Properly Recycle, Process, Comppsp or Dopose of Permitted Materials In such Roll -OR Containers. ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES 13.1 RELATIONSHIP OF PARTIES The Parties Intend that Contractor shall perform the s required by this Agreement a s an independent Contractor engaged by City and not as an officernorof the City, novas a partner of, or joint venturer with, the City. No employee or agent of Contractor shall be, or shall be deemed to City of Fresno Roll OIIAgreemeit 4/8/11 Page 39 be.nempmyee ragent Ofthe cry. Except as expressly provided Elders, Contractor shag have control over the manner and means of conducting the Roll OR Container Collection, Transportation, Processing, Recycling. (Occasional and Disposal services performed under this Agreement, and all Persons consuming such services Contractor shall be solely responsible for the acts and omissions Of its officers,employees, Subcontractors, and agents. Neither Contractor nor its Officers, employees, Subcontractors and agents shall Obtain any rights to retirement benefits, workerscompensation benefits, or any other heneFlts which accrue to City employees by wrtue of their employment with the Cry. 11.2 PERMITS AND LICENSES Contractor shall obtain and maintain, at Contractor's sole cost and expense,all permits and licenses applicable to COntracmfs operations under this Agreement which are requed by any governmental agency. 12.3 COMPLIANCE WITH LAW Contractor shall, at all times, at Its sole cert, comply with all Applicable Laws 12A GOVERNING LAW ThisAofeement shall be governed by. and construed and enforced In accordance with, the laws of the State125 JURISDICTION Any lawsuits between the Parties arising out Of this Agreement shall be brought and concluded In the Moorts of Fresno County In the State of California, which shall have exclusive Jurisdiction Over such lawsuits. With respect to come, 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 Panics_ 12] ASSIGNMENT Neither Parry shall assign its rights nor delegate or Otherwise transfer Its obligations under this Agreement to any other Person without the prior written consent of the other Party. Any such assignment made without the consent of the other Party, shall be void and the attempted assignment City of Fresno Roll Off Agreement Page OD 418111 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 home during the period of consideration. 12,8 PARTIES IN INTEREST Nothing in this Agreement, whether express or implied, is intended to canter any rights on any Persons Other than the Parties to It and their representatives, successors and permitted asi 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 t0 be a waiver of any pro-evisting 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, emissions, and other cOmmunicutions which this Agreement requires, authorizes or contemplates all, shall be in writing and shall either be personally delivered to a representative of the Parties at the address below or deposited In the United States mail, first class postage Prepaid, addressed as follows: A. If to City: public Utilities Director Cry of Fresno 26W Fresno St, Room 3065 Fresno, CA 93721 3624 B. If to Contractor. 1"IZUtUly2UL ✓i1 ei g1ii 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. City of Fresno Rall Off Agreement Page ge Jl 1311 REPRESENTATIVES OF THE PARTIES References In this Agree mem 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/fir to other City officals and may permit such Officials, in turn, to delegate In writing some or all of such authority to subordinate officers. The Compactor may rely upon actions ra ken 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 whing a responsible officer who shall serve as the representative of the Contractor in all matters related to the Agreement and Shall intend the City in writing of such designation and of any limitations upon his or her authority to hind the Contractor The City may rely upon action taken by such designated representative as actions of the Contractor unless hey are outside the scope of the authority delegated to him/her by the Contractor as comm retorted to City, 12.12 CRIMINAL ACTIVITY OF CONTRACTOR 12.12.1 CriminalAttivlty For purpose of this Section, Criminal Activity shall mean any of the following events or circumstances. A. Convictions. The entry against any Contractor Party or its officers, of criminal conviction ora Permanent mandatory or prohibitory injunction from a court, mmucipalfity, or regulatory Sir Of competent jurisdiction, based on acts taken in his or her offical capacity on behalf of Contractor with respect to, I. Fraud or criminal offense in connection with obtaining, attempting to obtain, procuring o Performing a public or private agreement related to municipal Solid Waste services of any kind (including Collection, Transportation, transfer, Pmressing, Recycling Composting, or Disposal), including this Agreement or a try 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 claims, false statements, forgery, falsification or destruction of retards, obstruction of justice, knowingly receiving stolen property, theft, or misprision (failure to discloses of a felony, a. Unlawful disposal of Hazardous Wastes, the occurrence of which any Contractor Party knew or should have known; 5. Violation of antitrust laws. including laws relating to prott frimile bid egging, and sales and market allocation, and of unfair and anti-competitive trade practices laws; 6. Violation Of securities laws; a no ]. Felonies. City of Fresno RollOffAgreement Page 42 4/8/11 B. Pleas Entry of a plea Of-Zulty," 'nolo contendere," or "no contest" by a Contractor Party catcher acts sion In his, her,orltsofFlcial capacition behrefof Contractorwith respeRtothe conduct described in precetling Section 12,12.1A 12.12.2 Notice COntactm shall notify City In writing within five calendar do" of occurrence of any Criminal Activity by any Contractor Party 12.12.3 Contractors Cure Uponcc nce of any Criminal Activity, Contractor hallimmediately do Or cause to be done all of the follow ngu A_ Terminate from employment or remove from office any offending Individual Contractor Party, unless otherwise directed or ordered by a court or regulatory agency of competent ludo iction or Otho nomination ss that teation would constitute abreach of any labor agreement entered into o by Contractor, and B. Eliminate participation by any offending inlivitlual Contractor Party In any management, supervision, or decision activity that affects or could affect, directly or intlPeelr the performance of the Contractor under this Agreement 12.12.4 Transfer and Hiring Contractor shall not a9ow or cause to be allowed to hire or transfer any Individual from any Parent Coe Coy or subsidiary company or business entity of Contractor who has committed Criminal Activity a representative, field supervisor, officer, r director who r is directly or Ciry, indirectly esponsible for Perfor nce of this Agreement without obtaining prix written c of , bllowmg full disclosure m City of the facts and circumstances surrounding such Criminal Activity_ 12.12.5 Gtys Remedy P the event of any occurrence of Crim of Activity, the City, in sole discretion, may term mate 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 terminations as It will deem proper, in the following events A. Contractor sandy to comply with the foregoing obligation of this Section, or B. The Criminal Activity concerns or relates directly or Indirectly to this Agreement. Contractor shall be given the Opportunity to present beco ce in mitigation during the 30calendarday nonce period. 1213 ACKNOWLEDGMENT OF PUBLIC RESOURCES CODE SECTION 49520 NOTICE If Contractor has lawfully provided solid waste collection services In the City for more than three 13f years prior to July 1, 2011 land is therefore entitled to the notice provided for In Public Resources Code 495201, Contractor shag consider esecuron of this Agreement by the Cry as City's nonce to Contractor, pursuant to Pubic Resources Code 49520, that Contractor may provide service for a period of rive 151 City of Fresno RollOffAgreement 4/8/11 Page 63 Years beyond July 1. 3011, after which time the city has the right to establish an exclusive franchise collection system. ARTICLE 13 MISCELLANEOUS AGREEMENTS 13.1 ENTIREAGREEMENT MIs Agreement including the Eyinumm, represents the lull and entire Agreement between the Ponies with respect to the matters covered herein. 13.1 SECTION HEADINGS The article headings and section headings In this Agreementre forconvenience of reference only and are not Intended to be used in the construction of this Agreement nor to aper or affect any of its provisipns. 13.3 REFERENCES TO LAWS All references In this Agreement to laws shall be understood to Include such laws as they may be subsequently amended or reslution, unless otherwise specifically provided. 13A INTERPRETATION This Agreement shall be interpreted and mnstmed reasonably and neither for nor against either Party, regardless Of the degree to which either Party Participated In its drafting. 13.5 PRONOUNS AND PLURALS. TENSE When not ireardslosent with the context, words and phrases used In the present tense include the f rture, and words and Phrases used in the singular number include the plural number Whenever the context may require, any pronoun used In Ws Agreement shall include the corresponding masculine, lentlnine and neuterforms,and the smgl iar form of nouns, ancestor and verbs shall include the plural and vice versa. City Of Hesno poll CE Agreement 4/8/11 Page 44 13.6 TEXTTOCONTROL The captions of the Articles or 5enions in this Agreement are for convenience only and In na way de0ne, mit, extend or describe the snipe or intent of any of the provisions hereof, shall not be deemed not Of this Agreement and shall not be used in construing or interpreting this Agreement. 13.7 AMENDMENT This Agreement may not be modified or amended in any respect except in writing signed by the Partles. 13.0 SEVERABILITY If any Pon -material provision of this Agreement s for any reason deemed to he Invalld and enforceable, the invalidity ar unenfo¢eabilify of su.I provision shall not affect any of the remaining provisions of this Agreement, which shall be enforced as If such Invalid or unenforceable provision had not been contained herein. 13.9 COUNTERPARTS This Agreement may be eaecoted in counterparts, each of which shall he considered an original. 13.10 EXHIBITS Each of the Exhibits Identified as Exhibit 'A" through "D" is attached hereto and incorporated herein and made a part hereof by this reference. Ciry of Fresno Rol1-0ff Agreement Page 45 4/g/11 IN W11NBSs WHEREOF, the Pames nave Cau ed the Agreement to be executed on the day and year first above wrAten. Ef1YOFFRESNO CONT UOR A Munici0al[orpoatlon /% ( Tea L /J Iwueti DlrtCtor Name y r vS t APPROVED AS T➢FDRM: Tale Ai MAF1rFn. air { /H�/,.x dress Atltlnss Choy, 2200sf eclo xz 10 Buslness license Risk Manager ATTEST: ❑N of Fresno 1011-0N Agreement Page Ofi 4/B/11 EXHIBIT SCHEDULE FOR LIQUIDATED DAMAGES Contractor maybe swayed Liquidated Damages H Contractor falls to fulfil 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 aof 50% The greater of 55,000 or Dive Collected per month of all C&0 Colleetl withinfnthe City, 70% lo% of the gross Rate Diversion per month of all Recyclable Materials Collected within thevenues ved for City, and 90% of all organic Materials Collected within the City providing C&o, Recyclable Materials, and Organic Materials services In the City, for the most recent 13- period 2. s,Otteror5pll15. For each occurrence over fivemonth Leak during near San/ event year ofunreasonablestreets leaks, ofpermitted etl Materials near lure to pick u or on a Public streets and failure to pick up or [lean up such material clean e immediately. 3. dnauthonad CanMlan Hours. For each occurrence over five during $300/event calendar year of Collecting Permitted Materials during unauthorized hours, A Noise. For each occurrence over 10 during a calendar year $300/ event Excessive ve noise �Collec9un 5. Cleaning Vehicles. For each occurrence over five during a 5150/event calendar year for failure to keep Collection vehicles In a safe and sanitary condition, 6, Labeling of Rolll Containers. Far each occurrence of Contractor's $500/ event failure tocrrectly label ContractorOwnedRall-OR Containers (In accordance with Section 6.4.q. >. oixourteous Behavior. ForForachoc a of discourteous behavior 55o0/event by collection vehicle Personnel, customer servltt personnel, or other ookmees of Contractor. IL Injures to Others. For each Incident of per Injury to a Person $5,000/ incident requiring medical treatment or hospitalization, where Me negligence of the Contractor or its personnel was a contributing factor to the injury. 9. Monthly Reports. Failure a Submit monthly reports In the timeframe 5300/day' specified in this Agreement, 10. Report Hazardous Waste For each failure a notify the appmpnate $5 /event authorities of reportable quantities of Hazardous Waste. A-1 11. Failure Of Otber Ob "gadding Fdllure to perform any of the obligations ""C"Oreach set forth In thisreement not specifcally stated above and not obligation per day until cityrecent pro ding in good faith to correct with in 26 hours upon obligation is performed 26 hournotlfcat onb C'[ ' Mmi reports shall be retail late unlll such time n and complete tenthly !nitons received by City. For each calendar day a easteris late the dally Liquidated Damage shall be as indicated in the monthly reports section above. In placing Designee's Inside at the places provided, each Parry specifically confirms the accuracy of the statements made above and the fact that each Parry has had ample opportunity to commit with legal counsel and obtain an explanation of Leculdated Damage proviilons of the time that the Agreement was made. Contractor City InDalrerm Initial Here'. EXHIBIT SECREIrAll CERTIFICATION The undersigned, being the Secretary of tNrl f&�1 a;ii LGriCalifornia corporation (the Company", do hereby certify that me Wide ng retail was adopted by the Board of Directors of the Company and that such rewlution has not been amended, mddified or rescinded and is in full force and effect as of the date hereof-, RESOLVED, thatto fsca P/[ a be, and heorited i W omen epr therapy is, auth execute by and on behalf of the Company any and all agreements, instruments, documents or papers, as he/she may deem appropriate or necessary, pertaining to or rNating to the Num -Exclusive Franchise Agreement between the City Of Fresno and Company for Rall-Dff Container COIIeRiory Transporting Processing, Recycling, Campo ring, and Disposal of Permitted Materials and that any such action taken to date is hereby ratified and approved. Dated: B-] Save re title EXHIBIT[ STATEMENT OF APPIICANTS UNDERSTANDING AND REPRESENTATIONS The undersigned who Is duly authorized to bind the company submitting this applicaHonl has reviewed the requirements of the nomecclusive franchise agreement for RollOffCollection, Transporting, Processing, Recycling, Composting, and Disposal services for Solid Waste, Rerydable Materials, Organic Materials, and C&O, its effiiblt; and reference documents. In addition, the undersigned attests that this application and any other supplementary Information submitted with this application do not i)contein any untrue statement of a material fact Ili l contain Inaccurate or misleading information. or Illi) omit to state a mMedal fact that is necessary to make the statements made, in light of the circumstances in which they were made, not miAeading. Clock- Y2thi '�2ggii Print Name Date ]/ re - P2•Oa NY Tale /CUA'a 1. r-- P&Ptl SPC Compaa((nyy Name Signage C-1 RHIBRO itdap ppRO MilklU AND RMIOUE OIBPO FMO n T afdbwlnihtllBinwereaelecFtl bythe Coamactoa and appm by the 0, [ontacte CIO l Ory Initial Here: yI Initial Here: 6ad