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NON-EXCLUSIVE FRANCHISE AGREEMENT
BETWEEN
THE CITY OF FRESNO
AND
SELMA DISPOSAL & RECYCLING
FOR
ROLL.OFF COLLECTION SERVICES
AUGUST 21 ,2015
Table of Contents
RECITALS .,..........1
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR........................,........ 8
2.L REPRESENTATIONS AND WARRANTIES. ...........,........8
ARTICTE 4 SCOPE OF AGREEMENT............. ....,..,.......... 11
4.1 SCOPE OF AGREEMENT. ................... 114.2 LTM|TAT|ONS TO SCOPE ..,...,.....,......124.3 C|TY'S RTGHTTO GRANT MULTtpLE NON-EXCLUSTVE AGREEMENTS........................,...............13
4.4 CITY,S RIGHT TO EXCLUDE NEWLY ANNEXED TERRITORY FROM SCOPE OF FRANCHISE .........134.5 AGREEMENT CONSISTENT WITH APPLICABLE lAW........ .........,... 134.6 oWNERSHÍP OF MATERTALS .......,............ .....,..,....134.7 NOTTF|CATTON TO CtTy OF NON-FRANCHTSED HAULER5....... ..............14
ARTICLE 5 COLLECTTON, pROCESS|NG, AND DISPOSAL SERV|CEs...., ..........-........L4
s.1 coLLECTtON ..........,... 1.45.2 PROCESSING AND MARKETING SERVICES ....,..,,,...745.3 D|VERSTON REQU|REMENT...,............... ....... 165.4 D|5POSAL....... ,.................16s.5 B|LL|NG......,.. ............t1
s 6 cusToMER SERV|CE......... ..............77
ARTICLE 6 STANDARDS AND REQUIREMENTS FOR SERV|CES, EQUtpMENT, AND PERSONNEL 17
6.1 oPERAT|NG DAYS, HOURS, AND SCHEDULES................ .....,.......77
6.2 COLLECTTON STANDARDS .......,........,........18
6.3 VEHTCLE REQU|REMENTS.................. ......... ................19
6.4 ROLL-OFF CONTA|NER R8QU|REMENTS...........,....., .........,.,.......,..20
6.5 PERSONNEL... ....................22
6.6 HAZARDOUS WASTE INSpECTtON AND HAN01tNG.................,. ..............,....,.....22
6.7 NON-D|SCR|M|NATION ...........................23
6.8 COMMUNTCATTON AND COOPERATTON W|TH CtTy .....,,,.,......-....23
ARTTCLE 7 RECORD KEEPING AND REPORTING.,,.......... ...................24
City of Fresno Non-Exclusive Roll-Off Agreement
4/s/77
Page i
7.1
7.2
7.3
7.4
7.5
CONTRACTOR'S COM PENSATIO N .29
ARTTCLE 8 FRANCHTSE FEES AND OTHER FEES............ .................... 28
8.1 GENERAL ........................28
8.2 FRANCHTSE FEE................. ..............28
8.3 OTHER FEES... ....,....28
8.4 ADJUSTMENT TO FEES ...........,....... .. .. 288.5 PAYMENT SCHEDULE AND LATE FEES.,.... .......,,.,.28
8.6 oVERPAYMENT OF FEES ................,..,..29
8.7 NON-CITY FEES; AB 939 COUNTY SURCHARGE.. ......................... 29
ARTICLE 9 CONTRACTOR'S COMPENSATION AND RATES ....,,....,,,..29
9.1
9.2
9.3
ARTICIE 11 DEFAULT AND REMEDTES ,............. .......,.. 35
11,1 EVENTS OF DEFAULT.. ......,...,........35
77.2 RTGHTTO TERMTNATE UPON DEFAU1T................... ................. .35
1.L.3 CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORM4NCE..................... ........ ,.36rr.4 LTQUTDATED DAMAGE5...... ...........3677.5 D|VERSTON NON-PERFORMANCE............. ........ ....38
11,6 CONDTTTONS UPON TERM|NATION............ ......,...39
ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES ,.... 39
1,2.1, RELATTONSHTP OF PART|ES ...........,,.....39
72,2 PERM|TS AND LTCENSES ........................4o
t2.3 COMPLTANCE W|TH LAW ..,,..,,.........40
72.4 GOVERNTNG 1AW............... ............-.40
1,2.5 JURISD|CT|ON .,.. ,.........40
12.6 BTNDING ON SUCCESSORS ........ ......................... 4072.7 ASS|GNMENT .,..,,...,..,.,40
12.8 PARTTES tN |NTEREST... .....,............,41
12.9 WATVER ......,...........41
72.70 NOTTCE PROCEDURES ....................41
IZ,LT REPRESENTATIVES OF THE PARTIES,...,.... ............ 42
L2.72 CRTMTNAL ACT|V|W OF CONTRACTOR................. ,..,..,..,.,............42
12.73 ACKNOWLEDGMENT OF PUBLIC RESOURCES CODE SECÎION 49520 NOTICE . ......,..43
City of Fresno Non-Exclusive Roll-Off Agreement
4/s/\L
Page ii
List of Exhibits
A
B
c
D
Schedule for Liquidated Damages
Secretary's Certification
Statement of Applicant's
Approved Processing and
Understanding and Representations
Residue Disposal Facílities
City of Fresno Non-Exclusive Roll-Off Agreement
4/s/77
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NON.EXCLUSIVE FRANCH ISE AG REEM ENT
BETWEEN
THE CITY OF FRESNO
AND
çFt t\/ì^ ntçÞôçat .R RFavat ll\tc
FOR ROLL.OFF COLLECTION SERVICES
This non-exclusive franchise agreement (Agreement) is made and entered into this 21, _day ofry' "' i;;^fl iì3 Jåiîï ä'liåiäiKä' " "'' îJJ,î'åil;: ;
o " " t i o n, ( c i tv ) a n d
.
RECITALS
This Agreement is entered into with reference to the following facts and circumstances:
wHEREAS, the Legislature of the state of california, by enactment of the california tntegrated waste
Management Act of L989, codified at California Public Resources Code Section 40OOO et seq. (,,Act,,) ),has declared that it is in the public interest to authorize and require local agencies to make adequate
provisions for solid waste Collection within their jurisdiction; and
WHEREAS, the State of California ("State") has found and declared that the amount of Solid Wastegenerated in California, coupled with diminishing landfill space and potential adverse environmental
impacts from landfilling and the need to conserve natural resources, have created an urgent need forstate and localagencies to enact and implement an aggressive integrated waste management program.
The State has, through enactment of the Act, directed the responsible state agency and all local
agencies, to promote Disposalsite Diversion and to maximize the use of feasible Solid Waste reduction,
re-use, Recycling, and Composting options in order to reduce the amount of Solid Waste that must be
Dísposed of in Disposal Sites; and,
wHEREAS, the Act requires local agencies to divert 50% of discarded mater¡als from landfills; and,
WHEREAS, the City Council established goals of achieving 75% diversio n by 2012 and zero waste status
by 2025 on June 26,200-l , and approve d aZero Waste Strategic Action plan on February L1, 2009; and
WHEREAS, the City finds that reusing, Recycling, and Composting Recyclable Materials, OrganicMaterials, and Construction and Demolition Debris (C&D) and beneficial use or composting of Organic
Materials is essential to further the City's efforts to reduce Solid Waste Disposal and comply with the Act
and the City's zero waste goals; and
WHEREAS, pursuant to the powers granted the City as a charter city by Article Xl, Section 5(a) of the
California Constitution and Article Xlll of the Fresno City Charter, the City has determined thatthe public
health, safety, and well-being require that a franchise agreement defining non-exclusive rights be
awarded to qualified companies to provide for the roll-off container collection of permitted Materials
City of Fresno Roll-Off Agreement
4/8/1.1.
Page 1
except for collectíon of materials excluded in the City's Munícipal Code, and other services related to
meetíng requirements of the Act; and
WHEREAS, the City requires all haulers provìding Roll-Off Collection services for Permitted Materials in
the City to obtain a non-exclusive franchise in order to regulate this business, ensure its orderly
operation, achieve its diversion goals, and to minimize the potent¡al for adverse effects it may have on
the local environment; and
WHEREAS, the City Council has determined through an application process that the Contractor, by
demonstrated experience, reputat¡on, and capacity, ís qualified to provide for the Roll-Off Container
Collection of Permitted Materíals with¡n the corporate limits of the City and the Transportation of such
material to appropriate places of Recycling, Processing, and/or Disposal, and can provide insurance
consistent with the Cíty's requirements. The City Council desires that Contractor be engaged to perform
such services on the basis set forth ín this Agreement; and
WHEREAS, Contractor intends to use the City's streets, alleys, other public rights-of way, and
infrastructure to provide Roll-Off Collection services to the City's residents and businesses; and
WHEREAS, the City intends to receive just and reasonable fees from the Contractor for City's
administration of the Agreement and for Contractor's use of the City streets, alleys, other public rights-
of-way, and infrastructure which the City may lawfully impose and the companies are obligated to pay;
and,
NOW, THEREFORE, in consideration of the mutual promises, covenants, and conditions contaíned 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 meaníng is clearly required, the following words and
phrases shall have the following meanings respectively ascribed to them by this Article and shall be
capita lized throughout this Agreement:
"Act" means the California lntegrated Waste Management Act of 1.989 (Division 30 of the California
Public Resources Code), as amended, supplemented, superseded. and replaced from time to time,
"Agreement" means this Agreement between the City and Contractor for Roll-Off Container Collection,
Processing, and Disposal of Permitted Materials including all exhibits, and any future amendments
hereto.
"Applicable Law" means all Federal, State, and local laws, regulations, rules, orders, judgments,
degrees, permits, approvals, or other requirements of any governmental agency having jurisdiction over
the Roll-Off Container Collection, Transportation, Recycling, Processing, and Disposal of Permitted
Materials that are in force on the Effective Date and as they may be enacted, issued, or amended during
the Term of this Agreement.
City of Fresno Roll-Off Agreement
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Page 2
"Approved C&D Processing Site" means the processing site specified in Exhibit D, which was selected by
Contractor and approved by the City.
"Approved Disposal Site" means a Disposal Site selected by the Contractor or its Subcontractor(s) and
approved by the City for Dísposal of residue from Approved Processing Site(s). Approved DÍsposal Site(s)
are listed in Exhibit D.
"Approved Organics Processing Site" means the processing site specifíed in Exhibit D, which was
selected by Contractor and approved by the City.
"Approved Processing Site(s)" means the Approved C&D Processing Site, Approved Organics Processing
Site, and/or Approved Recyclables Processing 5ite.
"Approved Processol'' means the operator of an Approved Processing Site.
"Approved Recyclables Processing Site" means the processing site specified in Exhibit D, which was
selected by Contractor and approved by the City.
"Bin" means a container with capacity of approximately one (1) to e¡ght (8) cubic yards, with a hinged
lid, and with wheels, that is typically serviced by a front end-loading Collection vehicle.
"Business Days" mean days during which City offices are open to do business with the public.
"Cart" means a plastic conta¡ner with a hinged lid and wheels that is typically serviced by an automated
or semi-automated Collection vehicle. A Cart has capacity of 20, 35, 64, or 96 gallons (or simílar
volumes).
"C&D" means Construction and Demolition Debris.
"Change in Law" means any of the following events or conditions that have a material and adverse
effect on the performance by the Parties of their respective obligations under this Agreement (except
for payment obligations);
a. The enactrnent, adoption, promulgation, issuance, modífication, or written change in
administrative or judicial interpretation on or after the Effective Date of any Applicable
Law; or
b The order or judgment of any governmental body, on or after the Effective Date, to the
extent such order or judgment is not the result of willful or negligent action, error or
omission or lack of reasonable diligence of the City or of the Contractor, whichever is
asserting the occurrence of a Change in Law; provided, however, that the contesting in
good faith or the failure in good faith to contest any such order or judgment shall not
constitute or be construed as such a willful or negligent action, error or omíss¡on or lack of
reasonable diligence.
"City" means the City of Fresno, California, a municipal corporat¡on, and all the territory lying within the
municipal boundaries of the City as presently existing or as such boundaries may be modified during the
Term.
City of Fresno Roll-Off Agreement
4/s/7L
Page 3
"City's Municipal Code" means the City of Fresno Municipal Code.
"Collect" or "Collection" means the act of collecting Permitted Materials and other material at the place
of generation in the City.
"Commercial" shall mean of, from or pertaining to non-Residential Premises where business activity is
conducted, including, but not limited to, retail sales, services, wholesale operations, manufacturing and
industrial operat¡ons, but excluding businesses conducted upon Residential property which are
permitted under applicable zoning regulations and are not the primary use of the property.
"Compactor" means a mechanícal apparatus that compresses materials into a container, whích
container may be detachable. For the purposes of this Agreement, Compactors shall include only
Compactors with container capacities of ten (10) to fifty (50) cubic yard that are serviced by Roll-Off
Collection Trucks.
"Compost" or "Composting" includes a controlled biological decomposition of Organic Materials
yielding a safe and nuisance free Compost Product.
"Compost Product" means the product resulting from the controlled biological decomposition of
Organic Materials that are Source Separated from the Solid Waste stream, or which are separated at a
centralized facìlity.
"Constructíon and Demolition Debris (C&D)" means materials resulting from construction, remodeling,
repair, cleanup, or demolîtion operations that are not hazardous as defined in California Code of
Regulations, ÍTle22 Section 66267.3, This term íncludes, but is not limited to, asphalt, concrete, cement
concrete, brick, lumber, gypsum wallboard, concrete board, cardboard, and other associated packaging,
roofing material, ceramic tile, carpeting, plastic pipe and steel, as well as vegetatíve matter resultìng
from land clearing and landscaping including but not limited to rock, soil, tree stumps. Construction and
Demolition Debris excludes putrescible wastes.
"Contractor" means (iûsert contrâctor's nãmê), a
(Ínsert corporatlon, sole proprietorship/ paftnership as appropriate) organized and
operat¡ng under the laws of the State of California and its officers, directors, employees, agents,
companies, and Subcontractors.
"Contractor Party(iesf" shall mean Contractor, officers, directors, management employees, or fiscal
employees (where "management employee" means any employee with direct or indirect responsibility
for direction and control over the Contractor's activities under this Agreement and "fiscal employee"
means an employee w¡th direct orindirect responsibility and control duties relating to financial matters
under this Agreement).
"Criminal Activity" means those activities described in Section !2.I2.7
"Custorner" means the Person whom Contractor submits billing invoice to and collects payment from
for Collection services provided.
"Designated Disposal Site" means the American Avenue Landfill at 18950 W American Avenue in
Tranquility, California for the purposes of Disposing Solid Waste
City of Fresno Roll-Off Agreement Page 4
4/s/t1
"Designated Waste" 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 ll Disposal
Sites or Class lll Disposal S¡tes pursuant to a variance issued by the Californ¡a Department of Health
Services.
"Director" shall mean the Public Ut¡lities Director of the City or an authorized representative of the
Publ¡c Ut¡lities Director.
"Discarded Materials" means Solid Waste, Recyclable
Generator in a receptacle and/or at a location that is
Municipal Code.
Materials, Organic Materials, or C&D placed by a
designated for Collection pursuant to the City's
"Disposal or Dispose (or variation thereof)" means the fínal disposition of Solid Waste at a Disposal
Site.
"Disposal Site" means a facility for ultímate Disposal of Solid Waste.
"Diversion" means activities that reduce or el¡minate the amount of Solid Waste from Solid Waste
Disposal including, but not limíted to, Recycling, and Composting.
"Drop Box" means an open-top container with capacity from six (6) to fifty (50) cubic yards that is used
for Collection of Permitted Materials and that is serviced by a Roll-Off Collection Truck. Drop Boxes with
capacities of less than ten (10) cubic yards may only be used for the purposes of Collecting C&D. A Drop
Box, which is also known as a roll-off box and/or debris box, is a type of Roll-Off Container.
"Effective Date" means the date set forth in the introductory paragraph of this Agreement.
"Federal" means belonging to or pertaining to the national general government ofthe Un¡ted States.
"Food Scraps" means those discarded materials that will decompose and/or putrefy including (i) all
kitchen and table food waste, (ii) animal or vegetable waste that is generated during or results from the
storage, preparation, cooking or handling of food stuffs, (iií) discarded paper that ¡s contaminated with
Food Scraps; (iv) fruit waste, grain waste, dairy waste, meat and fish waste; and, (v) non-Recyclable
paper or contaminated paper. Food Scraps are a subset of Organic Materials.
"Franchise Fee" means the fee paid by Contractor to City for the privilege to hold the non-exclusive
rights granted by this Agreement.
"Generator" means any Person whose act or process produces Permitted Materials, or whose act first
causes Permitted Materlals to become subject to regulation.
"Green Waste Material" means any materials generated frorn the maintenance or alteration of public,
commercíal, or residential landscapes that will decompose and/or putrefy including, but not limited to,
yard clippings, grass, leaves, shrub/tree trimmings or prunings (less than 4" in diameter), brush, flowers,
weeds, dead plants, small pieces of unpainted and untreated wood, and other types of organic waste.
For the purposes of this Agreement, such materials shall be Source Separated and placed by a Generator
in a receptacle and/or at a locatíon that ís designated for Collection. Green Waste Material is a subset
of Organic Materials.
City of Fresno Roll-Off Agreement
4/s/1,r
Page 5
"Hazardous Waste" means all substances defined as Hazardous Waste, acutely Hazardous Waste, or
extremely Hazardous Waste by the State in Health and Safety Code 525110.02, S25tl5, and 525117 or
in the future amendments to or recodifications of such statutes or identified and listed as Hazardous
Waste by the U.S. Environmental Protection Agency (EPA), pursuant to the Resource Conservation and
Recovery Act (42 USC 56901 et see.), all future amendments thereto, and all rules and regulations
promulgated thereunder.
"Holidays" are defìned as New Year's Day, Thanksgiving Day, and Christmas Day.
"lnfectious Waste" means biomedical waste generated at hospitals, public or private medical clinics,
dental offices, research laboratories, pharmaceutical industries, blood banks, mortuar¡es, veterinary
facilities and other similar establishments, as defined in Health and Safety Code Section 25L1,7.5,
"Liquidated Damages" rneans the amounts due by Contractor to City for failure to meet specific
quantifiable standards of performance as described in Section 11.4 and Exhibit A.
"Organic Materials" means those discarded materials that will decompose and/or putrefy including
Green Waste Material and Food Scraps such as, but are not limited to, green trimmings, grass, weeds,
leaves, prunings, branches, dead plants, brush, tree tr¡mmings, dead trees, small wood pieces, other
types of organic yard waste, vegetable waste, fruit waste, gra¡n waste, dairy waste, meat waste, fish
waste, paper contaminated with Food Scraps, pieces of unpainted and untreated wood, and pieces of
unpainted and untreated wallboard. No discarded material shall be considered to be Organic Materials,
unless such material is Source Separated from Solid Waste, Recyclable Materials, C&D, or other
materials.
"Parent Company" refers to a company owning more than fifty percent (50%) of the shares of another
company (subsidiary) or a company that has management control over such subsidiary.
"Party or Parties" refers to the City and Contractor, individually ortogether.
"Permitted Materials" refers to Solid Waste, Source Separated Recyclable Materials, Source Separated
Organic Materials, and C&D. Perm¡tted Meterials excludes Source Separated Food Scraps.
"Person(s)" means any individual, firm, association, organization, partnership, corporation, busíness
trust, joint venture, the United States, the State of California, the County of Fresno, and special purpose
districts,
"Premises" means any land or building ¡n the City where PermÌtted Materials are generated or
accumulated.
"Processing" means to prepare, treat, or convert through some special method.
"Processing Site" means any plant or site used for sorting, cleansing, treating, or reconstltut¡ng
Permitted Materials for the purpose of making such material available for reuse.
"Putrescible Waste" means Solid Wastes originated from living organisms and their metabolic waste
products and from petroleum, which contains naturally produced organic compounds and which are
City of Fresno Roll-Off Agreement
4/s/11
Page 6
biologically decomposable by microbial and fungal action into the constituent compounds of water,
carbon dioxide and other simpler organic compounds.
"Rates" means the charges and fees Contractor bills and collects from each Customer receíving service
pursuant to this Agreement.
"Recyclable Materials" means those Discarded Materíals that the City Code permits, directs and/or
requíres Generators to set out in Recyclables Materials containers for Collection for the purpose of
Recycling. No Discarded Materials shall be considered Recyclable Materials unless such material is
separated from Solid Waste and Organic Materials. Recyclable Materials shall include, but not be
limited to: newspaper (including ¡nserts, coupons, and store advertisements); mixed paper (including
office paper, computer paper, magazines, junk mail, catalogs, brown paper bags, brown paper,
paperboard, paper egg cartons, telephone books, grocery bags, colored paper, construction paper,
envelopes, legal pad backings, shoe boxes, soap boxes, cereal and other similar food boxes); chipboard;
cardboard; paper milk cartons; glass containers of any color (including glass bottles and jars all colors);
aluminum cans; fabric softener containers; steel, tin or bi-metal cans; plastic containers (clear or green
plastic soda and water bottles, plastic containers and bottles and plastic bags with no. 1,2 or 3 on the
bottom); and food containers from potato salad, pasta salad, whipped cream, etc.
"Recycle or Recycling" means the process of collecting, sorting, cleansing, treating, and reconst¡tuting
materials for the purpose of using the altered form in the manufacture of a new product. Recycling does
not include burning, incinerating, or thermally destroying sol¡d waste.
"Residential" shall mean of, from, or pertaining to a single-family Premises, multi-plex, or multi-family
Premises including single-family homes, apartments, condominiums, townhouse complexes, mobile
home parks, cooperative apartments, and yacht harbors and marinas where residents live aboard boats.
"Roll-Off Container" means a Drop Box or Compactor used for Collection of Permitted Materials and
serviced by a Roll-off Collection Truck. Roll-Off Containers with capacities of less than ten (10) cubic
yards may only be used for the purposes of Collecting C&D.
"Roll-Off Collection Truck" means a collection vehicle with a mechanical device such as a winch that
pulls or loads a Roll-Off Container onto the truck bed or attached trailer and separately transports each
Rolf-Off Container to a Disposal Site or Processing Site.
"Solid Waste" means solid waste as defined in California Public Resources Code, Divisíon 30, Part 1,
Chapter 2, 540191 and regulations promulgated thereunder and those Discarded Materials that the City
Code requires Generators within the C¡ty to set out for Collection. Excluded from the definition of Sof íd
Waste are C&D, Hazardous Waste, lnfectious Waste, Designated Waste, Source Separated Recyclable
Materials, Source Separated OrganÌc Materials, and radioactive waste. Notwithstanding any provision
to the contrary, "Solid Waste" may include de minimis volumes or concentrations of waste of a type and
amount normally found in Residential Sofid Waste after implementation of programs for the safe
collection, recycling, treatment and disposal of household hazardous waste in compliance with Section
41500 and 41802 of the California Public Resources Code.
"Source Separated" means the segregation, by the Generator, of materials designated for separate
Collectíon for some form of Recycling, Processing, Composting, recovery, or reuse.
"State" means the State of California.
City of Fresno Roll-Off Agreement
4/s/tr
Page 7
"Subcontractor" means a party who has entered ¡nto a contract, express or implied, with the Contractor
for the performance of an act that is necessary for the Contractor's fulfillment of its obligatíons under
this Agreement.
"Term" means the Term of this Agreement, including extension periods if granted, as provided for in
Article 3.
'Îon" means a unit of measure for weight equivalent to 2,000 standard pounds where each pound
contains 16 ounces.
"Tonnage" means the total we¡ght in Tons Collected. Recycled, Composted, Diverted, or Disposed of,
the context requires.
"Transportation" means the act of transporting or state of being transported.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR
2.1 REPRESENTATIONSANDWARRANTIES
The Contractor, by execution of this Agreement, represents and warrants the following to City, for the
purpose of inducing City to enter into this Agreement and to consummate the transact¡ons
contemplated hereby:
c.
Corporate Status. Contractor ís duly organized, validly existing and in good standing under the
laws of the State. lt is qualified to transact business in the City and State and has the power to
own its properties and to carry on its business as now owned and operated and as required by
this Agreement.
Authorization. Contractor has the authority to enter this Agreement and perform its obligations
under this Agreement. The Board of Directors of Contractor (or the shareholders, if necessary),
sole proprietor, or partners have taken all actions required by law, its articles of incorporation,
its bylaws, or otherw¡se, to authorize the execution of this Agreement. The Person signing this
Agreement on behalf of Contractor represents and warrants that they have authority to do so
and the corporate secretary's certificate in Exhibit B confirms this. This Agreement const¡tutes
the legal, valid, and binding obligation of the Contractor.
Agreement Will Not Cause Breach. To the best of Contractor's knowledge after reasonable
investigation, the executìon or delivery of this Agreement or the performance by Contractor of
its obligations hereunder does not conflict with, violate, or result in a breach: (i) of any law or
governmental regulation applicable to Contractor; (ii) any term or condition of any judgment,
order, or decree of any court, admin¡strat¡ve agency or other governmental authority; or, (iii)
any Agreement or instrument to which Contractor is a party or by which Contractor or any of its
properties or assets are bound, or constitute a default thereunder
City of Fresno Roll Off Agreement
4/s/17
B
Page 8
D.No Litigatíon. To the best of Contractor's knowledge after reasonable investigation, there is no
act¡on, suit, proceeding or investígation, at law or in equity, before or by any court or
governmental authority, commíssion, board, agency or instrumental¡ty decided, pending or
threatened against Contractor wherein an unfavorable decision, ruling or fínding, in any single
case or in the aggregate, would:
1.Materially adversely affect the performance by Contractor of its obligations hereunder;
Adversely affect the validity or enforceability of this Agreement; or
3. Have a material adverse effect on the financial condition of Contractor, or any surety or
entity guaranteeing Contractor's performance under this Agreement.
No Adverse Judicial Decisions. To the best of Contractor's knowledge after reasonable
investigation, there is no judicial decision that would prohibit this Agreement or subject this
Agreement to legal challenge.
No Legal Proh¡b¡tion. To the best of Contractor's knowledge after reasonable investigation,
there is no Applicable Law in effect on the date Contractor sígned this Agreement that would
prohibit the Contractor's performance of íts obligations under this Agreement and the
transact¡ons contemplated hereby.
Contractor's Statements. The Contactor's Applícation and any other supplementary
information submitted to the C¡ty, which the City has relíed on in entering this Agreement, do
not: (i) contain any untrue statement of a material fact, or (ii) omit to state a material fact that ís
necessary in order to make the statements made, in light of the circumstances in which they
were made, not rnisleading
Contractor's lnvestigation. Contractor has made an independent investigation (satisfactory to
it) of the conditions and circumstances surrounding the Agreement and the work to be
performed hereunder. Contractor has considered such matters in entering this Agreement to
provide services in exchange for the compensat¡on provided for under the terms of this
Agreement.
Ability to Perform. Contractor possesses the business, professional, and technical expertíse to
Collect, Transport, Recycle, Process, and Dispose Permitted Materials generated in the City.
Contractor possesses the equipment, facility(ies), and employee resources required to perform
its obligations under this Agreement.
ARTICLE 3
TERM OF AGREEMENT
3.1 EFFECTIVE DATE
Contractor may provide the Roll-Off Container Collection, Transportation, Recycling, Processing,
Composting, and Disposal services authorized by this Agreement commencing on the Effective Date.
City of Fresno Roll-Off Agreement
4/s/71
2
G
Page 9
D,
ó.5
3.2 CONDITIONS TO EFFECT¡VENESS OF AGREEMENT
The obligation of CÍty to perm¡t th¡s Agreement to become effective and to perform its undertakings
provided for in this Agreement is subject to the satisfaction of all the condÍtions below, each of wh¡ch
may be waived, in written form, in whole or in parl by City,
A' Accuracy of RêPresentations. The representataons and warrant¡es made in Article 2 of thisAgreement arÊ true and correct on and as of the Effective Date.
B. Àbsence of Litigation' There is no l¡tigation pending on the Effective Dãte in any court
challenging the award or execution of this Agreement or seeking to restrain or enjoin itsperformance.
c.Furnishings of lnsurance. Contractor has furnished evidence of the insqrance requlred by
Article 1-0 that îs satisfactory to the City.
Effecliveness of City Council Action. The Cíty Council action approvíng this Agreement shall
have become effectÍve and all Parties shall have signed the Agreement pursuant to Applicable
Law prior to or on the Effective Date, provided thât no restrainíng order of any kínd has been
íssued,
INIT]AL TERM
The inlttaf Terrn of thls Agreement shall commence on the Effectlve Date and cont¡nue in full force-forr+¡lå{g+rc+r, untÍ{ June 30,2016. TheTerm may be extended pursuantto sectjon 3.4 orterm¡nated
early in accordance with Section 11,2,
3.4 OPTION TO EXTEND
Subjea to c¡ty council approval, the ciW shall have the opt¡on to extend this Agreement for an
additional term of up to fíve (5) years. ff the cíty extends the Agreement, it shall give wrltten notice to
Contractor at least one hundred eichty (180) calendar days prior to exp¡ratîon of the lnítial Terrn. The
City's written notice shall specify the number of years by whÍch it elects to extend the Term of this
Agreement and the revised expiratíon date of the Agreement. Any such extension shafl not become
effective unless Contractor agrees to the extension, ín writing, at least one hundred fifty (1S0) calendar
days priorto expÍration ofthe lnitial Terrn.
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ARTICLE 4
SCOPE OF AGREEMENT
SCOPE OF AGREEMENT
Thís non-exclusive franchise, granted to contractor, authorizes Contractorto Collect, Transport, Recycle,
Process, compost, and Dispose of Permitted Materials placed by Residential or Commercial Generators
in Roll-off Containers for Collection, provided that the Customer has voluntarily arranged for Contractor
to provide Collection services.
The Contractor shall be responsible for the following servtces:
Collecting Permitted Materials placed by each Customer in a Roll-Off Container for Collectíon as
requested by Customer.
Providing each Customer, upon delivery of Roll-Off Container, a printed list that specifies the
mater¡als that cannot be placed in the Roll-Off Container (i.e., Hazardous Wastes) and a list of
acceptable Recyclable Materials, Organ¡c Materials, and C&D that may be placed in the Roll-Off
Container.
Transporting Collected Solid Waste to the Designated Disposal Site and transporting other
materials to an Approved Processing Site.
D. Furnishing all labor, supervision, vehicles, Roll-Off Containers, other equipment, mater¡als,
supplÍes, and all other items and services necessary to perform its obligations under this
Agreement.
Paying all expenses related to provision of services required by this Agreement including, but
not limited to, Franchise Fees, taxes, regulatory fees, Collection costs, Transportation costs,
Processing costs, Disposal costs, utilities, etc.
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 high-quality
service at all t¡mes.
Performing all services in substantial accordance with this Agreement at all times using best
industry practice for comparable operatíons.
Complying with Applicable Law.
Performing or providing all other services necessary to fulfill its obligations under this
Agreement.
Diverting a minimum of 50% of the C&D Collected from Disposal. The Diverslon rate shall be
calculated each month based upon the weights of c&D collected and Diverted
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K Diverting a minimum of 70% of the Recyclable Materials Collected from Disposal. The Diversion
rate shall be calculated each month based upon the weights of Recyclable Materials Collected
and Diverted.
Diverting a mínimum of 9o% of the Organic Materials Collected from Disposal. The Diversion
rate shall be calculated each month based upon the weights of Organic Materials Collected and
Diverted.
The enumeration and specification of particular aspects of service, labor, or equipment requirements
shall not relieve Contractor of the duty of accomplishing all other aspects necessary to fulfill its
obligations under this Agreement whether such requirements are enumerated elsewhere in the
Agreement or not.
4.2 LIMITATIONS TO SCOPE
The scope of the Agreement shall be non-exclusive. Permitted Materials may be Collected and
Transported by other Persons provided that such Persons do so in accordance with the City's Municipal
Code, including but not limited to the following:
Permitted Materials Collected by Other Non-Exclusive Franchise Haulers. Permitted Materials
Collected by a party that has executed a Non-Exclusive Franchise Agreement with the City for
Roll-Off Container Collection Services.
Permitted Materials Collected by City. Permitted Materials collected by the City's municipal
collection operatíon including: (1) materials Collected using equipment, such as Carts and Bins,
not regulated by this Agreement (2) materials Collected from City facilities, and specíal events
and venues sponsored by the City, which may be Collected ¡n Carts, Bins, or Roll-Off Container-s
by the City's municipal collection operation or City crews.
Donated Recyclable Materials. Recyclable Materials Generated ¡n the City that are Source
Separated and donated by the Generator to youth, civic, charitable, or other nonprofit
organizations.
Materials Hauled by Owner or Occupant, or ¡ts Contractor. Permitted Materíals that are
removed from any Premises and are Transported to a Disposal Site or Processing Site by (Í) the
Owner or Occupant of such Premises, (ii) by full-time employee of Owner or Occupant that uses
the Owner's or Occupant's equipment to transport materials; or (iii) by a construct¡on or
demolition contractor performing construction or demolition work at the Premises, whose
removal of the Permitted Materials is incidental to the service being performed (as defined in
Section 6-205(f)(¡¡i) of the City's Municipal Code) and such contractor removes mater¡als at no
additional or separate fee using contractor's employees and contractor's equipment
Green Waste Material Prìvate collection of Green Waste Material resulting from landscaping
or gardening service performed by the person collecting such materials.
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Other Recyclable Materials. Private collection by any person or company that transports
Recyclable Materials through use of its own vehícle(s), and receives no compensation for such
Col lestíon or Transportation.
Materials from Public Schools and Other Government Facilíties. The removal of any materials
generated by public schools, c¡ties, the County, or federal facilities (with the exceptíon of those
facilities subject to 42 U.5.C. Section 6961(a)).
CITY'S RIGHT TO GRANT MULTIPLE NON-EXCLUSIVE AGREEMENTS
The City may grant to an unlimited number of additional Persons similar non-exclusive franchise
agreements for Roll-Off Container Collection, Transportat¡on, Recycling, Processing, Composting, and
Disposal of Permitted Materials.
G
4.3
4.4 CITY'S RIGHT TO EXCLUDE NEWLY ANNEXED
FRANCHISE
The City reserves the right to exclude terr¡tory that is annexed
subsequent to the Effective Date from the scope of this franchise.
TERRITORY FROM SCOPE OF
into the corporate limits of the City
4.5 AGREEMENT CONSISTENT WITH APPLICABLE LAW
This Agreement and scope of this franchise shall be interpreted to be consistent with Applicable Law,
now and during the Term. lf future jud¡c¡al interpretations of current law or new laws, regulations, or
judicial interpretations limit the ability of the City to lawfully provide for the scope of services as
specifically set forth herein, Contractor agrees that the scope of the Agreement wíll be limited to those
services and materials which may be lawfully provided and that the City shall not be responsible for any
lost profits or losses claimed by Contractor to arise out of límitations of the scope of the Agreement set
forth herein- ln such an event, it shall be the responsibility of Contractor to minímize the financial
impact of such future judicial interpretations or new laws.
4.6 OWNERSHIP OF MATERIALS
Once Permitted Materials are placed in a Roll-Off Container for Collection by Contractor, ownership and
the right to possession of such mater¡als shall transfer directly from the Customer to Contractor.
On a short-term basis not to exceed more than five (5) calendar days per year, City may obtain
ownership or possession of Permitted Materials placed ín the Roll-Off Container for Collection, for
purposes of waste characterization studies, upon written notice to Contractor of its intent to do so.
However, nothing in thís Agreement shall be construed as giving rise to any inference that City has such
ownership or possession unless such written notice has been given to contractor
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4.7 NOTIFICATION TO CITY OF NON.FRANCHISED HAULERS
lf Contractor can produce evidence that other Persons are Collecting Permitted Materials and do not
have rights to do so as granted by non-exclusive franchise agreement with the City or otherwise, or in a
manner that is not consistent wíth the City's Municipal Code, Contractor shall notify the C¡ty in writing,
within ten (10) calendar days of Contractor w¡tnessing such circumstances. The Contractor's notice shall
include the name and telephone number of the Person or company Collecting Permitted Materials (if
known), the date the Contractor witnessed the event, the location of the Roll-Off Conta¡ner along with
Contractor's evidence of the v¡olation of the rights granted by this non-exclusive franchise
ARTICLE 5
COLLECTION, PROCESSING, AND DISPOSAL SERVICES
5.1 COLLECTTON
Contractor is hereby authorized to Collect Permitted Materials from residents and businesses in the City
using Roll-Off Containers. Contractor shall Collect Permitted Materials from Customers that voluntarily
subscribe to or request Roll-Off Container Collection services from Contractor. Contractor shall provide
its Customers with a Roll-Off Containerfor Permitted Materials Collection orshall allow its Customers to
provide a Roll-Off Container. Contractor shall Collect Permitted Materials from Premises as frequently
as scheduled by Contractor or as mutually agreed with Customer, but not less than once a week for Solid
Waste and Organíc Materials. Contractor shall provide requested service to ¡ts Customers and shall
charge Customers for service at Rates mutually agreed by Customer and Contractor.
Contractor shall Transport Solid Waste Collected pursuant to this Agreement to the Designated Disposal
Site and other materials to an Approved Processing Site that has been selected by the Contractor and
approved by the C¡tV. The Approved Processing Site(s) must be able to demonstrate Diversion rates ín
accordance with Sections 4.L and 5,3.
Contractor may enter into contracts with Customers for Collection services provided that in no case shall
the term of such contracts extend beyond the Term of this Agreement, and provided that in the event
the City term¡nates th¡s Agreement the contracts with any and all Customers shall terminate on the
terminat¡on date of this Agreement
PROCESSING AND MARKETING SERVICES
Processing. Contractor agrees to Transport and deliver (i) all C&D it Collects in the City to the
Approved C&D Processing Site, (ii) all Reryclable Materlals it Collects in the City to the Approved
Recyclable Processing Site, and (iii) all Organic Materials it Collects in the City to the Approved
Organics Processing Site. Residue from the C&D, Recyclable Materials, and Organics Processing
and Composting activities shall be Disposed of by Contractor or its Approved Processor at an
Approved Disposal Site selected by Contractor in accordance with Section 5.4. Contractor
selected the Approved Processing Site(s) and Approved Disposal Site(s), which are identified in
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Exhibit D. Contractor shall permit or arrange for the City to inspect the Approved Processing
Site(s) and observe operat¡ons at any t¡me during the Term.
Contractor or its Approved Processor(s) shall possess all permits and approvals necessary for use
of the Approved Processing Site(s) in full regulatory compliance. Contractor shall, upon City
request, provide or request from its Approved Processor(s) and provide copies of notices of
violation or permlts to the City. Upon request of the City, Contractor shall provide a certified
statement from íts Approved Processor(s) documenting its Diversion rate.
lf Contractor elects to use a Processing Site(s) that is different than the Approved Processing
Site(s) specified in Exhibit D, it shall request written approval from the City sixty (60) calendar
days prior to use of the site and obtain the City's written approval no later than ten (10)
calendar days prior to use of the site.
lf Contractor is unable to use an Approved Processing Site due to an emergency or sudden
unforeseen closure of the Approved Processing 5ite, Contractor may use an alternative
Processing Site provided that (i) the Contractor provides verbal and wr¡tten notice to the City
within twenty-four (241 hours of use of an alternative Processing Site, and (ii) the alternative
Processing Site is fully permitted and in compllance 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 t¡me Contractor proposes to use the alternative Processing S¡te. Contractor shall use
the alternative Processing Site for no more than twenty-four (24) hours without obtaining City's
written approval.
Marketing. The Contractor or its Approved Processor shall be responsible for rnarketing C&D,
Recyclable Materials, and Organic Materials Collected in the City and Diverted. Contractor
and/or its Approved Processor may retain all revenues generated from the sale of Permitted
Materíals that are Diverted.
Upon request, Contractor or its Approved Processor shall provide proof (in the form of sales
receipts showing end-user) to the City that all C&D, Recyclable Materials, and Organic Materials
Diverted are marketed for Recycling or reuse in such a manner that materials shall be
considered as Diverted in accordance with the State regulations establ¡shed by the Act. All
residual material from the Processing activities that is not marketed for use shall be accounted
for as Disposal Tonnage at a perm¡tted Disposal Site. No Permitted Material shall be
transported to a domestic or foreign location if Solid Waste Disposal of such material is its
intended use.
Contractor or its Approved Processor shall provide the City, upon written request, with a list of
broker/buyers it uses to market C&D, Recyclable Materials, and Organic Materials Diverted. City
may audit brokers or buyers to confirm that materials are being Recycled and Diverted from
Disposal. lf Contractor becomes aware that a broker or buyer has illegally handled or Disposed
of material generated by the City or elsewhere, Contractor shall immediately inform the City and
terminate ¡ts contract or working relationship with such party immediately.
Processing and Marketing Costs, Contractor shall pay all costs associated with Processing and
marketing of Permitted Materials including payment of any gate fees charged at the Approved
Processing Sites.
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5.3 DIVERSION REOUIREMENT
Contractor shall Divert frçm landfill disposal at least (il SO% by weight of all C&D it Collects within the
City, (i¡l 70%by weight of all Recyclable Materials it Collects within the City, and (iii) 90% by weight of all
Organic Materials it Collects withín the C¡ty dur¡ng each calendar month by Processing, Recycling, or
Composting some or all of the C&0, Recyclable Materials, and Organic Materials Collected.
lf Contractor fails to meet the Diversion requirements stated in the preceding paragraph during a
calendar month, the CiÇ may terminate the Agreement in accordance with Section 11.5.
C.
DISPOSAL
Disposal of Solid Waste Collected. Contractor shall Transport all Solid Waste Collected in the
City to the Designated Disposal Site, which the City specifies shall be the American Avenue
Landfill in Tranquility, California. Contrastor shall pay all costs assocíated with Transporting and
Disposal of Solid Waste including payment of any gate fees charged at the Designated Disposal
Site.
Disposal of Processing Residue, Contractor shall, or shall require its Approved Processor to,
Dispose of residue from Processing of C&D, Recyclable 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 Exhlbit D, which is lawfully authorized to
accept such material.
Permitted Site. Contractor or its Approved Processor shall only Dlspose of materials at a
permitted Disposal Site that is in full regulatory compliance. Contractor, or its Approved
Processor, shall keep or confirm all existing permits and approvals necessary for use of the
Dísposal Siie(s) in full regulatory compliance. Contractor shall, upon request, provide copies of
not¡ces of vlolat¡on or permits to the City.
Compliance with Regulations. Contractor shall observe and comply with all regulatíons in effect
at the Designated Disposal Site and Approved Disposal Site(s) and cooperate with the operator
thereof with respectto delivery of Solid Waste, including directions to unload Collection vehicles
in designated areas¡ accommodating operations and maintenance activities, and complying with
Hazardous Waste exclusion programs.
Disposal at Approved Site Contractor, or ¡ts Approved Processor, shall not Dispose of such
residue by depositing it on any public or prívate land, in any river, stream, or other waterway, or
in any sanitary sewer or storm drainage system or in any other manner which v¡olates
Applicable Laws. Contractor, or its Approved Processor, selected the Approved Disposal Site(s)
for residue Disposal specified in Exhibit D. Contractor shall arrange for the City to inspect the
Approved Dísposal Site(s) and observe operations at any t¡me during the Term.
Alternative Disposal Site. lf Contractor, or its Approved Processor, elects to use a Disposal
Site(s) that is different than the Approved Disposal S¡te(s) l¡sted in Exhibit D, it shall request
written approval from the City 60 calendar days prior to use of the site and obtain the City's
written approval no later than 10 calendar days prior to use of the site'
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5.5
lf Contractor, or its Approved Processor, is unable to use the Approved Disposal Site due to an
emergency or sudden unforeseen closure of the Approved Disposal s¡te, Contractor, or ¡ts
Approved Processor, may use an alternative Disposal Site provided that (i) the Contractor
provides verbal and written notice to the C¡ty within twenty-four (24) hours of use of an
alternative Disposal Site, and (ii) the alternative Processing Site is fully permitted and in
compliance with all Applicable Laws. The written notice shall include a description of the
reasons the Approved Disposal Site is not feasíble and the period of time Contractor, or its
Approved Processor, proposes to use the alternative Disposal Site. Contractor shall use the
alternative Disposal Site for no more than twenty-four (24) hours without obtaining City's
written approval.
BILLING
Contractor shall bill all Customers and collect billings in accordance with Contractor-established Rates,
whích are set in a m¿nner consistent with provìsions of Section 9.3. The Contractor shall prepare, mail,
and collect bills (or shall issue wr¡tten receipts for cash payments) for Collection services provided by
Contractor. Contractor shall be responsible for collection of payment from Customers with past due
accou nts.
Contractor shall maintain copies of all billings and receipts, each in chronological order, for five (5) years
after expiration or term¡nation of this Agreement. Contractor shall retrieve and make available to the
City copies of the billings and receipts within five (5) days of the Director's written request for the
billings and receipts. The Contractor may, at its option, maintain those records in computer form, on
microfiche, or in any other manner, provided that the records can be preserved and retrieved for
inspection and verífication in a timely manner.
5.6 CUSTOMER SERVICE
Contractor shall maintain a business office within the City or within a reasonable distance of the City
limits approved by the Director, The business office shall staff at least one customer service
representative capable of accepting payrnents from Customers, answering service questions, and
resolving Customer service issues. Contractor shall have a toll-free Customer service telephone number
and shall have staff available to answer calls from at least 8:00 a.m. to 6:00 p.m, Monday through
Friday. An answering machine shall record Customer calls and voice messages between 6:00 p.m. and
8:00 a.m
ARTICLE 6
STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT,
AND PERSONNEL
OPERATING DAYS, HOURS, AND SCHEDULES
Days and Hours of Collection
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Residential Premises. Delivery or Collection of a Roll-Off Container to or from Residential
Premises shall only occur between the hours of 6:00 a.m. and 6:00 p.m., any day of the
week.
Commercial Premises. Delivery or Collection of a Roll-Off Container to or from Commercial
Premises that are 200 feet or less from Residential Premises shall only occur between the
hours of 6:00 a.m. and 6:00 p.m., any day of the week. Delivery or Collection of a Roll-Off
Container to or from Commercial Premises that are more than 200 feet from Residential
Premises shall only occur between the hours of 5:00 a.m, and 7:00 p.m,, any day of the
week. The Director may require modifications to hours for delivery and Collection from
Commercial Premises to resolve noise complaints, and, in such case, the Director may
change the allowable operating hours.
Except¡ons, ln the event of an unforeseen circumstance, the Contractor may deliver or
Collect a Roll-Off Container from Residential or Commercial Premises that are 200 feet or
less from Residential Premises between the hours of 5:00 a.m. and 10:00 p.m,, upon prior
written approval from the Director.
4 Failure to Comply. lf the Contractor fa¡ls to comply with the Collection hours described in
this Section, the Contractor shall pay the City Líquidated Damages as described in Section
11.4 and Exhibit A.
6.2 COLLECTION STANDARDS
6,2,1 lnstructions to Customer
Contractor shall instruct Customers as to any preparation of Permitted Mater¡als necessary prior to
placing in the Roll-Off Container. Contractor shall, in written form, inform all Customers as to the
acceptable materÍals that can be included in the Rof l-Off Container and any unacceptable materìals to be
excluded from Collection.
6.2.2 Care of Private Property
Contractor shall not damage private property. Contractor shall ensure that its employees: (i) close all
gates opened in making Collections, unless otherwise directed by the Customer; (ii) do not cross
landscaped areas; and (iíi) do not climb or jump over hedges and fences.
City shall refer complaints about damage to private property to Contractor. Contractor shall repair all
damage to private and public property caused by its employees to its previous condition
6.2.3 Litter Abatement
A. MinimizationofSpills. Contractorshall useduecaretopreventvehicleoil andvehíclefuel from
being spilled or scattered during Collection and Transportat¡on operat¡ons. lf any Permitted
Mater¡als are spilled or scattered during Collectíon or Transportation operations, the Contractor
shall promptly clean up all spilled and scattered materials.
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6.3
A.
Contractor shall not transfer loads from one vehicle to another on any public street, unless it is
necessary to do so because of mechanical failure, hot load (combustion of material in the truck),
accidental damage to a vehicle, or unless approved by the City.
lf Contractor fails to perform some or all of the requirements described in th¡s Section, the
Contractor shall pay the City Liquidated Darnages as described Ín Section 11,4 and Exhibit A.
B. Clean-Up. Each Collection vehicle shall carry protective gloves, a broom, and shovel at all times
for cleaning up litter and absorbent material for cleaning up liquid spills. The Contractor shall
discuss instances of repeated spillage not caused by it with the Customer of the Premises where
spillage occurs, and Contractor shall report such instances to City. lf the Contractor has
attempted to have a Customer stop creat¡ng spillage but is unsuccessful, the City will attempt,
upon not¡ce by the Contractor, to rectify such situation with the Customer.
C. Covering of Loads. Contractor shall cover all Roll-off Containers at the pickup location before
Transporting materials to prevent Permitted Materials from escaping during fransportation.
6.2.4 Noise
All Collection operations shall be conducted as quietly as possible and shall conform to Applicable Law.
Contractor will promptly resolve any Complaínts of noise during the morning or evening hours of the
day to the satisfactíon of the city. ln the event of repeat occurrences of noise levels in excess of 75
db(A), the Contractor shall pay Liquidated Damages in accordance with Section 11.4 and Exhibit A.
c.
VEHICLE REQUIREMENTS
General' Vehicles used to provide services under this Agreement shall be kept in a safe, neat,
clean, and operable condition at all times. lf Contractor fails to keep Collection vehicles in a safe
and sanitary condition, the Contractor shall pay the City Liquidated Damages as described in
Section 1.1.4 and Exh¡b¡t A.
5pecifications. Contractor shall register all vehícles with the California Department of Motor
Vehicles. All such vehicles shall comply wÍth California Fnvironmental Protection Agency (EPA)
,noise emission and air quality regulations and other applicable noise control regulations.
Vehicle ldentifícation. Contractor's name, local telephone number, and a unique identification
number for each vehicle used to provide services under this Agreement, shall be prominently
displayed on all vehicles, in letters and numbers that are a minimum of 4 inches high.
Contractor shall not place the City's logo on its vehicles.
Cleaning and Maintenance
L. Cleaning. Collection vehicles shall be thoroughly washed and thoroughly steam cleaned as
frequently as necessary to present a clean appearance of the exter¡or and interior compartment
of the vehicle.
2. Maintenance. Contractor shall inspect each vehicle daily to ensure that all equipment is
operating properly. Vehicles that are not operating properly shall be taken out of service until
they are repaired and operatíng properly, Contractor shall perform all scheduled maintenance
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functions in accordance with the manufacturer's specifications and schedule or in accordance
with California Highway Patrol standards, whichever are more stringent. Contractor shall keep
accurate records of all vehicle maintenance, recorded according to date and mileage, and shall
make such records available to the City upon request to the extent necessary to perform the
¡nspectlons described in Sections 6.3.F and 6.8.
Repairs. Contractor shall repair, or arrange for the repair of, all of its vehicles and equipment
for which repairs are needed because of accident, breakdown, or any other cause, so as to
maintain all equipment in a safe and operable condition, Contractor shall maintain accurate
records of repair, whích shall include the date/mileage, nature of repair and the signature of a
maintenance supervisor that the repair has been properly performed.
Storage. Contractor shall arrange to store all vehicles and other equipment ín safe and secure
location(s) in accordance with City's applícable zoning regulations.
Operation. Vehicles shall be operated in compliance with the California Vehicle Code, and all
applicable safety and local ordinances. Contractor shall not load vehicles in excess of the
manufacturer's recommendations or limitatíons imposed by State or local weight restrictions for
vehicles and roads. Contractor shall have each Collection vehicle weighed at each Approved
Processing Sites or Designated Disposal Site to determine the unloaded weight ("tare weight")
of the vehicle, and the total loaded weight of each load delivered to the Approved Processing
Sites and Designated Disposal Site.
Vehicle lnspection. City may ¡nspect vehicles at any t¡me 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,
ROLL.OFF CONTAINER REQUIREMENTS
General. All Roll-Off Contaíners shall meet applicable Federal, State, City and local regulations
for safety.
Specifications
Prevent Leakage. lf the type of materials placed in the container may result in leakage of
liquids, Contractor shall take precautions to prevent the leakage of liquids. ln accordance with
Section 17315 of Chapter 3 of Title 14 of the California Code of Regulations, Roll-Off Containers
used to Collect garbage and putrescible materials and/or garbage and putrescibles mixed with
rubbish shall be non-absorbent, water-tight, vector-resístant, durable, easily cleanable, and shall
be designed for safe handling and the contaínment of refuse.
Provision of Sufficient Capacity. ln accordance with Section 11315 of Chapter 3 of Title L4 of
the California Code of Regulations, Containers for garbage and rubbish should be of an adequate
size and in sufficient numbers to contain without overflowing, all the refuse that a household or
other establishment generates within the designated removal period.
Use of Containers with Less than Ten (10) Cubic Yards of Capacity. Roll-Off Containers with
capacities of less than ten (10) cubic yards may only be used for the purposes of Collecting C&D,
6.4
E.
2.
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C. Roll-Off Container ldentification. All Contractor-provided Roll-Off Containers shall prominently
display the Contracto/s name, local telephone number, a unique Roll-Off Container
identificatíon number, and a list of acceptable mater¡als. As appropriate, Roll-Off Containers
shall be labeled for: Solid Waste, Recyclable Materials, Organic Materials, or C&D. Such labeling
may be temporary labeling in the form of magnetic or detachable signs.
lf Contractor fails to comply with the provisions of this Section 6.4, the Contractor shall pay the
City Liquidated Damages as described in Section 11.4 and Exhibit A.
Cleaning, Painting, and Maintenance. All Roll-Off Containers shall be ma¡nta¡ned in a safe,
serviceable, and functional condition. Contractor shall steam clean and repaint all Roll-Off
containers at least every two years, or more frequently, to present a clean, graffiti-free
appeara nce.
Roll-Off Container lnspections. City may inspect Roll-Off Containers at any time to determine
compliance with sanitation requirements. Contractor shall make Containers available to the City
at any frequency it requests. The City shall have the right to prohib¡t the use of any Roll-Off
Container that fails to comply with the provisions in this Section 6.4.
Abandoned RolþOff Containers. Contractor shall not Abandon any Roll-Off Container used to
provide Permitted Materials Collection services under this Agreement. lf the Contractor
Abandons a Contractor-owned Roll-Off Container, City may remove the Roll-Off Container and
Process and Dispose of the contents. lf the City removes a Roll-Off Container Abandoned by
Contractor, the City may charge Contractor for the City's costs incurred removing such Roll-Off
Container, Transporting, Processing, and Disposing of its contents, and/or the cost of storing
such Roll-Off Container. Contractor shall reimburse the City for such costs within fourteen (14)
calendardaysofthedateoftheCity'sinvoicetotheContractorforsuchcosts, lftheContractor
does not pay the invoice amount within fourteen (14) days, the C¡ty shall become the Roll-Off
Container owner if the invoice stated the City's intent to become the Container owner in
lettering of at least 12 poínt font.
For the purposes of this Section 6.4.F, "Abandon" means the following:
1.
2.
Contractor's failure to remove a Contractor-owned Roll-Off Container within five (5)
calendar days of receiving a written request from a Customer or the City or withín five (5)
calendar days after the terminat¡on of the customer service agreement between Contractor
and the Customer, or
Contractor's failure to remove a Contractor-owned Roll-Off Container within ten (10)
calendar days upon expiration or terminatlon of this Agreement, except in the case where
Contractor has been granted an extension of the Term of the Agreement or Contractor has
been granted a subsequent agreement authorizing Contractor to Collect and transport the
type or types of materials for which the Roll-Off Container was used pursuant to this
Agreement.
City of Fresno Roll-Off Agreement
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Page 2L
6.5
A
PERSONNEL
General, Contractor shall furnísh such qualified drivers, maintenance, supervisory, Customer
service, clerical and other personnel as may be necessary to provide the services required by
this Agreement in a safe and efficient manner.
Driver Qualificat¡ons. All drivers shall be trained and qualified in the operation of Collection
vehicles, and must have in effect a valid license, of the appropríate class, issued bythe Californía
Department of Motor Vehicles. Contractor shall use the Class B California Department of Motor
Vehicles employer "Pull Notíce Program" to monitor its drivers for safety.
Safety Training. Contractor shall provide suitable operational and safety training for all of its
employees who operate Collectíon vehicles or equipment or who are otherwise directly involved
in such Collection, Disposal, or Processing. Contractor shall train its employees involved in
Collection to ídentify, and not to collect, Hazardous Waste or lnfectious Waste. Upon the City's
request, Contractor shall provide a copy of its safety polícy and safety training program, the
name of its safety officer, and the frequency of ¡ts tra¡nings.
Employee Conduct and Courtesy. Contractor shall use its best efforts to ensure that all
employees present a neat appearance and conduct themselves ín a courteous manner.
Contractor shall regularly train its employees in Customer courtesy, shall prohibit the use of loud
or profane language, and shall instruct Collection employees to perform the work as quietly as
possible. lf any employee is found not to be courteous or not to be performing services ín the
manner required by this Agreement, Contractor shall take all appropriate corrective measures
and shall pay the City Liquídated Damages as described in Section 11.4 and Exhibit A.
Employee ldentification. While performing services under this Agreement, all of the
Contractor's employees performing field service shall be dressed in clean clothes and shall wear
badges that include the employee's name and/or employee number, and Contractor's name, as
approved by the City.
HAZARDOUS WASTE INSPECTION AND HANDLING
Response to Hazardous Waste ldentified during Collection. lf Contractor determines that
material placed in any Roll-Off Container for Collection is a Hazardous Waste that may not
legally be Disposed of at a Dísposal Site or handled at the Processing Site, or presents a hazard
to Contractor's employees, the Contractor shall refuse to accept such material. The Contractor
shall contact the Customer and request the Customer to arrange proper Disposal. lf the
Generator cannot be reached immediately, the Contractor shall, before leaving the Premises,
leave a tag at least two inches by six inches (2" x 6') in size, which indicates the reason for
refusing to Collect the material and lísts a phone number for obtainíng information on proper
disposal of the Hazardous Waste. Under no circumstances shall Contrastor's employees
knowingly Collect Haeardous Waste.
lf Hazardous Waste is found ín a Roll-Off Container that could possibly result in imminent danger
to people or property, the Contractor shall immediately notify the City's Fire Department using
the 911 emergency number
B
c.
6.6
A.
City of Fresno Roll-Off Agreement
4ls/Í
Page 22
The Contractor shall notify the City of any Hazardous Waste identified in Roll-Off Containers or
left at any Premises within 24 hours of ídentification of such material.
Response to Hazardous Wastes ldentified at Disposal Site or Processing Site. The Contractor,
or its Approved Processor, or Disposal Site operator shall provide load checkers and equipment
operators at the Processing or Disposal Site(s) to identify Hazardous Wastes for storage ín
approved, on-site, hazardous materials storage contaíner(s). Contractor shall make reasonable
efforts to identify and notify the Customer. Contractor shall arrange for removal of the
Hazardous Wastes by permitted haulers in accordance with Applicable Laws and regulatory
requirements.
lf the Hazardous Wastes delivered to a Dìsposal Site 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 do so, the Contractor shall arrange for íts proper Disposal. The
Contractor may make a good faith effort to recover the cost of Disposal from the Generator, and
the cost of this effort, as well as the cost of Disposal shall be chargeable to the Generator.
Regulations and Record Keeping. Contractor shall comply with emergency notification
procedures required by Applicable Laws and regulatory requirements. All records required by
regulations shall be maintained at the Contractor's facility. These records shall include: waste
manífests, waste inventories, waste characterization records, inspection records, incident
reports, and training records
NON.DISCRIMINAT]ON
contractor shall not discriminate in the provision of service or the employment of persons engaged in
performance of this Agreement on account of race, color, natural origin, ancestry, religion, gender,
marital status, sexual orientation, age, physical or mental disability in violation of any Applicable Law.
C.
COMMUNICATION AND COOPERATION WITH CITY
Communications. lf requested, the Contractor shall meet with the Cíty or its agent to discuss
service issues.
lnspection by City. The City, or its designated representatives, shall have the r¡ght to observe
and review Contractor operations, Processing Sites and Disposal Sites used by Contractor, and
enter Contractor's Premises for the purposes of such observation and review during reasonable
hours without advance notice-
Cooperate with City-lnitiated Studies. Contractor shall cooperate with and assist the City or its
agent with the performance of City-initiated studÍes of Permitted Materials such as, but not
limited to, waste characterization and composition studies.
City of Fresno Roll-Off Agreement
4/s/77
B
c
6.7
6.8
A
B
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ARTICLE 7
RECORD KEEPING AND REPORTING
71 GENERAL
7,I.L Maintenance of Records
Contractor agrees to conduct data collection, information and record keeping, and reporting activities
needed to comply with and to meet the reporting and Permitted Materials program management needs
of City, the Act and other Applicable Laws, and the requirements of this Agreement.
This Article is intended to highlight the general nature of records and reports to be maintained by
Contractor, and their minimum content. This Artícle is not meant to comprehensively define what the
records and reports are to be and their content. With the written direction by or approval of City, the
records and reports to be maintained and provided by Contractor in accordance with this and other
Articles of the Agreement shall be adjusted in number, format, or frequency. Records and reporting
may be revised to reflect current record keeping and reporting requirements.
To the extent such requirements are set out in this and other Articles of this Agreement, they shall not
be considered limiting or necessarily complete.
7.7.2 Retention of Records
Unless otherwise required in this Article, Contractor shall retain all records and data required to be
maintained by this Agreement for the Term of this Agreement plus five (5) years after ¡ts exp¡ratlon or
earliertermination. Records and data shall be in chronological order and readily and easily interpreted
7.L.3 lnspection of Records
The City, its audìtors and other agents, shall have the right, during regular business hours, to inspect
specific documents or records required by this Agreement or any other similar records or reports of the
Contractor that the City shall deem, at its sole discretion, necessary to evaluate the Contractor's
performance provided for in this Agreement. The City may make copies of any documents ¡t deems
relevant to this Agreement. The City shall provide Contractor wr¡tten notice at least three (3) Business
Days prior to any inspection of these records, and Contractor shall retrieve and make available to the
City the requested documents and records at that time.
The City reserves the right to inspect records for the purposes of auditing the Contractor's reports,
reported Diversion level, and fee payments to the City. lf an audit conducted by the City, or its
representatives, finds: (i) that the Contractor has made any intentional misrepresentation with respect
to the fees dues to the City (e.g., Franchise Fees or other fees due to the City) in an amount greater than
51,000 or IO% of the fees due to the City during the period covered by the audit, whichever is greater,
or (ii) that the Diversion level is 5% different than the Diversion level reported by the Contractor, then in
addition to any other remedies available to the City, Contractor shall reimburse the City for the City's
costs incurred in the performance of the audit. Such reimbursement shall be paid by Contractor, along
with any underpaid fees and Liquidated Damages required by Section 11.4 and Exhibit A, within thirty
(30) calendar days ofthe date the City notifies the Contractor ofthe amount due,
City of Fresno Roll-Off Agreement
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7.L.4 Record Security
Contractor shall maintain adequate record security to preserve records from events that can be
reasonably anticipated such as fire, theft, and earthquake. Electronically maintained data and records
shall be protected and backed-up.
7.2 RECORDS
7,2.L Financial and Operat¡onal Records
Contractor shall maintain accurate and complete accounting records contaíning the underlying fìnancial
and operating data relating to and showing the basis for computation of all revenues associated with
providing Permitted Materials Collection, Transportation, Process¡ng, Recycling, Composting, and
Disposal services. The accounting records shall be prepared in accordance wíth Generally Accepted
Accounting Principles (GAAP) consistently applied.
At a 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 bytype (e.g., Solid Waste, Recyclable Material, Organic Material,
or C&D) listed by Processing Site or Disposal Site where such materials were delivered. Where
possible, information is to be separated by Residential and Commercial Customers.
Tonnage of Recyclable Materials, Organic Material, and C&D Diverted from Disposal by
Contractor and supporting documentat¡on.
Diversion level, which shall equal Tonnage Diverted by Contractor divided by the Tonnage
Collected by Contractor multipl¡ed by 100, listed separately by month for the previous quarter.
Tonnage Diverted shall reflect Permitted Materials Processed less residue Disposed.
Residue levels of Processed or Composted mater¡als.
Weight tickets from (i) Designated Disposal Site documenting the Tonnage of Solid Waste
Collected within the City and delivered to the Designated Disposal Site; (ii) Process¡ng Sites
documenting the Tonnage of Permitted Materials Collected within the City and delivered to the
Approved Processing Sites; and, (iii) Approved Disposal Sites documenting the Tonnage of
resídue delivered to Approved Disposal Sites by vehicle, date, and time.
End use and markets for recovered materials.
D
F.
E.
Contractor shall make records available to the City upon request.
7.2.2 Customer Records
Contractor shall maintain accurate and complete records containing the number and types of accounts
served by the Contractor. The records shall contain, at a minimum, the Customers name, type of
business, phone number, address of Roll-Off Container delivery and Collection location, date of delivery
and Collection, itemized listing of services performed, type of Permitted Materlal Collected, Tonnage
City of Fresno Roll-Off Agreement
4/s177
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Collected, and the amount charged to provide services. The information shall be provided to the C¡ty
upon request.
7.2.3 CERCLA 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 Perm¡tted Materials Collected by the Contractor are taken for
Processing, Recycling, Compost¡ng, Transfer, or Disposal, as well as where they are not taken, to be
matters of concern. Contractor shall maintain, retain and preserve records which can establish where
Permitted Materials Collected were Processed, Composted, and Dísposed (and therefore establish
where they were not). This provision shall survive the expiration or earlier termination of this
Agreement. Contractor shall maintain these records for a minimum of ten (10) years beyond expiration
or earlier termination of the Agreement, Contractor shall provide these records to City (upon request or
at the end of the record retention períod) in an organized and indexed manner rather than destroying or
disposíng of them.
7.3 GENERAL REPORTING REQUIREMENTS
The format of each report shall be approved by City Contractor may propose report formats that are
responsive to the objectives. Contractor agrees to mail a copy of all reporls and submit all reports on
computer discs, by e-mail, or by modem in a format compatible with City's software and computers at
no additional charge. Contractor will provide a certifícation statement, under penalty or perjury, by the
responsible Contractor official, that the report being subrnitted is true and correct to the best
knowledge of such official after their reasonable inqurry.
Contractor shall submit monthly reports within fifteen (15) calendar days of the end of each month, lf
Contractor does not submit the monthly reports by the dates required in this Article, Contractor shall
pay the City Liquidated Damages as described in Section Lt.4 and Exhibit A.
Contractor shall submit (via mail and e-mail) all reports to:
Solid Waste Division Manager
C¡ty of Fresno
7325 El Dorado Street
Fresno, CA 93706
7.4 MONTHLY REPORT
The monthly report shall present the following information
Total Tonnage. Total Permitted Materials Tonnage Collected by Contractor within the City
during the previous quarter, listed separately by material type and by month.
Diverted Tonnage. Permitted Materials Tonnage Collected by Contractor within the Clty that
was Diverted during the previous quarter, listed separately by material type and by month.
City of Fresno Roll-Off Agreement
4/s/11.
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Page 26
c
D.
t.
Disposed Tonnage. Permitted Materials Tonnage Collected by Contractor within the C¡ty that
was Disposed during the previous quarter, listed separately by month.
Diversion Level. Tonnage Diverted by Contractor divided by the Tonnage Collected by
Contractor mult¡plied by 100, listed separately by month for the previous quarter. Tonnage
Diverted shall reflect Permitted Materials Processed less residue Disposed.
C&D. Tonnage generated from construction and demolition permitted sites, notíng the permit
number, the site address, the Tonnage hauled, the date hauled, and the facilities to which the
material was hauled.
Disposal and Processing Locations. Contractor shall provide a list of the names and addresses
of where Permitted Mater¡als Collected within the City during the previous quarter was Diverted
and Disposed. Such lÍst shall include the amount of Permitted Materials Tonnage Diverted
and/or Dísposed at each location during the previous quarter, listed separately by material type
and by month.
Revenues. Gross revenues (e.g. cash receipts) earned on all Roll-Off Container Collection,
Transportation, Processing, Recycling, composting, and/or Disposal services provided to
Customers within the City during the previous quarter, listed separately by month.
lnsurance. Updated insurance certîfÍcates.
Account lnformatÌon. ln table format, the number of Customers within the City limits served
and number of Roll-Off Containers serviced per month listed by Roll-Off Container type (Drop
Box or Compactor), Roll-Off Container size, and listed separately by Permitted Material type,
and regularly schedule service and unscheduled (on-call) service.
Contractor Officers and Board Members, Provide a list of Contractor's officers and members of
its board of directors (only required with the December monthly report each year, or in the
event of a change in the officers or board members).
The City reserves the right to request additional reports from Contractor, and upon City's request,
Contractor shall provide information required above for the time period requested by the City. lt is the
desire of the City to track the above required information on an ongoing basis throughout the term of
this Agreement.
7.5 AB 939 COUNTY SURCHARGE REPORTING
Contractor acknowledges that City is a party to that certa¡n AB 939 Memorandum of Understanding wíth
the County of Fresno and various other jurisdìctions dated January 6, 2OO8 (the "AB 939 MOU"), and
further acknowledges having received and reviewed a copy of the AB 939 MOU The Parties agree that
Contractor is a "Jurisdiction's Hauler", as that term is used in Part lV, Section H of the AB 939 MOU.
Contractor shall comply with all requirements of Part lV, Section H of the AB 939 MOU that are
applicable to a Jurisdictíon's Hauler, including but not limited to submittal of reports and payment of the
AB 939 Surcharge (as that term is defined in the AB 939 MOU),
City of Fresno Roll-Off Agreement
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ARTICLE 8
FRANCHISE FEES AND OTHER FEES
8.1 GENERAL
Contractor shall collect the fees described in thís Section from Customers through Contractor's regular
billings and remit collected amounts to City on a monthly basis as described in Section 8.5.
8.2 FRANCHISE FEE
ln consíderation ofthe exclusive rights provided Contractor herein, Contractor shall pay Franchise Fees
to the City each month equal to 1O% of actual gross Rate revenues (e.g. cash receípts) remitted to
contrector by customers for services provided by contractor under this Agreement.
8.3 OTHER FEES
The City may set "other" additional fees, as it deems necessary, The amount. tíme, and method of
payment and adjustment process will be set in a manner simílar to that for other fees described in this
Article
8.4 ADJUSTMENT TO FEES
City may adjust the fees established in this Article annually at any time during the Term of this
Agreement.
8.5 PAYMENT SCHEDULE AND LATE FEES
On or before the 20th day of each month dur¡ng the Term of this Agreement, Contractor shall remit to
City Franchise Fees and other fees as described in this Article. lf such remittance is not paid to the City
on or before the 20th day of any month, Contractor shall pay, in addit¡on to the amount owed to City,
2% of the amount owing for that month; plus an additional 2% owing on any unpaid balance for each
followíng thìrty (30) calendar day period the fee remains unpaid
Each monthly remittance to City shall be accompanied by a staternent 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 forthe monthly period. Each remittance including all supporting
documentation shall be provided to:
Attn: City Controller, Finance Department
Cíty of Fresno
2600 Fresno Street
Fresno, CA 93721-3624
City of Fresno Roll-Off Agreement
4/s/7t
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8.6 OVERPAYMENT OF FEES
lf Contractor believes it has paid Franchise Fees or otherfees as described in this Article, in excess of the
fees due to the City, Contractor may submit a request for refund to the Director- lf proof of
overpayment ¡s satisfactory to the Director, the Director shall authorize the City to refund the
overpayment to the Contractor. Contractor shall not apply any overpayment as a credit against any
Franchise Fee or other amounts payable to the City, unless specífically authorized to do so by the
Director in writing.
8.7 NON-CITY FEES;AB 939 COUNTY SURCHARGE
Pursuant to Section 7.5, Contractor shall pay the County of Fresno an AB 939 surcharge as applicable in
accordance with the AB 939 MOU.
ARTICLE 9
CONTRACTOR'S COMPENSATION AND RATES
9.1 CONTRACTOR'S COMPENSATION
Contractor's compensation for performance of all its obligations under this Agreement shall be: (i)
actual Rate revenues paid to Contractor (e.g. cash receipts) by Customers that obtained Contractor's
Collection services less fees dues to the City in accordance with Article 8, and (ii) revenues generated by
the sale of Collected materials Diverted from Disposal.
Contractor's compensation provided for in this Article shall be the full, entire, and complete
compensation due to Contractor pursuant to this Agreement for all labor, equipment, materials and
supplies, Processing, Composting, and Disposal fees, regulatory fees, City fees, taxes, insurance, bonds,
overhead, operations, profit and all other things necessary to perform all the services in the manner
required by this Agreement.
lf Contractor's costs are more than Contractor's compensation, Contractor shall not be compensated for
the difference ¡n costs and revenues. lf Contractor's costs are less than Contractor's compensation,
Contractor shall retain the difference.
9.2 CITY'S RIGHT TO SET MAXIMUM RATES
The City reserves the right to establish maximum Rates for Permitted Materials Collection services
provided under this Agreement in the event that: (a) there are three or fewer cornpanies holding non-
exclusive franchise agreements for Collection of Permitted Materials, or (b) the Rates charged by the
companies holding non-exclusive franchise agreements for Collection of Permitted Materials are no
longer comparable to those of other jurisdictions, as reasonably determined by City. lf the City chooses
to exercise its right to set maximum Rates, City shall notify Contractor at least 180 calendar days prior to
the date that maximum Rates become effectìve. ln such case, City will set maximum Rates wìth
City of Fresno Roll-Off Agreement
4/s/77
Page 29
consideration of reasonable and necessary costs for Collection, Processing, Composting, and Disposal
and with the intention of setting maximum Rates that will enable part¡es, including the Contractor, that
have executed Non-Exclusive Franchise Agreements with the City for Roll-Off Container Collection
Services the abílity to recover reasonable and necessary costs and a reasonable profit.
9.3 CONTRACTOR'S RATES
Contractor shall set the Rates ít charges its Customers for Roll-Off Collection services The Contractor's
Rates shall not exceed City-established maximum Rates, if the City exercises its rights under Section 9.2.
ARTICLE 1O
INDEMNITY AND INSURANCE
10.1 INDEMNIFICATION
Contractor shall indemnify, defend with counsel acceptable to the City, protect and hold harmless the
CiÇ and each of its officers, officials, employees, volunteers, and agents (collectively, indemnitees) from
and against all claims. damages (including but not limited to special, consequent¡al, natural resources
and punitive damages), injuries, costs, (including without limit any and all response, remediation and
removal costs), losses, demands, debts, liens, liabifities, causes of action, suits, legal or administrative
proceedings, interest, fines, charges, penalties, and expenses (including without limit attorneys' expert
witness fees and costs incurred in connection with defending against any of the foregoing or in
enforcing this indemnity), (collectively, "Damages") of any kind whatsoever paid, incurred or suffered
by, or asserted against, indemnitees arising from or attributable to the acts or omissions of Contractor
whether or not negligent or otherwise culpable, in connection with or related to the performance of this
Agreement, except such loss or damage which was caused by the sole negligence or willful mìsconduct
of the City.
Contractor's duty to defend and indemnify herein shall include Damages arising from or attributable to
any operat¡ons, repairs, clean-up or detoxification¡ or other plan (regardless of whether undertaken due
to governmental action) concerning any Hazardous Waste Collected in the City, Contractor shall be
required to indemnify the City for the costs for any claims arising from the Processing, Composting, or
Dìsposal of Permitted Materials, including, but not limited to, claims arising under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA). The foregoing is intended to
operate as an agreement to defend and indemnify and hold harmless indemnitíes to the full extent
permitted for liability pursuant to Section 107(e) of CERCLA, 42 U.S.C. Section 9607(e) and California
Health and Safety Code Section 25364.
ln addition, Contractor's duty to defend and indemnify herein includes all fines and/or penalties
imposed by the California Department of Resources Recycling and Recovery, subject to the restrictions
set forth in Public Resources Code Section 40059.1, if the requirements of the Act are not met by the
Contractor with respect to the Permitted Materials Collected under this Agreement, and such failure is
due to Contractor delays in províding information that prevents Contractor or City from submitting
reports required by the Act in a timely manner
City of Fresno Roll-Off Agreement
4/s/t1.
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This provision will survive the expiration or earlier termination of this Agreement and shall not be
construed as a waiver of rights by Cíty to contríbution or indemnity from third parties.
10.2 ¡NSURANCE
LO.2.1 Minímum Scope of lnsurance
Coverage shall be at least as broad as:
A. lnsurance Services Office Commercial General Liability coverage.
1. Personal injury
2. Contractual liability
B. lnsurance Services Office covering Automobile Liability, code I "any auto,,.
A. Worker's Compensation insurance as required by the Labor Code of the State of California and
Employers Liability insurance.
B. Such other insurance coverages and limits as may be required by the ClW.
10.2.2 Minimum Limits of lnsurance
Contractor shall maintain limits no less than:
A. General Liability: 53,000,000 per occurrence for bodily injury, personal injury, and property
damage. lf 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/location
or the general aggregate limit shall be twice the required occurrence limit.
B. Automobile Liability: S3,000,000 per accident for bodily injury and property damage.
C. Workers'Compensation: Workers'compensation limits as required by the Labor Code of the
State of Californía.
D. Employer's Liability: Bodìly tnjury by Accident: 53,000,000 each accident.
Bodily lnjury by Dísease; 5¡,OOO,OOO policy limit.
Bodily lnjury by Disease: S3,000,000 each employee.
E. Pollution Legal Liability: 53,000,000 for bodily injury, property damage, and remediation of
contaminated site
L0.2.3 Deductibles andSelf-lnsured Retentions
Any deductibles orself-insured retentions must be declared to and approved by the City. At the option
of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as
respects the Cíty, its officials and employees; or the Contractor shall procure a bond guaranteeing
payment of losses and related ¡nvestigations, claim administration and defense expenses.
10.2.4 Other lnsurance Provisions
The policies are to contain, or be endorsed to contain, the following provisions:
City of Fresno Roll-Off Agreement page 31
4/s/77
A,General Liabilíty and Automobile Liability Coverages
1.The City, its officers, officials, employees, agents and volunteers are to be covered as
additional insureds as respects: liability arising out of activities performed by or on behalf
of the Contractor; products and completed operations of the Contractor; prem¡ses owned,
leased or used by the Contractor; or automobiles owned, leased, hired or borrowed by the
Contractor. The coverage shall contain no special limitations on the scope of protection
afforded to the City, its officials, employees, or volunteers. The automobile liability is
endorsed to contain MCA-90 coverage.
The Contractor's insurance coverage shall be primary insurance as respects the City, its
officials, employees, and volunteers. Any insurance or self-lnsurance maintained by the
City, its officials, employees, or volunteers shall be excess of the Contractor's insurance and
shall not contribute with it.
3. Any failure to comply with reporting provisions of the policies shall not affect coverage
provided to the City, its officials, employees, or volunteers.
4. Coverage shall state that the Contractor's insurance shall apply separately to each insured
aga¡nst whom claÍm is made or suit is brought, except with respect to the limits of the
insurer's liability.
C,
Workers' Compensatíon and Employers Liability Coverage, The insurer shall agree to waive all
rights of subrogation against the City, its officers, employees, and volunteers for losses arising
from work performed by the Contractor for the City.
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 after 30 calendar days' prior written notíce by certified mail, return receípt
requested, has been given to the City.
I0.2.5 Acceptability of lnsurers
The insurance policies required by this Section shall be issued by an insurance company or companies
author¡zed to do business in the State of California and with a rating in the most recent edition of Best's
lnsurance Reports of size category Vll or larger and a rat¡ng classification of A or better.
70.2.6 Verification of Coverage
Contractor shall furnish Contractor's insurance agent a copy of these specifications, and direct the agent
to provide the City with certificates of insurance and with oríginal endorsements affecting coverage
required by this clause. lssuance of documentation índicates the Contractor's insurance complies with
these provisions. The certificates and endorsements for each insurance policy are to be signed by a
Person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are
to be received and approved by the City before work commences. The City may require complete,
certified copies of all required insurance policies, at any time.
City of Fresno Roll-Off Agreement
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L0.2.7 RequiredEndorsements
A. The Workers' Compensation policy shall contain an endorsement in substantially the following
form:
"Thirty calendar days' prior written notice shall be given to the City of Fresno in the event of
cancellation, reduction in coverage, or non-renewal of this policy."
Director of Public Utilities
City of Fresno
2600 Fresno Street
Fresno, CA9372t-3620
B. The Commercial General Liabillty, Business and Automobile Liability, and Pollution Legal Liability
pof icies shall contain endorsements in substantially the following form:
L. "Thirty calendar days'prior written notice shall be given to the City of Fresno in the event
of cancellation, reduction in coverage, or non-renewal of th¡s policy."
Director of Publíc Utilities
City of Fresno
2600 Fresno Street
Fresno, CA93721-3620
2. "The CiÇ of Fresno, its officers, employees, and agents are additional insureds on this
policy.,'
3. "This policy shall be considered primary insurance as respects any other valid and
collectible insurance maintained by the City of Fresno, including any self-insured retention
or program of self-insurance, and any other such insurance shall be considered excess
insurance only."
4. "lnclusion ofthe City of Fresno as an insured shall not affect the City's rights as respects any
claim, demand, suit or judgment brought or recovered against the Contractor. This policy
shall protect Contractor and the City in the same manner as though a separate policy had
been issued to each, but this shall not operate to increase the Contractor's liabilíty as set
forth in the policy beyond the amount shown or to which the Contractor would have been
liable if only one party had been named as an insured."
10.2.8 Delivery of Proof of Coverage
Simultaneously with the execution of this Agreement, Contractor shall furnish the City certificates of
each policy of insurance required hereunder, in form and substance satisfactory to City. 5uch
certificates shall show the type and amount of coverage, effective dates and dates of expiration of
policíes and shall have all required endorsements. lf the City requests, copies of each policy, together
with all endorsements, shall also be promptly delivered to City.
Renewal certificates will be furnished annually to City to demonstrate maintenance of the required
coverages throughout the Term.
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10.2.9 OtherlnsuranceRequirements
A. lf any services are delegated to a Subcontractor, the Contractor shall require such Subcontractor
to provide statutory Workers' Compensation insurance and employer's liability insurance for all
of the Subcontractor's employees engaged in the work in accordance with Sections 10.2.2.C and
t0.2.2.D and 10.2.4.8. The liability insurance required by Section 10.2.2.A shall cover all
Subcontractors or the Subcontractor must furn¡sh evidence of insurance provided by it meeting
all of the requirements of this Section 10.2.
c.
lf at any time during the life of the Agreement or any extension, Contractor or any of its
subcontractors fail to maintaÍn any required insurance in full force and effect, Contractor shall
be in breach of the Agreement until notice is received by City that the required insurance has
been restored to full force and effect and that the premiuins therefore have been paid for a
period satisfactory to City. Any failure to maintaín the required insurance shall be sufficient
cause for City to term¡nate this Agreement. No act¡on taken by City pursuant to this Section
shall in any way relieve Contractor of its responsibilities under this Agreement.
The Contractor shall comply with all requirements of the insurers issuing policies. The carrying
of insurance shall not relieve Contractor from any obligation under thís Agreement. lf any claim
exceeding the amount of any deductibles or self-insured reserves is made by any third person
against the Contractor or any Subcontractor because of any occurrence related to th¡s
Agreement, the Contractor shall promptly report the facts in writing to the insurance carrier and
to the City.
The Commercial General Liability, Automobile Liability, and Pollution Legal Liability insurance
policies shall be written on an "occurrence," rather than a "claims made" basis. lf Contractor is
unable to purchase Pollution Legal Liability insurance on an occurrence form and must purchase
such insurance on a claims-made form:
The "Retro Date" must be shown, and must be before the effective date of the Agreement
or the commencement of work by Contractor.
2. The policy shall be endorsed to provide not less than a 5-year discovery period. This
requirement shall survive expiration or terminat¡on of the Agreement.
5.
lf coverage is canceled or non-renewed, and not replaced with another claims-made policy
form with a "Retro Date" prior to the effective date of the Agreement, Contractor must
purchase "extended reporting" coverage for a minimum of 5 years following the expiration
or termination of the Agreement.
A copy of the claims reporting requirements must be submitted to City for review.
These requirements shall survive expirat¡on or termination of this Agreement.
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D
ART¡CLE 11
DEFAULT AND REMEDIES
11.1 EVENTS OF DEFAULT
Each of the following shall constitute an event of default ("Event of Default") hereunder:
Contractor fails to perform its obligations under this Agreement, or future amendment to this
Agreement, including, but not limited to, Contractor's failure to pay Franchíse Fees and other
City fees in accordance with Article 8 of this Agreement, and the breach continues for more than
10 Bus¡ness Days after written notice from the city for the correction thereof;
Contractor's failure to Divert 50% of the C&D, 7O% of the Recyclable Materials, and 9O% oî
Organic Materials Collected in the Cíty as required by Sectíon 5.3 of this Agreement after
Contractor is given an opportunity to remedy the nonperformance as described in Section 11.5;
Any representation, warranty, or disclosure made to City by Contractor in connection with or as
an inducement to enter¡ng into this Agreement or any future amendment to this Agreement,
which proves to be false or misleading in any material respect as of the time such
representation or disclosure is made, whether or not any such representation, warranty, or
disclosure appears as part of this Agreement;
There is a seizure or attachment (other than a pre-judgment attachment) of, or levy affecting
possession on, the operat¡n8 equipment of Contractor, including without limit its vehicles,
maintenance or office facilitíes, or any part thereof of such proportion as to substantíally impair
Contractor's ability to perform under this Agreement and which cannot be released, bonded, or
otherwise lifted withín 48 hours excluding weekends and Holidays;
Contractor files a voluntary pet¡t¡on for debt relief under any applicable bankruptcy, insolvency,
debtor relief, or other similar law now or hereafter in effect, or shall consent to the
appo¡ntment of or taking of possession by a receiver, liquidator, assígnee (other than as a part
of a transfer of equipment no longer useful to Contractor or necessary for this Agreement),
trustee (other than as security for an obligation under a deed of trust), custodian, sequestrator
(or similar official) of the Contractor for any part of Contractor's operating assets or any
substantial part of Contractor's property, or shall make any general assignment for the benefit
of Contractor's creditors, or shall fail generally to pay Contractor's debts as they become due or
shall take any action in furtherance of any ofthe foregoing;
A court having jurisdiction shall enter a decree or order for relief.jn respect of the Contractor, in
any involuntary case brought under any bankruptcy, insolvency, debtor relief, orsimilar law now
or hereafter in effect, or Contractor shall consent to or shall fail to oppose any such proceeding,
or any such court shall enter a decree or order appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Contractor or for any part of the
Contractor's operat¡ng equipment or assets, or orders the winding up or liquidation of the
affairs of Contractor;
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11.2 RIGHT TO TERMINATE UPON DEFAULT
Upon a default by Contractor, the City may terminate this Agreement within 10 calendar days of the
default but no later than 180 calendar days after the default. Such terminat¡on shall be effective 10
calendar days following the City's wr¡tten notice to Contractor, and such termination shall be effective
without the need for any hearing, suít, or legal act¡on.
11.3 CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE
The CÍty's right to terminate the Agreement under Section 77.2 is not exclusíve, and the City's
termination of the Agreement and/or the imposition of Liquidated Damages shall not constitute an
election of remedÌes. lnstead, these rights shall be in addition to any and all other legal and equitable
rights and remedies which the City may have.
By virtue of the nature of this Agreement, the urgency of timely, continuous and high quality service, the
lead time required to effect alternative service, and the rights granted by City to the Contractor, the
remedy of damages for a breach hereof by Contractor is inadequate and City shall be entitled to
injunctive relief.
11.4 LIQUIDATEDDAMAGES
General. The Parties find that as of the time of the execution of thÍs Agreement, ¡t is
impractical, if not impossible, to reasonably ascertain the extent of damages which shall be
incurred by City as a result of a breach by Contractor of its obligations under this Agreement.
The factors relating to the impracticability of ascertaining damages include, but are not limited
to, the fact that: (i) substantial damage results to members of the public who are denied
services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety,
frustration, and deprivation of the benefits of the Agreement to individual members of the
general public for whose benefit this Agreement exists, in subjective ways and in varying
degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that
services might be available at substantially lower costs than alternative services and tlìe
monetary loss resulting from denial of services or denial of quality or reliable services is
impossìble to calculate ín precise monetary terms; and (iv) the termination of this Agreement
for such breaches, and other remedies are, at best, a means of future correction and not
remedies which make the public whole for past breaches
B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The
Part¡es further acknowledge that consistent, reliable Roll-Off Collection, Processing, and
Disposal service is of utmost importance to City and that City has considered and relied on
Contractor's representations as to its quality of service commitment in executing thís
Agreement. The Parties recognize that some quantified standards of performance are necessary
and appropriate to €nsure cons¡stent and reliable service and performance. The Parties further
recognize that if Contractor fails to achieve the performance standards, or fails to submit
required documents in a timely manner, CÌty and its resÌdents and businesses will suffer
damages, and that it is, and will be, impractícal and extremely difficult to ascertain and
determine the exact amount of damages that City will suffer. Therefore, without prejudice to
City's rìght to treat such non-performance as an event of default under this Article, the Partíes
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agree that the Liquidated Damages amounts established in Exhíbit A of this Agreement and the
following Liquidated Damage amounts represent a reasonable estimate of the amount of such
damages considering all of the circumstances existingon the Effective Date of this Agreement,
íncludíng the relationship of the sums to the range of harm to CiÇ that reasonably could be
anticipated and the anticipation that proof of actual damages would be costly or impractical.
Contractor agrees to pay (as Liquidated Damages and not as a penalty) the amounts set forth in
the Schedule of Liquidated Damages, Exhibit A.
City may determine the occurrence of events giving rise to Liquidated Damages through the
observation of its own employees or representative or ¡nvestigation of complaints by
Customers, occupants, and Generators.
Liquidated Damages will only be assessed after Contractor has been given the opportunity but
failed to rectify the damages as described in this Agreement. Before assessing Liquidated
Damages, Cíty shall give Contractor notice of its intent¡on to do so. The notice wíll include a
brief description of the incident(s) andf or non-performance. The City may review (and make
copies at ¡ts own expense) all information in the possession of Contractor relating to incident(s)
and non-performance. C¡ty may, within 10 calendar days after issuing the notice, request a
meet¡nb with Contractor. City may present evidence of non-performance in writing and through
testimony of íts employees and others relevant to the incident(s) and non-performance. City
will provide Contractor with a wr¡tten explanation of its determination on each Íncídent(s) and
non-performance prior to authorizing the assessment of Liquidated Darnages under this Section
1L.4. The decision of City shall be final and City shall not be subject to, or required to exhaust,
any further administrative remedies.
Amount. City may assess Liquidated Damages for each calendar day or event, as appropriate,
that Contractor ¡s determined to be liable in accordance with this Agreement in the amounts
specified in Exhibit A subject to annualadjustment described below.
The amount of Liquidated Damages specifíed in Exhibit A shall be adjusted annually on the
anniversary of the Effect¡ve Date. The adjustment shall be rounded to the nearest cent.
Liquidated Damage amounts shall be adjusted to reflect changes in the Consumer Price lndex -
All Urban Consumers (CPl-U) compiled and published by the U.S. Department of Labor, Bureau
of Labor Stat¡st¡cs or its successor agency, using the following Bureau of Labor Statistlcs'
pa rameters,
Not Seasonally Adjusted
Area - Los Angeles-Riverside-Orange County, CA
Item - All ltems
Base Period - 1982-84=100
The formula for annual adjustment is as follows:
Adjusted Liquidated Damage
Amount
Then-current Liquidated Damage Amount x
most current CPI-U/previous 12-month CPt-U
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For example:
Current Liquidated Damage Amount = S150.00
Most recently published index (January 2010) = 224.610
lndex published 12 months prior to most recently published index
(JanuarY 2009) = 220'7L9
Adjusted Liquidated Damage Amount = 5150.00 x Q2a.6701220.719) = 5fsz.0q
lf the CPI-U is discontinued or revised during the Term by the United States Department of
Labor, such other government index or computation with which it is replaced shall be used ìn
order to obtain substantially the same result as would be obtained if the CPI had not been
discontinued or revised.
D. Timing of Payment. Contractor shall pay any Liquidated Damages assessed by City within 10
calendar days of the date the Liquidated Damages are assessed. lf they are not paid within the
tg-day period, City may order the termination of the rights or "franchise" granted by this
Agreement.
1r.u DlvERsloN NoN-PERFORMANcE
lf the Contractor's Diversion level is less than 50o/o for C&D, less than 70% for Reryclable Materials,
and/or less than 90% for Organic Materials Collected in the City for a monthly reporting period, the
following steps shall be followed by the City and Contractor.
A. Warning. The City shall issue a written warning to the Contractor within 30 calendar days of
receipt of the Contractor's monthly report documenting the Diversion level for the monthly
reporting period. The warning notice shall specify the amount of time (i.e. "correction period")
the City grants the Contractor to improve its performance and meet the Diversion requirements
defined in Sec,tion 5.3.
Opportunity to lmprove Performance. The Contractor shall modify its Collection, Processing,
Diversion, and public education and outreach programs {subject to the City's approval) to
improve the Diversion level. At the end of the correction period, Contractor shall submit a
written report to the City identifying the Diversion level and providÍng the supporting
documentation. lf the City determines that the Diversion level equals or exceeds Diversion
requirements defined in Section 5 3, the Contractor shall continue to perform services in such a
manner as to maintain or improve the Diversion level and the City shall waive its rights to
proceed with steps outlined in subsections C and D of this Section 11.5 during the remainder of
then-current reporting period.
Liquidated Damages. lf the Contractor fails to improve the Diversion level so that it is equal to
or greater than Diversion requirements defined in Section 5.3 by the end of the correction
period granted in subsection A of this Section, the City may levy, and Contractor shall pay,
Liquidated Damages described in Section 11.4.
Termination of the Agreement. lf Contractor's fails to achieve a Diversion level that equals or
exceeds Diversion requirements defined in Section 5.3 within six months of the date the City
levíed Liquidated Damages, the failure to meet the Diversion requirements defined in Section
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A
5.3 shall be considered an event of defauft and the City may term¡nate the Agreement in
accordance with Section 11.2.
1I.6 CONDITIONS UPON TERMINATION
ln the event this Agreement is terminated under the provisions of this Article, the following conditions
shall be effective:
Prohibit Roll-Off Coflectíon Services. Contractor shall have no ríght or authority to engage in
Roll-Off Collection services in the City for a period of five years from the date of termination.
After five years, should the Contractor provide proof that the event causing the Contractor to
default under this Agreement has been corrected, the Contractor may reapply for a non-
exclusive Roll-Off Collection service franchíse, and the C¡ty, at the sole and complete discretion
of the City, may re¡nstate the Contractor based on review of its reapplication.
Continuing Liab¡l¡t¡es. Contractor shall remaÌn liable to the City for:
1. Fees due in accordance with Article 8 that would otherwise be payable by the Contractor.
2. Liquídated Damages assessed pursuant to Sect¡on 11.4.
Reports required by Article 7 for Roll-Off Collection activities performed by Contractor up to
and including the date of termination.
lndemnity obligations under Sectíon 10.1.
Record keeping and retention obligations under SectionsT.t and7.2.
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 liabílity for breach
of any contract between Contractor and its Customers or Generators.
Remove Roll-Off Containers. Contractor shall remove all of Contrastor's Roll-Off Containers
from all of Contractor's Collection locations and shall properly Recycle, Process, Compost, or
Dispose of Permitted Materials in such Roll-Off Containers.
ARTICLE 12
OTHER AGREEMENTS OF THE PARTIES
12.1 RELATIONSHIP OF PARTIES
The Parties intend that Contractor shall perform the services required by this Agreement as an
independent Contractor engaged by City and not as an officer nor employee of the City, nor as a partner
of, or joint venturer w¡th, the City. No empfoyee or agent of Contractor shall be, or shall be deemed to
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4.
5.
D
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be, an employee or agent ofthe City. Except as expressly provided herein, Contractor shall have control
over the manner and means of conducting the Roll-Off Container Collection, Transportation, Processing,
Recyclíng, Composting, and Dísposal services performed under this Agreement, and all Persons
performing such services- Contractor shall be solely responsible for the acts and omissions of its
officers, employees, Subcontractors, and agents. Neither Contractor nor its off¡cers, employees,
Subcontractors and agents shall obtain any rights to retirement benefits, workers'compensation
benefits, or any other benefits which accrue to City employees by virtue of their employment with the
City.
12.2 PERMITS AND LICENSES
Contractor shall obtain and maíntain, at Contractor's sole cost and expense, all permits and licenses
applicable to Contractor's operations under this Agreement which are required by any governmental
agency.
12.3 COMPLIANCE WITH LAW
Contractor shall, at all times, at its sole cost, comply with all Applicable Laws.
12.4 GOVERNING LAW
Thís Agreement shall be governed by, and construed and enforced in accordance with, the laws of the
State of California.
12.5 JURISDICTION
Any lawsuits between the Partìes arising out of this Agreement shall be brought and concluded in the
courts of Fresno County in the State of California, which shall have exclusive jurisdiction over such
lawsuits.
With respect to venue, the Partíes agree that this Agreement ís made in and will be performed in Fresno
County
12.6 BINDING ON SUCCESSORS
The provisions of thís Agreement shall inure to the benefit to, and be binding on, the successors and
permitted assigns of the Parties.
12.7 ASSIGNMENT
Neither Party shall assign its rights nor delegate or otherwise transfer its obligations under this
Agreement to any other Person without the prior written consent of the other Party, Any such
assignment made without the consent of the other Party shall be void and the attempted assignment
City of Fresno Roll-Off Agreement Page 40
4ls/1.1.
shall constitute a material breach of thís Agreement. Under no circumstances shall any assignment be
considered by Cíty if Contractor is in default at any time during the period of consideration.
12.8 PARTIES IN INTEREST
Nothing in this Agreement, whether express or implíed, is intended to confer any rights on any Persons
other than the Parties to ít and their representatives, successors and permitted assígns.
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 violat¡on of any other provision nor of any subsequent breach
of violation of the same or any other provision. The subsequent acceptance by either Party of any
monies which become due hereunder, shall not be deemed to be a waiver of any pre-exist¡ng or
concurrent breach or víolation by the other Party of any provisíon of this Agreement.
12.10 NOTICE PROCEDURES
All notices, demands, requests, proposals, approvals, consents, and other communications which this
Agreement requires, authorizes or contemplates all, shall be in writing and shall either be personally
delivered to a representative of the Parties at the address below or deposited in the United States mail,
first class postage prepa¡d, addressed as follows:
A. lf to City:
Public Utilities D¡rector
City of Fresno
2600 Fresno 5t., Room 3065
Fresno, CA 9372I-3624
B lfto Contractor:
The address to which communications may be delivered may be changed from time to time by a notice
given in accordance with this Section
Notice shall be deemed given on the day it is personally delivered or, if mailed, three calendar days from
the date it is deposited in the mail.
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12.11 REPRESENTATIVES OF THE PARTIES
References in this Agreement to the "City" shall mean the City Council and all actions to be taken by the
City shall be taken by the Cíty Council except as provided below. The City Council may delegate, in
writing, authority to the Director and/o¡ to other City officials and may permit such officials, in turn, to
delegate in wríting some or all of such authority to subordinate officers. The Contractor may rely upon
act¡ons taken by such delegates ¡f they are wíthin the scope of the authority properly delegated to them.
The Contractor shall, by the Effective Date, designate in writing a responsible officer who shall serve as
the representative of the Contractor in all matters related to the Agreement and shall inform the C¡ty in
writing of such designatíon and of any limitations upon his or her authority to bind the Contractor. The
City may rely upon action taken by such designated representative as act¡ons of the Contractor unless
they are outside the scope of the authority delegated to him/her by the Contractor as communicated to
City.
12.12 CRIMINAL ACTIVITY OF CONTRACTOR
1-2.72.L Criminal Activity
For purpose of this Section, Criminal Activity shall mean any of the following events or circumstances:
A. Convictions. The entry aga¡nst any Contractor Party or its officers, of a crirnínal conviction or a
permanent mandatory or prohibítory injunction from a court, municipality, or regulatory agency
of competent jurisdiction, based on acts taken in his or her official capacity on behalf of
Contractor with respect to:
7. Fraud or criminal offense in connection with obtaining, attempting to obtain, procuring or
performing a public or private agreement related to municipal Solid Waste services of any
kind (including Collection, Transportation, transfer, Processing, Recycling. Composting, or
Disposal), including this Agreement or any amendment thereto;
Bribery or attempting to bribe a public officer or employee of a local, State, or Federal
agency;
Embezzlement, extortion, racketeering, false claims, false statements, forgery, falsifícation
or destruction of records, obstruction of justíce, knowingly receiving stolen property, theft.
or misprision (failure to disclose) of a felony;
Unlawful disposal of Hazardous Wastes, the occurrence of which any Contractor Party
knew or should have known;
V¡olation of antitrust laws, including laws relating to price-fixing, bid-rigging, and sales and
market allocation, and of unfair and anti-competitive trade practices laws;
Violation of securities laws; and
7 . Felonies.
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B. Pleas. Entry of a plea of "guilTy," "nolo contendere," or "no contest" by a Contractor party
based on acts taken in his, her, or its officíal capacíty on behalf of Contractor with respect to the
conduct described in preceding Section 1,2.72.7.A.
L2.72.2 Notice
Contactor shall notify City in writing within five calendar days of occurrence of any Criminal Activity by
any Contractor Party.
L2.72.3 Contractor's Cure
Upon occurrence of any Criminal Activ¡ty, Contractor shall immediately do or cause to be done all of the
following:
A. Terminate from employment or remove from office any offending individual Contractor Party,
unless otherwise dírected or ordered by a court or regulatory agency of competent jurisdictíon
or authority, and unless that termination would constitute a breach of any labor agreement
entered into by Contractor, and
B. Eliminate participation by any offending individual Contractor Party ¡n any management,
supervision, or decision activity that affects or could affect, dÍrectly or indirectly, the
performance of the Contractor under this Agreement.
L2.72.4 Transfer and Hiring
Contractor shall not allow or cause to be allowed to h¡re or transfer any individual from any Parent
Company or subsidiary company or business entity of Contractor who has committed Criminal Activity
as a Contractor representative, field supervisor, officer, or director who is directly or indirectfy
responsible for performance of th¡s Agreement without obtaining prior written consent of City,
following full disclosure to City of the facts and circumstances surround¡ng such Criminal Act¡v¡ty.
L2.L2.5 City's Remedy
ln the event of any occurrence of Criminal Activity, the City, in its sole discretion, may terminate the
Agreement wíthin 30 calendar days written notice to Contractor, or may impose other sanctions (which
may include financial sanctions, temporary suspensions, or any other condition deemed appropriate
short of termination) as it will deem proper, in the following events:
Contractor fails to comply with the foregoing obligation of this Section, or
The Criminal Activity concerns or relates directly or indirectly to this Agreement.
Contractor shall be gíven the opportunity to present evidence in mitigat¡on during the 3O-calendar day
notice period.
12.13 ACKNOWLEDGMENT OF PUBLIC RESOURCES CODE SECTION 49520 NOTICE
lf Contractor has lawfully provided solid waste collection services in the City for more than three (3)
years prior to July 1, 2011 (and is therefore entitled to the notice provîded for in Public Resources Code
49520l¡, Contractor shall consider execution of this Agreement by the City as City's not¡ce to Contractor,
pursuant to Public Resources Code 49520, that Contractor may provide service for a period of five (5)
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years beyond )uly L, 2071,, after which time the City has the ríght to establish an exclusive franchise
collection system.
ARTICLE 13
MISCELLANEOUS AGREEM ENTS
13.1 ENTIRE AGREEMENT
This Agreement, including the Exhibits, represents the full and entire Agreement between the Parties
with respect to the matters covered herein.
13.2 SECTION HEADINGS
The article headings and section headings in this Agreement are for convenience of reference only and
are not intended to be used in the construction of this Agreement nor to alter or affect any of its
provisions.
13.3 REFERENCES TO LAWS
All references in this Agreement to laws shall be understood to include such laws as they may be
subsequently amended or recodified, unless otherwise specifically províded.
13.4 INTERPRETATION
This Agreement shall be interpreted and construed reasonably and neither for nor aga¡nst either Party,
regardless of the degree to which either Party particípated in íts drafting.
13.5 PRONOUNS AND PLURALS; TENSE
When not inconsistent with the context, words and phrases used in the present tense include the
future, and words and phrases used in the singular number include the plural number. Whenever the
context may require, any pronoun used in this Agreement shall include the corresponding masculine,
feminine and neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural
and vice versa,
City of Fresno Roll-Off Agreement
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13.6 TEXT TO CONTROL
The captions of the Articles or Sections in this Agreement are for convenience only and in no way define,
limit, extend or describe the scope or intent of any of the provisions hereof, shall not be deemed part of
this Agreement and shall not be used ¡n constru¡ng or interpreting this Agreement.
13.7 AMENDMENT
This Agreement may not be rnodified or amended in any respect except in writing signed by the parties-
13.8 SEVERABILITY
lf any non-material provísion of this Agreement is for any reason deemed to be invalid and
unenforceable, the ínvalidity or unenforceability of such provision shall not affect any of the remaining
provisions of thís Agreement, which shall be enforced as íf such invalid or unenforceable provision had
not been contained herein.
I3.9 COUNTERPARTS
Thís Agreement may be executed in counterparts, each of which shall be considered an origlnal.
13.10 EXHIBITS
Each ofthe Exhibits identified as Exhibit "A" through "D" is attached hereto and incorporated herein and
mãde a part hereof by this reference.
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lN WlTNEss WHEREOF, the Parties have caused the Agreement to be executed on the day and year first
above written.
clTY oF FRESNO CoNTRACTOR
M*o.-,,*-
AS TO FORM:'lo. çx -?oB
' î/zt/rr a-t+ 1!<b7-
Business License
ATTEST:
City of Fresno Roll-Off Agreement
4/s/fi Page 46
EXHIBIT A
SCHEDULE FOR LIQUIDATED DAMAGES
Contractor may be assessed Liquidated Damages if Contractor fails to fulfill its obligations with regards
to the events listed in this ExhÎbit in accordance with the terms and conditions of the Agreement wíth
regards to the time frame for accomplishing each event and nature of the responsibility associated with
the event unless otherwise stated in this Exhibit.
1,.Diversion. Failure to achieve and maintain a minimum of 5O%
Diversion per month of all C&D Collected within the City, 7O%
Diversion per month of all Recyclable Materials Collected within the
City, and 9O% of all Organic Materials Collected within the City.
The greater of 55,000 or
1O% of the gross Rate
revenues received for
providing C&D,
Recyclable Materials,
and Organìc Materials
serv¡ces in the City, for
the most recent 12-
month period
2 Leaks, Litter or Spills. For each occurrence over five during a calendar
year of unreasonable leaks, lítter, or spills of Permitted Materials near
or on public streets and failure to pick up or clean up such mater¡al
immediately.
S3oo/ event
3 Unauthorized Collection Hours. For each occurrence over five during
a calendar year of Collecting Permitted Materials during unauthorized
hours.
5300/ event
4 Excessive Noise. For each occurrence over 10 during a calendar year
of excessive noise,
5300/ event
5.Cleaning Collection Vehicles. For each occurrence over five during a
calendar year for failure to keep Collection vehicles in a safe and
sanitarv condition.
S150/ event
6.Labeling of Roll-Off Containers. For each occurrence of Contractor's
faílure to correctly label Contractor-owned Roll-Off Containers (in
accordance with Section 6.4.C).
55oo/ event
7 Discourteous Behavior. For each occurrence of discourteous behavior
by Collection vehicle personnel, customer service personnel, or other
emplovees of Contractor.
5500/ event
I lnjuries to Others. For each incident of personal injury to a Person
requ¡ring medical treatment or hospitalization, where the negligence
of the Contractor or its personnel was a contributing factor to the
tnturv.
Ss,ooo/ incident
9 Monthly Reports. Failure to submit monthly reports in the timeframe
specified in this Aereement.
S300/ day*
10 Report Hazardous Waste. For each failure to notify the appropriate
authorities of reportable quantities of Hazardous Waste.
Ssoo/ event
A-1
11, / Failure of Other Obligations. Failure to perform any of the obligatíons I S150/ for eactr
set forth in this Agreement not specifically stated above and not I obligation per day until
corrected or proceeding in good faith to correct within 24 hours upon I obligation is performed
24 hour notification bv Citv.
* Monthly reports shall be considered late until such time as a correct and complete
monthly report is received by City. For each calendar day a report is late, the daily
Liquidated Damage shall be as indicated in the monthly reports sect¡on above.
ln placing Designee's initials at the places provided, each Party specifically confirms the accuracy of the
statements made above and the fact that each Party has had ample opportuníty to consult with legal
counsel and obtain an explanation of Líquídated Damage provisions of the time that the Agreement was
made.
Contractor
A-2
EXHIBIT B
SECRETARY'S CERTIFICATION
The undersigned, being the Secretary of
California corporation ("the Company"), do hereby certify that the following resolution was adopted by
the Board of D¡rectors of the Company and that such resolution has not been amended, modified or
rescinded and is in full force and effect as ofthe date hereof:
RESOLVED, that [.',"¡ Süç-a be, and hereby is, authorized to
Name of Designated Representative
execute by and on behalf of the Company any and all agreements, ¡nstruments, documents or papers, as
he/she may deem appropriate or necessary, pertaining to or relating to the Non-Exclusive Franchise
Agreement between the City of Fresno and Company for Roll-Off Container Collection, Transporting,
Processing, Recycling, Composting, and Disposal of Permitted Materials and that any such action taken
to date is hereby ratified and approved.
o.t"d' 4, lb'tç
ç?<-
T tle
B-1
EXHIBIT C
STATEMENT OF APPLICANT's UNDERSTANDING
AND REPRESENTATIONS
The undersigned (who is duly author¡zed to bind the cornpany submitting this application) has reviewed
the requirements of the non-exclusive franchise agreement for Roll-Off Collection, Transporting,
Processing, Recycling, CompostÍng, and Disposal services for Solid Waste, Recyclable Materials, Organic
Materials,andC&D,itsexhibits,andreferencedocuments. lnaddition,theundersignedatteststhatthis
applícation and any other supplementary information submitted with this application do not: (i) contain
any untrue statement of a material fact, (ii) contain inaccurate or misleading information, or (ìii) omit to
state a material fact that Ís necessary to make the statements made, in light of the circumstances ¡n
which they were made, not misleading.
4, lb-t f
Print Name Dete
:e¿ .
Title
,..& .LLe
c-1
EXHIBIT D
APPROVED PROCESSING AND RESIDUE DISPOSAL FACILITIES
The following facilities were selected by the contractor and approved by the city.
*All Solid Waste shall be disposed of at the Designated Disposal Facility
Facility name Tri County Transfer & Recycline Tri County Transfer & Recvcling
Facility address 1675 Dockery Ave
Selma, Ca 93662
1675 Dockery Ave
Selma, Ca 93662
SWIS Number 10-AA-0191 10-AA-0191
Owner Creekside lnvestments Creekside lnvestments
Operator Tri County Transfer & Recycling Tri County Transfer & Recycling
Facilitv name Tri County Transfer & Recvclins American Avenue Landfill
Facility address 1675 Dockery Ave
Selma, Ca 93662
18950 W. American Ave.
Tranquility, Ca 93668
SWIS Number 10-AA-0191 10-AA-0009
Owner Creekside lnvestments County of Fresno
Operator Tri County Transfer & Recvcline County of Fresno
Facilitv name
Facility address
SWIS Number
Owner
Operator
Contractor