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Home My WebLink AboutSunset Waste Systems - Non-Exclusive Franchsise for Roll-Off Collection ServicesNON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF FRESNO AND FOR ROLL -OFF COLLECTION SERVICES I[. 028 ,2011 This page Intentionally blank Table of Contents RECITALS.................................................................................................................................1 ARTICLE l DEFINITIONS ..............................................................................2 ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR ................................. 8 2.1 REPRESENTATIONS AN O WARRANTIES ................. ... ............ ._.. .._......... a ARTICLE 3 TERM OF AGREEMENT............................................................................................9 3.1 EFFECTIVE DAIS ... 9 3.2 CONDITIONS TO EFFECTIVENESS OFAGREEMENT...._...... .... ........ ...... 10 3.3 INITIAL TERM_.... .................. ... .................. ............. 10 3.4 OPTION TO EXTEND ......................._......_. ........ ............ ................ ................ ..... ..... ..... ..... ..... 10 ARTICLE 4 SCOPE OF AGREEMENT......................................................................................... 11 4.] __ .............. SCOPE OF AGREEMENT................ ..... _................ 11 4.2 LIMITATIONS TO SCOPE ...LTIP.L ......... ......._ 12 43 CITY'S RIGHT TO GRANT MULTIPLENONEXCLUSIVEAGREEMENTS13 44 RIGHT LUDENE NEWLY ANNIXEO TERRITORY FflOM SCOPE OF FRANCHISE .... CITY'sAGREEMENT ..... 13 4.5 CO SISTENT AGREEMENT LAW ____. ............ .................. 13 4.6 OF MATTENTWITXAPPUCABIf OWNERSHIP OFMATERIALS..... .............. ....... ......... .LERS.._................... .............................._ 13 4.7 NOTIFIGTIONTO CIttOF NON FRANCHISED HAU1fR5........_...__....__ .... ._ .......................14 ARTICLE S COLLECTION, PROCESSING, AND DISPOSAL SERVICES ................... 14 51 COLLECTION ............... ........._. ............ ... ...._............ 14 SS PROCESSING AND MARKETING SERVICES.._ ... .... ....... ....... ...... ......... ......_...._...... ...... .............. 14 5.3 DIVERSION REQUIREMENT...._ ......................... ........ ........ ..... ..................._.................. ........ 16 54 DISPOSAL . .... ........ ......... ........... 16 5.5 BILLING..._. _...... ......._......... ................ ................. 12 S.6 CUSTOMER SERVICE .................. .._......._............ ._............ . .. . .. ..1J ARTICLE 6 STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT, AND PERSONNEL SJ 6.1 OPERATING DAYS, HOURS, AND SCHEDULES 17 6.2 COLLECTION STANDARDS ___._11 1 1 1 11_...... ........... ................. is 63 VEHICLE REQUIREMENTS ............. ...__. ...._.. .............. 19 64 ROLLOFFCONTAINER REQUIREMENTS ...... ___30 6.5 PERSONNEL ............. .................... ................ 22 6.6 HAZARDOUS WASTE INSPECTION AND HANDLING _..__ ......_. ....... ............_22 6.7 NON-DISCRIMINATION ...._. .............. .................. 23 6.8 COMMUNICATION AND COOPERATION WITH CIIV.......... .......... ..................... ...... ...... ....... ..23 ARTICLE 2 RECORD KEEPING AND REPORTING....................................................................... 24 City of Fresno Nan-Exchowe Fell Off Agreement Page 1 4/8/11 T.1 GENERAL 7.3 RECORDS .. ,..,......,2 7.3 ......_ ..... GENERAL REPORTING REQUIREMENTS REQUIREMENTS_ .'...2 7.0 _... ..... MONTHLY REPOST ... ... 211 75 All 939 COUNTY SURCHARGE REPORTING .............. 21 2i ARTICLE 0 FRANCHISE FEES AND OTHER FEES ........................................................................2E 6.1 GENERAL. 8.2 ......._...._...2A R.3 OTHERER FEFEES OTHER FEES 2A 8A ADJUSTMENT TO FEES 2R ..__ ...... ...._.. PAYMENTSCHEDF ................ 20 US OVERPAYMENT OVER PAYMENT OF FEES 2E 9.6 8.] .1ATEFfES 939 ........_.. _ NON CIN FEED AS 939 COUNtt SURCHARGE 29 .... 29 ARTICLE 9 CONTRACTOR'S COMPENSATION AND RATES ....................................................... a 9.1 CONTRACTORS COMPENSATION_......._ 92 ........................._........_.......................................... CITY S RIGHT TO SET MAXIM UM RATES 29 9.3 ................ ......... ..... ....... __.._..................................... CONTRACTOR'S RATES.- 29 ......................... 30 ARTICLE SO INDEMNITY AND INSURANCE .............................................................................. 30 101 INDEMNIFICATION ...... ....... ........ .......... . INSURANCE . ...,....,.... 3010.2 .._.. ...............31 ARTICLE 11 DEFAULT AND REMEDIES .................................................................................... 35 ]1.1 EVENTS OF DEFAULT 112 .._........... .. ................ RIGHTO UPON DEFAULT..._......._ ...............35 113 ................................. .................._..... GETS REMEDIES CUM LIINSREMEDIEMAGES. ATIVE;SPECIFIC PERFORMANCE 36 11A .._........................._....................... LIQUIDATED DAMAGES....._................... 35 11.5 ........ ................ DIVERSION NON PERFORMANCE. ......... 11.6 ._..... ...... CONDITIONS UPON TERMINATION .... . 3g 39 ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES ................................................................ 39 12.1 PEIATIONSHIPOF PARTIES. 12.2 _......... PERITS LICENSES .................39 12.3 ................ COM TOM PLIANCE WITH LAW ,................ 125 RNINCE ..... .._. GOVERNINGLAW... 40 _,..,.,,., OD 125 .. JURISDICTIONDIS 40 12.6 ................ BINSUCCESSORS ONMENT qD 123 ......... _ ASSIGNG ASSIGNMENT So 12.9 PARTIES IN INTEREST 44) 12.9 WAIVER....- al 12,11 NoTICEPOIV _41 12,11 REPRESENTATIVES OF THE vggnbs ........ ......._... 12.12 _ ..........................q2 CRIMINALACTIVITYOF CONTRACTOR_ 12.33 ...... ............ ............... .......... ...... ..ICE............. ACNNOWLf1GMENT O4 PUBLIC gE50URCES [ODE SfCTION 49511 NOTICE ....... ._.. A2 .... ................q3 City of Fresno SunExclusive Roll-Off Agreement Page age p 13.1 PVTRE AGREEMENT......... 133 SECTION HEADINGS.......... 13.3 REFERENCES TO HAWS..... 13A INTERPRETATION ........ 13.5 PRONOUNS AND PLURALS; 13.6 TE%T TO CONTROL.... .... 13.7 AMENDMENT .___........ 13.8 SEVERARILW..................... 13.9 COUNTERPARTS ................ 13.10 EXHIBITS Lin of Exhibits A Schedule for Oquldated Damages R Secretartes Genn atlon C Statement of Appllant's Understanding and Representations D Apprwed Processing and Residue Dlsposal Fatllhies CM of Fresno NamExcluslve Roll -Off Agreement Page Al 0/8111 This page intentionally blank NON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF FRESNO AND Sufdser W95r2 iySrEM$ FOR ROLL-0FF COLLECTION SERVICES This nqn Wsde franchise gre men[ (Agreement) is mage and etered Into ffk` ®lA Ray of /i Y z0y�'-�/-y by a between the cry of Frea municipal corporation, CIryI and '^p -K �t<} . 5 a Contractor.) RECITALS This Agrecmem is entered Into wfh reference to the following facts and ci¢uresences WHEREAT, the Legislature of the State of California, by amendment of the California Integrated Waste Management Ad of 1999, comfort at CalHomia Public Resources Conde 51 4000D et seq. )"Adi) I, has tendered that It is in the public Interest to authorize and require local agencies to make adequate provisions for Sound Waste Collection within their jurisdiction; and WHERH3, the State of California "States) has found and deaared that the amount of Saud Waste genershd In California, coupled with diminishing landfill space and potential adverse environmental Impacts from IandFJling and the need to conesurres natural resources, have created an urgent need for Spite and local agencies to enact and implement an aggressive integrated waste management program. The State has, through amendment of the AR, elected the responsible State agency and all local agencies, to promote Disposal Site Diversion and to maximlze the use of feasible Solid Waste induction, rume, Rerytling, and Composting options in order to reduce the amount of Solid Waste that must he Disposed of In Disposal Sites; and, WHEREAT, the Aa requlres local agencies to divert 50%of doomed materials from lanetllle and, WHEREAS, the Clry Council established goals of achieving ]5%diversion by 2012 and aero waste status by 2025 on lune 26, 2007, and approved a Zero Waste Strategic Action Plan on February 11, 2009: and WHEREAS, the Cary finds that reusing. Rerytlln& and Crmina log Recyclable Materials, Organic Materials, and Construction and Demolition Debris (C&01 and benenclal use or screening of Organic Materak is Mostri Wl to further the Gas efforts to reduce Sold Waste Disposal and =reply with the Act and the Clays zero waste goals; and WHEREAS, pursuant to the powers granted the City as a charter city by Mlcle RI, Taction 51a) of the California Constitution and Article all of the Fruno City Charter, the City has determined that the public health, safety, and well-being require that a franchise agreement defining nonrexclusive rights be awarded to qualified companies to provide for the rolloff container collection of Permitted Materials City of Fresno Roll Off Agreement Page l o/g/11 except for mllenlor of materials excluded in the Cltt/: Municipal Code, and other services related to meeting requirements of the An; and WHEREAS, the Cry requires all haulers Providing Phil Off Collection services for Permitted Matelots In the City to obtain a non-exclusfve franchise In order to regulate this business, ensure Its orderly opera Hon, achieve Its diversion goals, and to minimize the potential for adverse effects It may have on the local environment; and WHEREAT, the Cry Council has determined through an appfration process that the Contractor, by demonstrated experience, reputation, and capacity, is qualified to Provide for the Pdl-Off Container Collection of Permitted Materials within the corporate limits of the Cry and the Transportation of such material to appropriate places of Rodding, Processing. and/or Disposal, and Pan provide, lniurence wnslstent with the CWs requirements. The Ciry Council desires that ContrzRor be engaged to perform such services on the basis set forth In this Agreement; and WHEREAT, Contractor intends to use the Cbys streets, alleys, other public rights -of way, and Infrastructure to provide RollOff Collection services to the CftVs residents and businesses; and WHEREAS, the Cory 'Intends to receive ju4 and reasonable fees from the Contractor for City's administration of the Agreement and for Contraccor's use of the City streets, alleys, other public rights- of-way, and Infrastructure which the CRY may lawfully Impose and the companies are abducted to pay; and, NOW, THEREFORE, in rnnsideratlon of themutual proants, and conditions contained In this Agreement and for offer good and valuable cnsideration, me Parties agree as follows. ARTICLE 7 DEFINITIONS For purposes of this Agreement, unless a different meaning Is clearly requlred, the following words and phrases shall have the following meanings respectively ascribed to them by this Amite and shalt be capitalized throughout this Agreement; 'Act" means the California Integrated Waste Management An of 1989 DivMon 30 of the California Public Resources Cast as amended, supplemented, superseded, and replaced From time to time. "ABreement' means this Agreement between the IXv and Contractor for Roll -Off Container Collenlon, Processing,. and Disposal of Permitted Materials including all options, and any future amendments hereto. 'Applicable IoW' means all Federal, State, and tool laws, reproulons, rules, orders, judgmen6, degrees, counts, approvals, or Miser requirements of any governmental agency having lurlsdlnlon ever the Rall -Off Container Collection, Transpeca loo, Recycling. Processing, and Disposal of Permitted Materials. that are In force on the Effective Date and wmey may be enacted, Issued, or amended during the Term Of this Agreement. City of Fresno Roll -Off Agreement Page l 6/8/11 'Approved C6O Processing Story means the processing SAO spy@led In Exhibit o, which was selected by Contractor and approved by the City. "ApprovM Disposal site means a Disposal Site selected W the Contractor or Its Subcontratlor(s(and approved by the City for Disposal of residue from Approval ProcessingSRe(s(. Approved Disposal511e(sf are listed In Exhibit D. 'Approved Organla Processing She' means the processing she specified in EAhlbtt D. which was selected by Contractor and approved by the City. 'Approved Processing Sill means the Approved C&o Processing Site, Approved Organlez Processing Site, and/or Approved gegclables Processing Site. 'Approved Processors means the operator of an Approved Processing Site. 'Approved Iterytlables Processing Site" means the processing site specified In Eahibh D, which was selected by Contractor and approved by the Cry. 'gin' means a ornteiner with capacity of approximately one (1) to eight (g) cubic yards, with a hinged III, and with wheels, that is typically serviced by a front end -loading Collection vehicle 'gutlnesr Days" mean days during which City offices are open to do business with the public. 'Chit" means a plastic container with a hinged lid and wheels that Is Actually serviced by an automated or send automated Collection vehicle. A Cart has apadly of 30, 35, 64, or 96 gallops (or similar volumes). 'Cl means Construction and Demolition Debris. 'mange in We means any of the following events or conditions that have a material and adverse effect an the performance by the Parties of their respective ohboatlans under this Agreement (except for payment obligations): 11. a. The emartmenit, adoption, Centralistic Isuanw, modification, or written change In administrative or judicial interpretation on or after the Effective Date of any Applicable Law; or b. The order or judgment of any governmental body, o r after the Effective Date, to the extent such order or Judgment Is not the result of willful or negligent another, error or emission or lack of reasonable diligenceCit of the y o to of the Contractor, whichever Is sorting the occurrence of a Change In Law; provided, however, that the contesting In good rich or the share in good high to contest any such order or judgment shall not constitute or be construed as such a willful or negligent action, error or omission or lack of reasonable dlllgence. "CW means the City of Fresno, California, a municipal corporation, and all the territory lying within the municipal thoundaders of the Clty as presently existing oras such boundaries may be modlfled during the Term. Cly of Fresno Poli Agreement Page 3 0/g/11 "City's Municipal Code" means the Clay of resno Mombasa Code "CdleM or "Collection's means the act of collecting permuted Materials and other material at the place Of generation In the city. "Commercal" shall mean of, from or pertaining to non Real Premises where business activity Is concluded, indicating, but not limped to, retail sales, services, wholesale operation; manufacturing and Industrial operations, but excluding businesses conducted upon mall Property which are Permitted under applicable toning regulations and are not the primary use of the property. 'Compactions means a mechanlml apparatus that compresses materials Into a container, which container may be detachable. For the purposes of this Agreement. Compadots shall include only Commissions with container capacples of ten 10) to fifty (50) cubic yard that are servlcetl by RolFOff Collection Trucks. "Compost" or "Compurting' Includes a controlled biologlral demmmoMion 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 scream, or which are separated a a centralized facility, 'Construction and Demolitlon Debds(C&Dr means materials resuhing from con ffsctlon, remodeling, repair, cleanup, or demolition operationsthat am not haaampos as defined In California Code of Regulations, Thle 22 Section 66261.3. This term Includers, but is not limited to, asphalt, concrete, cement concrete, brick, lumber, gypsum wallboard, concrete board, Functions, and other associated paduging, oFunctions, material, ceramic tile, carpeting, plastic pipe and steel, as well as vegetative matter resulting from land clearing and landscaping including but not limited to rock, soil, tree stumps. Constmoion and Demolition Debris excludes putrescible wastes. oe means ntradk�alSGi' �GS�a 6�CW>-S )insert mntranor: morel. a %/Oa% (Itueit condonation, sok pmi p hymphip, partnership as appropriate) organized and operating under the laws of the State of California and Its officers, directors, employees, agents, companies, and Su�ntmdors. "Contractor Party)@s)" shall mean Coni eMcers, directors, management ee employor fiscal employees (where m mnagement eployee"means any employee with direct orindiredsp reonsibility m for allotment and control over the ContramnrsaRwities under this Agreement and "fiscal employee means an ee employwith direct or Nuclear responsibility and cotrol ndoles'relathd to financial matters under this Agmemenry "Criminal Amvil means those still described In Stolon UNA. "Customer' means the person whom Contractor submits billing Invoice to and Frieds payment form for Collection services provided. "Deslginated Disposal slte" means the American Avenue landfill at 18950 W American Avenue In Inhumaity. California forms purposes of Dlsmi ing Sells! Waste. Cary of Fresno RolLDlfggreement Page 0/8/13 -Designated Warta^ means non Hazardous Wanes that may pose special Disposal problems because of its potential 10 contaminate the environment and which may be Disposed of only In Class 11 Disposal Sites or Class 111 Disposal Sites pursuant to a vananre Issued by the Califomla Department of health Services. "DLeRof shall mean the Public Ulllli s Director of the City or an summarized representative of the Public-0tiltlles Director. `DluaNed Matedale means Solid Waste, Rerydable Materials, Organic Materials, or C&0 placed b/ a Generator In a receptacle and/or ata location that is dengnrted for Collection pursuant to the Cry's MunkiWlCode. "Disposal or Dlsgrse (or variation mere el means the final disposklon of Solid Waste at a Disposal Site. "Disposal She means a hdlltymr ultimate Disposal of Solid Waste. ablveral means Sol that at reduce or e0moute the amount of solid Warte from Solid Waste Dlsposel Including, Competing.but not limited to, Recycling, and Competing. 'Deep Box" means an open top container with capacity from Six (5) to fifty ISO) cubic yards that is used for Collection Of Permitted Materials and that is servlred by a But Off Collection Force Drop Boxes with capacities of less than ten (10) cubic yards may only be used for the purposes of Collecting C&0. Army Bos, wMCM1 is she known as a rolloff box and/or debris box, Is a type of Roll Off Container. 'Effective Dale" means the date set forth In the Inimica ry paragraph of this Agreement. 'Federal" means belonging to Or pertaining to the national general government of the United States. "Food Scope" means these discarded materials that will decompose and/or putrefy Including hall kitchen and tablefiodwane,(1l)animal or vegetable waste that is generated dirringorresuftsfrournithe storage, preparation, manager handling Of food stuffs, (III) discarded Paperthat a contaminated with Food scraps; (iv) fruit waste, grain waste, dairy wane, meat and fgh 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 me privilege to hold the gamixclusFre rights grantM by this Agreement. "Genera!' means any Penon whose act or proper; pmtlures Permitted Materials, Or whose act first causes Permitted Materials to become subject to regulation. "Green Wage Martertn' means any materials generated from the maintenance or ahRatlpn of public, reridd,or re;Wential landscapes that will recompose and/or putrefy induding but not limited to, Paid clippings, Rest, leaves, gurriptrea, trimmings Or pmnings(less than e" M dlameterb hmsh, flow weetl; dead plants, small Sime; of unpainted and untreated wood, and other types of organic waste. For the purposes of this Agreement, such materials shall be Source generated and placed by a Generator in a receptacle and/or at a location that Is designated for Collection. Green Waste Material is a subset Of Organic Materials. Cly of Fresno Roll OD Agreement Page 5 0/8/11 'Farmdous Weve' means all substances definetl as Hazardous Waste, acutely Hazardous Waste, or extremely Ha Grazes Waste by the State In Health and Safety Code §25110.02,§25115, and §25117 or In the future amendments to or recedif tions of such statutes or identified and lined as Haeardous Waste by the U S. Environmental Protection Agenry(EPA), pursuant to the Resource Consemtlon and Recovery Act I62 USC §6901 of se0,1, all future amendments thereto, and all rules and regulations Promulgated l hereunder. "Holidays"are defined as New years Day, Thanksgiving Day, and Christmas Day. 'Infectious waste" means biomedical waste generated at hospitals, public or private medical cllnla, dental military research laboratories, pharmaceutical Industries, blood banks, mortuaries, veterinary fadlHles and mherslmllar establishments. as defined in Health and Safety Ude Stolon 25117.5. -dockhand Damages" means the amounts due by Contractor to City for failure to meet spetllle quanNFlable standards of performance as described In Serving 11.4 and EMIbRA. "Dvorak Materials" means those dhcamed materials not will decompose and/or putrefy induding Green Waste Material and Food Scraps such as, but are not limited to, green trimmings, grass, Weeds, leaves, pmnings, branches, dead plants, brush, tree trimmings, dead trees, small wand pieces, Other types Of organic yard Waste, vegetable waste, Not waste, grain waste, dairy waste, meat waste, fish waste, paper contaminated With Food Scrips, pieces of unpainted and untreated wood, and pieces of unpainted and untreated wallboand. NodisreNed material shall be considered to be organic Materials, colors such material 6 Sourm Separated from Solid Waste, Recyclable Material, C&D, or Other materials. "Parent Company' refers to a Company owning more than fifty percent (50%) of the shares of another company (subsidiary) are company that has management control oversuch subsidiary. 'Party Or Par es' refers tome olyandContrattnr, individually or together. 'Perml4ed Materials" refers to Solid Wave, Source Separated Recyclable Materials, Source 5eparzhd Organic Materl and CU. Permitted Materials excludes Source Separated Food Yraps. "Perlani means any Individual, firm associated, organization, partnership, corpoation, business trust, joint venture, the United States, the State of Califoml; the County of Fresno, and special purpose district. 'Pmns reans any Ind or Funding in the City where Permitted Materials are generated or accumulated. Prumulated. 'Pmressmg" means to Prepare, treat, or convert through same special method. "Processing Site means any plant Or site used fm Sorting, deansin6. treating. Or reconstituting Permitted Materials for the prurience Of making such material available for reuse, "Pu resdble Wave" means Solid Wastes originated from being organisms and their metabolic waste smal z and from petroleum, Which contains naturvy Produced organic compounds and which are Day of Fresno RmbINf Agreement Page 6 4/8/11 Biologically decomposable by microbial and fungal action into the constituent compounds of water, carbon dioxide and other simpler organic compounds. `Rates• means the changes and fees Contractor bills and clients from own Customer receiving service pursuant to this Agreement. 'Rarydable Mrtemake means those Discarded Materials that the City Code Permits, directs and/or requires Comprises to set out In Rerydables Materials termines for Collection for the purpose of pursuing. No Discarded Materials shall be considered Recyclable Materials unless such material is separated from Solid Waste and Organic Materials. Recyclable Materials shall Include, but not be limited to: newspaper Including Inserts, coupons, and store advertisements); mixed paper (including office paper, computer paper, magazines, junk mall, purchase, brown paper bags, brown paper, paperboard, paper egg rumors, telephone books, grocery bags, moored paper, mmtrui paper, metopes, legal pad backings, shoe boxes, soap boxes, cereal and other similar food boxes]: chipboard; cardboard; paper moll common; glass containers of any color (including glass bottles and jars all Colors]; aluminum puns; fabric softener containers steel, tin or In metal cons; plastic containers (dear or green plastic soda and water bottles, plastic containers and botlles and plastic bags with no. 1, 2 or 3 on the bottom); and food containers from potato salad, pasta sated, whipped cream, etc 'Recycle or Rerycling' means the protein of collecting, snrtln u @omin8s torsi and reconstituting materials for the purpose of using the altered form In the manufacture of a new amount. Recycling does not Include coming, indneatin& or thermally destroying solid same. 'Resldenthif shall mean of, from, or pertainhng to anglenfamlly Premises, Multi play, or multi family Premises Inducting singlcBmily homes, apartments, condominiums, townhouse complexes, mobile home partr, moperatNe apartments, and yacht posters and marinas where residents live aboard boats. "RaIIAN W ntaNer means a Drop Box or Compactor used for Collection of Permitted Materi and serviced by a Roll -off Collection Truck. Bri Containers with supe@les of less than ten (10) cubic yards may only be used for the purposes or Collecting C&D. 'ROfl Off collection True" means a collection vehicle with a mechanical tlevire such as a winch that pulls or loads a Belli Container onto the truck hed or attached trailer and separately transports each Roll Off Container to a Disposal Site or Processing Site. 'Solld Wash• means solid waste as defined in Connote Public Resources Code, Dorian 30, Pan 1, Chapter 2, 440191 and regulations promulgated thereunder and those Discarded Material that the City Code requires Generators within the Ciy to set out for Collection emishol from the definition of Solid Waste are C&0, W VNous Waste, Infectious Waste, Ocslgnated Waste, Source Sepa2ted Recyclable Materials, Source Separated Organic Materials, and adioactive waste. Natwlthrtanding any Provision to the contrary, 'Solid Wasten may Include de islands volumes orconcentratims of waste of a type and amount normally found in Residential Solid Waste after Implementation of programs for the safe collection, retailing, treatment and disposal of household hazardous waste In compliance with Semon 41509 and 4CW2 of the California Public Resources Code. "Secure Separated• means the Segregation, by the Geneatop M materials designated for separate Collection forsomerorm of Recycling, Processing Complartine, recovery, Or reuse. 'State' manowthe State of California. (lry pf Fresno RollORagreement pager 41 "Subcontractor means a party who has entered into a contract, express or Implied, with the Contractor for the performance of an act that 6 necessary for the Contralto/s; futillment of Its obligations under this Agreement. Term"me ans the Term of this Agreement, including extension periods If grated, as provided for In Article 3 "Ton" means a unit of measure for weight equivalent to 3,000 standard pounds where each pound contains 15 ounces. Tonnage" means the total weight in Tons cadenced, Recycled, Composted, diverted, Or Disposed of, as the context requires. Transpprtudi means the act of monsportingor spite of being transported ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR 2.1 REPRESENTATIONS AND WARRANTIES The Contactor, by execution Of the Agreement, represents and warrants the following to Clty, for the purpose of Inducing Oly to enter into this Agreement and to consummate the transactions contemplated hereby. A. Cnrponte Straus. Contractor is duly organize, validly existing and In good slanting under Me laws of the state. it is qualified W transact business In the CIry 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. B. Authorization. Damnation has the warranty to enter Nis Agreement and perform is dilgatlom under the Agreement. me Board of Directors nfComattor for the shareholders, E necessary), sole proprietor, or partners have taken all actions required bf law, las artistes of Incorporation, its bylaws, or Otherwise, to outcome the execution of Ma Agreement. The Person signing tris Agreement on behalf of Contractor repremMs and warrants that they have authority to do so and the corporate sacrosanct occur awe In Bxblbla B codimrs the. This Agreement condrutes the legal, valid, and binding obligation of Connector. C. Agreement WIII NM Cause Bread. To the best of Coatattor's knowledge after reasonable Investigation, the execution or delivery of this Agreement or the performance by Contractor of for obligations hereunder does not conflict with, violate, or result In a breech: III of any law or governmental regulation applicable to Contractor, (ii) any term or condition of any judgment, Oder, or devee Of arry wart, administrative agency Or otter governmental authority; or, jilt] any Agreement or instrument to which Contractors Is a perry or by which Contractor or any of bar Properties or assets are bound, or constitute a default thereunder. CIty of Fresno Roll Off Agreement Papa 4/8/11 0. No litigation. To the best of Contractors knowledge after easonable Investigation, there is no action, suit, pmuetling or involdliantion.at law or in equity, before or by any court o governmental authority, commission, board, agency o Instrumentality thusand pending o threatened against Contractor wherein an unfavorable decision, ruling or finding, in any single rase or in the aggregate, would 1. Materially adverselyalfect the performance by Corruption of his obligations hereunder 3. Adversely affect the validity orenforaeabluty of this Pgreement; or 3, Have a material adverse effect on the flnindal mndltlon of Contractor. or any surety or entity gumparmaeing Contup¢or's performanre under this Agreement. E. No Adverse Judicial specialist. To the belt of Contortions knowledge after reasonable investigation, Mere Is no Judicial dandarn that would prohlbk this Agreement or supper this Agreement to legal challenge. F, No Legat Pmhlbithm. To the best of Contractors knowledge after reasonable investigation, there is no Appllcable Law In effect on the date Contractor signed this Agreement that would prohibit the Contractors performance of its obligations under this Agreement and the thimmetlons contemplated hereby. G. Connors statements. The Contactors Application and any other supplementary Information submitted to the Cry, whim the City has rellad an In entering this Agreement, do not: {i) mntahi any move statement of material far, or D draft to state a material far that mincessurry In order to make the statements made, in light of the circumstances in which they were made, not misleading. H. Contractors Investigation. Contractor has made an independent investigation(saisfattory to it) of the conigions 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 compemrth n provided for under the terms of this Agreement. I. Ability to Perform. Contractor possesses the businew, professional, and technical expertise to Collect, Transport, Rai Post and Dispose Permitted Materials generated in the City. Contractor possesses the equipment, for lA liesp, and employee rescoaes required to perform Its obligations under this Agreement. ARTICLE 3 TERM OF AGREEMENT 3.1 EFFECTIVE DATE Contactor may provide the Roll cry Consumer Collection, Trvmcortatlon, Recytlln& Pro sung, Comporin8. and Disposal services authorized by this Agreement commencing on the kifetllver Date. Choy of Fresno Rolbff Agreement Page 9 a/1 3.2 CONDITIONS TO EFFECTIVENESS OF AGREEMENT The obllgatlon of City to permit this Agreement to become effective and to perform M undertakings provided for in this Agreement 0 subject t0 the satisfaction of all the conditions below, each of whiclr may be waived, in wrlHen form, In whole or In part by Cloy. A. ACeurasy of Representations. The representations and warrantiesmade in Article 2 Of Nk Agreement are true and correct on and as of the Effective Date. 0. Absence of Ihlgatlen. There is no lWthation pending on the EffeCiNe Date In any court challenging the award or execution of this Agreement or seeking to restrain or enjoin its perimmanre. C Furnishings of Insurance. Contractor has furnished evidence of the Insurance required by Article 10 that is milisfactoryto the CXy. D, Eff cNveness of City Council Action. The ON Council action approving this Agreement shall have become effective and all Parties shall have aboard the Agreement pursuant to Applicable Law poor to or on the EffmMe pate, provided that no restraining order of any kind has been issued. 3.3 INITIALTERM The Initial Term Of this Agreement shall commence on the Effective Date and continue In full force for Me (5) years, until lune 30, 2016. The Term may be extended pursuant to Section 3.4 orterminatM early In arocomance with Section 111. 3.4 OPTION TO EXTEND Sublect to City Council apprwah the CIN shall have the option to extend this Agreement for an additional term of up to Me (5) years. If the ON extends the Agreement, it shall give written notice to COM2tlor at least one hundi eighty (180) calendar days prior to expiration of the lnkial Term. The WE written notice shall specify the number of years by which It plants to extend the Term of this Agreement and the revised expiration date Of the Agreement Any such extension shall not become effective unless Corrasion agrees to the extension, In wutIng, at least one mapped fifty I'M calendar clays pull expiration of lnkial Term. ON Of Fresno ROII-0ff Agreement page 10 a/g/11 ARTICLE 4 SCOPE OF AGREEMENT 4.1 SCOPE OF AGREEMEM This n -exclusive franchise. granted to Contractor, authorizes Contactor to Called, Transport, Reryck, Pro snCompost, and Dispose of Permitted Materials placed by Resistant orCommercial Generators in Roll OR Containers for Collection, provide! that the Customer has volunGrlly arranged for Contractor to provide Collection services, The Contractor hat he responsible me the following services' A. Collecting Permitted Materials placed by each Customer In a Roll Container for Collection as requested by Customer. a. Providing each Customer, upon reMery of Roll OF Container, a printed list that spectlies the materials that cannot be placed In the Rog0ff Container (i.e., Hazardous Wastes) and a list Of acceptable Recyclable Materials, 01ganlc Materials, and C&D that may be placed In the Roll -Off Container. C. Transporting Coffered Solid Waste to the Designated Disposal Site and preventing other materials to an Approved Processing Site. D. Furnishing all labor, supervision, vehicles, Holl -off Containers, other equipment, materials, apples, and all other gems and servl¢s necessary to perfOrtn Its obligations under this Agreement. E Paying all expenses related to provision of services required by this Agreement Including, but not limited to, Franchise Fees, taxes, regulatory fees. Collection wits, Transportation costs, processing costs, Disposal costs, utilities, etc F. Providing all services required by this Agreement n a thorough and pmmsslonal manner so that residents, businesses, and the Cry are provided timely, reliable, courteous and high-quallty service at all Rales. G. Performing all services In substantial auurdance with this Agrement at all limes using Net Industry padlm for comparable operations. H. Compying with Appllable law. I. Performing or providing all other services necessary to fuWll its obligations under this Agreement J. DWeri a minimum of 50% of the C&O Colle ch d from Disposal. The Diversion ate shall he calculated each month based upon the weights of C&D Collected and DNerted. City of Fresno Roll -ORAgreemant page 11 afe%11 K. Dwarfing a minimum of70%oftbe gecytlable Materials Collected from Dbposal. The Dlveaden rate shall be calculated each month based Mean the weights of Focydable Materials Colleeted and Diverted. L. Dluerting a minimum of'NI%'of the Organic Materials Collected from Db'poaal. The Warrant rate shall be calculated each month based upon the weights of Organic Matenals Collected and Divermd. Theen eration and specllketlOn of particular aspects of service, labor, or equipment requirements shall n relieve Contractor of the duty Of accomplishing all other aspera n scary to fuXlll Its obligations under this Agreement whether such requirement are enumerated elsewhere in the Agreement or wi. 4.2 LIMITATIONS TO SCOPE The scope of the Agreement shall ben exclusive. Permmed Materials may be Collected and Transported by other Persons prodded that such Persons do so In accordance with the Ws Mume"I CMe, Including but not limited to the following: A. Permitted Materials Collected by Other Non-Eadusive Franchise Haulers, Permitted Materials Collected My a party that has exact a Non -Exclusive Franchise Agreement with Ne Cly for Ron OH Container Collection Services. 0. Permitted Metedalz Defended by City. PermltlM Materials collected try the Ceirs munldIval attention operation Including; hl materials CoIIMed using equipment, such as Cases and Bins, not regulated by this Agreement (21 materials Collected farm Off facilities, and special event and venues sponsored by the City, which may be Outlasted in Carts, Bins, or Rolbff Containers by the Cii municipal collection operation or Ory, crews. C. 130111 Reryclable Materials. Reryclable Materials Generated In the Clear that are Source Separated and donated by the Generator to youth, civic, chartable, 6Tother nonprofit organizations. O. Materials Hauled by Owner or Occupant, or 1, Contacto, Permitted Materials that are removed from any Premises and are Transported to a DBPosal Site of Processing Site by (I) Me Owner or Occupant of such Premises, till by full-time employee of Owner or Occupant that was the Owner's or Occupant's equipment to transport materials; or till) by a confWRion or demolition contractor performing commuctian or demolition work at the Final whose removal or the Permitted Materials Is Inlde rtal to the serNce being performed (as defined in Small B-2DslFlldp of the Cliffs Municipal Once) and such contractor removal materials at no additional or separate fee using snmam(mes employees and contractor's equipment E Green Waste Material. Private collection of Green Waste Material treating from landscaping or gardening servins prryormed by the Person mnectirig such mmeram. City of Fresno ROH -Off Agreement Page 12 4/8/11 E Other Readable Materials. Private collection by any words or company that transports Recyclable Materials through use of its Own veNdels), and nervous no commentator; for such COIlettlonor Tramponatlon. G. Materials from Public Schools and Other Government Faclkles. Theremovalolummaterlals generated by public schools, cities, the County, orfederal tatll (with the exception Of those fe lklessubjedto43U.s.CSection6g611a11. 4.3 C"S RIGHT TO GRANT MULTIPLE NONEXCLUSIVE AGREEMENTS The city may grant to an unlimited number of additional Persons similar non-exclusive franchise agreements for Roll{Hf Container Collection, Transportation, gerycling. Processing. Composting, and Disposal of PermMed Materials. 4.4 CITY'S RIGHT TO EXCLUDE NEWLY ANNEXED TERRITORY FROM SCOPE OF FRANCHISE The Clry rear es the fi night to exclude territory that B a Mli annexed Into e corporate mits of the City subsequent to the Effective Date from the scope afthis franchiu. 4.6 AGREEMENT CONSISTENT WITH APPLICABLE LAW This Agreement and scope of this franchise shall be Interprened to be consistent with Applicable Law, now and during the Term. It future Judicial Interpretations Of currerrt law Or new laws, regulations. or judicial Interpretations limit the ability of the CLy to lawfully provide for the scope of services as specifically, set forth herein, Contractor agrees that the scope of the Agreement will be limited to those er dws and materials which may be lawfully provided and that the CM shall not be responsible for any lost profits or lasses claimed by Contractor to inose out of limitation of the scope of the Agreement set forth herein. In such an event, it shall be the resporelnifty of Contractor to midlands the financial Impact of such future judicial Interpretations or new laws. 4.6 OWNERSHIP OF MATERIALS Once Permitted Materials are placed in a Roll -Off Container for Collection by Contractor, ownership and the right to possession of such materials shall transfer directly from the Customer to Confounds. On a short-term basis not to exceed more than Me (5) calendar days per year, Cry may obtain ownership or possession of Permuted Materials placed In the Ro140H Container for Collection, for purposes of waste characterization studies, upon written notice to Contractor of Its Intent m do so. However, O dirk in this Agreement shall the comtmed as giving rise to any Inference that any has such myna Mp Or Possession unless such written notice has been given to Contractor. Cry of Fresno Roll Off Agreement Page Jul 418111 49 NOTIFICATION TO CITU OF NON -FRANCHISED HAULERS If Contractor an produce evidence that other Persons are Collecting Permitted Materials and do not have rights to do so as granted by no -exduzive francluse agreement with the @y crotherwise, or in a manner hat is not consistent with the Cttys Municipal Code, Contractor shall realty, the City In starting. within ten )lo) calendar days of Contractor witnessing such circumstances. The Contra mi notice shalt Include the name and telephone number of the person or company Collecting Permitted Materials (if known), the date the Contractor witnessed the event, the leaden of the Roll-Cff [antimer along with Contractors evidence of the natation of the rights granted bythis non-exclusrvefranchbe. ARTICLE 5 COLLECTION, PROCESSING, AND DISPOSAL SERVICES 5.1 COLLECTION Contactor b hereby authorized to Collect Permitted Materials from residents and businesses in the Clry using Roll Off Containers. Contractor shall Collett Forma M Materials from Customers that voluntarily subsvibe to or request RO[`O f Container Collector nervi from Contactor. Contractor shall durable its Consumers with a Ili Container for Permitted Materials Collection or shall allow Its Customerstr provide a Roll Off Container. Contractor shall Collect Permitted Materials from Premises as frequently as scheduled by Contractor or as mutually agreed won Customer, but not less than once a week for Solid Waste and Organic Materials. Contractor shall provide repuasted service to Its Customers and shall charge Customers for service at Rates mNuallyagreed by Customerand Contractor. Contactor shall Transport Solid Waste Collected pursuant to this Agreement to the Designated O{ryosal Site and other materials to an Approved Woceding She that has been selected by the Contractor and approved by the Ore. The Approved Processing 51 must he able to demonstrate Diversion rates In accnNanre wlm Sections 4.1 and 5.3. Contractor may enter into contracts with Customers for Collection septi provided that in no ase shall the term of such concocts extend beyond the Term of this Agreement, and provided that In the event the City terminates this Agreement the contracts with any and all Customers shall termirate on the termination date of this Agreement. 6.2 PROCESSING AND MARKETING SERVICES A. Pmcessing. Contractor agrees to Transport and deliver )p ell C&O It Collects In the Ory to the Approved C&D Processing Site, Illl all ReMlable Materials It Collects; In the City to the Approved Recyclable Processing Site, and hall all Organic Materials It Collects in the City to the Approved Organla pmceseng Site. Residue from the C&q Recyclable Materials, and OrgaNrs Pmcessing and Comporting all Vales shall be 08pmed of by Contractor Or its Approved Processor at an Approved Disposal Site selected by Contractor In accordance wIM Section 5.4. Contractor selected the Approved Processing Smi and Approved DISpOsal Sheis), distill are ldemhied N City of Fresno Rall -Off Agreement Page 14 418111 Exhibit D. Contractor shall pe ncit or arrange for the ON to inspect the Approved Processing Sitels) and choose operations at anytime duringthe Term. Contractor army Approved Processorls) shall possess all permits and approvals necessaryfor use of the Approved Processing trials) In full regulatory compliance Contractor shall, Upon ON request, provide or request from its Approved Pmcessmis) and provide copies of combat of violation or permits to the City. Upon request of the City, Contractor shall provide a comfed statement from its Approved Professofls) documenting is; Diversion rate. If Contractor elects to use a Processing Slte(s) that Is different than the Approved Processing Shels) specified In Exhibit D, it shall request written approval from the Call smxry, (W) calendar days prior to use of the site and obtain the City s written approval no later than ten (10) olendar dap prior to use of the site. If Computer Is unable to use an Approved Processing Site due to an emergency or sudden unforeseen closure of the Approved Processing Site, Contractor may use an alternative Processing She provided that (I) the Contactor Provides verbal and written malice to the City within twenty-four (141 hours of use of an alternative Processing She, and (il) the alternative Processing She Is fully permitted and In compliance with all Applloble taws. The written notice shall Include a description of the reasons the Approved Processing She (s not feasible and the period of time Contractor proposes to use the alternative Processing She. Contractor shall use the alternative Processing Steeper no more than twenlNfour 124) boors without pbtalnlng City's written approval. B. elemental. The Contractor or is Approved Processor shall be responsible for maMtint C&D, Recyclable Materials, and Organic Matedas collecting In the City and Diverted Contractor and/or hs Approved Processor may retain all revenues generated from lure sale of Permitted Materials that are Diverted Upon request, Contractor or Its Approved Processor shall provide proof (in the form of sales receipts showing end user) to the ON that ail C$D, Recyclable Matedak, and Organic Materials Oriented are marketed for Recycling or re In such a manner that materials shall be considered as D'werted in accordance with the State regulations established by the Am All residual material from the Processing moral that Is not marketed for use shall he accounted for as Disposal Tannage at a permitted Dlsysal Site. No Permitted Material shall be timnsported to a domestic or Foreign duction If Solid Waste Disposal of such masarial Is ly Intended use, Contractor or Its Approved PMcessor shall provide the Chy, upon written proceed, with a Ilrt of broker/buyers It uses to market GOD, Recyclable Materials, and Organic Materials Diverted. ON may audit brokers or buyers to confirm that materials are being. Recycled and Diverted from Disposal M Contractor becomes aware that a broker or buyer has Illegally handled or Disposed of mataNal generated by the Ciry, or elsewhere, Contractor Shall Immedlately Inform the ON and terminate Its contract or working reOtdnsne with such party Immediately. C Processing and Marketing Costs. Contractor shall pay all costs associated with Processing and marketing of Permkred Materials trudging payment of any gate fees charged at the Approved Processing Sites. Clry of Fresno Roll -Off Agreement Page 15 4/8/11 6.3 DIVERSION REQUIREMENT Contractor shall Divert from landfill disposal at least (i) 50% by weight of all C&D it Collects within the City, (11) ]D%by weight of all Recyclable Materials R Collects within the City, and (Iii) 5095 W weight of all Organic Materials R Colects within the City during each calendar month by Processing, Reryding, or Composting some or all of the C&D, Recyclable Materials, and Organic Materials Collected. If Contractor falls to meet the Divehi repuirements stated In the preading parol during a calendar month, the City may terminate Due Agreement In accordance with Settled 11.5. 6.4 DISPOSAL A. Disposal of Solid Wage CelleRed.Cnmractor 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, Calfpmla. Contractor shall pay all costs associated with Thensportmit and Disposal of Solitl Waste including payment of any gate fees charged at the Designated Disposal Site, 0. Disposal of Presented flol Contractor shall, or shall saddle Its Approved Processor to, Dispose of residue from Processhng of ME, Recyclable Materials, and Organic Materials Collected within the Cry, that are not DWer sal through Proposing actWities dv Transporting the residue to an Approved Disposal Site spedfied In Exhibit D, which 0lawfully authorized to accept such material C permitted Site. Contractor or its Appeared processor shall only Dispose of materials at a permitted Disposal She that s In full regulatory compliance. Contractor, or IG Approved Posta r, shall keep or confirm all existing permits and approach necessary for use of Me Disposal Site(s) in full regulatory compliance. Contractor shall, upon rryuest, provide copies of notions of violation or permits to the City. 0. Compliance with Regulations. Contractor shall observe and comply with all regulations In effect at the Designated Disposal Site and Approved Disposal Sild(s) and cooperate with the operator thereof with respect to delivery of Solid Waste, Including directions to unload Collection vehicles In designated areas, acmmmodrting operations and maintenance individual and complying with Hazardous Waste exclusion programs. E. Disposal a Approved Site. Cente4oD or 16 Approved Pmassor, shall not Disperse of such imature by depending it on any public or private land, In any river, stream, or other Waterway, o in any sin@cry sewer or stool drainage System or In any other manner which Montes Applicable laws, Contractor, or Its Approved Processor, selected the Approved Disposal Ske(s) for residue Disposal specified In Exhibit 0. Contractor shall manage for the any to inspect the Approved Dkposal Stee(s) and observe operations at anytime during the Term. F. Alternadve Dkposal Site. If Contractor, or Its Approved Processor, elects to use a Disposal 51te(s) that Is dH(erent than the Approved Obp ssal Ske(s) Ihted In Exhibit D, k shall request written approval from the City 6d calendar data prior to use of the site and obtain the City$ written approval no later than 10 calendar days prior to use of me site: City of Fresno R011IXf Agreement Page 16 4/a/11 If Contractor, of its Approved Processor. is unable to use the Approved Disposal Site due to an emergency or sudden unforeseen cbsme of the Approved Disposal She, Contractor, or its Approved Processor, may Use an alternative Disposal Site provided that lit the Contractor provides verbal and written notice to the City wlthin twenty-four (24) hours of use of an alteeri Disposal Site, and (il) the alternative Processing Site Is fully Permitted and In compliance with all Applicable Laws. The written notice spall Include a description of the reasons the Approved Disposal Site Is not feasible and the period of time Contrai or hs Approved Processor, proposes to use the theimative Disposal Site. Contactor shall use the ahernative Disposal Site for no more than twenty-four (24) hours without obtaining Cites written approval. 5.5 BILLING Contractor shall bill all Customers and collect billings In accordance with ContaRor-establlshed Rates, which are set In a manner consistent with provisions trisection 91 The Contractor shall prepare mall, and tolled bills for shall issue written receipts for cash Currents) for Collection services provided by Contactor. Contractor shall be responsible for collodion of payment from Customers with past tlue accounts. Contactor shall maintain copies of all billings and receipts each In chronologlol order, Porto (5) years after expression or termination of this Agreement. Contactor shall retrieve and make available to the City copies of the billings and receipts within five (5) days of the Direi attract request for the billings and receipts. The Contactor may, at its option, maintain those records In computer form, an microfiche, or In any other manner, provided that the records an be preserved and retrieved for nspedlon and veHflatloo In a timely manner. 6.6 CUSTOMERSERVICE Connector shall maintain a husiness office within the City or within a reasonable distance of Ne City Amlrs approved by the Director. The business offs a shall daff at least one customer servla representative capable of accepting payments from Customers, answering service questions, and narcissus; Customer vervim issues. Contactor shall have a clothes Customer survive telephone number and shall have staff available to answer elk from at least S:Do a.m. to 6:00 p.m., Monday through Friday. An answering machine shall record Customer calks and voice messages between S:CO p.m. and B:CD a.m. ARTICLE 6 STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT, AND PERSONNEL 6.1 OPERATING DAYS, HOURS, AND SCHEDULES A Days and Hours ofColfenlon Cary of Fresno Roll Off Agreement Page 17 4/8/11 1. Residential Premises. Delivery or Collection of a Roll OR Eontamer to or from Residential Premises shall Only occur between the hoors Of 6:00 a.m. and 6:00 p.m., any day Of the week. 3. Commertal Premises. Delivery or Collection of a Rotbff Comainerm or brand Commercial Premises that are 200 feet or less from Residential Premises shall only Occur between the boom of 6:W a.m and 60D did, any day of the week. Delivery or Collection of a RDII-0ff Container to Or from Commercial Premises that are more than xW feet from Residential prem6es shall only occur hetw.een the hours of 5 00 a.m, and 7 DO P mr. any day of the week. The Director may lattice modifications to boom for delivery and Collection from Commercial Premises to remWe noise complaints, and, In such case, the Director may changethe allowable operating hours, 3. Easeptions. In the event of an unforeseen circumstance, the Contractor may deliver or Colied a PER Off Container From Residential or Commercial Premises that are 200 feet or les from Residential Premiums between the hours of S:W a.m, and 10:DO p.m., upon prim will approval from the account. 4. Failure to Comply, If the Contractor fal4to dOmply with the Collection hours described In told Semon, the Contactor shall pay the Cry Liquidated Damages as described In fail 11A antl EahlbR A. 62 COLLECTION STANDARDS 6.2.1 Instructions to Customer Contractor shall Instruct Customers as to any preparation of Permitted Materials. necessary prior to placing in the Rolf OR Container. Contractor shall, In written form, Inform all Customers as to the acceptable materials that can be Included in the Roll-OffContainerand any unacceptable materials t0 be Ecluded from Colles n. 6.12 Gmaptlyate property - fontattorsball not damage private pmpedy. Contractor shall ensure that Its employ, I) dose all gates opened In making Collections, unless otherwise directed by the Cudomep fill do not ctoss landscaped areas; and In) do not climb orjump wet hedges andfences. CRY shall refer complaints about damage to private property to Contractor Contractor shall repair all damage to prlvateand publicproparty caused by its employees to its previous condition, 65.3 litter Abrtement A Mlnfmizatlon of Spills. Contractor shall use due rare to prevent vehicle of and vehicle fuelfrom being spilled or suffered during Collection and Transportation Operations. If any Permitted Materials are spilled ors®tiered during Collection or Tansp rrtation operations, the Contractor shall promptly clean Up all spilled and swtlead materials. City of Fresno Roll Off Agreement 4/8/11 Page 1g Contractor stall not transfer leads from one veNae to anoMn an any public sees( anode it Is ¢sMry m do so begnse of medunlol sieve, nM head (canGoaEm M matxol M the Mak), amdental damage to a vehicle, or unlet apposed by the City. If Cantrartar Nis to W hon, same or all of Me requirements described In this Sevion, the Contractor Mall My Me aty Medicinal Damages astlesvMM In Section" and Fewbt0. g. CeanLp. F Wfand n veNde shall carry pNerlWe glop, a broom, and sbo.N at Ml tines fm cleaning up litter and absorbent matenal far Meaning up liquid spins. The Uteri Am discuss IM.nces of repeated spillage ma caused by D wits the Carouser of Me Premises where 0111W occurs. and Undmator shall report such lmtarces M City. If the Contracor has anemistea W have a CusMmr, hop dating squage but 4 unsllreasdhol, tM Gry will attempt, upon natla by Me Cnnbacmr, to rectify suds Madden wits the grsdomer. c Cyvesbg of lade. [nMnaa shall ever all WIOR CadxWrs at Me pickup location before TrmsarMg materials M prevent Permitted Mandao flan aapiry during Transportation, 626 Ralse All Cdleale opmtiad dutl be conducted az quietly as pro W ads shall enMmh M Applloble paw. COM mile WII ppnpdy Milan we Completes of else durbg Me morl or cxniry heart W Me day M Me satisfaction of Me Cloy. In Me event of repert aemrenas of nope levels In eeress of 75 able), the Concerto whall pay ligddaced Damages In a®rmrha with 4Nnn lLA and Eehibk A 6.9 VEHICLE REQUIREMENTS 0. 6atgreL Vehides used M provide seMel s under MIs Agrament Mall be ken In a safe, neat, dean, and operable rontlltlon at all timed If Canbxta falls to keep Collwton resides In a safe and sanitary condition, the Contactor shall Wy the aty llquldwm Wmeges as des w In Seems 11.4 ads 4Ndtk g. SPeanal & ConbacW shall rtplster all sell with Me California Depahnent M Motor Vesicles. All such vesides shall camels, wits Cellfornh Enviranmental Protection Agency (EPA) ndse emission and air quality re mlanam and other applicable noise eMol regulations. C. Vehicle keMMetlon. Cmbemi ame, bol brek,me nether, vM a unique id Mcatlm umber Mr ems eeMtle used to pralde envies under this Agrenswev , shall he Mother" displayetl on all sMides, In otters and nUffli that are a minimum M 4 inMo high. connotes Mall me place Me CWS logo an As vehicles. D. OanxgiM MabMnanu 1. [Waning. Conxtlan vehicles chap be bweughly washed ads thawghly steam Maned as frequently as necessary M present a clean appearance athe eatedor ads Intense mmWdment WMevehlde. z. Malmenami. Contractor stop Inspect aids vehicle daily M areae Mx Al equipment Is operating properly. Vehicles Mat are nx opermig properly shall be odes out of seals until they are rewired and operating; properly. CaM1Xtm shill pertorm an sNaauod m weemsee ply of Hese ftfl RAgreement qpr 19 Nncsom in a¢ordance with Me manueCtami spCu6cetlOns and efwtlule or in amordance with CaIHOI ItlgM1way, Artrol standards, Mkllever are more striment ComnM shall keep amrMte recorde of all verde meinRname, ramGW armrtling m Me and mlkage, and shall make sue remftls available to the aty upon rsyuest M the erted ne¢ssaly to perform the Impecdum de aribM In Xetlons US and 6.1. 3. 11"I . Conunabir dull repar, ¢ mrye far the rep9r of, all of I6 senile art, eyulpment he wM1le repslu are needed because a arrldent, beakdmny or any oger pose, so as to mainten all epulpment in a sae and openhk can& m. Conbaa¢ shall maintain asawTe reeds of repair, wNq shall include the doh/mileage, nature of repair and the signature of a maMtenen¢ supeMsw Met pass repair has been properly defamed. a. sennn.contra[ha zhanammebst¢a alvWaes aha Wrer epdpmed in safeaM sttvre Iosidon(s) In xmrdarae with CjWs apgrmM zming rqulatlmc E. Openatorn. Vends shall be operated in cempliessO with Me Cs;lome Vetllde Code, and all applicable safety end Iasi ordnance, ramalw shad not load vendee In eases of the manufacturer's rermnmendatlons or Ilmkations Imposts by State or load weight resMstlone for vehicles and roads. ContraM Mall leve ball Cdk[sm ¢hide weISed a[ add ppprbee i Propsam Slee Or Heslenaed IXsposs She m dehimirc Me wlpatled xeight I'tare welidir) of the veNle, and Me band laadetl v,FgM of eae load delNned a Me AiMrwed goceseim shes and Designated! Disposal site. F. veke bapeadmahoy mry lnspeat yeiaes at any time to tletbmim Compliance with Me rarylremems a MIs agreemnrt, UntrM¢or cilli make sellas apAFJe m the uty and/or Frtsp County health Oeparbmm[ for ;rnpnV an, M any frepuenq Uly reasonably repuesb. 6.0 ROLL-0FF CONTAINER REQUIREMENTS A, General, MI RMgf Coroners shall meet app6pble Fecord, Share, City and load regulations for safety. e. spexpuons 1. PmeM W kage. If the type l mat HAS pe¢d In Me mininer may result In leakage of beach, Contranar shall take pevudws m prevare one Ieakage of IIRdM. In aumdan¢ with ROMAn 1732 a Chapter 3 of Tilde 14 a Me CalHamla CMe of Regulators, Rdl-0R Unnlners used to CdIM Senate and pWesdWe mamas and/or garbage area pitresdWes mlxM whh rubnM Mall be nOn-zbwrbenb watace Ce<mr-re Want Minable, eesdy deanate, and shall be designed(orsak M1aMlimantlge cmeimment of reMe. z. postal of SuNMent ppslty. In xmrdance wits Retort 17315 of Uapter 3 of The 30 of Me ColHome Code Of Regulations, C(Xn;nem far SrWge and rubNsh should be Man atlrywe size and In sulflfah numbers to aannln without aveeowM& all the rehrse that a household or other establishment gereaes wlMM Me deagnateM mnnval pried 3. Use Of fpnblrun adds ess s Tm (lp) dblc Yards M Opbs ty, ftll R Carol whM1 canities W less Man tm Ido) was yards may Only be used for the purposes M Colleting CBD. Oryof Fresno go110Fggrmment ... Pega 20 C. Roll Wlbber MenlMutlen. All Cwtracpn-Prodded ROI CnmellRm shall w&TinmOy dlswar the ConbacmYs name, local relations number, a utlque not O Cmbiner memlfiadon number, and a llit d ma embs. M aaWogla@, ROIFOH Conblmvs shall be labeled! for. SAW Wart4 Rerytlade Materials, OrpdC MaMIeB, or C&D. Such lebeling may be temppary bbdeg in Me form of magmtic w d r,ohn ee slgm. If ContraCar this to comply Verb the prmrisiom aryus SecEm 64, the Cantrasrn shall pay Me Clry dquld Damages u dnaibed In Section ll and Ctldbth, D. punas& PandR& and INalnlmalrce. MI bal (Cntaners Mall he MemblrM In a safe, rNaable, aM functional condition. Cmu sail Ream elan and Want all Roi Containers an beer every two yeary Or more frequently, to p %mr a elan, greH10-flee avaeaanze. F. Rdl-0If Comalner Inspecrlan aw may Import ROIFIXf Centelrers at am time to determine ampliance xiN unitarian requ4emems. Conor rshllmake Containersavailademfee Ol M any frequency it requests. The CRY dal have Ma right to proMdt de use of any RWI-0R Conblrer that falls m compy Verb de pmWMons in tYt SeCbn 6a. F. f bandmed RmWff Cerra Caltrador Mall nm pbuMon yry Rd4 Conblrar meth W pmHde PermlRed Malarias CWkNon sends uMc db Agmemem. If de C ntmdor Abandons a CmVastorrovmed Rdl-0R Conal, pry may remove Me Roll-,,, Container and Process and olspme a de mntems. H de Clry renoat a Roll R Cmteiner Abandoned by Conmaclm, are Clry may darge Coraco be de CW$ asb imuned remmifg Mud Rdl-0R Conbiner, TranspONig, Proabin& are fMgpdg a IN amen, a dr, rhe Ned Of RMry Mud RWILRConhim. UnoxtpslWlrEetOrs de"mr suh Cents Villin burteen (16) oiamr PRY adeh ofoutwit invaatenf Conbamhe Qq s mstt Irse eWI-(or Cont rM pay [M Iif tamMe amount widen a hen fman thato the pry shall Immerse r O RdKMf Container owrer if Me Imps sletetl de pe/s intent hs become de Container awlly In lettering WmIaR]g pdntfont For the purposesmrblzsection&4.F,'ndsh mr• means the ruIIwnw: 1. [ontrWOYs belum On amore a ConOaCtOr mmel Rnll I Cone mr MONO Rve 151 calencalendar tlas ormthe m a wd[m request (rqn a Cnsbmer vme ury m en cn five (sl and ma: days mer the tamlrvtlon of tla nnlaner.seMa �eementbelwem ConRa2sr and de Cusmmn, or 3. Cpn[raCbYe failure W remove a Rml-0 Container within an (10) calendar days upon eaphadon or amunatlon m that Agreement, eiapt In se au where Conba¢u has been gamed an eaan son code Tam of th Agrrement or ContoCq has Oman gremM a subsequent agreemat auModarg Cmbatlor m Colts aM trampM de type or types Of marmots for said de RWI-0R Ca Nlnc waz used Pursuant to on, Agreement. Ott of Fresno Roll -0 Agreenmt Pape 21 6.6 PERSONNEL A. General. Conbactm shall fumish such galified drivers, maintearh[n, supervisory, Customer mdtt, derld and other personnel as may W necessary to proMCe one services 2auirM by INS Agreement In a safe and emtlent roamer. R. OXvn QuuM=Wns All Eriws shall be traine l and auallflM In the operation of Collegian vehkles, and must haze in of fest a "No litems, of the appropriate class, honed by tlse Cabi nom Oepaflmem MMMor Vahitles. Con4acmrshalluwthe OatsBWffa ape nmentOMMm Vemces employer'Pun Notion Program' to monitor its drivers for safety. C. gaiety Training. Cont amzr shall poNde suitable and afety training for all of Its employees man cperae Cnllhmon velYdes or auiprnentm sum m omerwbe dirertiy mdved In ultra Wiseman, Unseen, m pmasdng. contractor than treln m ampinyees imalvee In Collection to Identify, and not W collect, Hazardous waste or lniec6ous Wase. upon the Ott's request, rano-aa« shall Prmme away of its woody policy and so" half Program, the name of sh wfety mm , and riceifequerNY of la trdNngs. D. Employee Conal and Cbu2ary. Contractor shall use its beat efforts to ehw2 bat all employees present a hat alpevance and conduct themselves in a wmhaus manner. cano-a norshan rervlmlrwlm la emPlayas In crammer cnardan,adl pralbn!muse a or perfume lardhage, and shall )toms Cdksden employees to perform one wM as cud" as mundi If any emplayes Isfound not to be owrtauw wrot a he pvf2mMg urWws in the manner required by thea AOemnerM1 Canha[mr shall tare an aPpraPnm ar2mye Paragons and shall pay tho qty Mouldered ommages as loci ea in section 11.4 and Exhibit A. E. o Pip Men Ucn. while perfsmine szmces under this Agreement, of of the CmtnttMs amgeyea Performing fitltl service sndl he dressed In dean coMes and shall war mage that IMude the emplmers time and/or completes number, andwhtra mrw name, as approved by the City. 6.6 HAZARDOUS WASTE INSPECTION ANO HANDUNO A sultanate to Hasse uS WWe eendMg during fonatlory If Connor determines Nat material places In any Rdl-0 container for Cmleman Is a Headset wage mat may not legally be nbsaosm d at a Miscast Ato 2 handled at the Processing Ate, or prewnn a bamrd Us [ontiaP[ars emptiness, the mntrxmr shall refine a adept sue maternal. The aneattar moll coal ton caatomer and ,quart the Customer to ammge proper Disposed. 0 the ser2atur anner be reacted immemmdy,this Contractor shill. before laving the Premhes. lave a tag at last ran, In[ha by IN Inches; fi• a 6'l in sirs, which Includes the reaten for rerusimg m Calera the material and If= a Pmhte number for obtaining Information on wnper disposal of the Haarmus Waste Under do aarmmnas shall Cmiswors amplayees bcewlrgM Canes Hanrdous seam. nHartardmrswase hfound ma 1161 fmntaihermatmuld pooairresult in imminentdanger to insole or property, the mmraam shall Immediately modify me ape Fore Department using the 911 emerRna/ number. Cliff of Patent HolfQ Agreement Page 22 The Cuns ector shall notify the City of any Hazardous Waste Identlfled In Rolli Containers or left at any Premises within 26 hours of Identification of such material. e. Respome to Haaardoua Wastes Identified at Disposal She 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 Stour) to identify Hazardous Wastes for storage In approved terms, hazardous materials storage containelsl. Contactor shall make reasonable effnrh to Identify and notify the Customer. Contactor shall arrange for removal of the Hazardous Wastes by Permitted haulers, In a¢oNance with Applicable laws and regulatory Potential If the Hazardous Wastes delWered to a Disposal site or Processing Site by Contractor before its presence Is detected, and the Generator cannot tie identified or falls to remove the material after being requested to do so, the Contractor shall arrange for Its proper Deposal. The Contractor may make a good Parts eRortto recovertbe cost of Disposal from the Generator, and the cost of this shop, as well as the cost of Disposal shall be chargeable to the Generator. C Regulations and Record gttping. Contactor shall comply with emergency notification pmrederes implied by Applicable Laws and regulatory requirements. All records required by regulations shall be maintained at the Contaetols fadllty. These records shall Indicate; waste Twirl waste Inventories, waste characterization records, inspection records, Incident report, and traming recortls. 6.7 NON DISCIUMINATION Contractor shall not discriminate In the Prwblon of service or the employment of Persons engaged In performance of this Agreement on account of race, color, natural origin, anrertry, rellgion, gender, marmal status, sexual orlentMlon, age,physical trimmed sh aielardn violation Of any Applicable Law. 6.0 COMMUNICATION AND COOPERATION WRTN CITY A. CommuNormars. If repue4ed, the Contractor shall meet wish the Chry or Its agent to discuss service Issues. B. Inspection by City. The CIN, or its designated representa[hes, shall have the right to observe and review Contrattm operations, Processing Sites and Disposal Sites used by Control and enter contractors Premises for the punmsci Of such observation and below during reasonable hours without advance notch. C. COPe lewltb OW-Ini6aedsaudiM,Comation shall cooperate with and assist She Clry or Sts agent with the performance of Ci y-Inhlated sNtlles of Permitted Materials such as, but net timrted to, waste characterization and composition Studies. City of Fresno Roll-ORAgreement Pal o/g/u ARTICLE 7 RECORD KEEPING AND REPORTING 7.1 GENERAL 7.1.1 Maintenance of Records Contactor agrees to conduct data collection, Information and record keeping, and reporting activities needed to comply with and to meet the reporting and Permitted Matetlab Program management needs of City, the Act and other Applicable Laws, and the requirements of this Agreement This Article u Intended to highl'ght the general nature of records and reports to be maintained by Contractor, and their mlnlmum content. fits Article Is not meant to mmprehemi define who the records and reports are to be and their mnteM. AM 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 Gequidi Records and reporting may be redsed to re0ett current record keeping and repotling requirements. To the neon such requirements are set out In this and other Articles of Nis Agreement, they shall not be considered limiting or necessarl"norlete. 7.1.3 Retention of Records Unless otherwise required In this Article, Contractor shall retain all records and data required to be ainalned by this Agreement for the Term of this Agreement plus No (5) years after hs expiration or earllertermination. Records and data shall be In chmnolaglol order and readily and ec ity Interpreted, 7.1.3 lrrspaclfon of Records The City, its auditors and Other agents, shall have the right, during regular business hours, to Inspect specific documents m records required by this Agreement or any other lmilar records or reports a the Contractor that the City shall deem, at its sole Common, necessary to evaluate the Contractor's performance provided for In this Agreement The Clry may make copies of any documents It deems relevant to this Agreement The City shall provide Contmctm wrRen notice at least three (3) Business Days prior to any Inspection of these records, and Contactor shall reMde and make available to the ❑ray the requested documents and records at that Vice. The City reserves the right to inspect records for the Purforsd of auditing the Contraction's reports, reported Oh¢rsion level, and fee payments to the CM1y. If an audh conducted by the qty, or its representatives, finds: (l) that the Contractor has made any intentional misrepresentation with respect to the fees dues to the City (e.g., Franchise Fees crotherfeesduetothe City) in an amount greaterlhan $1,000 or 10% of the fees due to The City during the period covered by the audit whichever is greater or (0) that the Diversion level Is 5% different than the Diversion level reported by the Contractor, then In addttlon to any other remedies available to the City, Contactor shall reimburse the City for the Cash costs Incurred In the performance a the audit. such reimbursement shall be paid by Contractor, along with any underpaid fees and Liquidated Damages required by Section 11.6 and Exhibit A, within thirty (30) coodar days of the doe the CBS nothles theUMacror of the amount due. City of Fresno Berl Off Agreement 0/8/11 Page 24 7.2.4 Record Security Contractor shall maintain adequate record security to. preserve records from events that can be reasonably anticipated such as him, theft, and earthquake. Electronically maintained data and records shall be protected and traded up, 7.2 RECORDS 7.2.1 Financial and Operational Records Comment shall maintain accurate and complete accounting records containing the underlying flnandal and operating data relating to and showing the basis for computation of all revenues associated With providing Permitted Materials Collection, Transportation, Processing, Recycling, Compostln& and Disposal services, The accounting records shall be prepared In accordance with Generally Accepted Accounting Principles SAAP) mnslitentlyapplled. Ata minimum, thefollowing operational meoldsshall be maintained by ContractorforClry relating to: A. Customer account information and bliling records; B. Tonnage of material Collected by type(eg., Solid Waste, Recyclable Material, Organic Material, or UD) listed by Processing Site or Dispou151te where such materials were delivered. Where Possible, Information into be separated by Residential and Commercial Customers. C. Tonnage of Recyclable Materials, Organk Material, and C&D Diverted from Disposal by Contractorand supporting documentation. D. Diversion level, wNch shall equal Tannage Diverted by Contracror divided by the Tonnage Collected by Contactor multiplied by 100, listed separately by mirth for the previous quarter. Tannage Directed shall reflect Permitted Materials Processed less residue Disposed. E, Residue levels ofisrocessed or Composted materials. F. Weight tickets from (1) Designated Disposal Site documenting the Tonnage of Solid Wane Collected within the City and delivered to the Designated Disposal Site; (Ii) Processing Sites documenting the Tonnage of Permitted Materials Collected within the City and delivered to the Approved Processing Sites; and, (iii) Approved topmast Sites documenting the Tonnage of residue delivered to Approved Disposal Sites Iftiva ,date, and time. G. End use and marketsforrecovered materials. Contactor shall make records avallable to the City upon request. 7.2.2 Customer Records Contractor shall maintain accurate and complete m ands 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 nominee address of Pali Container delivery and Collection location, date of delivery and Criterion, Itemized listing of services performed, type of Permitted Material Collected, Tonnage CM of Fresno Roll IN( Agreement PageII 4/8/11 Co forted, and the amount charged to Provide services: The Information shall be provided to the Ory upon request. 73.3 CERCIA Defense dooki Ory views its ability to defend Itself against Comprehensive Environmental Response, Compensation and Liability Ad(CERCLAI, and related litigation as matter of great Importance. For this reason, the Cry regards its ablliry to prove where permitted Materials Collected! by the Contractor are taken for Pmresslne, Recycling, Composting, Transfer, or Disposal, as well as where they are not taken, to be matters of concern. Contractor shall maintain, retain and preserve records which can establish where Permitted Materials C011ectM were Processed, Composted, and Disposed (and therefore establish where they were not). This provision shall survive the expiration or earlier termination of this Agreement. Contractor shall maintain these records for a minimum often (10) Years beyond expiration or earlier termination of the Aff eemem. Contractor shall provide these records to Cry (upon requ rid or at the end of the record retention period) In an organized and Indexed manner ather than destroying or disposing of them. 7.3 GENERAL REPORTING REQUIREMENTS The format of each report shall be approved by City. Contractor may propose report formats that are responsive to the objectbes. Contractor agrees be mall a copy of all reports and submit all reports on computer discs, by ennall, or by modem In a format commands with City's software and computers at po additional charge. Contractor will provide a modification statement, under penalty or perjury, by the responsible Contractor official, that the report being submitted Is come and correct to the best knowledge of such pMcial after their reasonable Inquiry. Contractor shall submit monthly reports within fifteen OS) calendar days of the end of each month. If Contractor does not submit the monthly reports by the dates required In this Armes, Contractor shall Wy the City Liquidated Damages as described In Saden 11.0 and Exhibit A. Contractor shall submit(via runt and email) all PaperIs to: Solid Waste Division Manager City of Fresno 1315 EI human Street Fresno, CA 93705 Td MONTHLY REPORT The monthly report shat presamthe following Information. A. Total Tonnage. Total Permitted Materials Tonnage Collected by Contractor within the Clry during the Previous quarter, listed separately by material type and by month. g. Diverted Tonnage. Permitted Materials Tonnage Collected! by Contractor within the Clry that was Diverted during the Previous quarter, listed separately by material type and by month. City of Fresno RollORAgreement 4/8/11 Page 26 C, Disposed Tonnage. Permitted Materials Tonnage Colec ed by ContrzRor within the Cry Oat was Disposed during the punched quarter, listed separately by month D. Diversion leer. Tonnage Diverted by Contractor divided by the Tonnage Collected by Contractor multiplied by 100, Ilshd separately by month for the prevents matter. Tonnage Diverted shall reflect Permitted Ma[erlak recessed! less residue Disposed. E C&D. Tonnage generated from comere ion and demolition permitted sites, noting the permit render, the site address, the Tonnage hauled, the date hauled, and the fadlitles to whltll the material was hauled. F. Disposal and Processing Locations. Contractor shag provide a list of the names and addresses of where Permitted Materlah Collected within the City during the previous quarter was Dmened and Disposed. Such list shall include the amount of Permitted Materiels Tonnage Diverted and/or Disposed at each location during the previous quarter, listed separately by matesal type and by month G. Reversed. Gross revenues te.g. rash receipts) earned an all Rolf Off Container Collection, Transportation, Processing, Rerytling Composing, and/or Disposal ounces pmvided to Customers within the Clry during the previous quarter, listed separately by month. H, Insurance. Updated Insurance certificates. I. Account Information. In table formal, the number of Customers within the Cep IImRs served and number of RaIFnH Containers recall per month listed by Roll Off Container type (Drop Bax or Compactor), Roll -Off Container site, and listed separately by Permittetl Material ryes, and regularly schedule service and unscheduled lorvolq service. J. Contractor Waves and Bred Members. Provide a list of Contractor's Actors and members of its board of directors (only reported with the December monthly report each year, or in the event of change in the officers or board comfort). The City reserves the right to request additional reports from Contractor, and upon Cry's request, Contractor shall provide Information required above for the time Period requested by the Cry. Itlsthe desire of the City to track me above required informatlon on an ongoing bask throughout the term of this Agreement. 7.6 AS 939 COUNTY SURCHARGE REPORTING Contractor acknowledges that City is a parpto that certain A8939 Memorandum W llndentandingwkh the County of Fresno and various other twisdittinns named January 6, 2008 (the -AB 939 MOW), and further acknowledges having received and reviewed a copy of the AS 939 MICH. The Parties agree that Contractor is a 9udidittion's Hauler', as that term is used In Part IV, Section H of the AS 939 MOD. Communist shall comply with all rendurements of Pan IV, Stolon H of the AS 939 MOU that are applicable to a Jurisdiction's Hauler, Including but not limited to submittal of reports and payment of me AS 939Sumhorge (as that term Is defined In the AS 939 MOO). City of Fre nts RoIFDff Agreement: Page I) 0/8/11 ARTICLE 8 FRANCHISE FEES AND OTHER FEES 8.1 GENERAL Contractor shall collect the fees described In this Settlon from Customers through Contractor's regular billings and remitcolleeed amounts m City on a monthly basis as described In rection 8.5. 8.2 FRANCHISE FEE In consideration of the excluslhe rights provided Contractor herein, Contractor shall pay Franchise Fees to the City each month equal to 1016 of actual Ross Rate rwenues he g, rash receipts) remitted to Contactor by Customers for serilces Provides by Contractor under this ammement. 0.3 OTHER FEES The Gly may set "other' additional fees, as it tleems necessary. Theunt, time, am method of payment and adjustment process will he sin in a manner similar o that for other fees described In the Article. 0.4 ADJUSTMENT TO FEES City may adjust the fees established In this Article annually at any time during the Term of I Agreement. 8.5 PAYMENT SCHEDULE AND LATE FEES On or before the 20th day of each month during the Term of this Agreement, Contactor shall ramp to City Franchise Fees and other fees as described In this Ar lde. If such annuantt a not "Id to the ON on or before the 2@h day of any month, Contractor shelf pay, in addition to the amount owed to City, 2% of the amount owing for that month; plus an additional 2% owing on any unpaid balance for each foil awlng thirty j30) calendar day period the fee remains unpaid Each monthly remittance to Clry shall be accompanied by a Statement remising each fee paid; detailing calculation of all fees; stating actual gross revenues (eS,, cash receilsts) for the monthly period collected from all operations conducted or permitted by this Agreement, and stating the number and she of Containers senlced by Contractor for the monthly period Each remlhance including all supporting documentation shall be provided to: Arm City Contmllen r nance Department City of Fresno 2604) Fresno street Fresno, CA 937213624 City of Fresno Roll-" Agreement Page 29 </g/31 8.6 OVERPAYMENT OF FEES If Contractor bell eves it has paid Franchise Fees or other fees as des on bed In this Article, In excess of the fees due to the City. Contractor may submit a request for refund to the Director. if proof of overyayment Is satisfactory to the Director, the Director shall authorize the City to refund the overpayment to the Contractor. Contractor shall nut apply any overpayment as a credit against any Franchise Fee or other amounts payable to the City, unless specifically authorized to do so by the Do -Mor in wrung. 8.7 NON -CITY FEES; AS 939 COUNTY SURCHARGE Pursuant to reunion 7.5, Contractor shall pay the County of Fresno an AS 939 surcharge as appllcahte In accordance with the AS 939 MOV. ARTICLE 9 CONTRACTOR'S COMPENSATION AND RATES 9.1 CONTRACTOR'S COMPENSATION Companions compensation for performances of all Its obligations under this Agreement shall be: (I( actual Rate revenues FaU to Contractor (e.g. cash reaegi by Customers that obtained Connotations Collection services less fees dues to the Ctlyn aromindarces with Article 8, and (11) revenues generated by the sale of Collected materials Opened from Oiinsmal. Contractors compensation provided for In itis Article shall be the full, entire, and complete compensation due to Contractor pursuant to this Agreement for all labor, equipment, materials and suppllq I'macessinqu Composag, and Disposal fees, regulatory fees, City fees, taxes, insurance, bonds, Warhead, operations, craft and all other things necessary to perform all the services In the manner required by this Agreement. If Contractors casts are mare than Contactors compensation. Contractor shall not be compensated for One difference In costs and revenues. if Contractors costs are less than Contractors co ntensrtnn, Contractershall retain the difference 9.2 CITY'S RIGHT TO SEF MAXIMUM RATES The City reserves the right to establish maximum Rates for permitted Materials Collection services provided antler this Agreement In the event that: (a) there are three or fewer companies holding non- exclusive franchise agreements for Collection of Permitted Materials, or (hi the Pates charged by the companies holding non-extlVsive franchise agreements for Collection of Permitted Mamrtals are no longer comparable to those of other jurisdittlops, as reasonably determined by CM. If the Oty chooses to se I right to set maximum Rates. City shall costly Conmutorat least 180 calendar days intense the date that maximum Rates become effective In such case, City will set maximum Rates with City of Fresno Roll Off Agreement Page 39 418111 Consideration of reasonable and necessary costs for Collection, Pro sling Comportin& and Disposal and with the intention of setting maximum Rates that will enable parties, including the Formal that have executed Non -Exclusive Franchise Agreements with the Clry for Roll Off Container Coghill Services the ability to recover reasonable and necessary, and and a reasonable proft. 9.0 CONTRACTOR'S RATES Contractor shall set the Pates it charges hs Customers for Rolll Collection services. The Contractors Rates shall not exceed Cityestablishedmaximum Rates, &the City exercises Its rights under 5edbn 92. ARTICLE 10 INDEMNITY AND INSURANCE 10.1 INDEMNIFICATION Contractor shall indemnify, defend with counsel acceptable to the City, protect and hold harmless the City and each of &s officers, officials, employees, volunmers, and agents (collectrveho lndemmteesj from and against all claims, damages (including but not limited to Sol consequential, natural resources and punitive damaged, Injuries, costs (including without limit any and all response emediation and removal cortd,losses, demands. debts, liens, lrlani ies, causes of action, sups, legal oradministrative 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 swimming this Indemnrtvl, (collectively,'Damages') of any kind whatsoever paid, Incurred or suffered by, or asserted against, fi demndees arising from or attributable to the ads or omissions of Contractor whetheromot negligent or entecwlse culpable, in mrnedion with or related to the perfocmanceaf this Agreement, except such loss or damage which was caused by the sole negligence orwllHul misconduct of the City. Contractors duty to defend and Indemnity herein shall Include Damages arising from or attributable to any operations, repairs, clean-up or detoxification, or either plan !regardless of wheMer undertaken due to governmental anion) corning any Hazardous Waste Collected in the Oty. Contractor shall be opposed tInternallytlenlfy the City for the costs for any claims arising from the Processing, Composting, o Disposal of Permitted Materials, 'mcluding but not limited to, claims adsing under the Comprehensive Environmental Response, Compensation and Llai Act (CERCIA). The foregoing Is Intended to operatesagreement to defend and Indemnify and hold harmless indemnities indemnities to the full extent permmedfor liability pursuant to Section ID](e) of CERCIA, 43 u.S.e Semon 9607(e) and CalHarnla Health and safety Code Semmn 253mi In addition, Contractors duty to defend and indemnify herein Includes all fines and/or pool Imposed by the California Department of Response Regding and Recovery, subject to the restrictions set forth In Public Resources Code Section 110059.3, N the requirements of the Ad are not met by the Contractor with reprict m the Permitted Materials Callected under this Agreement, and such failure b due to Contractor delays In providing Information that prawenN Contractor or any from submMing reports required by the Act In a timely manner. City of Erosion Roll -Off Agreement Page 30 4/8/11 This recall will survive the expiration or earlier termination of this Agreement and shall not be construed as a waiver of rights by Ciy to contribution or lnderegymanthiml Either. 10.2 INSURANCE 1i Minimum Rope of Insurance Coverage shall be at least as broad as: A. Insurance Services Won Commercial General tlablllty coverage. 1. Personal Injury 3. Contractual liability B. Insurance Servims ice covering Automobile LUYlllry, Code l'any auto'. A. Workers Compensation lnsuramce as occulted by the labor Code of the State of California and Employers Liability Insurance. B. Such other Insurance coverages and limns as may be required by theCITY, 10.2.2 Minimum limits of Insurance Contractor shall maintain limbs no less than: A. General Liability: SIXET000 each occurrence for bodily injury and property damage; $1,OW,COOforpersonal and advertising Inger, $2,0. ,WO products and completed operations aggregate, and $3,004000 general aggregate. if Commercial General Usuliy 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 limb shall be twice the rryulad occurrence limit. B. Automobile Liability: $1,000,000 per accident for bodlly Injury and property damage. C. Workers' Compensation: Workers' compensation limits as required by the Labor Code of the State of California. O. Employees Liability: $1,"I" each incident for bodily iryury. $1,000,000 dkease each employee. $1,000,000 shall polity lmk. E. Poll Legal Llabildy: $1,000,000 per dalm/omrrencer and $2,030,000 aggregate for bodily Injury, social damage, and remerizther of contaminated site. 10.2.3 oeduRlblasand Self-Irswred RetenWo Any deductlhles or sell -Insured retentions must be declared to and approved by the CU. ARhe option of the City, either: the insurer shall reduce or eliminate such deduRibles or self insured rNentlms as respects the Cill its officials and employees; or the Contractor shall proare a bond guaranteeing payment of losses and related investigation, claim administration ancideform expanses. Cil remove Roll -Off Agreement Page 31 4/8/11 10.2.4 Miner Insurance provision The policies are to contain, or b s endorsed to contain, the following provisions: A. General Usti and Attention 1.13b111tyCoverages 1. The City, Its officers, oft employees, agents and volunteers are W he covered as additional Insureds as respects: liability adding out of aGNttles performed by or onbehal of the Contractor, products and completed operations of the Contrectoc premises awned, leased or used by the Contractor; or automobiles owned, leaned, hired or Mnowed by the Contractor. The coverage shall contain no special hardetlons on the scope of profession afforded to the City, Its officials, employees, or volunteers. The automobile losla lry is endorsed to contain FACA 90 coverage. 2. The Commnor's In coverage shall be primary Insurance a pe ascts the City, its , offs employees,and volunteers. Any Insurance or self -Insurance maintained by the City, Its officials, employee o volunteers shall be excess of the Contractors insurance and shall not contribute with f. 3. Any failure to comply with reporting providons of the policies shall not affect coverage provided to the Cry, Its officials, employees, a redressed. 4. Coverage shall state that the Contractor sInsurance shall apply separately to each ibsurea against whom claim is made or suit Is brought, except whF respect to the Timm W the intermix llablllry. W Workers' Compensation and Employers Liability Crystals. The Insurer shall agree to waive all rights of subrogation against the Cry, led officers, employees, and volunteers for losses adding from work performed by the Ca eachirfor the City. C All Coverages: Each Insurance pollry rtqulred by this douse shall be endorsed to stale that coverage shall not be suspended, voided, canceled by either pa M, reduced In coverage or In limits except after 30 calendar days' poor written notice by certpsd mall, return receipt requested, has been given to the City. 10.2.5 Acceptability of Freddie; The insurance policies required by the Sudden shall be issued by an Insurance company or companies authorised to do business in the State of CaRfomia and with a rating In the most recent Settled of But Insurance Reports of size category VII or larger and a Ming classification of or better. 10.2.6 Verification of Coverage Contractor shall furnish Contractor's Insurance agent copy of these specifications, and d0ett the agent to provide the CIry with c rmtMicates of Insurance and with original endorsements Affecting coverage required by this clause. Issuance of documentation Indicates the Contractees insurance complies with these provisions. The cert10ates and endorsements far each Insurance policy are to be signed by a Person authodced by that Insurer to bund coverage on Its heli The certificates and endorsements are to be received and approved by the Cry before work commences. The CIry may require complete, ¢rtlfled copies of all requlred Inundation policies, at any time. City of Fresno ll Agreement fri 40/11 10.2.1 Required Endorsements A. Tice warrantsCompensation policy shall contain an endorsement In substantially the following form: 'Thhty "tender days' prior written notice shall be then to the oily of Fresno In the event of cancellatlory reduction In coverage, or non renewal of this policy." Director of Public Will Cry of Fresno 2600 Fresno street Fresno, (As 93121-3620 B. The Commands) General mail Business and Automobile lJablllty, and Pollution Legal Liability, policies shall contain endorsements In substantially the following farm: 1. "TM1IM calendar Owns prior written notice shall he given to the pts of Fresno In the event of cancellation; reduction In coverage, or norcreneval of this palll Director of Public Utilities Chy of Fresno 2600 Fresno Street Fresno, C, 937213620 2. 'The Cky of Fresno, its OfF<ers, employees, and agents are additional Insureds on this Polley" 3. "This policy shall be considered primary Insurance as respects any other valid and comestible Insurance maintained by the CM of Fresno, Inclutllng any self- insured retention or program of self insurance, and any other such Insurance shall he considered excess imunnmanly." 0. "Inclusion citing CHs of Fresno as an Insured shall not affect the Cty's dthis as respects any Balm, demand, suit or judgment brought or recovered against the Contractor. This policy shall Forced Contractor and the Clry, In the same manner as though a separate policy had been Issued to each, but this shall not operate to increase the Functional Ilabllity as set forth In the pollry beyond the amount shown or to which the Contractor would have been liable if only one parts bad been named as an Insured. - 10.2.9 Delivery of Proof of Cavenge Simultaneously with the execution of this Agreement, Contractor shall furnish the City RRlflcates of each policy Of Insurance required hereunder, In form and substance satisfactory to pry, wrh continuum shall show me type and amount of coverage, effective dates and dates of expiration OF policies and shall have all required endorsements. If the Ckv request; Caples of each polity, togNher with all endorsements, shall also he promptly oriented to Cry. Renewal camiiiates will be furnished annually to Cry to demonstrate maintenance of the required coverages throughout the Term. Clly of Fresno R Ill Agreement Pagel a/e/11 10.2.9 cher Insurance Requirements A. If any semen am delegated to a Subcontractor, the Contractor shall require such Subcontractor to procure statutory Workers' Compensation Insurance and employers liability muce for all of the Subcontractors employees engaged In the work In accordance with Sections 10.2.2.0 and 1022.0 and 10.2.4.B. The liability Insurance required by Section 10I shall cover all Subcontractors or the SubconMactor must in Irish evidence of insurance provided by it meeting all of the requirements of this Section 10.2. B. If at any time during the life of the Agreement or any extension, Contactor or any of Its subcontractors fall to maintain any required Insta ntt in full force and appeal Contractor shall be In breach of the Agreement until notice Is received by City that the required Insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required Insurance shall be sufficient cause for City to terminate this Agreement. No action taken by City payment to th8 Se bon shall in any way relieve Contractor of 16 responsibilities underthis Agreement. C. The Contractor shall comply with all requirements of the lmurers Issuing Pani s. The carrying of Insurance shall not relieve Contractorfmm any obligation under this Agreement. lfanydalm exceeding the amount of any deductibles or SRIF Insured reserves 5 made by any third per against the Contactor or any SubcoMador because of any accomence related to this Agreement, the Contractor shall promptly report the facts In writing to the Insurance taller and to the City. D. The Commercial General Llahlllty, Automobile Liability, and Pollution Legal Liability Insurance pollclesshall bewrRlen on an"o 'atherthana"tlalms made' holy, If Cont2Rorls marble to purchase Pollution Legal LIaLu'hry insurance on an occurrence form and must purchase such insurance on a claims made form: 1. The "Rehp Dam" must be shown, and must be before the effective date of the Agreement or the commencement of work byContractor. 2. The policy shall be endorsed to provide not less Nan a 5 -year discovery period, The requirement Shall survive exich n or termination of Lie Agreement. 3. N coverage is canceled ofnot wed, and nreplaced with another cUlmnmade policy form with a "Petra Datepoorthe effective date of the Agreement, Contractor must Purchase "eetended reporting' coverage fora minimum of 5 years fallowing the expiation 4. Ampy ofthe claims reporting requirements must be submitted to Cry forreview. 5. These requirements shall survive expiation or termination of this Agreement. City of Fresno Rall -Off Agreement Pastille 4/8/11 ARTICLE 11 DEFAULT AND REMEDIES 15.1 EIENTS0FIDEFAULT Each of the following shall constitute an event of default ("Event of Defaulfl hereunder: A. Contractor falls to perform Its obligations under this Agreement, or future amendment to this Agreement, Including, but not limited to, Contortions failure to pay Franchise Fees and other Unions In accords ncnwnh Article 8 of this Agreement, and the breach continues for morethan 10 Buslness Days afterwritten notice from the Cry for the correction thereof; B. Cantractens failure to Dived SOLA of the C&D, JDM of the Recyclable Materials, and 9096 of Organic Materials Collected in the Oty as required by Section 5.3 of this Agreement after Contractor is given an apparently to remedy the nonperformance as described in Section 11.5; C. Any representation, warranty, or disclosure made to Gry by Contactor in connection with or as an Inducement to entering into this Agreement or any future amendment to this Agreement which proves to be false or misleading In any material respect as of the time such representation or disclosure Ismade, whether or not any such copra entatian, warranty, or disclosure appears as Pont office Agreement; 0. There Is a seizure or attachment (other than a praludgment attachment) of or levy affecting llowesslon on, the operating equipment of Cnntranor, Including without limit Its vehicles, maintenance roMcefacilities, or any panthereof of such proportion as to substantially Impair (thmm ctor•ss abnlry to perform under this Agreement and which cannot be released, bonded, or otherwise lifted WAMRCB hours excluding weekends and Holidays; E. Contacter0lu a voluntary petbionfor debt relief under any applicable bankruptry,insolvency,. debtor relief, or other similar law now or hereafter in effect, or shall consent to the appointment of or taking of possession by a seemed, liquidator, assignee (other than as a pan of a transfer of equipment no longer useful to Contractor or necessary for this Agreement(, trustee (other than as security far an obligation under a dived of trust), cu8odlan, sequestrator (or similar official) of the Contractor for any pan of Contraction's operating assets or any substantial pan of Contractors property, or shall make any general assignment forthe hanefh of Contactor's creditors, or shall fail generallyto pay Contractor's debts as theybemme due or shall take any action In funheranoe of any of the foregoing; F. A court havingfudadlction shall enter a decree normal for novel respect of the Contractor, in any involuntary case brought underany bankruptry, insQli debtor relief, or similar law now or hereafter In eRetl, or Contractor shall consent to or shall fail to oppose any such (norma ln8 or any such court shall enter a decree order appointing aer, liquidator, assignee, custodian, trustee, sequestrator (or similar alDciap of the Cuntractoror for any part of the Contactors optical equipment or assets, or oNers the winding up or liquidation of the affairs of Contractor; Ofty of Fresno Rolll Agreement Page 35 a/8/11 11.2 RIGHT TO TERMINATE UPON DEFAULT Upon a default by Contractor, the Oty may terminate this Agreement within lB calendar days of the default but no later than 180 calendar days after the default. Such termination shall be eReaive to ralendar days following. the Obs written notice to Contractor, and such termination shall be effealye without the meedforany heading suit, or legal anion. 11.2 CITPS REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE The City's right to terminate the Agreement under Section 11.2 is not exclusive, and the Gty4 termination of the Agreement and/or the Imposition of Uquidi ted Damages shall not constitute an eleRlon of remedlu. Instead, these rights shall be In addition to any and all other legal and equltable rights and remedies which the Clry may have. By virtue of the nature of this Agreement, the urgency of timely, continuous and high goal"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 [icy shall be entitled to (Injunctive relief. 11.4 LIQUIDATED DAMAGES General. The Parties find that as of the time of the execution of this Agreement, It Is Integration, If not Impossible, to reasonably ascertain the extent of damages which shall he Incurred by Cray as a result of a breach by Comramor of Its obligations under this Agreement. The factors relating to the impradkablllly, of asmrtalning damages indude, but are not IimXed to, the fact that: (l) substantial damage results to members Of the public who are denied services or denied quality or reliable service; (11) such breaches cause Inconvenience, anxiety, frust ation, 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 eternity which are incapable of measurement in precise monetary terms; pi) that services might he available at substantially lowmass ass than alternative services and the monetary 1055 resulting from denial of services or denial of quality or reliable services Is Impossible to calculate In pri monetary terms; and (iv) the termination of this Agreement for such breaches, and other hostages are, at best, a means of more correction and not remeLlei which makethe public whole For past breaches. B. Service Performance Stendards; Qquldeted Damages for Failure to Meet Standards. The Parties further acknowledge that consistent,. reelable Fri Collealon, Pmcessln& and Disposal service Is Of Utmost importance to City and that City has chruderard and relied on Contractor's representations as to its quality of service commitment In executing this Agreement. The Pontes recognize that same quantified standards of performance are necessary and appropriate to ensure conslstent and rellable service and performance. The Parties further recognize that R Contractor fails to achieve the performance standards, or fails to submit required documents In a timely m r, [try and Or residents and busineswillses l suffer damages, and that it b, and will ben impractical and extremely difficult to ascertain and determine the exact amount of damages that City will suffer. Therefore, without prejudice to Crays right to treat such non-perteimanre as an event of default under his Article, the Parties City of Fresno RoIFOff Agreement page 36 4/8/11 agree that the Liquidated Damages amounts established In Exhibit A of this Agreement and the following Liquidated Damage amounts represent a reasonable estimate of the amount of such damages considering all of the circumstances existing on the Effective Date of this Agreement including the relationship of the sums to the range of harm to ON that masomirly could be anticipated and the antitlpatlon that proof of actual damages would be costly or impractical. Contractor agrees to pay las Liquidated Damages and not as a penairy) the amounts set faith In the schedule of Liquidated Damages, Exhibit A, City may determine The occurrence of events ghhng rise to liquidated Damages through the observation of its own employees or representative or Investigation of complaints by Customers, occupants, and Generators Liquidated Damages will only be assessed after Contractor has been given the oppotlunity but failed to hardly the damages as described In this Agreement. Lesions assessing Uqultlatetl Damages, City shall gve Contractor notice of its Intention to do so. The notice will Include a Brief description of the Inudert(i) and/or nonpedormanr.e. The City may review (and make copies at its own expense) all Information In the possession of Contactor relating to inddenl(s) and non Perform . ON may, within 10 calendar days after issuing the notice, request a meeting with Contactor. Clry may present evidence of num-performance In addng and through testimony of is employees and others relevant to the InclderdR) and non-performance. ON will provide Contactor with a written explanation of hs determination on each incidentals) and on-performance prior to authorizing the assessment of Liquidated Damages underthls Brain 11.4. The decision of ON shall be final and ON shall not be subject to, or required to exhaust, any further administrative remedies. C. Amount. City may assess Liquidated Damages for each calendar day or event, as appropriate, that Contrattor Is determined to be liable In accordance with this Agreement In the amounts specified in Exhibit A subject to annual adjustment desvibM below. The amount of Uquis Damages spedfled In Exhibit A shall be adjusted annually on the anniversary of the Effective Date. The adjustment shall be rounded to the nearest am. Liquidated Damage amounts shall be adjusted to reflect changes In the Consumer Price Index— All Urban Consumers ICPI-U) mmpllM and publkhed by the U.S, Department of labor, Bureau of Labor Statistics or its successor agency, using the following Bureau of Labor 5tadstla' parameters. Not Seasonally Adjusted Area -Ws Angeles -Riverside -Donne Chun ry CA Item - All Items Base Period -1982 -B4 -1C0 The formula for annual adjustment Is as f011owz: Adjusted Liquidated Damage_ Thencunent Liquidated Damage Amounts Amount most current CPl-U/prevl0us 12 -month CPI -U ON of Fresno Rolbff Agreement Page37 4/8/11 Current Liquidated Damage Amount =SlSo-00 Most recently published Index Danuary 30101=]34,610 Index published li months prior to most recently published Index banuory 20J91=pill 19 Adjusted Liquidated Damage Amount =SIMLO x 1324.610/220.7191' $183.64 If the Cl is discontinued or revised during the Term by the Cneetl states Department of Labor, such other government Index or omputation with which R Is replaced shall be used In order to obtain substantially the same result as would be obtained 9 the CPI had not been discontinued or royal 0. Timing a Paymi Contractor shall pay any Liquidated Damages assessed by City within 10 calendar days of the date the Liquidated Damages are assessed. If they are not paid within the 10 day period City may order the termination of the rights or-fiinchise granted by this Agreement. 11.5 OIVERSIONNON=PERFORMANCE If the Contractors Diversion level Is less than SO% for C$D, less than 70% for flerylance Materials. and/or less than 90% for Organic Materials Collected in the My for a monthly reporting period, fie following steps shall be followed M the City and Contractor. A Warning. The City shall Issue a written warning to the Contractor within 30 calendar days of ecelp[ of the Contractors monthly report documenting the Diversion level for the monthly reporting period. The warning notice shall specify the amount of time (i.e. -correction peril the City grants the Contractor to improve bs performance and meet the Diversion requirements defined In Section 53. B. Opportunity to Improve Performance. The Contractor shall modlty Its Collection, Processing, Diversion, and public education and outreach programs (subject to the qty's approval) to Improve the Diverslon level. At the and a the correttl9D period Contractor shall submit a written report to she City identifying the Diversion level and providing the supporting documentation. If the City determines that the Diversion level equals or exceeds Diversion requirements defined in Section 53, the Contras orshall continue t0 perform services In such a manner az to maintain or Improve the Diversion level and the City shall waive its rights to proceed with asps outlined in subsections; C and D of CAN Section MS during the remainder of them current reporting period. C. Ilquldaed Damages. If the Contractor Nib W Improve the Diversion level so that It is equal to or greater than Diversion requirements de0ned In Section 5.3 by the and of the correction period granted in subsection A of this Section, the City may levy, and Contractor shall pay, Liquidated Damages described in5ectlon 114. D. Terind a0on of the Agreement. If Contractors falls to achieve a Diverslon level that equals or exceeds Diversion requirements defined In Section 53 within six months of the date the City levied Liquidated Damages, the failure to meet the Diverslon requirements defined In Section City of Fresno RDIFOff Agreement Page 38 4/g/11 5.3 shall be considered on event of default and the City may terminate the Agreement In accordance with 51 11.2. 11,6 CONDITONS UPON TERMINATION In the event this Agreement is terminated under the provisions of this Article, the following mndhlons shall be effective: A. Prohibit R014pff COIIENon Servly Contractor shall have no right or aNhonry to engage In Roll Off Collection services In the City for a Period of five years from the date of termination. After flue years, should the Contractor provide proof that the event causing the Contractor to default under this Agreement has been connected, the Contractor may reapply for a w - xclus ve Rall INI Collection service franchise, and the Clty, at the sole and complete dlsconal of the City, may reinstate the Contractor based on review of its reapplication. a. ConEni childhood. Contractor shall remain llable to the City for 1. Fees due In accordance with ANcle 9that would otherwise he payable by the Contractor 2- Liquidated Damages lsessed pursuant to Section 11.9. 3. Reports required by Article? for Roll. Of C011ectlon aOlvhles performed by Contractor up to and Intluding the date of termination. a. Indemnity obligations under SeRlon 10.1. S. Record keeping and Mention obligations under Sections 7.1 and 2.3. C. Release Nstomers and Genenmrs hom Obligations. Contractor shall allow PermMed Materials Generzton' served by OammMr to woman for Permitted Materials Collection services with a hauler authorized to performi such services, without Penalty or liability for breach of any cc now between Contractor and its Custamen or Genentmic O. Remove Roll -Off Containers. Contractor shall remove all of Contractofs ROIL ON Containers from all Of Compares Collection locations and shall properly Reryde. Pmres, Compost, or Olapone of Permitted Maledak In such RollORContainers. ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES 13.1 RELAT01hal OF PARTIES Tie Parties Intend Mat Computer shall perform the seMaes required by this Agreement as an Independent Contractor engaged by Oty and not as an oRrer nor employee ofthe City, nor as a Partner of, Or joint venturer with, the (All No employee or agent of Contactor shall be, or shall he deemed to City of Fresno ROM1Off Agreement Page 39. a/g/11 be, an employee a agent of City. beaept as expressly provided here In, contra nor shall have normal over the manner and means n converting the PollOffContainer collection, Transportation, processing, 0.erytling, Composting, and respond sees performed under this Agreement, and all Perrs Performing such services. Contractor shall so be solely responsible for the am and omissions of M officers, employees, subcontractors, and agents. Neither Contractor nor Rs officers, employees, Subcontractors and agents shall obtain any rights to retirement benefits, workers' compensation benefits, or any other benefi4 which scene to Ciryxmployees by virtue of their employment with Me Citta 12.2 PERMITS AND LICENSES Contractor shall obtain and maintain, at Containers sale cost and expense, all parents and licenses applicable to Contractors operations under this Agreement which are required by any governmental agency. 12.3 COMPLIANCE WITH LAW Contractor shall, at all times. atl[s sole cost, amply with all Applicable laws. 12.4 GOVERNING LAW This Agreement shall be Reversed by, and construct and enforced in incandesce with, the laws of the State of California. 116 JURISDICTION Any lawsuits bewreen the Parties arising cut of this Agreement shall be brought and concluded In the courts of Fresno Country In the State of California, which shall have exclusive jurisdiction over such lawsuits. With respect to venue, the Parties agree that this Agreement is matle In and will be performed In Fresno County. R.6 BINDING ON SUCCESSORS The Previsions of this Agreement shall Inure to the 4neflt to, and be binding on, the successional and Permitted aseignsof the Parties. 12.7 ASSIGNMENT Neither parry shall assign Its rights nor delegate or otherwke transfer Its obligations under this Agreement to any other Person without the pdorconsent sent of the other Party. Any such assignment made without the consent of the otherParly shall be void and the atiempted assignment City of Fresno Roll -off Agreement Page iO A/g/11 shall consulate a material bream of this Agreement. Under nocircumstances shall any asslgnmenl be considered by Ony if Contractor Is In default at any time during the period of cideratlnn. 12.0 PARTIES IN INTEREST Nothing In this Agreement, whether express or Implied, h Intended to confer aM rights on any Persons other than the Ponies to it and theirrepresentatives, successors and permitted assigns. 12.9 WAIVER The wilver by officer Parry of any breach or violation of any provisions of this Agronomist shall not be deemed to be a waiver of any breach or violation of any cher 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-esisime or concurrent breach emaciation bythe other Party deny provision of this Agreement. 12.10 NOTICE PROCEDURES All malces, demands, requests, proposals, approvals, cosents, and other communications which this Agreement requires, authorizes or contemplates all, shall be In writing and shall either be personally delivered to a egresentaffieof the Parties at theaddress below or deposited In the United States mall, first class postage prepald addressed as follows: A. If to CRY: Public Utilities Director city of Fresno 26W Fresno St, Room 3065 Fresno, Of 932213620 B. If to Contractor GanevrA.l VAI elm 2.13t 5. Elm Frestxi Lw 931Ob The address to which communications may be delivered may be changed from time to time by a notice given in accordance who this 5eclun. nutlet shall be deemed given on the day n Is personally delivered or, If maned, three calendar days from fire date it Is aepnsned In the man. my of Fresno Roll Off Agreement Page 41 a/g/11 12.11 REPRESENTATIVES OF THE PARTIES References in this Agreement to the "Clty"shall mean the City Council and all actions to betaken by the City shall betaken by the Cay Council except as provided below. The City Council may delegate, In writing, autho rry to the Director and/or to other City officials and may permit such mindals, In turn, to delegate in writing some or all of such authority to subordinate officers. The Contractor may rely upon actions taken by such delegates if they are within the scope of the authors, property 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 Me Agreement and shall Inform the City In writing of such des portion and of any am rmans upon his or her scummy to bind the Wntractac The City may rely upon action taken by such designated representative as actions of the Contactor unless they are outside the scope of the authority delegated to him/M1er bythe Contractor as communicated to Cm. 12.12 CRIMINAL ACTIVITY OF CONTRACTOR 12.12.1 Criminal Artivlry For purpae of this Sector, Criminal Activity shall mean any ofthe following events or circumstances: A. CunviNons. The entry agtlnst any Com2ttor Parry or as officers, of a criminal ronvlctlon or a Permanent mandatory or pmhibltory Injunction from a coin(, municii or regulatory agency of competent Jurisdiction, based on alts seen In his or her official capacity on behalf of Contractor with respect tit: 1. Fraud or criminal offense in connection with obtainln& attempting to obtain, procuring or perrorming a public or Private agreement related to municipal Solid Waste services of any kind (including Collection, Transportation, transfer, Processing. Retyding. Composting, or Samuel), Including this Agreement or any amendment thereto: 2. Battery or attempting to bribe a public Officer or employee Of a Ixal, State, or Federal agency; 3. Embracement, Mention, concentrating, false claims, false statements, fogery,(alsifaation or destruction of records, Obstruction of Justice, knowingly receiving stolen property, theft, or misprision failure to disclose) of a felony; 4. Unlawful disposal of Hazardous Wastes, the commence of which any Contactor Parry knew or should have known; 5. Violation of antitrust laws, including laws relating to ptla FlxinR bid -rigging and sales and marketallocation, and of unfair and antFmmpetaive tittle practices laws; 6. Yolation Ofsamraies laws; and T. Felonies. City Of Fresno Roll Off Agreement page 42 4/g/11 B. Pleas. Entry of a plea of 'guilty, 'nolo comandi or 'no comedi by a Contractor Party based on acts taken in M1b, her, or Its still lal capacity on behalf of Contractor with roped to Me mnduct describetl in preceding 5ectlon 12.12. Los 12.12.2 Notice Contactor shall notify Clry in writing within five calendar days of occurrence of any Criminal Activity by any Contractor Parry. IF12.3 Contraction; Cure Upon occurrence of any Criminal Activity. Contractorsball immediately do or cause to be done all of the following: A. Ter nate from employment or remove from ogre any offending individual Contractor Party, road otherwise directed or andered by a mud or regulatory agency of competent fudidlctbn or autbmlry, and unless that terminated would constitute a breach of any labor agreement entered into by Contractor, and B. Eliminate participation by any offending individual Contractor Party In any management, supervision, or decision activity that Waste o could affect, directly or Indirectly, the em performance of the Contractor under this Agreement. 12.32.4 Transfer and Flood Contractor shall not allow or cause to be allowed to hire or transfer any individual from any Parent Company or subsltllary company or business entity of Contractor who has comm tted Criminal AcffiIfy as a Contractor representative, field emanation officer, or director who Is directly or Indirectly responsible for periftermance of this Agreement without obtaining prior Written consent of Chow following full disclosure to any of the facts and circumstances surrounding soT Criminal Activity. 32.12.5 Cuts Remedy In the trent of any occurrence of Criminal Amvlry, the City, In Its sine discretion, may terminate the Agreement wnhln 30 calendar days written noti e to contractor, or may Impose other legRloos iwmch may Include financial octal temporary suspensions; or any other condition deemed appropriate short of terminatloni as It will dem, proper, in the following events: A. Contractor falls to comply with the foregoing obligation of this Sections or B. The Criminal Acrlvlry concerns or relates directly or indirectly to this agreement. Contractor shall be given the opportunity to present evidence In mltlgatlan during me 30 -calendar day notlm peNod. 12.13 ACKNOWLEDGMENT OF PUBLIC RESOURCES CODE SECTION 49620 NOTICE If Contractor has lawfully, provided solid waste collection services in the City for more per three (3) years prior toluN 1, 2011 (and is therefore entitled mthe notice provided for In Public Resources Gabe' 49520), Contractor shall consider execution of this Agreement by the city as Otys notl¢to Contractor, pursuant to Public Resources Code 49520, that Contractor may provide seroom for a period of five (5) Clry of Fresno Roll Off Agreement Page49 4/R/11 years beyond Jury 1, 2011, after whim time the Cily has the night to establish an exclusive franchise collection system. ARTICLE 13 MISCELLANEOUS AGREEMENTS 13.1 ENTIREAGREEMENT This Agreement, Including the Picini represents the full and entire Agreement between the Parties with respectmthe matters covered herein. 133 SECTION HEADINGS The article readings 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 in" may he subsequently amended or recoddied, unless othenvbesideclgnlly provided. 13.0 INTERPRETATION TINY Agreement shall be Interpreted and construed reasonably and neither for nor against either Pony, regardless of the degree to wFich either PaM parYiclphd In its draRing. 13.6 PRONOUNS AND PLURALS; TENSE When not Inconsistent with the context, words and pbama 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 usM In this Agreement shell Include the corresponding masculine, feminine and neuter forms, and the singular form of nouns, prudence and verba shall include the plural and vice versa. City of Fresno Roll -Of Agreement Page" 419/11 13.6 TEXTTOCONTROL The captions of the Articles or Sections in this Agreement are for mnvenlence only and In noway delle, food, extend or describe the scope or intent of any of the provisions hereof shall not he deemed part of this Agreement and shall Rot be used In constming or Interpreting this Agreement. 13J AMENDMENT That Agreement may not be modified or amended In any respect Assassin wdMg signed by the Protks. 13.0 SE RABIUTY H any n mandal pravlslon of this Agreement Is for any reason deemed to be Invand and enforceable, the Invalidity or murifiercealshty of such provision shall not affect any of the remaining provisions of this Agreement, which shall be enforced as H such Invalid or unenforceable provision had not been contained herein 13.9 COUNTERPARTS This Agreement may he executed In counterparts, each afwh W shall be considered an original, 13.10 EXHIBITS Each of the Exii Identified as ExhlbR'A' through 'W is attachad hereto and Incorporated herein and made a part hereof hythis reference. City of Fresno Roll -Off Agreement Page 45 618111 • IN WITNESS WHEREOF, the Partles have caused the Agreement to be executed on the day and year first above written. CITY OF FRESNO WNTRACtOR A Municipal Corporation �u� > director Nam 00. H APPROVED AS TO FORM: me 'its etRrl Address (CIry Attorney L T !P -+2-61^d LA 43706 /Wye City 8ti lea Business license Risk Manager • ATTEST: • CITy of Fresno Roll Off Agreement Page 46 4/6/11 MH189A SCHEDULE FOR LIQUIDATED DAMAGES Contractor may be assessed Uyuldated Damages If Contractor fails to fulfill its mobtatlons with regards he the events listed In this Exhibit In accordance with the terms and conditions of the Agreement wkh regards to the time fame for accomplishing each event and nature of the respomiNlity assoclated wkh the event unless otherwise stated In this EyM1lblt I. DNerslon Filipino to achieve and maintain a minimum of 50% The greater of 55,000 or Diversion per month of all C&D Collected within the City, TO% ]0% of the gross Rate Diversion per month of all Recydable Materials COlkcteo within the revenues received for City, and 90% M all Organic Materials C011Med within the CRY providing C&D, Rerytlable Materials, and Organic Materials services; In the Cry, for the most recent n3 month perroad z. teaks, Dearer spills. For each occurrence over Me during a calendar $]0D/event year of unreasonable leaks, litter, r spill of permitted Materials near or on publicstreets and fallum to pick up or clean up such material Immediately. 3. Unautbodzed Collection Hours. Foreachoc erfiveduong .$300/event alentlar year of Collecting PermklM Materials Curing unauthorizM hours a. F}cealvexolse. For each occurrence over 10 dudng a calendar year $3W/event ofezcesslvenolse. S. Cleaning Colledlonvehldes. For each occurrence over Me throng $150/event calendar year for failure to keep ColkGlon vehicles In a safe and oratory condition. 6. IabelingOf Ru0df Containers, For each occurrence of Ceniadpfs 55W/erenl fallure to correctly label Contradormvned poll-0ff Containers Ila accordance with Section 64.C. >. Dlsmurtmus Behavior. For each cavrten¢ of tl&wurteous behavior $5W/evens W Collection vehicle personnel, customer service personnel, or other employees of Contractor. g. Inlurin to Others. For each Incident of personal Injury to a Person $5 COQ/ fnddent requiring medical treatment or hospitalization, where Ne negligence of the Contractor or its personnel was a mntrlburtng factor to the 9. Monthly Refsparba Failure to submit monthly reports in the tlmelnme $300/ day' his ment speciffend 10. Hazardous ante. each Report Hazardous appropriate Forieso fHazardus SW/ event reportable authorities of re ortable vanikles of Hazardous Waite. Wage. A-1 1L Fallureol Other ObllFatloril falluretocerformanyoftbeobligatlons 51501foreach set forth In this Agreement not specifically stated above and not obligation per day until corrected or proceeding In good faith to correct within 24 hours upon obligation is performed 24 hour not'rflotbn by ON. Monthly reports shall be bouldered lam Wool such time as a mrrt¢ and complete monthly report Is received by aty. For each calendar day a report B fete me dally Usual Damage shall be as included In the monthly reporo settles above. In placing Designee's Initials at the plain provided, each Parry syectfiolly confirms the accuracy of the statements made above and the fad that each Party has had ample opportunity to tumult with legal el antl obtain an explanation of liquidated Damage Provisions of the time that theggeement was made. Contractor city Initial Hare: initial Here: �- / A-2 • EM19RB sE(CMARTSCMilanon me uneerskned, hllry mesenetarvm (_ •%\ tie. tltC.a mw.w GlMomla wryo¢[bn (the Compny, do M1en4 ¢Rife tM1n IM1e Nllowlly resolution was seeptetl Ey the Board of Dlrecton of one Company and that such r ummen has not been investors, mWMN or rescinded and Is In full fate and affect as M the dare hettof: R6olVED,Nat (If]RA 1 IE6 he and hereby, is, authorlsed to auamamsm.r¢x. execute by and an beM1alf oftM Company any and all y¢emmu, Instruments, doamenb or WpeR, as he/she may deem appropriate or necessity, pertaining to ur relally to Ne NorvExtluabe intestine Agreement between the qN of Fresno and Company far Rall -0 Container Casknlon, Trani ortIM • I•m ssi Receding, Cormxx y and Discounted of PmmMed Materials and that any such action "Ween to date it hereby ratified and approved. Damtl, 4 -PB-t( 84 Signature Mk • vxiertc WAnMFM OF/PpIJIC 'SUNDER MOING AND REPRIBIEWATONR The undersigned (who Is duly autMNea to bra the company submMing this applicar lhas reviewed the requirements of the norveNualve franchise agreement for III Eolledbn, inmprift Proceemkic Recycling, ( mpwtinu and Disposal services For Solid Waste, Rsycl bb Materials, OWI MatedN; and MD, Its exhib Hs, and reference documents. In aaaXbn, the undersl{aretl aXezn MM this apWlutlon and any other supplementary Information submitted with th; aWlRallon do not: (I)cortaln any untrue statement of a material fad, (4)contain maccurate or miskadNg lnformNion, or (M) omit to state a material fast that b neaagry to mage the statements matle,M him of the drwmstarnes in whim they were made not mislermlin. ,%L. .Pfi-o'tpF 4 -;i0 -I I Pant Name Date Is G.N �Ia�F L�ExM j,6—S romp.m Name Stratum 0 E%xIRITD APPROVED PROMOMING AND RESIDUE DISPOSAL LAgUTES TFe(ollow o htlllPes were sel¢ied by the Wntractor and approved by the Co. M4 Mllk%�Frllll'�{�- 1�r1PllR�7��, a milaullu Yvasnesnaii Deumposea Uazame DeSlgmteeolsposal FanlHy. contmaor city, / 1 IHO Initial Hem: AAL A �slsi�,R� Pa.a � 1R73' 'PITIl��71�5`r7R. fl+� i milaullu Yvasnesnaii Deumposea Uazame DeSlgmteeolsposal FanlHy. contmaor city, / 1 IHO Initial Hem: AAL A