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HomeMy WebLinkAboutUSA Waste of California Inc. - Non-Exclusive Franchsise for Roll-Off Collection ServicesNON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF FRESNO AND USS �A tt 0f CAafogtx� c, FOR ROLL -OFF COLLECTION SERVICES SEPyE Ng 1 ,2011 Table of Contents ARTICLE 1 DEFINITIONS ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR ................................ B 2.1 REPRESENTATIONS AND WARRANTIES......... ..................... ....... ........... ........... ........_._._............8 4.2 ARTICLE 3 TERM OF AGREEMENT ........................ _................................................................. 9 3.1 EFFECTIVE DATE... ....... ......... .. ... ....._....... .. .............9 3.2 CONDITIONS TO EFFECTIVENESS OF AGREEMENT ............. ._............ ............ ........................... 10 3.3 INITIAL TERM ......... .............. 16 34 OPTION TO EXTEND.... _. _..... ... ARTICLE 4 SCOPE OF AGREEMENT........................................................................................ 11 4.1 SCOPE OF AGREEMENT ...... ........ ...... ..... ........................................................._....................... 11 4.2 LIMITATIONS TO SCOPE ......._..... .........................................._.,................._..........,..._.......... 12 4.3 DO'S RIGHT TO GRANT MULTIPLE NON- EXCLUSIVE AGREEMENTS. 13 44 CITY'S RIGHT TO EXCLUDE NEWLY ANNEXED TERRITORY FROM SCOPE OF FRANCHISE ... ,._..13 .............. 16 4,5 AGREEMENT CONSISTENT WITH APPLICABLE LAW. ...13 4.6 OWNERSHIP OF MATERIALS.......... ........ .............. ........ 13 4.7 NOTIFICATION TO CITY OF NON FRANCHISED HAULERS ..................................._.._._...... 14 ARTICLE 5 COLLECTION, PROCESSING, AND DISPOSAL SERVICES ........................................... 14 5.1 COLLECTION...... ........... ................ _.,..... ......... ............................. ...... ........ 14 S2 PROCESSING AND MARKETING SERVICES.. ..,..... .......... ...._ 14 5.3 DIVERSION REOWREMENT ............. _...... ..... ...... . ... ...... ... ..................... 16 54 DISPOSAL..... ___..11 1 ............... .............. 16 55 BILLING... _., ...... ., ........ .............. ... ..... ......._...... ...... ... 5.G CUSTOMER SERVICE ..... ............ ........... ....... ............11 17 ARTICLE 6 STANDARDS AND REQUIREMENTS FOR SERVICE$ EQUIPMENT, AND PERSONNEL lT 6.1 OPERATING DAYS, HOURS, ANDSCHEDULES ...... ......_......... ...... ..... .._. ..... ...... ...... ........... .... 12 63 COLLECTION STANDARDS _........... .. ................ .._.._....._............. 18 6.3 VEHICLE REQUIREMENTS ............... .... .......... ............... 19 64 ROLL OFF CONTAINER REQUIREMENTS.._.... ...... ...... ............... .............. .... ...... ...... ............ ..... 20 65 PERSONNEL_ ............ ................--- ............ ...... ...--- ................ 22 6.6 HAURDOUS WASTE INSPECTOR AND HANDLING.._ ...... ...... ......_............................. ......... ... 22 67 NON DISCRIMINATION __....... ......... _... _.......... .............._......................................_............_ 23 6.8 COMMUNICATION AND COOPERATION WITH CITY..... 71 ARTICLE T RECORD KEEPING AND CITY of Fresno Non ExcLo", RollOffAgreement Page I 4/8/11 21 GENERAL..... ... ._........ ........ ..__........ .. 24 22 RECORDS......... ...._........... ....... ...... ......................... ... ._............... 25 7.3 GENERAL REPORTING BEGUN REM ENTS ..... ...... .... ...... ............ .............. ....._.................... ......._26 7.4 MONTHLY REPORT ................ ..... 26 IS AS 939 COUNTY SURCHARGE REPORTING..... . .............. .... ....... .........27 ARTICLE 8 FRANCHISE FEES AND OTHER FEES....................................................................... E9 8.1 GENERAL . ..... ...... ............... ............ ......_............................................................................28 0.2 FRANCHISE FEE ................. ..._.......... .... .............. . .......... 28 03 OTHER FEES-- OA ES .L....._... ...._._....... ....... PAYMENT .........28 0.5 SCHEDULTTO EAND LATEFEEi...................... ......._....._.. 28 8,6 OVERPAYMENT OVER PAYMENT OF FESS ................ .............. ............... .............. 29 87 NON CITY FEES, AR 939 COUNTY SURCHARGE. ... ..... .............................. ......... ..........._..29 ARTICLE 9 CONTRACTOR'S COMPENSATION AND RATES ...................................................... 29 91 CONTRACTORS COMPENSATION. ... ..... .................. 29 93 CITY'S RIGHT TO SET MAXIMUM RATES_ .... ..... .............. ...... ......... ................ .......... ...... .........29 9.3 CONTRACTOR'S RATES ......_...... .................._..._..............._......................................._..........30 ARTICLE 101NDEMNTIY AND INSURANCE............. ................................................................ 30 PDA INDEMNIFICATION.......— ........ .. . .................... -- .. ...30 102 INSURANCE ....... ...--- ........ ......... ................................ .................... ..._...... .31 ARTICLE 11 DEFAULT AND REMEDIES................................................................................... 34 11.1 EVENTS OF DEFAULT. .... ............ .............................. ................ ..3q 111 RIGHT TO TERMINATE UPON DEFAULT.................................................................................... 35 13.3 CITY'S REMEDIES CUMULATIVE, SPECIFIC PERFORMANCE.... 36 11.4 LIQUIDATED DAMAGES .__.._............................................................................................... 36 115 DIVERSION NON PERFORMANCE...... ........ ............... ..... ....._....... ...... ..... ._..................... ......38 116 CONDITIONS UPON TERMINATION.._..................................................... 38 ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES............................................................... 39 12.1 RELATIONSHIP OF PARTI ES ............. ................. ... .... ...........__ ............... 39 12.2 PERMITS AND LICENSES ........... ......... ....... _........... _.....40 123 COMPLIANCE WITH LAW ... .... ........... ..................... ...... _... .......... ...... .......... _...... ......... ........ ..9D 12.4 GOVERNING LAW ........ .. ...._....... .._....................._.._....40 123 JURISDICTION........ ................ .................................4D 12.6 RINGING G ONON SUCCESSORS.......... ............... 40 12.7 ASSIGNMENT _ 4g 12B PARTIES IN...... ST .......... ........ ..... ........40 123 WAIVER....00 ............. .. .............. ... ........... ............41 1210 NUCCE ......................................................................Al 12.11 REPRESENTATIVES OFHE TIES ...................................................................................... TIVITY 41 1212 CRIMINALA OF CONTRACTOR... ........ ........_...ECTI...N_.........ICE....__................A2 12.13 ACKNOWLEDGMENT A[XNOWLEDGMENi OF PURt¢RESOUflCB COOESERION 9940 NOTICE................ OFP PUBLIC RESOURCES .......... 43 City of Fresno Non -Exclusive Roll -0N ggreanent Page it 4/8/11 ARTICLE 13 MISCELLANEOUS 131 ENTIRE AGREEMENT 13.2 SECnON HEADINGS, 13.3 REFERENCES TO LAW 13.4 INTERPRETATION..... 13.5 PRONOUNS AND PLL 13.6 TEXT TO CONTROL... 137 AMENDMENT........... 118 SEVERABILITY........... 139 COUNTERPARTS...._. 13.10 EXHIBITS— ........ .... ... LIM of WIWLs A Schedule for Liquidated Damages B seretary: Cerz;fGMmn C Statement of AppBnnfs Undemanding and Repreuntiolons D Approved Processing and Residue Disposal EaciB(es City Of Herne Non-EccluAve RollT0ffAgreement Page In 4/8/11 N0W"CLUSWE FRANCHME AGREEMENT BETWEEN TIRE CRY Of FRESNO ANO U_SA L)ASTT aF (MLg w,xur, FOIL ROLLOFF COLLECTION SERVICES The mnqulu ire harni e a 1 IT 5E4'RmrbLA 20 )1 gseppm Ilnemimtl Is maEe and entered into Mb 1 day of by aM pelreun Me fry a faprp, a mwkipal corporation, 1ptb and U54 ua f off{ y_ep UC ICamnama.l REWALS con Rgreememlae teMO man paled rekreMe to the following tants and Wamstancn WMEREAi. the A841taWse Of Me Share of CaYfpmla, by National Of the Oli(Pmb Int erseed Wase Management AV of 1989, ratified m 6MpMe PUNIC binational fnMbn ie Srebates at seq. l•Aff) I, M1as declared Mat M Is M Me pudk Imerest to aulbna and sequVe food a/endg to make adeq W OrauWon for Slid WUM GDMftan wiMln Meir lurh9ttbn; and NNPedial the 9hne of "Parris I SMI¢^) Na fouq and declared the the anourl Of Sdk Wane 8enen[ef in OIHOmia, aupleff Until diminiMFe l ndi ll space aro pnential adverse em;ronmental Impada from andnllln8 and the need m mnarve roNral rmurm, M1m CrMe1 an urgers MM for S W and INI annelid W eruR aM imPl9nem an A4e Win(varsted wase¢ managenem program. led State hiss, Mrowth ouameM of Me M, dlrtcted the remunerate Stye agency and all lout Merdeq b pwmle Mpod$ dWwepn and M naLLnitt Me Use M fmOle Will Waft reduction, ,,11"UM and CunraColl u wS stine l Order M reduMe amnt d dWa#e that mel be ouziMared n In oapMd sea; ane, wMEws, Me an rep,]rte Ioa die IB WOI.m son adnranded Materials from Undilland. WMEREAS. Me My COumfl estabXfied psis of amleAnR nn diversion Mi 2012 anal A" waft Rales Iry 2025 on lune 2¢,2007, and approed a AND WaM smtegk Melon Pan on Falwal 21, 2009: and WMEREA9, Me OW ends that reuslnn Ragdift load fMI M Repade signal Cal Malenale, and Conbwtlm and gmddon dreMa 1601 and beneficial use a Mmg na Of Oriente MMerlak is esunail to further the 6V5 all M real Sellll Waste 0ifteel and ampry wkM1ine eat and thetas uM waft pss; and WMEIIEK, purrvsrR ve to Me {ac Boanted Me CM as a China dryW still XI. Semon 5(a) Or Me 0111 ma mmllnnbn and Arl she OftM fheam fry career, the 6r he dehermmed that the WNc health, akty, and weal require Md a fercfiee apemem defining rorne¢IuWe nghb M awaNM M q"MW companies to pyuye for the Ml -Off mmyfer cOk d" Of perrrrylkd Materials CM, a From Roll -0X Oghempn[ 4/VU Postal except for mnectlon Of materials excluded to the drys Municipal Cade, and other services related to Thai requirements of the Al and WHEREAS, the Cry requires all haulers Providing RollORCollection services for Permitted Materials In the City to obtain a nonexclusive franchise in oNec to regulate this business, ensure its orderly operation, achieve its diversion goals, and to minimize the Potential for adverse effects it may have on the bast environment; and WHEREAS, the City Council has determined through an application process that the Contractor, by demonstrated experien¢, reputation, and cal is qualified to provide for the Roll-0ff Container Colection of PermMed Materials within the corporate Real of Cry and the Transportation of such material to appropriate places of Recycling, Processin& and/or Disposal, and an provide Insurance consistent with the Cry's requirements. The City Council twines that Contractor be engaged to perform such services on the hasls set forth in this Agreement and WHEREAS, Contractor intends to use the Cry's rtreeq alleys, other public nghl way, and infrastructure to provide Rolli Collection services to the City s residents and businesses; and WHFAF0.5, the Chi Intends to receive just and reasonable fees from the Contractor for CP/s adminintation of the Agreement and for Contactors use of the City streets, alleys, other publk right Of way, and infrastructure watch the City may lawfully impose and the compares are obligated W pay; and, li THEREFORE, In consideration of the all Thomas, cavenams, and Conditions co timed in MIs Agreement and for other pod and valuable consideration, the Parties agree as follws: ARTICLE 1 DEFINITIONS For purposes of this Agreement, unless a different meaning is clearly required, the following words and phrases shall have the following meanings respectively ascribed W them by this Article and shall be ap'Imlized throughout this Agreement. 'A means the California integrated Wazse Management Act of 1989 (Div'rsian 30 of the California Public Resources Carol as amended. supplemented, superseded, and replaced from time to time. 'Wgaemem° means this Agreement between the City and Contactor for Roll -Off Container Colltttlon, Processing, and Disposal of Permitted Materials including all comiteer, and any future amendments hereto. 'Applable lavwl means all Federal. Stat, and local laws, regional rules, carry, judgments, degrees, perms, approvals, or other requirements of any gwernmeral agency having jorod d ion over the RaIFINf Container Collecrian, Transportation, Fri Processing, and Disposal of Permuted Materials that are In fora on the E Well pate and as they may be enacted, issued, or amended during the Term of this Agreement. Cry of Fresno ell Off Agreement Page l 9/8/11 "Approved C&D Prooessingsne" means the pmcessiek site specified in EMibu D, which was selected by Contractor and approved by the Ory. "Approved Dlsposat Siti means a Disposal Site selected by the Contractor or its Subcono-actorjs] and approved by the City for Dispowl of residue from Approved Processing &tei Approved Disposal 5hetsj are listed In &hibR 0. "Approved Organics Pros DIFig Site' means the processing site specified in Exhibit 0, which was selected by Contractor and approved by the City. 'Approved Processing 511 means the Approved C&D Processing Site, Approved Organics Processing Site, and/or Approved Reryclables Prwes9ng Slit "Approved Processor' means the operator of an Approved Processing She. "Approved Re ardalues Processing We means the processing site specified In Eahlbit D, which was selected by Contractor and approved by the coli. "Bin" means a container with capacity of approximately one (l) to eight (8) cubic yards, with a hinged lid, and with wheels, that & rypially serried by a (rant end4cadmg Collection vehicle. "Business Days" mean days during which Ory offices are Acer to do business with the public. "GH" means a plastic container with a hinged lid and wheels that is typically serviced by an automated OF Semi -immersed Collection .. vehicle. A Can has capacity of 20, 35, 66, or 96 gallons (or similar vofumest. 'C&D"means Construction and Demolllbn Debris. "Change in Laws means any of the fauwmg events or conditions that have a material and adverse effect on the performance by the Paries of their respective obligations under any Agreement (earept for payment obligations): a. The enactment, adoption, promulgationmodification, o written change in administrative or n ial Interpretation on or after the Effectrie Date of any Applicable Law Or b. The order or judgment of any Bovemmer al body, on or after the Effective Date, to tM extent such order or judgment is not the result of willful or negifgent action, error or omission or lack of reasonable diligence of the Ory or of the Contractor, whichever is asserting the occurrence of a Change in taw; provided, however, that the wntersting in good faith or the faiWre In goad faith to contest any such order or judgment shall not ronsco a or be construed as such a willful or negligent action, error commission or lack of reasonable diligence. moi means the Ory of Fresno, California. a municiwl corporation, and an the tentory lying within the municipal boundaries of the City as presently pbting or as such boundaries may be modlhed Funny the Term. City of Fresno Rmll Agreement Page3 0/8/11 'Cuss MuidPd tole' mem the CitV M frmro M Unl o W 14V e ' W 4t' orOr 'CdYdim' met ad it wo M mlkRlry PumlpM Materials and MM ma[ W I M Me pla-q dgeoealathe de lnMlatdY" scall treat d, from w certLnMg W nonNesltlem6l Present wxwe Mines xtMty tz OMINted IntluJIII but art handed to, renb sate, service, windows ocenuad, manYyv dFg gq Minstrel OIWIF ; Mt neudid; Wynesse cenducM upon Re hhhoal prop" wMU ar pennh[M UMerawlMaGe among regWatbdandart po[tMpMnary�oe WtMpaceM. e farywtra' means a mttcanbl apwrasus that tpnpresse matMals Imo a [onWrcG which container may M detachable. For tce partner of the agreement Comwit M shall Maude " Camwatun with ttmGlnn epode' of tM (10) W flet' (50) Cubic wed Nat are sensed by gnll-0X CnMttSM Truths. YpnwzC a YomposYK InslWe a roMnIIM bbl[7tlgl detomwshbn d oegane Mxerbls ViWtlMg a safe and nwnna fess United PrMUR "U ddwd Prodv[Y' mead the prftlam fend" war the con[rdlM 1:14hod tlewmwahbn W dganl[ Ma[Mas that are Spume SewntM hon the SoW Wade drawn, or whkx are sewntM at a centnllndfatilrty. Gnduvdon ass""whowltyn Desna IU r sheers materiae resulery into ¢vistrucli remodeliry rewir, dont', or eemaFtim opentbd grit are rad havrmre as tlebral in OrdI Castle of Radulatkns,Tgkll gttWn 66161.3. the ttrm IlYlutln, W is mm IImhM[t, ezphah forints, cement arnea, M&. harrow, gytwm webs' d mdrt[e Myg, faNMaN, and other wKefated w[belM routine materh4 [eramb tlk, [arwgrg ph[sh pope aM and as well as ueg m" sharer muhing from land during and Mhogrg including M rot nmM hm mfM, ws tree stumy. Construction and DmWNon OMh exclude Putfezfkle waste. uMnatorn means 43GJ at dF CA as C Ila ttmnmo(z rD a (nherhi under (lhns of the tate o4alt"Ja end is drwet, armopoprwwl Vers, earM mmmiry tntler me laws d me State of Glrcomla and ,6 ollmers, dlrMorx ampltveez, agems. mmwnks,wg5ubxmxmrs. '6wdr 1M Perry W shall mean COMra[tor, oglmey Motors, maNgemMt employee, or fids employees("ere'managan;ew empbyese shed any'optµ with direct wiMirent resgmlEllhy for direction and pond ove the COMICwfs seMtiss when this Agreement am neol employee' an employe with dRd on iMIRR and A ones; needed tof Wnows mTtery untlxsthsOgreemeM). 'CriNnelA[[IMY means those adMtle deMbed In Sections ere. 'Oubn✓' mead the Peron *host fmyadcr sWmhs wlbrg Invake b and oleo wvme d farm fwfolkepnsmYeaprdvitlM. 'Dnletated Deemed ahf men the MIMnn µ¢nue l (fill a[ 38950 W Amen[M Avenue In Tranquility. CaMome brtxe puremsesnl Dlsemslry$oM WaRI. Uq of Freno ROILp%ppfement a/e/ss Pages ^Designated Wutr means ron-nacardous Wastes that may pose special Disposal problems because of Its potential to contaminate the environment and which may be Disposed of only In Class II o6poms Sites or Class III Disposal Sites pursuant to a variance Issued by the California Department of Health Ski[g. 'Dirt stall mean the Public Utilities Director of the. Cry or an authorized representa0lve of the Public tnilRies Director. "Dluanded Materials" means Solid Wane, Recya le Materials, Organic Materials, or C&0 placed by a Generator in a receptacle and/or at a looki that is designated for Collection WCSuaM to the City's Municipal Code. 'Disposal or Dispose (a varlatlm thermi means the final d6position of Solid Waste at a Disposal Site. 'Disposal She means a fa llhy for ultimate Drarr al BISON Waste, •Diveadi means actiaties that reduce or eliminate the amount of Soled Waste from Sona Waste Disposal including, but not nmbea to, Recasting, and Composting. 'Prop aoi means an open too dommer with capacity from six Ibi to fifty 150) cubic yards that Is uses for COlmi of Peopled Materials and that is servired by a all 0011h ion Truck. Drop Boxes with wpacties of less than ten (10) cubic yards may Only he used for the purposes of Cabral C&D. A @pp Box, which is also known as a hall off Wx and/or debris bw, is a type of RallDIDContainer. "FffegWe Date' means the date set forth in the introductory paRgnph Of this Agreement. 'Fedel means cyclical to or pertaining to the national general government of the United States. "Food Raps" means those discarded materials mat will decompose and/or putrefy including (p an kitchen and table food waste, bit animal or vegefahle waste that Is generated during or results from the storage, Prepaa00n, cooking or handling of food stall (liif discarded paper hat is contaminated with Ford Race; 1iv) fruit waste, gain waste, dairy waste, meat and fish waste; and, (v) non Recyclable paperorcontaminmed paper. Food Scnpsarea subset Of Organic Materials. 'Francblse Fee' means the fee paid by Contractor t0 Ory far the privilege M hold me non-exclusive rights granted by this Pereemed, -GenertlOP means any Person whose act or process produces Permittees Materials, or whose act first causes Permitted Materials t0 become subjett t0 regulation. "Green Waste Magi means any materials generated from the malRen urce or aheradon of public, rcial, or statical landscapes that will decompose pool parody Including, but not limited f c, yard clippings. grad leaves, ihrvb/tree trimmings or pmnings (less than 6" In diameterl, brush, powers, weeds, dead plants, small pieces of unpainted and untreated wood, and other Types of organic waste. For the purposes 0f this Agreement such materials small be Source Separated and placed by a Generator In a receptacle antl/cur at a location that is designated! Bar colleNon. Green Waste Material is a subsN of Organic Materials, City of Fresno Roll -Cif Agreement Page 5 6/8/31 "Huardi WMd' means all substances defined as Hazardous Waste, acutely Huard WS Waste, or extremely Ap arel Waste by the State In match and Safety Coal §25110.02, §25115, and §25117 or in the future amendments to or recodlFlcationu of such statutes or identified and listed as Hazardous Waste by the LLS Environmental Protection Agency (EPA(, pursuant to the Resource Conservation and Recovery Act (02 USC §6901 at sea.), all future amendments thereto, and all Full and regulations promulgated thereunder. 'Holldays' are defined as New mats Day, Thanksgiving Day, and Udstmas Day. "IMecHmc Waste• means biomedical waste generated at hospitals, public or private medical clinic, dens[ offices, research laboratories, pharmaceutical Industries, basad bank, mortuaries, veterinary famines and other similar establishments, as defined In Health and 5dfery Coag Section d51175. 'HSUIdotal Damages' means the amounts due by Computer to City for failure to meet specific Sustainable standards of performance as dearnbea m section UA and Exhibit A. 'Cra lc Munmale means those discarded materials that will decompose and/or putrefy including Green Waste Material and Food Scups such as, but are not limited to, green trimmings, grass, weeds, leaves, prunlngs, patches, dead plants, brush, tree trimmings, dead trees, small wood pieces, other types d Organic yaN waste, vegetable waste, fruit waste, gain waste, dairy waste, meat waste, fish waste, paper contaminated with Food Scraps, piens d unpainted and untreated wood and pieces d unpainted and untreatedwallMaM. No discrete" mater al shall be mmidered to be Organic Materials, unless such material is Source Separated from Sold Waste, Pecei Magnesia, C&D, or other materials. "Pared Comi items t0 a company owning more than fifty percent (Sl Of the shares Of another company (subb iary( or a company that has management mntml over such subsidiary. "Pant or Pares" refers to the Ony and Contractor. Individually or together, 'Permitted Muedals" refers to solid Waste, Source Separated Recyclable Materials, Source Separated Organic Materials, and C&D. Permitted Materials excludes Source Separated Food Scraps. 'Person(s)' mems any individual. firm, assoclatian, organization, partnership, cameraman, business oust, joint venture, the United States, the State Of California, the County a Fresno, and special purpose dismiss. 'Perm s" means any land or building In the Permittedty where Permed Materials are generated or accumulated e "Prareminge means to preaum, treat. or convert through some special method. "Proressng Site' means any plant or site used for sorting cleansing treating, or reconstituting Permitted Materials for the purpose of making such material available for muse. `Pubeuiblc Waste" means Said Wastes originated from living organisms and their metabolic waste products and from perroleum, which contains naturally produced organic compounds and which are Cky of Fresno Roll ONAgrpement Page 6 Vil lit blomgiranv decompu9ae by microbial and Meal ab" colo the con9nuem compounds of water, carbon dioxide and other simpler organic compounds. "Rales' means the manges and fees Contractor Souk and Courts from each Customer receiving service pursuant W this Agreement. 'Rerylable Materials" means those DisCarded Materials that the Ciry Once permbs, direms and/or requires Generators to set out in Reryclables Materials mrRainers for Collection for the purpose W Recycling. No Discarded Materials shall be considered Recyclable Materials unless such material Is Separated from Said Waste and Organic MMenals. Recyclable Materials shall include, but not be limited to: rrewspaper (including inserts, coupons, and store advertisements); mixed paper (including affke paper, computer paper, magazines, junk mall, catalogs, brown "per bags, brown paper, paperboard, paper egg canons, telephone books, grocery bags, COJOred paper, construction paper, envelopes, legal pad backings, shoe boxes, asap boxes, cereal and other similar fetl boxes); chupboard; cardboard; paper milk eartons; glass containers of any color (Including glass bottles and jars all colors); aluminum ns fabric wftener is,fl iners: steel tin or Pi metal raps; plastic container(clear or green plastic soda and water bottles, plastic containers and bottles and plastic bags with no. 1, 3 or 3 On the Wttum ; and food conviners from poutO salad, pasta salad, whipped cream, etc 'Recycle or Recylbse means the pracoss of Collectll sorting, cleansing treating and reconsflluting materials for the purpose of using the altered form In the manufacture of a new proal Recydbig does not include burning, incinerating or theme deslroyhg solid waste. ^Rcidembl'shall mean of, from, or certaining to a single family Premises, multi owo or multi -f lki Premises Including anglefamip homes, apartments, condommwms, townhouse complexes, mobile home parks, moperstl a apartmeng and yacht harbors and mannas Where residents live aboard Mats. 'Roll -0R Container' means a Drop Box or Compactor used for Collection of ?Permitted Materials antl serviced by a Ro6off Collector Truck. Roll Off Containers with apatites of less than ten (10) cubic Yards may only be used for the purposes of collecting C&D. "Poll -OR Collection Tracer means a collection val with a mechanical device such as a winch that pulls or loads a all Conrad onto the [ruck bed or attached trailer and separately transports each Roll�Off Container t0 a DBposal She or PrOCessing Slee. 'ggitl Waste' means solid waste as claimed in California Publk Resources Code, Division 30, Part 1, Chapter 2, 440191 and regulations promulgated thereunder and those Discarded Materials that the Cary Code requires Generators within the Cry to set ut for OPIECITOn. ExCluded from the definition of Solid Waste are C&D, Hazardous Waste, Infectious Waste, Designated Waste, Source Separated Recyclable Materials, Source Separated Organic Materials, and radioactive waste. Notwithstanding any provision to the mn[ary,'Solid Waste" may Include de minimis rolumesor concenMatbns of waste of a type and amount normally found in Residential Valid Waste after Implementation of programs far the safe collection, ecycling, treatment and disposal of household ha ri waste in compliance with Section 41500 and 41803 of the Wllfomia Public Resources Cate. 'Source Rpaated" means the segregation, W the Geneatop Of matelots designated for separate Collection for some form a Recycling,Processing, Campersting. recovery, Or reuse. 'State' means the State of California City of Fresno Roll O f Agreement Pegg y 4/8/11 'fub[antra[Oor` means a pain who has entered Into a mntracq express Of implied, with the contractor for the performance or an act that is nese Lary for the Commodes lodgment of Its omlpptens under this Agreement. erai means the Term of This Agreement, including extension periods If granted as proNdM for in Article 3 TOrf means a unit of measure for weight equivalent to 1,01)(1 standard pounds where each pound contains 16 ounces. TOnnrye" means the total weight in Tons Collected, Recycled, Competed, Diverted, or Disposed of, as the context requires. Tnrtportafore means the act oftrampoRingor state of being tampered ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR 2.1 REPRESENTATIONS AND WARRANTIES The compactor, by execution of IMS Agreement, represents and warrants the following to City, for the Purpose of inducing City to enter into this Agreement and to consummaR the transamlons contemplated hereby: A. Corporate Status. Contactor is duly orpniaed,validlyealsting and In pod standing under the laws of the Sure. It Is pualifed to [ansact business In the C add State and has the power to can its properties and to carry on its business as now owned and operated and as required by this Agreement. B. Authorial Contactor has the authority to enterthls Agreement and perform its Off pimps under this Agreement The Board of Directors of Contractor for the shareholders, if necessary), sale proprietor, or partners haul taken all actions required by law, its imides of'mmryormosn, Its bylaw, Or otherwise, to authori[e the execution of this Agreement. Theirmium iimmittli5 Agreement on behalf of Contactor represents and warrants that they have authority to do 0 and the corporatesecretary's cartilage In Exh@It B comfort; this. This Agreement constitutes the legal, valid and binding obligation of the Odractor. C Agreement Will Not Cade Breach. To the hest of Contractor's knowledge after reaswable Investigation, the execution or dell," of this Agreement or the pe fomrance by Comrartor N its obllgatlons hereunder does not confit, with, violate, or result In a breachIII of any law or governmental regulation applicable to Cantacap Id) any term or cond'¢ion of any judgment, order, or decree of any court, administrative agency or other governmental autho l y; or, pip any Agreement or instrument to which Contractor is a party or by which Contractor or any of its pmpemes or assets are bound, or constitute a default thereunder. City M Fresno Roll OR Agreement Pam 4/8/11 o. NoutkRbn. To the best of Contractors knowledge after reasonable Investigation, therein no action, pull. concerning or Investigation, at law or in eouity, before or by any court or governmental autharhy, commission, board, agency or Instrumentality decided, pending or threatened against Contractor wherein an unfavorable decision, ruling or finding, In any single case or in the aggregate, would: 1. Materially adversely affect the Performance W Contractor of its obAgations hereunder 2 Adven'eN affect the validity or enfo¢eabXlry, of this Agreement, or 3. Have a materml adverse effect on the financial condition of Contractor, An any wrery or entity guarantemsComraRor's performance under this Agreement. E. No Adverse Judicial aerialists. To the best A Contimi knowledge after reasonable investigation, there is no judicial de[6itn that would prohibit this Agreement or subject this Agreement to legal challenge. F. No legal Prohibition. To the best of Corral knowledge after reasonable investigation, there Is no Applicable law in effort an the date contractor signed this Agreement that would prohibit the Courtrai performance of its obligations under this Agreement and the transactions contemplated hereby, G. CMM"a(s Stahmema. The Cantacti Appli heron and any other supplementary information submitted to the Cry, which the Cry has relied on In entering this Agreement, do not til contain any amore statement of a material fact, or lip omit to state a material faateat a nernessurry in order to make the #atements made, in light of the [ircumaances In which they were made, not misleading. H. Ol ft s Imemgtlion. Contactor has made an independent Investigator lvtisfactory to ff of the mMhiom and circumstances surrounding the Agreement and the work he be performed hereunder. Contactor has considered such matters in entering this Agreement TO provide services in exchange for the compensation provided for under On terms of this Agreement. I. Ability to Perform. ContrMor possesses the business, professional, and technical expertise to Collett, Transport, Recycle, Process, and D¢pox mentioned Materials generated In the City. Contractor possesses the equipment, facillrylied, and employee resources reported to perform Its Obligations under this Agreement ARTICLE 3 TERM OF AGREEMENT 3.1 EFFECTIVE DATE Contractor may provide the ROTI Off Container CnllMion, Transportation, Rerydln& Promkin& Compostin& and Disposal services authorized bythls Agreement mmmennng on the Effective Date. Clry of Fresno Roll -O f Agreement Page 9 4/g/11 3.3 CONDITIONS TO EFFECTIVENESS OF AGREEMENT The obligation of City to permit this Agreement to become of ective and to perform 16 undeRaNngs provided for in this Agreement is sub(ect the the satisfaction of all the conditions below, each of which may be waived, In written form, in whole or In part by City. 0. Accurary, of RepresenUtlany. The representations and waran0es made In Apple 2 of this Agreement are true and correct or and as of the Effective Date. B. Absence of fltlgartoo. There is to litigation pending on the Elective Date in any court challenging the award or execution of this 4reement or seeking to restrict or enjoin its performance C. FurmsWngs of Insurance. Contractor has famished evidence of the insurance required by Article letter c satisfactory to the Cty. D. FHMWenm of Chy Cnundl Attlon. The City Council much approving this Agreement stall have become eff cAlve and all Parties shall have signed the Agreement W rsuant to Applicable Uw prior to or an the Effective Date, provided that no restraining order of arty kind has been sued. 3.3 INITIAL TERM The Inhial Term of this Agreement stall complained on the Effective Date and continue In full force for five (5) years, until lune 30, 2016, The Term may be extended pursuant to Settiort 3.0 or terminated early In accordance with Section 11.2. 3.6 OPTION TO EXTEND Samprtt to Cty Council approval, the City shall have the option to Wend this Agreement for an additional term of note five (5) years. If the City extends the Agreement, it shall give written notice W Contractor at least one hundred rights (180) calendar days Pmr to forefather of the ramal Term. me Cy's written notice shall specify the number of years by which it elecis to extend the Term of this Agreement and the revised expiration date of the Agreement. Any such extension shall not become effective unless Contractor agrees to the extension, In writing, at If one hundred fifty (150) calendar days prbrta expiration of the initial Term. Gry of Fresno Roll WAgreement Page 10 all ARTICLE 4 SCOPE OF AGREEMENT 4.1 SCOPE OF AGREEMENT This non exclusive franchise, granted to Contractor, auth0@es Contactor to Colli Transport, Recyl Process, Compost, and Dispose of Permitted Materials placed by Residential or Commit Generators In Roll -Off Containers for Collection, provided that the Customer has voluntarily arranged for Contractor to provide Collection services, The Contractor shall be responsible for the following services: A, Collecting Permitted Materials placed by each Customer in a Rail Of Container for Collection as requested Customer. B. Providing each Customer, upon delivery of Roll OR Congamer, a ponied list that spetlfes the materials that cannot be placed In the Roll Off Container (i.e., Raiardous Wastes) antl a list of acceptable Recyclable Mail Organic MdCeriats, and C&O that may be placetl In the Rail Off Container. C. TanspoRing Collected olid Waste to the Designated Disposal See and transpecong other materials to an Appmved Processing Site. D. Wmishing all labor, supervision, wall RollCryContaineq other equipment, materials. supplies, and all Other Items and servlas necessary to perform its obligations under this Agreement.. E Paying all expenses related to provision of servicrs. required by this Agreement including, but not limited to, Franchise Fees, taxes, regulatory fees, ConeRIOn costs, Transportation costs, Processing costs, Disposal costs, utllitles etc. F, Poetry all services required by this Agreement in a thorough and pmfessional manner m that residents, businesses, and the City are provided Hotels, reliable, courteous and highbuallry grace at all times. G. Performing all seNices in substantial accordance with this Agreement at all times using beg industry practice for comparable operators. N, Complying with Applicable taw. I. Performing or embracing all other services necessary to fulfill its obligations under this Agreement. J. Diverting a minimum of 50% of the C&D CallMed from Disposal. The Diversion ate shall be calculated each month based upon the weights M C&O Collerted and Divorced. City Of Fresno Roll Off Agreement Page 11 4/8/11 C Livening a minimum of 70% of She Rocisdable.Materals UlleRed from Disposal. The Owes on ate shall b rcalculated each month based upon the weights of Recyclable Materuls Collected and Diverted. L. averting a minimum Of WS of the Organic Materials Collected from Disposal. The Diversion rate Shall the calculated each month based upon the weights of Organic Materials Collected and Disputed. The enumeration and specification of panlcular aspects of worst, labor, or equipment requirements shall not relieve Contractor of the duty of accomplishing all Mfaspects necessary W fulfill its obligations under this Agreement whether such requirements are enumerated elsewhere In the Agreement or not. 4.2 LIMITATIONS TO SCOPE The scope of the Agreement shall be non-ectlmive. Permltteb Materals may be Collected and Transported by other Persons Provided that such Pecans do so in accordance with the ary's. Municipal Castle, Including but cot limited to thefollowing: A. Permlltted Mrtedab collected by IXM1er Non-lisdal eFranchise Handers. Permitted Materials Colleted by a party that has executed a Non Exclusive Franchise Agreement with the City for Roll Off Container Offection Xrvici B. Per M" Materials collected by Clty. Permitted Materials collected by the City's municipal rolleaion operation including: III materials Collected using equipment, such as Grts and Bins, not regulated by this Agreement I2f materials Collected from City facilities, and special events and venues sponsored by the City, which may be Collected in Ort; Blass, or Roll Off Chiminers by the City's municipal collection operation or City crews, C. Donated Rerytlable MaWd la Rerydable Materials Generated In the City that are Source Separated and donated by the Generator to youth, unit, charitable, or other nonprofit orgaoiaaticam D. MNerlals Hauled by Amer or Occupant, or its UmrMm. Permitted! Materials that are removed from any Premises and are Transported to d Diwasal Site or Processing She by ld the Owner or Occupint of such Premises, (h) by full-time employee of Owner or Occupant that uses the Owner's or Occupants equipment to transport Materials; or Irp W a construction or demolition contactor performing construction or demolition work at the Premises, whose removal of the Permitted Materials is irCidental to Ne service being performed (as defined In Section 6 2oS(ff(III) of the CWs Municipal Cadel and such contactor removes Materials at m additional or separate fee using contractor's employees and contractors equipment. E. Green Waste MAe. Private collection of Green Waite. Material reaching from landecoplog or gaNemng service performed by the person colleting such materials. City of Fresno Roll ON Agreement Page II a/g/1I F. Other Recyclable Material. Private cnbecion by any person Or company that trsnsports Recyclable Materials through use of Its own ve i lsl, and receives no compensation for such Collection orTrampommiom. G. Material from Public schools and M1 Gw mment Facllhles. The removal of any materials generated by Public s hmis, cHies, the Country, or fedeal facilities (with the exception of those fadnties sublet[ to @ U.i Stolon s9611ap. 4.3 CITY'S RIGHT TO GRANT MULTIPLE NON-EXCLUSNE AGREEMENTS The Clay may grant to an unlimited number of additional Person similar nonexclusive fanchise agreements for Roll Comamer Coueclon, Transformation, Reryclmg Pmcessmg, Composing, and OISPoyl of Permitted Mail dA CITY'S RIGHT TO EXCLUDE NEWLY ANNEXED TERRITORY FROM SCOPE OF FRANCHISE The CRY reserves the right to eAcude territory that Is annexed Iran the corporate omits of the racy sueseuuemto the Effective Daafrom the scope orchis franchise. 4.5 AGREEMENT CONSISTENT WITH APPLICABLE LAW The Agreement and scope of anis franchise shall be interpreted to be consistent with Applicable Law, now and during the Term. If future judicial interpretations of current law or new law; regulations, or judicial lnterprnations limit the ability of the CM to lawfully provide for the scope of services as Specifically sat forth herein. Contractor agrees that the snipe of the Agreement will be limned to those several and materials watch may be IawfWly provided and that the Illy shall not be responsible for any cast profits or losses claimed by Contractor to. arise cut of limitations of the scope of the Agreement cat forth herein. In such an event, It shall be the rapansibiliry of Contactor to minimize the financial impact of such future ludlcial interpretations or new laws. 0.6 OWNERSHIP OF MATERIALS Once Permitted Material are placed in a Roll -Off Container for Coleman by Computer, ownership and the right W dossesssion of such materials shall transfer directly from the Customer to Contractor. On a short-term basis not to exceed more than him (6l calendar do" per year, Cary may obtain ownership or Possession of Permitted Materials placed In the for OR Container for Cpllecdon, for purposes of waste cheactenzation studies, upon written more to CompRpr of Its intent to al so. However, nothing In this Agreement shall be constrved as giving nse to any inference that Clry has. such ownership or Possession unless such written notice has been given to Contractor. Ory of Fresno Roll Off Agreement Page 13 a/a/u 4.7 NOTIFICATION TO CITY OF NON -FRANCHISED MAULERS If Contactor can Produce evidence that other Pecans are Collet ing Permitted Materials and to not have rights to do w as granted W non-exclusive franchise agreement with the City or otherwise, or in a manner that Is not consistent with the Others Municipal Code, Contractor shall notify the City in will within ten (10) calendar days or Contaaorwitnessing such circumstances. The Contactors notice shall Include the name and telephone number of the Person or company Collecting Permitted Materials IM known), the date Ne Contractor witnessed the event, the location of the Roll -0 Container along with Contactors evidence of the violation of the rights granted by this rmocrcluslve fanchlse. ARTICLE 5 COLLECTION, PROCESSING, AND DISPOSAL SERVICES 5.1 COLLECTION Contractor is hereby authorized to Collect Permitted Materials from residents and businesses in the City using RollOffContainers Contractor shall Collett Permitted Materials then Customers that wlumpdmy subscribe to or request Roll Oft Container Collection whites from Contactor. Contractor shall provide its Customers with a RoIbOHContamer for Permhtl d MatenaleCollection Or shall allow Its Customers to Provide a ROIbINf Container. ContraROr shall ColleR Permitted Materials from Premises as frequently s Scheduled by COntractoror as mutually agreed with Customer, but not less than chow a week for SOIN Waste and Organic Materials. Contactor shall Provide requested serve to its Customers and shall charge Customers for service at Rates muNallyagreed by Ci elomerand Contactor. Contactor shall Transpoa Solid Waste Collected pursuant to this Agreement to the Designated Disposal Site and other materials to an Approved Processing Ate that has been selected by the Contractor and approved by the Cry. The Approved Processing Srte(s) must be able to demonstrate Olversian ales In aaommi with Sco ions4.l and 5.3. Contractor may enter Into cnntraRwim CufWmemf rWleaion cargoes Provided that In no ase shall the term of such contaAs extend brynM the Term Of this Agreement, and Provided Matin the event the City terminates this Agreement the contacts with any and an Customers shall terminate an the termination date Of this Agreement. 5.4 PROCESSING AND MARKETING SERVICES A. Processing. Contractor agrees W Transport and deliver (1) all MD it Collects in fire City to the Approved C&D Processing 5w, hi) all RerycNble Materials It Colleen in the Gry to the Approved Recyclable Processing She, and if) all Organic Meta is it Collects In the Ony to the Approved Organics Processing See. Residue from the MD. Recyclable Material, and Organize Processing and COmposmi activities shall be Disposed Of W Contractor or its Approved Processor at an Approved Disposal Site selected by Contrattoh in accordance with Section 5.4. Contractor selected the Approved Processing Sitels) and Approved Disposal Shelf), which are Identified in C1ry of Fresno Roll Off Agreement Page 14 gi Exhibit D. Contractor shall permit or arrange for the City to inspect the Approved Processing Suets) and imserveoperations at anytime duringthe Term. Contractor or Is Approved Processogsl shall possess all permits and approvals necMsary for use of the Approved Processing Sickest In full regulatory compliance. CarrtraRor shall, upon Chy request, provide or request from Its Approved Processorls) and provide copies of notices of violation or permits to the City. Upon request of the Chy, Contractor shall provided ceMfled statement from its Approved Processi documenting its Diversion rate. If Contactor elects t0. use a Processing Sitelsl that k dlMerent than the Approval Processing Shelsl spetl0ed in ExM1IbR 0, it shall request wntten approval from the City Very (60) calendar days prior to use of the site and obtain the Gty's written aoWoval no later than ten Clog calendar days prior to use of the sTs If Contractor Is unable to use an Approved Processing Site due t0 an emergency or sudden unforeseen closure of the Approved Processing Site, Contactor may use an alternative Prot essling Site provided that lig the Contractor Provides verbal and written notice to the City within twenty-four 1348 hours of use of an alternative Processing Site, and Iii) the alternative Processing Site Is fully Permitted and in mmpliancewllh all Applicable laws. The wNRen notice shall include a desrlptlon of the reasons the Approved Processing site is not feasible and the period of time Contractor proposes to use the alternative Processing Site. Contractor shall use the alternative Processing Site for no more than twenty-four (24) hours without obtaining City's wntten approval. B. Marketing. The Contractor or Its Approved Processor shall be responsible for marketing CAD, Rura blP Materials, and Organic Materials Collected In the City and Oiverted Contractor and/or Its Approvetl Processor may retain all revenues generated from the sale of Permitted Materials that are Diverted. Upon request, Contractor or its Approved Processor shall provide proof 11n the form of sales rearelpts showing chill to the City that all CllRecyclable Materials, and Organic Materials Diverted are marketed for Recycling or move in such a manner that materials shall he o0sidered as Diverted In accordance with the State regulations established by the Pct. All residual material from the Processing activities that is not marketed for use shall be accounted for as 0hposal Tonnage at a permitted Oliposal Site, No Permitted Material shall be transported to a domestic or loosely oration R sold waste Disposal or such material is its Intended use. Contractor or its Approved Processor shall provide the City, upon written request, with a Ist of broker/buyers It uses to market C&D, Recyclable Materials, and Organic Materials Diverted. Ory may audit brokers or buyers to confirm that materials are being Recycled and Oivenetl from Disposal. R Contractor becomes aware that a broker or buyer has Illegally handled or Disposed of material generated blithe City or elsewhere, Contractor shall Immediately inform the City and temmnate its contractor working relationship with such panylmme liately. C Processing and Morketing Costs. Contractor shall Pay all costs assrciatad with Processing and marketing of Permitted Materials iixoding payment of any gate fees charged at the Approved Processing9tes. City of Fresno .Roll -0NAgreem of Page ss 4/8/11 5.3 UVERSION REQUIREMENT Centra or shall Divert from landfill disposal at least (I) SIDS b/ weight of all C&O it Collec4 within the City, (11) 70% by weight of all Recyclable Materials It Collects within the Clly, and Ilii) 9(P% by weight of all Organic Materials h Collects within the City during each calendar month by processing, Recycling, or Composting some or all of the C&D, Recyclable Materials, and Organic Materials Collators, If Contractor fails to meet the Diversion requirements shred In the preceding Paragraph during a. calendar month, Ne av they terminate the Agreement in accordance with Section 115. 5A DISPOSAL A. Disposal of Solid Waste CNIMed. Contractor shall Transport all bRtl Wage Collected In the City to the Designated Disposal Site, witch the OW specifies Shall be the American Avenue landfill in Tamil California. Contactor shall per all costs associated with Transcending and Disposal Of Solid Waste including payment of any Site fees charged at the Designated Dbpossl Site. B. Disposal of Processing Residue. Contactor small, Or shall require its Approved Processor to, Dispose Of residue from Processing of CAD, Rerytlable Materials, and Organic Materials Collected within the Clry, that are not Diverted through Processing activlfes, by Transporting the residue t0 an Approved Deposal site specified In O hlbn D, which N lawfully aulhwi to accept such material C Percolated! Site. Contractor or Its Approved Processor shall only Dispose Of materials at a permitted Disposal SM that is in full regulatory compliance. Contractor, or its Approved Processor, .shall keep or confirm all existing permits and approvals necessary for use of the Disposal Sfte(s) In full regulators Compliance. Contactor shall, upon request, provide copies of indoor of violation or permits to the Cri D. Compliance with Regulations. Contractor shall observeand comply with all regulations in ended at the Designated Deposal Site and Approved Disposal She(s) and cooperate with me operator thereof with respect to battery Of Solid Waste, including directions to unload Collection vehicles. In designated areas, recommittal operations and maitnenance activities, and complying with Hazardous Waste reclusion programs. E. Dispssal at Approved Ste. Contractor, or its Approved Pmcesson shall not Dispose of such residue by derescal it on any public Or orivate land, in any river, stream, or Omer waterway, Or td any sanitary sewer or storm drainage system or in any Other manner which violates Applinbte Laws, CMachan or its Approved PrOcesson Selected the Approved Drawl Sited for risiladve Disposal specified in &host D. Contractor shall arrange for the City to inspect the Approved Disposal Sites) and observe operations at any time during the Term. F, Atemetive Disposal Site. If Contractor, Or its Approved Processor, all to use a Disposal Ates) that Is different than the Appeared Disposal Mail) listed in Exhibit D, I shall request written approval from the City IA calendar days prior to use of the site and Obtain the City's wrtenapproval no laterthan 10 calendar days priorm serol the site. City of Fresno ROR-0H Agreement Page 16 4/8/11 If Cont2 or, Or 2s Approved Processor, is unable to use the Approved Disposal Site due fa an emergency or sudden unforeseen closure of the Approved Disposal Site, Contsattog or Is Approved processor, may use an alternative Disposal Site provided that (i) the Cuntractor Provides verbal and written notice to the Cry within twenty-four (14) hours of use of an alternative Disposal She, and fill the alternative Processing Site Is fulIV permitted and in compliance with all Applicable laws. The wnryen notice shall include a desdption of the masons the Approved Disposal Site Is not feasible and the period of time Contractor, or Is Approved Processor, proposes to use the alternative Disposal Site. Contrettor shall use the akemative Disposal Site for no more than twenty-four (]4) hours without obtaining Gres written approval. 5.5 BILLING Contactor shall bill all Cuffomers and collect billings in accordance wflh ConOattor maabllsbed gates, which are set an a manner Consistent wall provisions Of Section 91 The Contractor shall prepare, mall, and collect bills for shall Issue written receipts for cash payments) for Collection services provided of Contractor, contractor shall be responsible far collection of payment from Customers with past due accounts. Contractor shall maintain copies of all billings and receipts, each in chtonoblin al order, for five (5) years after expiration or erminatibn of this Agreement Contractor shall retrieve and make available to the Gry copies of the billings and receipts within free (5) days M the Directors written request for the billings and receipts, The Contractor may, at iU opf maintain tlwx retards in computer form, on microfiche, or In any other manner, provided that the records can be preserved and retrieved for inspection end verification in a closely manner. 5.6 CUSTOMERSERIFICE Contactor shall maintain a business office within the [by or within a reasonable-0Istance of the Ore limits approved by the Director. The business office shall gaff at least on representatve capable of accepting payments from Customers, m eNg seresceuquegime, and ving Customer service Issues. Contractor shall have a toll-free Customer service telephone number and shall have staff available to answer calls from at least 8'. GO a.m. to 610 pm„ Monday through Friday. An answering machine shall record Cugomercalls and voice messages between 6:0 p in. and 800 a.m. ARTICLE 6 STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT, AND PERSONNEL 6.1 OPERATING DAYS, HOURS, AND SCHEDULES A. Days and Home a calection City of Forams Roll DH Agreement Page ll 4/8/11 2. Rb dembl Premiser. Delivery or Collection M a Roll Of Container to or from Resmentlal Premises shall only occom between the boom of 6100 a.m. and 6:00 P.m., any day of the week. 2. Comma alPrt s. Delivery or Collection of a Roll-0ff Container to or from Commercial Prem6es that am 200 feet or less from Residential Premises shall only occur between IM1e hours of 600 a.m. and 6: W p.m., any day of the week. Delivery or Collection of a Roll Off Container to or from Commercial Premises that are more than 200 feet from Residential Premises shall only occur between the hours of 5'.89 a.rn, and 7:00 p.m any day of the week. The Director may real math icadons to hours for delivery and Collection from Commercial Premises to resolve noise mmplaines and, M such ase, the DireMr may [tinge the allowable operating hours. 3. E¢elrtionz In the event of an unforeseen circumstance, the COMraRor may call or Collect a Rolloff Container from Rel or Commercial Poll that are 200 feet or ass from Residential Premises between the hours of 5 M a.m. and 10:00 p.m., open prior written approval from the Chatter. 0. Failure to Comply, If the Contractor falls to comply with the Caluciom hours described In this Section, the Contractor shall pay the Cly liquidated Damages as described In Section IlAand Exhibit A. 6.2 COLLECTON STANDARDS 62.1 Instruatiomtocu mer Contractor shall insimn Customers as to any preparation of Permitted Materials necessary prior to placing in the Rolbpff Contalner. Contractor shall, N written form, Inform all Customers as to the acceptable materials that can be Included In the ROIILRComalner and any maaelatable radicaalstp be excluded from Collection. 6.2.2 Um of Private Property Contractor shall not damage private container. Contractor shall ensure that its employees: til close all gates opened in making Collections, unless Otherwise directed by the Customer, llf do nM crass landscaped areas, and (ihl do not climb or jump over hedges and fences. Gly shall refer complaints about damage to France property to Control Contractor shall repair all damage to private and public property caused by Its employees to IIs previous combat 6.23 [Men Abatement A. Mlnimiartlon of Spills.Contractor shall use due ore to amoral oil and vehicle fuel form being spilled or scattered during Collection and T ansporta can operations. If any permitted Mrterlals are spilled or Bartered during Collection ortransportation operatbm, the Contractor shall prompLN clean upau spored and scmerea maceNls. CRY of Fresno Roll -Cff ggreament Page 18 4/8/11 Contractor shall not transfer leads from one vehkle to another on any public street, unless It is necessary to do so because of mechanical failure, hid load(combustion of material In the truck), artldental damage to a vehicle, or unless approved by the Ciry. If Contractor fans to performe or au of the requirements describm ed this section, the Contra torshall pay the Cry Uquldated Damages as described in StMmn 11.4 and Exhibit A, B. naan.up. Each Collection vehicle shall Carry protective gloves, a model and shovel at all times for cleaning up litter and absorbent material for cleaning up liquid spills. The Contractor shalt discuss lent nces of repeated spillage not caused by It with the Customerof the Premises wrier¢ spillage occurs, and Contractor shall report such instances to City. If the Connector has attempted to have a Customer stop creating spillage but Is unsuccessful, the City will memps, upon notice bythe Comrattoq to rectify such situation with the Customer. C Covering of Loads. Contractor shall corer all Boll -Off Containers at the pickup location before Transporting materials to prevent Petmltted Materials from esaping during Transportation. 5.2.4 Noise All Colletion operations shall be concluded as quietly as possible and shall conform to Appllnble Law. Contractor will promptly rereve any Complaints of noise during the morning or evening hours of the day to the satkfadion of the Ciry. In the event of repeat arurremes of noise levels in excess of 75 db(A), the Contractor shall pay liquidated Damages in accordance with senior 11.4 and Uncoil A. 6.1 VEHICLE REQUIREMENTS A. General. Vehicles used to provide services under this Agreement shall be kept m a safe, neat, clean, and operable condition at all [Imes. If Contractor fails to keep Collection vehicles in a safe and sanitary condition, the Contractor shall pay the Cry Liquidated Damages as described in Settido 11.4 and Exhibit A. B. Specifications. Contractor shall reacher all nor des wlth the Com is Department of Motor Vehicles. All such vehicles shall comply with California Emlmnmental afternoon Agency TEPA) nose tmerlon and alrpuallry calculations and either appllable noise control regulations. C. Vehicle ldentMcmon. Contractor's name, Ideal telephone number, and a unique identification umber for each vemcle used to provide services under this Agreement, shall be prominently displayed on an vehicles. In lettere and numbers that are a minimum of 4 inches blah. Contractor shall not place the (AAs lop on itsvebiees. D. Cleaning and Maintenance 1. Cleaning. Collection vehicles shall be thoroughly washed and thoroughly steam cleaned as frequently as necessary to present a clean appearancedf the exterior and interior compartment of the vehicle. x. Maintenance. Com2ttm shall Inspect each vehicle daily to ensure that all equipment is operating properly. Vehicles that are not operating properly shall be taken out of semce until they are repaired and operating properly. Contactor shall oerfamn all scheduled maintenance CM of Remo Rall -0H Agreement Page 19 4/8/11 functions In actbndance with the manufacturer's specifications and schedule Or in accordance wird California Highway Patrol standards, whichever are more stringent Contactor shall keep accurate records of all vehicle maintenance, recorded according to date and mileage, and shall make such records available to the City upon request to the extent necessary t0 perform the inspection desnlbetl In Senge 6.3.F and 6.g. 3. Repairs. Contractor shall repair, or arrange for the repair of, all 0f its vehiclesand equipment far wMCM1 repairs are needed because of aaided, breakdown, or any other cause, so as t0 maintain all equipment In a safe and operable condition. Contactor shall maintain acuate cords Of repair, which shall Include the date/mileage, nature of repair and the signature of a maimenaore upervlsor that tperepair has been property performed. 4. Storage. Contractor shall change to stare all vehicles and other equipment in safe and secure Iaca0on(s) in acmrtlarace with City's applicable zoning regulations. E. Operation. Vehicles shall be operated in comp0ance with the California Vehicle Cal and all applicable iNery and local ordinances. Contractor shall not load vehicles In excess of the manufacturer's recommendations or limitationsImposed by State or local weight restrictions for chicles and much Contactor shall have each Collection vehicle weighed at each Approved Processing Sites or Designated olsposai Site t0 dehrmme the unloaded weight (^tare weight-) of the vehicle, and the total IoadM weight of each load dellvered to the Approved PMceil Sites and Designated Dlsideasal She. F. Vehicle lnsfaeatlon. Cry may inspect vehicle' at any time to determine compllanw with the requirements of this Agreement. Contractor shell make vehicles available to the Cary am/or Fresno County Health Department or inspection, at any frequency Cry reasonably repuests. gA ROLLaOFF CONTAINER REQUIREMENTS A. Gererol. All Roll -Off Containers shall meet applkable Federal, State, City and local regulatpns forsafety. B. swift dans 1. Prevent leakage. If the type of materials placed In the container may result in leakage of liquids, Contractor shall take precautions t0 prevent the leakageof liquids. In accordance with Section MIS of Chapter 3 M TWO 14 Of the California Code of Regulations, Roll -Off Containers used to Culture garbage and putrescible materials and/or garbage and puter ibles mixed with rubbish shall be non-absorbent, water -tight, Vector-resrstant durable, easily cleanable, and shall be designed for safe handnngand thecoresinmentof refuse. 1. Pre lvlon 0 Sufllrivd Opacity. In accordance with Stolon 17M DI Chapter 3 of Title 14 of the California Cade Of Regulations, Containers he garbage and rubbish should be Of an adequate size and in sumnent numbers to rontmn without os2mowlng all the refuse that household or other establishment generates within the designated removal Period. 3. Has Of mMamers with Lqs than Tan (10) cubic rands 01 Capadi Ron -OP Containers with ci padhes Of less than ten 1101 mblc yards may only be used forme purposes of Collecting CSX, Cry of Fremo Ran OD Agreement page 20 4/apl C. RolllContainer ldereiYRatlon.AllContractor provided I'll Containers shall prominently display the Contractors name. local telephone number, a unique Roll Off Container Identification number, and alist of acceptable maters ls. As appropriate, RollOffContalners shall be labeled fin[ Wild Whom, Recyclable Materials, Organic Materials, oi-C&o, Suchlabeling May he abeling in the form ofmagn clic or detachable signs. If Contractor fails to country with the provisions of this Section 6A, the Contrxtor shall pay tine City Liquidated Damages as described In Action 11.4 and Exhibit A. On Clyning, PaiMlrg, and Maintenance. All Roil INf Containers shall be maintained in a wfe, serviceable, and functional condition,, Contractor shall steam clean and repaint all Ford OR Containers at least every two years, or nm2 frequently, to present a clean, Rol free appearance. E. R ft -O f Cattainer Impectlau. City may Inspect RoIFOfI Containers at any time to determine compliance with submarine requirements, Contractor shall make Containers available to the City at any frequency R records. The City shall have the right to prohibit the use of any Roll -0 Container that fails to comply with the provisions In this Section 6.0. F. Abandoned Roll -0R Comelrrers. Contractor shall not Abandon any Reel Container used to provide Permitted Materials Collection services under this Agreement. If the Contractor Abandons a Contractor owned ROIFOff Committer. City may remove the Roll OR CabGmer and Process and oispow of the contents. R the City removes a ROTI Off Container Abandoned by Contractor, the Ciry may charge Contractor for the Citys costs incurred removing such Roo -0H Container, Transporting, Processing, and Disposing M its contend, and/or the cost of smdng such Rol -Of Container. Contractor shall reimburdethe City for such costs within fourteen tial calendar days of the date of the City invoice to the Contractor for such wits. If the Contractor does not pay the invoice amount within fourteen Ila) days, the City shad become the Roll OR Container owner if the Invoice stated the Cmys intent to become the Container owner in lettering of at least 12 point font. For the purposes of this Section 66.5, "Abandon" means she fallowing'. I. Contractors failure to remove a Contractorawned RollORContainer within five (5) calendar days of revinving a written request from a Customer or the Ory or within five )5) calendar days after the termination of the customer provide agreement between Contractor and the Customer, or a Cpntratturs faWre to remove a Contratturawned ill Container within ten (1D) calendar days upon expiration or termination of this Agree ampt In the Mase where Contractor has been granted an nommon of the Term of the Agreement or Contractor has been granted a subsequent agreement autlptlalng Contactor to Collet and trammort the type or types of materials for which the RollOffContainer was used pursuant to this Agreement. CIry of Fresno Rall -OR Agreement page 21 6/8/11 6.5 PERSONNEL A. General. Contractor shall humin such quallied drivers, maintenance, supervisors, customer services clerical and Other personnel as may be necessary to provide the services required by this Agreement in a safe and efficient manner. 0. Other D,uall arldons. All drivers shall he trained and qualified in the operation of Collection vehicles, and must have in effect a Wild license, of the appropriate class, issued bythe California Department of Motor VehNes. Contractor shall use the Cass B California Department of Motor Vehicles employer 'Pull Notice Program'to monitor Its; drivers for salary. C Salary Training. Contactor shall provide suitable operational and safety framing for all of its employeeswM operate Collection vehicles or equipment or who are otherwise directly involved in such Collection, Disposal, or Processing. Contractor shall rain its employees involved in Collection to Identify, and cwt to ruling, Hazardous Waste or mfeRlpus Waste. upon the City's request, Contactor shall provide a copy of its salary 111, and agery training pmgam; the name of its safety officer and the frequency of us minings. D. Employee Conduct and Courtrai Contractor shall use its best PHorts to ensure that all employees present a neat appearance and conduct themselves in a courteous m Contractor shall regularly tram its employees in Customer courtesy, shall prohibit the use of loud or profane language, and shall instruct Collectlon employees to perform the work as quietly as possible. If any employee is found not to be courteous or trot to be performing services in Lire manner required by this Agreement, Contractor shall take all appropriate concessive measures and shall pay Me City Liquidated Damages as described in seslon 11.0 and Fshibit A. E Empki Identification. While performing services under this Pgreement, all of the Contractor's employees performing field service shall be dressed In clean clothes and shall wear badges that include the employee's name and/or employee number, and Contractors name, as approved by the Chy 6.6 HAZARDOOS WASTE INSPECTION AND HANDLINO 0. Resporrse to Hazardous Waste 1deM1flM during Distinction. If Contactor resentment that material placed In any Rol -Off Container for Collection Is a Hazardous Waste that may not legally be Disposed of at a typicaal Site or handled at the Processing Site, or presents a hazard to Contractors employees; the Contractor shall refuse to accept such material. The Connector shall contact the Customer and real the Customer to arrange proper Disposal, If the Generator cannon be reached Immediately, the Contactor shall, before leaving the Premises, leave a rag at IeaL two Inches by s4 lies f2" g 6"1 In size, which indicates the reason for refusing to Collect the material and AM a phone number for obtaining Information on proper disposal of the Hazardous Waste. Under ro circumstances shall Contractors employees knowingly Collect Hazardous Waste. If Hazardous Waste is found In a ROII-0ff Conatser that could possibly result In Imminent danger to people or property, the Council shall immediately n ify the Cigh Fire Department using the 911 emergenry number. CIry of Fresno Roll -Cif Agreement Page 22 6/8/11 The Contractor shall craft, the Cap, of any Hazardous Waste identified in Roll Off Containers or left at any Premises within 14 hours of idenafcation of such material. B. Response W Hazardous Wastes IdentNled AT Oispoked Site or Processing Safe. The Crnbaaor, or its Approved Processor, or Disposal Site operator shall provide lead checkers and equipment operators A the Processing or Disposal Stroh) to identify hazardous Wastes for storage in approved, on-site, hazardous materials storage containers). Contractor shall make reasonable efforts to Identify and notify the Customer. Cantrattor shall arrange for removal of the Hazardous Wastes by permitted haulers In accordance with Applicable Laws and regulatory requirements, If the Nropica s Wastes delivered to a Disposal Site or Processing Site by Cont2ttor before 16 presence Is detected, and the Generator cannot be identified or fails to remove the material after being requested to do so, the Contractor shall arrange for its proper DisNsal. The Contractor may make a good faith effort tD recover the cost of Disposal from the Generator, and the cast of this all as well as the cl of Disposal shall be cWgeable to the Generator. C. gegulations and Record Keeping, Contractor shall comply wit emergency noMuation Procedures required by Applicable laws and regulatory requirements. All records required by regulations shall be maintained at the Wildattah facility. These records shall include. waste manifests, waste inventories, waste charattensatirn records, Inspeart records, Incident reports and training records. 6.7 NON-DISCRIMINATION Contractor shall not discriminate in the provisian of service or the employment of Persons Implied in performance of this Agreement on account of race, color, natural origin, ancestry, religion, gentler, mental status, sexual orientation, age, physical or mental dlsatitlty in violation of any Applicable Law. 6.g COMMUNICATION AND COOPERATION WITH CITY A. Crmmunications. If requested, the Contractor shall meet with the City or its agent to discuss service Issues, D. Institution by Cary. The City, or Its designated represendthres, shall have the right to observe and mlew contractor operations, Processing Sites and Disposal Sites used by Contractor, and enter Contractors Premises for the puryoses of such observation and review during reasonable hours without advance notice. C Cooperme with Chy{nflated Studies. Contractor shall cooperate with and assist the City of its agent with the performance of (Try Initiated studies of Permitted Materials such as, but not Ilmlitai waste clutreacerimosan and compovidon studies. Cry of Fresno SoIIDHggreement Page ya 4/8/11 ARTICLE 7 RECORD KEEPING AND REPORTING 7.1 GENERAL 7.1.1 MaiMenanre of Records Contractor agrees to conduct data collection, information and record keeping and reaching activities needed to comply with and to meet the reporting and Permitted Materials program management needs Of Chy, the Act and other Applicable laws, and the requirements M this Agreement. This Phil I5 intended to highlight the general n fry of records and reports to be maintained Contactor, and their minimum content This Arlilis not meant to comprehensively define what the records and reports are to ber and their content, Win the written dvaction by or approval of Cirv, the records and reports to be maintained and provided by Contractor In accordance with this and other Articles of the Agreement shall be adjusted in number, format, or frequency. Records and reporting may be reasons to reflett curnint record keeping and reporting requirements. To the extent such requirements are sea out in this and otter Articles of this Agreement, they shall not be considered limping or necessarily complete. 7.13 Retention of Records Unless otherwise required In this PhICIQ contractor shall retain all records and data required to be maintained by this Agreement for the Term of this Agreement plus five (5) years after its explratchn or eadler termination. Records and data shall be in chronological order and readily and easily interpreted. 7.1.3 Inspection of Records The CN, its auditors and other agents, shall have the right, during regular business hours, to Impact specific documents or records required by this Agreement or any other similar records or repos of the contractor than the Gry shall deem, at its sole discretion, necessary to evaluate the Canvattors perforinni provided for in this Agreement The cry may make copies of any documents it deems relevant to this Agreement. The Ciry shall provide contractor written notice at least three 13) Business Days prior to any inspection of these records, and Contractor shall retrieve antl make available to the Cif the requested documents and records at that time. The Clry reserves the right to Impact records for the purposes of vaulting Ne contractions reports, reported Diversion level, and fee payments to the Clay. If an audit conducted by the city, or 16 representatives, ends 11) that the connector has made any Intentional misrepresentation with rsscect to the fees dues to the Ciry (e g, franchise Fees orotherreal due tothe City) In an amount Smalerthan $1,O0n or loss of the fees due to the Clry during the period covered by the audit, whichever is greater, or III) that the Diversion level is 5%tlleerent than the Deal level attached by the Conlracfor, then in addition to any other remedies available to the Cry, Contral shall reimburse the Cry for the City s costs Incurred In the performance of the audit. Such reimbursement shall be paid by Contactor, along with any underpaid fees and Targeted Damages required by Section 114 and Exhibit A, within thirty (30) calendar days of the dale the Clry notifies the Contractor of the amount due, Ciry of Freshet Roll -W Agreement Page 30 4/8/11 7.1.4 Record Secuflay Comrzctpr shall maimal adequate record security to preserve records from events that can be reasonably anticipated such as fire, theft, and earthquake. Electronically maintained data and recants shall be protected and backed up. 73 RECORDS 71.1 Financial and Operational Rgcpds Contractor shall maintain accurate and complete accounting records containing the undo -tying financial and operating data relating to and showing the basis for computatlon of all revenues associated with Providing Permitted Materials Collection, Transportation, Processing, Regdln& Compacting, and Disposal services. The accounting records shall be prepared In accordance with Generally associated Accounting Principles iGAAP) consistently applied, At a minimum, the (slowing operational records shall be maintained by Contractor for City relating to: A. Customer account Information and aging records; T Tonnage of material Collected by type (e.g., Sold Wrote, Recyclable Material, Organic Material, or C&D) listed by Processing Site or Disposal Site Where such materials were delivered Where Possible, information is to be separated by Reademial and Commercial Customers. C Tonnage of Recyclable Materials, organic Material, and C&D Diverted from Disposal by Contractor and supporting documentation. 0. Oiversron level, which shall equal Tonnage Diverted by Contractor divided by the Tonnage Collected by Contractor multiplied by 100, listed sepa arof by month for the previous quarter. Tonnage Diverted shall reflect Permitted Materials Processed less residue Disposed. E Residue levels of Processed or Composted materials. F. Welgbt tickets from (I) Designated Dislpvl Sde documenting the Tonnage of Sold Waste Collected within the City and delivered to the Designated Disposal Site; (ii) Processing Sires documenting the Tonnage of Permitted Marshall Collected within the City and delivered to the Approved Proasgng Sites; and, (sig Approved Dowel Sites documenting the Tonnage of residue delivered to Approved Disposal Sites "M1lde, date, and time. G. End use and markets forreeovered materials. Contractor shall make records available to the City upon request. 733 Customer Recgds Contractor shall maintain accurate and complete records containing the number and types of acmunp served by the Contractor. The records shall Contain, at a minimum, the Customers name, type of business, phone number, address of Roll -W Container delivery and Collection location, date of delivery and Collection, hemiaed listing of services performed, type of Permitted Material Collected, Tonnage City of Fresno RollOffAgreement Page t5 A/g/11 Collened, and the anionic charged to provide Formes. The information shall he provided to the Cty Upon request. 1.23 CERs1A Dehrrse Reconds City views Its ability to defend itself against Comprehensive Environmental Response, Compensation and Liability Aa ICERCIA), and related litigation as a matter Of great importance. For this Mason, Me City regards Its ability to prove where Permitted Materials CnlII by the Contactor are taken for Processing, Recycling Composting, Transfer, or Depmal, as well as where they are rot taken, to M matters of concern. Contractor shall maintain, retain and preserve records which can establish where Permitted Materials Collected were Processed, Campasted, and Disposed (and therefore establish where they were non. This provision eah shall survive the piaon o earlier termination of this Agreement. Contractor shall maintain these records for a minimum of ten (10) years beyond. expiration or earlier termination of the Agreement. Contractor shall Provide these records to City lupon request Or at the end of the record retention period) In an organized and Indded manner rather than destroying or disposing of them. 7.3 GENERAL REPORTING REQUIREMENTS The forme of each report shall be approved by Co. Combustor may propose report formats that are responsive to the objectives. Contractor agrees to mall a coal Of all reports and submit all reports on computer dea, by email, or by modem in a farmat compatible with Citys software and computers at o addnlonal charge. Contractor will provide a cercHlcabon statement, under penalty Or perjury, by the responsible Comacmr official, that the report being submitted is true and correct to Me best knowledge of such offidal after their reasonable inquiry. Contactor shall submit monthly reports within Ahem (151 calendar days of the end of each mouth. If Comaclor does not submit the monthly reports W me rata required in this Articlq Contractor Ma0 Pay the City Liquidated Camillus as desnNed in Section 11.0 and Exhibit A, contractor shall submit (via mall and a -mail) an reports to: Sold waste Div cion Manager Cry of Fresno 1325 El Demand street Fresno, CA 93706 TA MONTHLY REPORT The monthly report shall present the following imomaation. A. TORI Tonnage, Total Permitted Materials Tonnage Collected by Contractor within the City during the previous quarter, listed separately by material type and by month. B. Diverted Tannage. Permitted Materials Tonnage Collected by Contactor within Ne 04 that was Diverted during the previous quarter, listed separately by domnal tape and by month. Ory of Fresno ROILOff Agreement Page M A/8/11 C. Dlspomd Twnge. pemryth d Matelots Tonnage Collected W Contractor within the City that was Disposed during the prealous quarter. fisted separately by month. D. Diverslw Lei Tonnage Diverted by Contractor divided by the Tonnage When ed by Contractor multiplied by 100, lined separately by month for the previous quarter. Tonnage Devoted shall reflect Permhted Materials Provio ed less residue Disposed E. CLD. Tonnage generated from construction and demolition permitted sites, noting the pxmR number, the site address, the Tannage hauled, the Data hauled, and the faculties to whichthe material was hauled. F, Disposal and Processing bnGan. Contractor shall provide a Ilst of the names and addresses of where Permitted Materials Collected within the Gry during the Previous quarter was Diverted and Disposed Such lin shall include the amount of Permitted Materials Tonnage Diverted and/or Disposed at each location during the previous quarteq listed separately by maternal type and by month. G. Revenues. Gross revenues (e.g. cash stations) earned on all Roll Off Container Callection, Transportation, Processing, Recycling. Composting, aM/or Disposal services provided to Customers within the City duringthe previous quarter, hstedseparztely by month. H. Insurance. Dpdasetl insu2ncecMi([ates. I. AttwM Information. In table forma[ the number of Customers within the City limits sewed and number of Roll Containers serviced per month listed oy Roll Off Container Type (Drop Box or Compactorl. all Container size, and listed separately by Permitted Material type, and regularly schedule service and unsheauled Chi semce. J. CaMnRoroM[ers and Bwrd Members. Provide a list of Contractor'sofBcers and members of Its bead of directors (any required with the December monthly report each year, or In the event of a change in the officers or Ward members). The City reserves the right to request additional reports from Contractor, and upon Clry's request, Contractor shall provide Information required above for the time period requested by the Can, It S Me desire of the City to track the above required Information on an OnSwng W six throughout the term of th tAgreement. 7.5 AS 932 COUNTY SURCHARGE REPORTING Contractor acknowledges that City Is party to that certain AS 939 Memorandum of Understanding with the Courcy of Fresno and various other jurisdictions dated! January 6, 2008 (the "Ag 939 MOUT, and further acknowledges having received and review W a copy of the AS 939 MOU. The Parties agree that Contractor is a "Jurisdiction's Haines', as that term is uses! In Part IV, Section H of the A0 939 MOU. Contractor shall comply with all requirements of Part IV, reaction H of the A8 939 MOU that are applicable to a Jurisdiction's Hauler. Including but net limited Or Submltlal of reports and Wymem of the AS 939 Surcharge las that term is defined in the AB 939 avi City of Fresno RollOffAgreement Trifl2 a/8/13 ARTICLE 8 FRANCHISE FEES AND OTHER FEES 8.1 GENERAL Contractor shall mlleet the fees dessrdea In this Settled from Customers through Contractors regular bikinis and remit collected amounts m Oty on a monthly basis as described in Section B.S. 8.2 FRANCHISE FEE in consideration M the exclusive rights provided Contractor herein, Contractor shall pay Franchise Fees W the City each month equal to loci of actual gross Hate revenues (e.g..cash receipts) remitted to Connector by customers for services provided by Contractor undermis Agreement. 8.3 OTHER FEES she City may set "tuneradameral fees, as it deems necessary. The amnun , time, and method of payment and adjustment process will be And in a manner similar to that for other fees described in this ARide. 8.4 ADJUSTMENT TO FEES City may call the fees established In this Article annually at any time during the Tenn of this Agreement 8.5 PAYMENT SCHEDULE AND LATE FEES On or before the seep day of each month during the Term of this Agreement, contatlor shall remit to CIN Franchise Fees and other fees as matters in this Article. If such reentrance IS not paid to the Oty an or before the 20th day of any mond, Contactor shall pay, in addition to the amount owed to Ciry, 2% of the amount owing for that month; plus an additional 2% owing on any unpaid balance for each following dirl (30) felentlar day period the fee remains unpaid Each monthly remittance to City shall be accompanied by a statement Itemising each fee able; detailing calculation of all fees; stating actual moss revenues be. cash recelpts) for the monthly period m11Metl from all operations conducted or permitted by this Agreement, and stating the number and size of Co emersserviced by Contractor for the monthly period Each remittance including all supporting documentation shall be provided to'. Attn: Ory CORroller, Finance Department City of Fresno 26M Fresno Street Fresno, CA 93721-3624 Chi of Fresnel RoILOR Agreement Pai 4/H/11 8.6 OVERPAYMENT OF FEES If Contractor believes It has paid Franchise Fees or other fees as dervnbed In this Active, In excess of the fees due to the Cil Contractor may subm¢ a request for refund M the Cinada, If proof of Amm ymem is satisfactory to the Octal the Director shall authorize the CM In refund the overpayment to the Contractor. Contractor shall not apply any overpayment as a credit against any Franchise Fee or other amounts payable to the City, unless sparifically compacted to do to by the Noyc a in wriflng. 8.7 MON41W FEES; AB 939 COUNlY SURCHARGE Pursuant to 9ettion 7.5, Contractor shall pay the County of Fresno an AS 939 surcharge as applioble In accordance with the A8939 MOU. ARTICLE 9 CONTRACTOR'S COMPENSATION AND RATES 9.1 CONTRACTOR'S COMPENSATION ContraM(s compensation for performance of all by obligations under this Agreement shall he (i) actual Rate revenues Old b Contractor (e.g. cash momIntsl by Customers that oblalned Control Collection services less fees dues to the City in accordance with Active S. and (il) revenues prepared by the sale ofConeRed materials Diverted from Diwri Contractor's compensation provided for in thus Article shall be the full, entire, and complete compensations due to Contractor pursuant to this Agreement for all labor, equipment, materials and supplies, rocessn ig Composting, andDlspeal fees, regulatory fees. Cly fees, taxes, insurance, bonds, rverhand, operations, profit and all other things necessary to perform all the services in the manner equired by this Agreement. If Contactors costs are more than Centractofs compenatiory Contractor shall not be compensated for the difference in costs and revenues. If Commences costs are less than Contaaoh compensation, Contactor Shan retain thedifference. 9.3 CITY'S RIGHT TO SET MMMUM RATES The Cry reserves the right to establish maximum Rates he Permitted Materials Winter services provided under this Agreement in the event that (a) there are three or fewer companies helping non - radusrve franchise agreements for Collection of permitted Materials, or (b) the Rates charged by the omaanies holding non-exclusive franchise agreements for Collection of permitted Materials are no longer comparable to those of otherjonsdrtions, as aawation performed by Oty. If CM choosey to rsom a its right to set maximum Rates, City shall notts Contractor at least 180 calendar days prior to the date that maximum Rates became effective. In such case. City will set maximum Rales with Only of Freano RoIIgH Agreement Page 29 4/8/11 rsirmation of reasonable and necessary costs for Collection, Processing, Composting, and Disposal and with the intention of setting maximum Rates that will enable parties, including the Contractor, that have executed Non Exclmlve Franchise Agreements with the Clip far Ro6IXf Container Collection Saari the ability to recover reasonable and necessary wstsand a reasonable pmflt. 9.0 CONTRACTOR'S RATES Contractor shall set the Rates R charges As Customers for Rall-l]H Collection services. The Commences Ratessball not exceed Clryestablished maximum Rates, if the City exeNses Its rights under fashion 9.2. ARTICLE 10 INDEMNITY AND INSURANCE 10.1 INDEMNIFICATION Contractor shall indemnify, defend with mureel acceptable to the Cty, protect and hold harmless the City and each of Its officers, offitials, employees, wlunteers, and agents (collectively, incentives) from and against all claims. damages Imclumng but not limned to special, consequential, natural remurtes and punitive damages), Injur costs, (including without nmR any and all response,mediation and removal msty, losses, demands, debts, hens, lubditles, causes of actions suits, legaOr administrative pmceedmgs, interest, fines, charges, penalties, and expenses pnnudlng without limit afforl expert witness fees and cons incurred in correction with defending against any of the foregoing or in enforcing this ind rrimm , (ccllestively,'Damages") of any kind whatsoever paid. Incurred or suffered by, or asserted against, indemnitees flying from or attributable to the acts or omissions of Contractor whetheror not negligent or otherwlse culpable, in connection with or related to the performance of this Agreement except such loss or damage which was caused by the sole negligeree of willful misconduct Of the City Contractors bury to defend and indemnity herein shall Include Damages Rasing from or parlburable to any operations, repairs, clean-up or tumoxificatlon, or other plan (regardless of whether undertaken clue to governmental action) coning any Hazardous Wrist Collated in the City. Contractor shall he required to Indemnify the City for the costs for any CWims arising from the processing, Composting, or Disposal of Permitted Materials, Including, but net failed to, Claims arising under Ne Comprehensive Environmental Response, Compensation and Oabiliry Act CERCIAI. The foregoing 15 intended to operate as an agreement to defend and Indemnify and hold harmless Indemnities to the full Went permitted for IlablRry pursuant to Section 107(e) of W RCIA, az use SMion 961 and California Health and Were Cade Section E5364. In addition, caricatures bury to defend and Indemnify herein includes an fines and/or penalties imposed by the Callfomla Department of Resources Recycling and Recovery, subject to the secretary ser farts In Pubho Resources I Section 43059.1, It the requirements Of the Act are rot met by the Contractor with respect to the Permitted Materials COIIeRed underthls Agreement, and such fallure Is due to Contractor delays in pro i ding Information that prevents Contractor or City from submitting reports required by the Actin a rarely manner. Ch y of Fresno Rall Off Agreement Page 30 Orgill mit Provision will survive the mepiratlon or earlier termination of this Agreement and shall not be convicted as a waiver of rights by Ciry to contribution or indemnify from third most, 10.2 INSURANCE 10.2.1 Minimum Stype of Insurance Coverage shall be at least as Wood as: A. Insurance Services Office Comme¢ial demand Gablllry coverage. 1. personal Injury 2. Contractual liability B. Insurance Services Office covering Autamobile Liability, code I'any auto'. A Workers Compensation insurance as required by the labor Cade of State of California and Employers Liability lrrwrance. B. Such Other Insurance coverages and limits as may be required Is"he CITY. 110.22 Minimum umns W Insurance Contractor shall maintain limits no less than: A. General liability: $1,000,000 each occurrence for badly injury and pmpeny damage; S1,000rdbur for personal and advertising injury, 52,000,000 products and corrin ed opermons aggregate, and 52,OW,000gen rral aggregate. If Commercial Genefalllabiliry imurznceorother farm with a general aggregate liablllry is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be [wire the required occurrence limit, 9. Automobneuabuiry: $11000,On0 per accident for bathe injury and proper' damage. C. Workers' Compensation: Workers wmpensatlm limits as required by the Labor Code of the State of Califomia. D. Employers Liability: 51000,000 each account for Molly injury. SUM, W 0 disease each employee. $1,000,000 disease Polity limit. E. pollution Legal babgdr, 51,000.000 per dampOcmnence and $2,000,000 aggregate for ad iry Injury, property damage, and remediation of contaminated site. 10.2.3 OeduMbl> and Self -Insured RgeMims Any deductibles or self insured retentions mug be declared to and approved W the Ciry. At the option Of the Cry, either: the Insurer shall reduce or eliminate such detluttities or self -Insured retentions as respects the Pty, its officials and employees; or the Contractor shall procure a Mind guaarso Ing payment of losses and related Investigations, claim administration and defense expenses. Cry of Fresno Roll Off Agreement page 31 4/0/11 lo.2.4 other Insurance provisions Tire policies are to contain, or be endorsed to contain, thefmlowing previsions - A. General liability and Automobile -xi Coverages 1, The Oty, its officers, O icals, employees, agents and volunteers are to be covered m additional insureds as respects. (lability arising out of activities performed by or on behalf of the Contractor', products and completed operations of the Contractor, premises owned, leased or used by the ContraMr; or automobiles owned, lei hired or borrowed by the Contractor. The coverage shall contain no swr al limitations on the scope of protection afforded to the City, its Officials, employees, or volunteers. The automobile liability is endorsed to contain MCA -90 coverage. a The Contractor's insurance coverage shall be primary insurance as respects the Ciry, Its officals, employees and vouchers. Any Insurance or set insurance maintained by the City. Its Officials, employers, or volmiders shall he excess of the Contractor's insurance and shall not contribute wRM1 it. 3. Any failure omen with restarting provolons of the policies shall not affect coverage pruviced to me City, its amnals, employees, orvmunteers. 4. Coverage shall state marches Contractor's insurance shall apply separately to earn induce! against whom eaim is made or suit h brought except with respect to the limits of the insurer's llabuity. S, Workers Compensation antl Employers Llabllby Coverage. The insurer shall agree to waive all rights of submthelon against he City, les officers, employees, and volunteers for lasses arising from work Performed by the Contractor for the CRY C. All Coverages. Each insurance policy required by this clause shall be endorsed to stale that coverage shall not be canceled except after 30 calendar days prior written III has been given o the City, 10.3.5 AcceptabllNy of Insurers The insurance policies required by this Section shall he issued try an Inurance company or compounds authoczed to do bualnces In the State of California add with a atlantic the most recent edition of best's Insurance Reports of size category Vll or larger and a raring classlfiatbn of Aor better. 10.3.6 Verification of Coverage Contractor shall fumish Contractors insurance agent copy of these speciflca ions, and direct the agent to provide the City with candidates of insurance and with original endarsemezRs affecting coverage required by this clause. Issuance of documentation indicates the Contractors insurance mmplles with these provisions. The mithcate; and endorsements for each Insurance study are to be signed by a happen authorized by that insurer to bend coverage on its mi The certificates and endorsements are to breceived and approved by the Uy before work commences. The City may require complete copies of all required insurance policies, at any time, and this requirement shall survive expiration or termination of this Agreement City of Fresno RollOFFAgreement page 31 4/8/11 103.7 Required Endorsements 'P. The worMK Comcensatldn polky shall contain an endorsement insubruchroally me bBOWmg From. Thirty calendar days' poor written nOIXe shall be given to the Clty of Fresno in the event of milcellatlon, deduction in coverage, or non renewal of this polity." director of Public Utilities Citybf Fresno 2600 Fresno Street Fresno, CA 937113620 B. The COmmehial General UabilM, Business and automobile uaideiy, and Pollution Legal tlabillry Soldiers shall remain enMrsements in substantially the following form: 1_ "Thirty calendar days' prior wanted notice shall be given to One Cry of Fresno in the event of cancellation, reduction In coverage, of nonrenewal of this pohry" Donc or of Public utilities City of Fresno 26M Fresno Street Fresno, CA 93721-3620 2. The City of Fresno, its officers, employees, and agents are additional insureds On this polity" 3. 'This Policy shall be considered primary insurance as respects any Other valid and coll¢Glble Insurance maintainedW the Cray of Fresno, including any Self Insured retention or program a self insurance, and any Other such Insurance shall be considered excess insurance only,'• a. The articles shall contain a Separr ion In Insureds provision or been i ted as follows: "Inclusion of the City of Fresno as an insured shall not affect the til rights as respects any claim, demand, suit or judgment brought or recovered against the Contractor. ThIs polls/ shall protect Contractor and the C In the same manner as though a separate policy had beensued to each, but this shall net Conrad to Increase the Contractor's Ilabiliry as set Fort In the at beyond the amount shown or to which the Cnntratter would have been liable if Only one carry had been named as an insured" WAR Delivery W proof of Coverage Simultaneously with the execution of this Pgrearl Contractor At furnish the Cloy certificates of each policy of insurance required hereunder, in form and substance sa6sfattory to Cloy. Such certlPcari shall show the type and amount of coverage, effective dates and dates of expiration of policies and shall have all required endorsements. It the Ciry requests, copies of each policy, together with all endorsements. shall also be prompny de hearedte Cry. Renewal certlFlcarew will be furnished annually to City 110 demonstrate maintenance of the required coverages throughout the Term. Cl"f Fresno gOlLIXfpgreement Page 33 a/a/11 10.2.9 cher Insurance Requlrements A. If any services are delegated to a concentration, the Contractor shall require such Subcontractor to provide statutory WorkersCompensation Insurance and employer's Ilabllity, insurance for all of the Subcontractor's employees engaged in the work In Accordance with Sections 10.L2C and 10.220 and 1024. B. The liability Insurance required by Suffon 10.2.2,A shall cover all subcontractors or the Subcontractor must fum6h evidence of insurance provided by it mee0ng all of the requirements of this around 10.2. B. If at any time during the the of the Agreement or any extension, Contactor or any of Its Subcontractors fail to maintain any required insurance In full force and Men, Contrattorshall be in breach of the Agreement until Sol Is received by Cory 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 Gry to terminate this Agreement. No action taken by GN pursuant m this Seaion shall In any way relifee Contractor of Its respermobtain under this Agreement. C. AeCmnaRor shall comply wish all reeulrements of the Incomers issuing policies. The carrying of nsurance shall not relieve Contractor from any obligation under this Agreement If any claim xceeding the amount of any tledutiibles or seN-insured reorves is made by any third perm against the Contactor or any subcontractor because of any or.cumance related to this Agreement, the Contractor shall promptly report the facts In writing to the insurance tamer and to Ne City. D. The Consu l General Llab'dhy, Automobile Wo011iry, and Pollution Legal Liability Insurance Policies Shan be written on an ^occurrences' rather than a "claims made" bads. OComraGor Is unable to purchase Pollution Legal Liability, insurance on an occurrence form and must purchase such insurance on a claims made form: 1 The "bene Date" must be shown, and murt be before the effective date of the Agreement or commencement of work by Contractor. 2. Contractor murt retain Intuanre, and Submit evidence thereof, for a period of fire (I years following the expiration or terminadom of this Agreement through continuous policy renewals With a retroaztive date poor to the Agreement efhRWe date. 3. These requirements shall survive eapia(an Or pollination of this Agreement. ARTICLE 11 DEFAULT AND REMEDIES 11.1 EVENTSOFDEFAULT Each of the following shall constitute an event of default("Event of Default"I hereunder. City of Fresno Poll-0ff Agreement Page 34 4/8/11 A. Contractor fails to perfurm 16 obligations under this Agreement, or future amendment to this Agreement, Including, had not limited to, Contractors failure to pay Franchise Fees and other City fees In accordance with Article 8 of lets Agreement, and the breach continues for more than tD Susirress Days after written notice from the City forthe mrrenioo Mired; B. Contractors fallure to Divert 50% W the CAT, 711% M the Recyclable Materials, and 9G% of Organic Materials Cadlected in the City as required W Section 5.3 of this Agreement after Contractor is given an opportunity to remedy the nonperformance as described In SMion 11.5; C. Any representation, warranty, or disclosure made to City by Contractor In contraction with or as an Inducement to entering Into this Agreement or any future amendment to this. Agreement, which proves to be free or misleading in any material respect as of the time such representation or disclosure is made, whether or not arc/ such representation, symmetry, or dlttbsure DppPars as part of tM11s Agreemenp D. There is a seizure or attachment (other than a prejudgmentattachment) of, or levy affecting possession on, the operating equipment of Contractor, Including without limit its vehicles, maintenance or office facilities, or any part thereof of such proportion as to substantially Impab Contractors ability to perform under this Agree and which cannot be released, bonded, or Otherwise lifted within 48 hours excluding weekends and Holidays; n E Contnttor files a voluntary petition for debt relief under any appllable Wnkmptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, or shall cosent to the appointment of or Gking of possession by a renewer, liquidator, entities (other than as a part Of a transfer of equipment no longer useful N Contractor or neces ary for this Agreement), trustee (other than as security for an obllgatacn under a deed Of trurt), custodian, sequestration (or similar official) of the Contractor fon any part Of Conhatlois operating assets or any substantial part of Contractor s property, or shall make any genre( assignment for the benefit of Contractors creditors, or shall fan generally to pay Contractor: debts as they become due or shall take any action in furtherance of any oftheforegoing; F. ACount having)u(ndiclion shall enter a tlxree or Ordvfor relief in respect Mthe Contractor, in any involunNry case brought underany bankmptry. InsaNency, debtor relief, or similar law now or hereafter in effect, or Contractor shall consent to or shall fall to oppose any such proceeding, or any such court shall enter a decrtt or order appolndng a receiver, liquidator, assigntt, custodian, « sequestrator for milar okclal) of the Contractor or for any part of the Contractors Operating equipment or aware; or orders the winding up or liquitladon of the affairs of contactor; 11.2 RIGHT TO TERMINATE UPON DEFAULT Upon a default by Contractor, the City may terminate this Agreement within 30 alender days of the default but no later than 180 calendar days after the detach. Such Rrmirution shall be effective 10 calendar days following the Chis written notice to Contactor, and such formation shall be effective without the needfor any hearing, suh, or legal action. Cry of Fresno BOIPOffAgreement Page 35 0/8/11 11.3 CLI REMEDIES CUMUL,AODj SPECIFIC PERFORMANCE The Otis right to Determine the Agreement under section 113 Is not exclusive, and hire Day's termination of the Agreement and/or the imposition of Liquidated Damages shall not canatitute an election of remedies. Instead, these rights shall be in addition to any and all other legal and markable rights and remaining which me City may have. By virtue of the nature of this Agreement the urgency of timely, cortlnuous and high quarry service, the lead time required to Went alternative service, and the rights granted by Cry to the Contractor, the remedy of damages fora breach hereof by Contractor Is inadequate and Ciry shall be entitled to Injunctive relief. 11.4 LIOUIDAnD DAMAGES GmeNf. The Parties find that as of the time of the execution of this Agreement, It 15 Impractical, if not Impossible, to reasonablyascertain the extent of damages which shall be Incurred by Ciry as a result of a breach by Contractor of its obllgabons under this Agreement. The factors relating to the Impratlirassity of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied services or denied quarry or reliable Service; Rd) such breaches rause Inconvenience, aruimas frustration, and deprivation Of the benefits of the Agreement to Indbidual members of the general public for whose benefit this Agreement exists, In subjective ways and in varying degrees of Intensity which are Incapable of measurement In precise monetary terms; (pit) that Manages might be available at substantially lower cons than alternative services and the monetary loss resulting from denial of services or denial M quality or reliable services Is impossible to calculate In precise monetary terms; and Of the theologian of this Agreement for such breaches, and other remedies are, at ben, a means of future correction and nM remedies wM1ich make the public whole for past breaches. Service Performance Mandates; Uqufdtted Damages for Fatigue to Meet SbMendi The Parties further acknowledge that consistent, reliable Roll OF Collectli Processing, and Dlspocal service is of utmost Importance to City, and that Clay has considered and refined on Characters nepresentatbns as to Day quality of service commitment In executing this Agreement. The Parties recognize that some quarried standards of performance are necessary and appropriate to ensure consultant and reliable service and performance, no Parties further recognize that if Contractor fails or achieve the performance standards, or fails to submit required documents in a timely manner, Cry and its residents and businesses will suffer damages and that it Is, and will be, Impractical and extremely difficult to a certain and determine the exact amount of damages that Cry will suffer. Therefore, withoutprejudiceto Oty's right to treat such non-performance as an event of default under this Article, the Partes agree that the Liquidated Damages amounts established In Exhibit A of this Agreement and the following Liquidated Damage amounts represent a reasonable estlmrte of The amount of such damages considering all of the circumstances existing On the Effective Date of this Agreement, ncluding the relationship of fire sums to the Large a harm to City that reasonably could be anticipated and the anticipation that proof of actual tlamages Would be cosllym Impractical. Contractor agrees to pay las Liquidated Damages and not as a penalty) me amounts set forth in the Schedule of Liquidated Damages Dollar A. Got Frasrm Roll Off Agreement Page 36 4/8/11 City may deter nrre the occurrence of events limn rise to Liquidated Damages through the observation of its own employees or reprexntrtive or Imestlga0on of wmplam6 by Customers, Occupants, and Generators. Liquidated Damages will only be assessed after Contractor has been given the opportunity but ailed to Teary the damages as described In this Agreement, Before assessing Liquidated Damages, City shall give Contractor notice of its intention to do w. Me notice wlll Include a The description of the addends) and/or non-performance. Me City may review land maFe wples at its own income) all -Information In the Possession of Contractor relating to pull and noon -performance. City may, within 10 calendar days after bsoing the notice, request a meeting with Contractor. City may Present evldence of non Pataftrimance in writing and through Testimony of employees and others relevant to the'mndent(d all non-performance. Cry will provide ConvactorwBh a written enplanabon of determination on each Incldentls) and non .performance poor to authorizing the assessment Oflialdared Damages under this Section 11.4. The decision of Cary shall be anal and CITY shall not be Mier t to, or required to exhaust, any further admmistrative remedies. C. Amount. City may assess Liquidated Damages for each Talendar day or even[, as appropriate, that Contractor is determined to be liable in accordance with this Agreement In the amounts specified In Exhibit A subject to annual adjustment described below, The amount of Liquidated Damages specified In Exhibit A shall be adjusted annually on the anniversary of the FXettive Date. The adjustment shall be rounded to the nearest cent. Liquidated Damage amounts shall be adjusted to reflect changes in the Consumer Price Index - All Urban Consumers ICPI-D) compiled and published by TM1e U.S. Department of tabor, Bureau of Labor Statlstiu or its successor agenq, using the following Bureau of Labor Statlstla' parameters. • Not seasonally Adjusted • Area- cos AngelessIiversiJe Orange County, CA Item - All Items • Base Period -19{2-{4=1pJ The formula for annual adjustment s as Squaws: Adjusted uquldand Damage Thencurrent Liquidated Damage Amount Amount = most current Uw/preari lxmonm Cpl -u For Current Liquidated Damage Amount =$150.W Mart recently published index (lanuary, 201D)= 224.610 Index published 12 months prior to most recently published index (lanuary ZW91- ZT0.729 Adjusted Le uldated Damage Amount -5150.00x (224.610/220.719) = $151 City of Fresno Roll Off Agreement Page 37 4/0/11 If the Clf-b Is d6Continued or revisetl during the Term by the United States Department of talar, such other government index Of computation with which It is replaced shall be used In Order to obtain substantially the same result as would be obtained IT the CPI had not been discontinued orfavired D. T riding a Payment Contractor shall pay any liquidated Damages assessed by Cry within W calendar days of the date the Liquidated Damages are assessed. If they are not paid Within the lrYday period, City may order the termination M the n9I or "franchise° granted by this Agreement. 11.5 DIVERSION NON-PERFORMANCE If the Contra is Dlverslon level is less than 505 for C&D, less than 70% for Bearyi Materials, and/or less than 9036 for Organic Matenah COIIMed In the City for a monthly reporting period, the following steps shall he followed by the Cay and Contractor. A. Warning. The Chs shall issue a written warning to the Contractor within 30 calendar days of eodPt of the Contractors monthly down documenting the Diversion level for the monthly mooting period. The warning nota shall specifythe amount AT time fAi"conectpn japecu 1 the City grants the Contractor to Improve As Performance and meet the Dal requirements defined In Section 53. a. Opportunity to Improve Pedor me. The Contractor shall modify 16 Detected, Processing. Diversion, and public education and outreach programs (subject to Lee City's approval) to Importer! the Diversion level At the end of the correction periotl, Contractor shall submit a written each to the City eeno ymg the Diversion level and providing the Mpre ming dwumemal If the City determines that the Diversion level equals or etteetls Diversion requirements definetl m Section 5.3, the Contractor shall continue to perform arvlvs in such a manner as to maintain or improve the Diversion level and The Citi shall waive Its rlgms tb proceed with steps contrast in subsections C and D of this Section 11.5 during the remainder of Menaurrent reporting period. C Liquidate! Damages. If Me Contractor rails to improve Ne Diversion level so that it Is equal to or greater than Diversion requirements defined In Settled 5.3 by the and of the correction period granted In substation A of CRY Section, the City may Ievy, and Contractor shall pay, Liquidated Damages described In Se6ion 11.0. 0. Te ml y m oI the Agreement. It Centnctols falls to achieve a Diversion level that equals or exceeds Diversion requirements defined In Section 5.3 within src months of the date the Clry leaned liquidated Damages, the fillum to meet the Dirervon requirements defined in Setaion 5.3 shall be considered a era of default and the City may terminate the Agreement in accordance with section tla 11.8 CONDITIONS UPON TERMINATION In the event this /agreement is terminated under the Phowyons of this Arnold, the following conditions shall be effective: City of Fresno RollOffAgreement Page 38 a/gel A- Prombn 1111-0ff What on Services. Contractor shall have no right or aNhudty m engage In RollOffCollection services in the City for a period of five years from the date of terminetom After five yens, should the Contractor provide proof that the event causing the Contractor to default under this Agreement has been warrant. the Contractor may reapply for a non- exclusive Roll Off Callectian servace franchise, and the Cry, at the sok and complete discretion Of the City, may reinstate the Contractor based on review of reapplication. R. Continuing nabilones. Contractorshan remain liable to the Cry for: 1. Fees due in Katmaiwith An a that would otherwise be ganble by the Contractor. 2. Liquidated Damages assessed pastrami to section 11.4. 3. Reports required by Article 7for Roll-CifColle4lon attivRies performed by Contractor up to and mousing the date oftermlwnn. 0. Indemnity obligations under freRlon 10.1. 5. Record keeping and retention obllgatiam under sections 7.1 and 7.2. C, Releue Customers and Generators Rom GWlpnal Contractor shall allow Remarried Materials Generators served by Contractor to arrange for trimmed Materials Collection services wish a hauler authorised W perform such services, without penalty or liability for breach of any contract between Contractor and Its Customers or Generators. D. Remove RaIIL% COnbiI COntrztim shall remove all of COntracho(s RON OM Containers from all of Optical Collection Iontial and shall properly Recycle, Process, Compost, Or Dispomof Permitted Materials In such Roll CIA Containers. ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES 12.1 RELATIONSHIP OF PARTIES The Parties Intend that Comer cor shall perform the eAri[es required by tris Agreement as an Independent Contractor engaged by City and not Oran officer norempl0yee of the Cry, nor as a partner of. Orient venturer with, the City. No employee Clapper of Contractor shall be, or shall be deemed to be, an employee Or agent of the City. Except as expressly provided herein, Contractor shall have Cement over the manner and means of conducting the Roll Off Container Collection, Transportation, Proces9nR Rerytling, Composting, and Disposal s s performed under this Agreement,and all Pecans performing such s Contractor shalt be solely responsible for the aann of As office employees,vsubcontracmrs, and agents. Neither Cmmractor nor its officers,semployee SUK ntra4ors and agents shall obtain any rights to retirement benefits, workerscompensation be all or any other benefits which accrue m May employees by shoe of their employment with the City. Cry Of Fresno ROII-0ff Agreement Page 39 Opal 12.2 PERMITS AND LICENSES UntraRor staff obtain and maintain, at Contractors sole cost and expense, all Permits and licenses apprabie to Contractors operators under this Agreement which are required by any governmental agents. 12.2 COMPLIANCE WITH LAW Contractor shall, atall times, at Its sole cost, comply with all Applicable laws. 12.4 GOVERNING LAW This Agreement shall be governed by, and confined and enforced in accordance with, the laws of the State of California. 12.5 JURISDICTION Any lawsuits between the Parties arising out of this Agreement shall he brought and concluded in the courts of Freshet County in the State of talifornic which shall have eadusive jurisdiction over such lawsuits. All respect to venue, me Parties agree that this Agreement is made in and will be Performed In PrWm County. 12.8 BINDING ON SUCCESSORS The provisions a this Agreement shall Inure to the benefit to, and be binding on, the successors and Permitted assigns of the parties. 12.7 ASSIGNMENT Helmer Party shall assign ks rights me delegate or otherwise transfer its obligations under this Agreement to any other Person wphout the prior Wittes consent of the other Party. Any such assignment made without the consent of the motor Pairs shall be Wald and the attempted assignment shall constiti e a material breach of this Agreement Under no circumstances shall mry assignment W considered by City If Contrzaar is In default at anytime during the Period of consideration. 128 PARTIES IN INTEREST Nothing In this Agreement, whether express at implied, is intended to confer any rights on any Persmns other than the Parties to it and their representatives, successors and Peminented assigns. Cray of Fesno golbN Agreement Page4D 4/8111 13.9 WAVER The walr2r W either Pate of any orl w Noatlm of am extrusions W Mk yrtement Nall Clot W dromed to h a Arthur of any bard or Walston of any when petition nor Nand subaequart brtaN Of molatbn of the same or any other prONIAM The supsequent sapanp W ether Pate of any ies AKIN hmme due FeleuMg. Nam rat be Mend W pe a AaFer of any peo1ding or wmumnt breach on wilatbn bf hep wFer PSM of am prwlsvn of tFla Oyemym 121E ROMEPROEEIWf1n All notst e, demands, requarts, 1wh0al apprOMs, WnaenC'and other¢mmyniCBlbM Ankh this fgreamem required, Authoress or Wndemphta 314 mal be In whi g and shall either be permi "(Arad b a hgxtle " MNe Panic al theaMress below ion M[asXlY In mi IInhM Nates mail, FM Class postage Prewta, addressed m fol W s A. If to CM pubic MIA15 oirnSur Ory Fref Freyq w flop R.,gmm 3065 Fran, G 9381-3624 a. rcmcwhtMgn kr /f� �NN.f EYT lime guza T M Am at 433�_Atwah FLUPo a CA 4a92,c Tar a31rts to which Communications may be MlherN Italy be cNnged from time time W a nota own In accordance Am I ms $Mon. Notice Nall be Memel ghen on the day It b personal MIbyM or, If mal And Nryy alei n hep horn the date t k depoNM In the mall. 1211 REPREAEWAl il[MFTREPMMM OW bInttla by theaytM'Gryarept m®nthedb(purc11 and ally moo Wbe thens In cry still be bkm by the Gry handl ea¢pt b pmulMd hallow, TM Gy fpurcq mry d in turn, M Arbirg auMp0.y la the olrmrc and/M Ad mmeM Ory oM[lak and may i 1111 h surd Contractor may in turn, to delegatebwMbg someor all d suelmay awbMy tosubardlnalt eM[ery thefonvsabnmay to hsoon em xdpa bYm q surd del�iw it Nev are Wil de sype of me awlwiry, popeM eNegatM to them. The fMtrxOr SW' b/the byhoure pole, dalgmte In e+illry a mWbh ofll[a who u arm e to repra¢ntative of the (anther[ W r in all IreRbs related to the Agreanem and N&I inform the pry In any M Fr®ro Roll -01/ Agreement a/i PypU writg of such designation and a my rmbanons upon his or her authority to bind the mntraRoc The City may rely upon ail taken by such dulgnated representative as actions of the Contractor unless they are outside the sroce ache amir lry delegated to ham/her by the Contractor as communicated To Chy. 12.12 CRIMINALACTIVITY OF CONTRACTOR 12.321 Criminal MtMty For purpose of this Section, Criminal Acriviry shall mean any of fallowing events or circumstances' A Circulations. The eotryagaNSt any WmartDr Party or its officers, of a criminal conviction ora permanent mandatory or prohibits, Injunction from a such, municipality, or regulatory agency of mmpRent Jurisdiction, based on all taken In his or her official capacity on behalf of Contractor war respect to 1. Fraud or criminal diffuse in comeamn with obummg, attempting to obtai , Featuring or perfomling a public or Private agreement related to Paul Solid Waste services of any kind (including Collection, Transportation, transfer, Processing, geryclm& Compo log, or Disposal(, Including Mis Agreement or any amendment hereto; 2. Bribery or attempting to bribe a public officer or employee of a local, State, or F adenl agench 3. Embezzlement, extortion, racketeering, faint claims, false statements, forgery, falsifri or destruction of records, obstruction of justice, ktwwingly receiving stolen pmpeM, theft, or misprision (fallure to Miall of a felon, a. Uniti l disposal of Hazardous Wastes, the occurrence of which any Cantr3ctr pan knew or should have known; S. Violation of antitrust laws, including laws relating W price fixln& bictrigi log, and sales and market allocation, and of unfair and amicompNtive trade progress laws; 6. Vaunter of securities laws; and ]. Felonies. B. pleas Entry of a plea of •Sgjg " "nob contra e," or "no contest" by a Comractor Parry based on alts taken In his, her, or its official zol Do behalf of ConfoRol respect to Me conduct decanted In preceding Section 12.12.1A 32.12.2 Ngltt Comacto shall notify City In writing will five alendar days of occurrence of any Cr minal All by any Contractor Party Or of Fresno PDII-0ff Agreement Page 43 al l 1213.9 umactorsum Upon p¢urnel of any Coal Activity, Contractor shall Immediately tib orvquse to be done all of Use following: A. Terminate from employment or remove Iron office any offending Individual Contractor Party, unless otherwise directed or ordered by a court or regulatory agency of comparem jurimiagn r auoun s, and unll that termination would constitute a breach of any labor agreement entered Into by contactor, and B. Eliminate participation by any oXending individual Contractor Party in any management, supervision, or decislon isanty that affects or could affect, dlrertly or Indirectly, the Performance of the Contractor under this Agreement. 12.124 Transfer and Miring Contractor shall not allow or cause to be showed to hire or transfer any Individual from any Parent Company or subsidiary company, or business entity of Contactor who has committed Criminal Activity as a Contractor representative, Held sucervlson officer, or director who Is diactly or indirectly responsible for performance of this Agreement wl[hom obtaining prior written consent of City followingfull dlscbsure m City of the fads and Circumstances surzpunding nosh Criminal Activity. 12.115 Crty s Remedy In the event of any occurrence of Commit mit Activity, the Clry, In its sole discretion, may terminate the Agreement within 30 calendar days written notice to Contractor, or may impose other sanctions (which may Include financial sanctions, temporary suspensions, or any other Carlton seemed appropriate short Of termi ation) as It will deem proper, lathe (allpvingevems: A. Contractor hi Comply with theforegoing obligation of this 5ettiog or B. The Criminal Atl'wlry concerns or ni directly or indirectly to this Agreement Control shall be given the opportunity to present evidence in mitigation during the 30Yalendar day natter period. 12.13 ACRNOWLEDOMENTOF PUBLIC RESOURCES CODE SECTION 48520 NOTICE If Contractor has lawfulty pmvid ed solid wage collection services In Ne Cm for more than three I31 years poor to July 1, 2011 (and Is therefore entitled to the notice Provided for In Public Resources Code 41 Contractor shall consider mecotmn of this Agreement by the Cary as City's notice to Contractor, pursuant to public Resources Code 49520, that Centratta, may provide service for a Period of five {s) years beyond July 1, 2021, after which time the City has the right to establish an mode a Morning confusion system. City of Fresno Roll Off Agreement Pal a ARTICLE 13 MISCELLANEOUS AGREEMENTS 13.1 ENTIREAGREEMENT ThIs Agreement, Including the Exhi ins, represents be full and entire Agreement between the Parties with respect to the matters covered herein. 13.2 SECTION HEADINGS The article headings and section headings In this. Agreement are for convenience of reference only and are not intended to be used in the mostrul of this Agreement nor to alter or affect any of as provisions. 13.3 REFERENCES TO LAWS All references in this Agreement to laws shall be understood to include such laws as they may be subseouently amended or recodrfied, unless OtheswisespecrfUally Pmvrdsil 13.0 INTERPRETATION This Agreement shall be Interpreted and construed recon bly and neither father against either PaM, regardless of the degmetowhl[h either Party Participated In its draking 13.5 PRONOUNS AND PLURALS; TENSE when not In nnLstem with the moteII, wards and phases used in the present tense include the futureand wows and Phrasesused m m the singular number include e plural number. whenever the wntext may require, any pronoun used in this Appeasement shall Include the corresponding masculine, feminine and neuter fortes, and the singular form of nouns, prosecutor and verde shall include the pWnl and vice wara. 13.6 TEXTTOCONTROL The aPnons of the Articles or Sections in 106 Agreement are for convenience on IV and In noway define, III extend or all he the scope or Intent of any of the pronslans hereof, shall had be deemed partof this Agreement and snail not be used In mmica k Por Interpreting this Agreement. City of Fresno Poll Off Agreement 0/6/11 Page 04 13.7 AMENDMENT This Agreement may not be modified or amended in any respect except In writing signed by the Parties, 13.8 SEVERABILITY If aM non material provision of this Agreement is for any reason deemed to be pushed and unenforceable , the invalidity or unenforceebllRy of such provision shall not affect any of the remaining Provisions of this Agreement, which shall be enforced as if such invalid or unenfo¢eable provision had not been contained herein. 13.8 COUNTERPARTS This Agreement may be executed incaurrtenpans, each of which shall be considered an original. 13.10 EXHIBITS Each of the Exhibits ii entlf ed as Exhibit'A' through "D' is attached hereto and lnmryorated herein and made pan hereof by this reference. ON of Fresno Roll WAgreement 4/8/11 Pa8e 05 IN WFFNM WHEREOF, IM Panllm haw uuutl Neagteement W M eecNM On the NY and paFfim MWFRESNO N M�ntlpl Co�aron�Wn Ory ahem flolFgf4�men[ /eryI CONIR4LtM W e V f RXN X33 E \ff"EM1 Au- us wa�esa Fe�„e ON �Soac raReu "HISCI SCHEOVLE FOR IIQUIDATE0 DMMGES Contactor may be assessed Llquidate4 Damages if Contractor fails to fulfill Its obligations with regards to the events listed in this Exhibit in accordance with the terms and Candttlons of the agreement with regards to the time fame for acmmplishmg each event and Nature of the responeleffity, associated with the event unless Otherwise stated in this Exi 1. Dlvwsion. Failure to achieve and maintain a m of 50% The greater oof$$U00 or Diversion per month of all CIM collected wl the City, 70% 10% of the gross Rate Diversion per month of all Recyclable Materials Collected within the revenues hericalled for City, and ii of all Organic Materials Collected within the City. training C&D, Recyclable Matedals, and Organic Materials services In the City, for the most recent 12 - Month period 2. leek UMrwgills. For each occurrence aver live during a calendar $300/ things year of unreasonable leaks, liner, or spills of permitted Materials near or on public sheets and failure to pick up or clean up such material Immediately. 3. UrrwtMHzed COlie on Hours. For eachowu ver five during $300/evedt Operatic year of Collecting Permitted Materials during unauthorized Fears. 6. C[cssNe Ni For each occurrence over 10 during a calendar year $3w/worn Of excessive noise. 5. Clearing Collection VekItlK For each Occurrence over five during a $150/event calendar year for failure to keep Collection vehicles In a safe and anitary combined 6. labeling ad Roll -0R CwAgdWdv For each occurrence of ContraRoes $SCO/event failure to correctly label fnntadorofvrreo OutOffContainers fin accordance with Section 6A.CI. ]. [nocturnal Behavbr. For each occurrence M dlsmuneousbehavpr $500/event by Collection vehicle perwnnel, customer service personnel, or other employees of Contractor. 8. Infudes to Others. For each Incident of we nal injury to a person $5,W0/ Inddent requiring medical treatment or naturalization, where the negligence of the Contractor or its personnel was a mnMbuting fi to the Injury 9. Monthly Reports. Failure to submit monthly reports in the timeframe $3W/day' specified mml.ngreement. 10. Header Nenntous Waste. For each faiwre to pricy the appropriate SSCo/event authorities of reportable quantities of Hazardous Waste, F1 ll. hnu.naN.OpWaYem. ialh.encertwmam MNeron= 51sNbrmN .e[ fwM In Nh OgreemPrR rq1 zp� IIY .rateL aFoup ave mt pylptbn perdryunyl mrr qE uMor lRlnymEhkhNmrraOt MNlnHburs uPwr ebllplbn kperfpnad Mur nmdnvnonpomeE ..entry rawo wll e. my tOy. t, Limn w.n nae ,. wmn me mmqu mmNIY Tway b rt[eMd as thy. I, � WenM E.Y. rein t bit W YtY wmmlw wM.ee tma e<.. eowr.E m M. nonvv r.Pem a.don we,.. In plKlry pa,lpie(. hade4 N the Pbn3 PrwiEN eaN Party sPMkonY cOnflms the a=macy of the Aatenml. made above and the hat NM Oath Pam Mt had ange PPOOMmay b mnwn wkh eyed W neN and oM&n an e.PdMttbh Of Liquidated wmaye pevkbnt M Ne that that Ne eyrtenean xy Made. wMano, � Inkel Neer InIMINne: Al ASSISTANT SECRETARY'S CERTIFICATE USA WASTE OF CALIFORNIA, INC. Tha umdersmed, being the Aesimum SCCMe1Y of USA Waste Of Inc, a Delnvere commission ('the Company'). do hereby cern ry that thtl fallowing raolmimr u adapted by the Sears or Directors; of she Company and that arms resolution has net been amended, modified or rescinded and is in full Ibis and critics as of die dare hpcof RESOLVED, thea fon Johnson (District Manager), or my o1Rm ordm Company, be wwl hereby are aashanasd, following compliance wnh sPiloc m corsomm policies rid ymeedura, to cinemas by and on behalf of the Company any and all agreements, instruments, document. ter papers. as may deem appropriate in nevesmry, performing to; of Mating to me Non-Esdnsve FranchiseanNvcm bethe City ed Printerfor Rall -OR COamloer Calikebun T�poning, processing, Rapsling. Comminuted and Disposer of Permined Materials, and that any such action ukm to date is hereby ratified and approved. Owed. April a 201t R an EE LonT Assistant Secondary _ EMNIDRC SaPIWCM Da pppU1 SUNDERSMMM AND eEfl1[5 W%sl(sxS The un4rslpiN (Ao Is EuN aMbwiaa l W bind this mmlWaY subMMrgsins appunianal Ns rMawM Me r©WremMtl d Me adnO uLap Dary1Mp all'i br MIICflPPCXISCgIIMgn. Trannputlry, MnMes,4 and MD, i6 exhibits, aM mill Jxumenrs �NlFbn.Ere uMeIM Wads, asginad anade waarIM, o znc aPolb[M and aM OMer suppkmenbry OF 9100 sub Aced WO did loy applimnmat�(I)ema in a m ammo maamme d a malaia 2a, MI mmNm waw race Or mwadIN meermarun, os lily omD m sane a masidd i aNa Y neresass N maM the game= madd, In IgM d Me uRumspMa In wwh MaY'aerc made, na mKladrg lskkl FIM Wme oa4 Aacn uz� PA a r Ma USR uASiF OE CAuroag,A s . umpany x.me "T E., E IbltIN APPnn ad P ce ssing and ResNw DW W FeWliNee Solid Waste: American Avenw Undlill, 18950 W. American Avenue, Karmen, CA 93630, (559) 690-61 W. Pemdt a 10-8AOp09; Waste Management Tnumder Sletion 5608$- Ville Avenue, Fresno, CA 93725, (559) 834-3381, PermN M 99953; Ketal Hills 11, 35251 Old Skyline Road, KeNleman City, CA 93291,1559) 388-9711, PemN a 18 AA-0027 RscyulaNGs: Waste Management Tmnafar Sanson 5608 S. Villa Avenue, FreenO, CA 93]25, (559) 634-3381, PBmIN N 00953; Tulare Courcy Recycling, 28951 Roel 140, Si Ole, CA 93292, (559) 741-1788, Penni' P FA00 Ml; Bekos Recyding, Inc., 2788 rerge Avenue, Fresno, CA N3 . (659) 233-0922, Permit M RC2569; Levi's Iron and MWW, 2727 S. CN MW Awnue, Fresno, CA 93725, (559) 1945 233 —3211, PermN N Compost— Wad Coast WOWWXP S. Golden State Slvd., Fresno, CA 93725, (658) 239-2487, Pemllt k 87464, Tulare County Composing and Siomasa, 24478 Road! 140, Tulare, CA 93274, (659) 666-1622, Permit k 54 —As - 0926 C e D Materiels Waste Management Transfer Station, 5608 S. VIIK Avenue, Fresno CA 93725, (659) 634-3361,mIN PaN 09953; CWaverea Mehl' ls, 2175 E. Centml,, Finane, CA 93725,1659) 233-2311, Permit a 20991224 AN SOIM Waste alml ba Dlapoaed W at MO Designated Diaposel Fa lily Cmbaaof CRY MNW HOM 4 Initial Here: