HomeMy WebLinkAboutWestern Solid Waste - Non-Exclusive Franchsise for Roll-Off Collection ServicesWestern Solid Waste
RollOffFranchise
NON-EXCLUSIVE FRANCHISE AGREEMENT
BETWEEN
THE CITY OF FRESNO
AND
we4erYI 50114 W(As�e
FOR
ROLL -OFF COLLECTION SERVICES
Ig 2011
Table of Contents
RECITALS;................................................................._.............................................................1
ARTICLE I DEFINITIONS ........................... ........ ............................................. ......_._...........2
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF TRE CONTRACTOR .........
7
2.1 REPRESEN'PA lIONS AND WARRANTIES ._.. __.... _._.7
.4R1DCIE 32ERM OF AGREEMENT ................ _................. ....._._._.........9
31 EFFECTIVE DATE __..
1
32 CONDITIONS TOEFFECTIVENESSOFAGREE''MENT _... _.. _....�
33 INITIAL TERM......_........ _............ ...... .......
34 OPTION TO EXTEND _..... ._..._ _. _. _....
'r
ARTICLE 4 SCOPE OF AGREEMENT...............................................................................111
4.1 SCOPEOF.AGREEMENT _..._... _........ _.........._ _....
tri
42 LIMITATIONS TO SCOPE
4.3 CITY'S RIGHT TOGRANT MULTIPLE NON-EXCLUSIVEAGREEMENTS.._..
i/
44 CITY'SRIGHT TOEXCLUDE NEWLY ANNEXED TERRITORY FROMSCOPEOI
FRANCHISE. ......-
i4
5'
AGREEMENT CONSISTENT WITH APPLICABLE LAW. _................ _.....
46 MATERIALS _._.... _...
4.6 OWNERSHIPNOTIFICATION
12
12
4J NOTIFICATION TO CITY OF NON -FRANCHISED HAULERS............__......_............
12
ARTICLE 5 COLLECTION, PROCESSING, AND DISPOSAL SERVICES ._... ...........
13
5.1 COLLECTION .___... ... _...._. .................
13
5.2 PROCESSING AND MARKETING SERVICES ........ .... ...
13
5.3 DIVERSIONREQ111REMENT __. _... . ..... .............._.
14
54 DISPOSAL.....15
........._..
55 BILLING...--
..... .... .... ......
16
5.4 CUSTOMERSERVICE __ ._.... . ..................
16
ARTICLE 6 STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT, AND
PERSONNEL.............................. ....... .... ........ .......................... ......... ._..... _..__..............
16
6.1 OPERATING DAYS, HOURS, AND SCHEDULES.._. ...._. _........16
E2 COLLEC'riONSTAN. ARDS__.. __.. .. _.. ..._...
17
63 VEHICLEREQUIREMENT$,.... ..... .......... _.......
Is
6.4 ROLL -OFF CONTAINER REQUIREMENTS ___ .. ................
19
65 PERSONNEL. _...... ........... _............ _._.._20
6 6 HAZARDOUS WASTE INSPECTION AND HANDI.INC - .......-
21
67 NON-DISCRIAGNATION _
vI
6.8 COMMUNICATION AND COOPERATION WITN CITY ...... ........._.. __...._..................22
ARTICLE 7 RECORD KEEPING AND REPORTING _ .......... .................__......._...._..._..22
7.1 GENERAL.__. _... _................ .............. _......... ...22
CiN of Fresno Non¢aGuviveRoll-Off Apeemem
Pstler
4/8111
72
RECORDS..... _,.... _. __.
....._ _.._'_3
73
GENERAL REPORTINGREQUIREMENTS ......_
34
74
MONTHLY REPORT _._...... ........_
_..... ........ '4
7.5
AB 939 COUNTY SURCHARGE REPORTIN4.__..
AR11CIE 8 FRANCIDSE FEES AND OTHER FEES........................................................... 26
8.1
GENERAL__.
8.2
FRANCHISE FEE
8.3
OTHER FEES
BJ
ADIMENT NITO .
8,5
PAYEDULES......_.LATE
OF EAND LATEFEES",1 __... _. __..
29
R6
OVERPA MF.NI OF FEES..__. ......._.
27
8.7
NON -Cl y FEES
NON -CITY FEES: AB 939 COUNTY SURCHARGE .. ._... _
27
ARTICLE
9 CONTRACT'OR'S COMPENSATION AND RATES........_.............. _..... .....
27
9.1
CONTRAC'TOR'S COM PENSATION -...._ _ _.. _._....
27
9.2
CITY'S RIGHT TO SET MAXIMUM RATES27
9.3
CONTRACTOR'SRATES......,..... ..........._. _.. ..................28
ARTICLE
IBINDEMNI'IV AND INSURANCE ....... ......... ___............... ..... ..... _..... _.__28
101
INDEMNIFICATION ........ .....__ ...._._ .............
28
102
INSURANCE
29
ARTICLE
II DEFAULT AND REMEDIES ................ _._.................................. ...__...........
32
111
EVENTS OF DEFAULT ,,,,,,,,, _.
32
11.2
RIGHTTO'I'ERMINATE UPON DEFAULT
33
113
CITY'S REMEDIES CUMULATIVE. SPECIFIC PERFOR\b\ntf
33
114
LIQUIDATEDDAMAGES._._................_.,..................
..33
11.5
DIVERSION NON-PERFORMANCE.............._... _.
35
116
CONDITIONS UPON TERMINATION .... ........ ...... ..__. _.....,..36
ARTRTE
12 OTHER AGREEMENTS OF TREPA MS ..................................... ............
37
12.1
RELATIONSHIP OF PARTIES _ ............... ... ......,.... -
37
122
PERMITSANDLICENSFS........._ ............. ......___ ...........37
12.3
COMPLIANCE WITH LAW .... ............. ....... ........... ,_...37
12d
GOVERHNGLAW .... __..... ......
37
12.5
JURISDICTION ....... ....I....... ................ _...........
37
12.6
BINDING ON SUCCESSORS........
37
127
ASSIGNMENT
38
12.8
PARTIES IN INTEREST ... _.38
129
WAIVER_..__ .........38
12.10
NOTICE PROCEDURES ...... �...�� ............_
38
12.11
REPRFSEN TALLIES OF THE PAR I I ES _....... ........... .. ....J9
12.12
CRIMINAL ACTIVITY OF CONTRACTOR ......39
12.13
ACKNOWLEDGMENIOF PUBLIC RESOURCES CODE SECTION 49520 NOTICE ...
40
ARTICLE
13 MISCELLANEOUS AG1 RRN ENTS...... ........... ................. ........ ....... .... .....
41
13.1
ENTIREAGREEMENT ____. ......_. ..___
133
.......41
SECT ION HEADINGS _......... .._... _..... .. _._.___..41
ON of Fresno
Non -Exclusive Roll -Off Agreement
Pelle it
419111
131
REFERENCES TO LAWS ._. _......
....___. .__.. 41
134
INTERPRETATION... ........... . ___..
............._
13.5
PRONOUNS AND PLURALS; TENSE ......_. _
........41
Al
13.6
TEXT TO CONTROL __...... ..._._
_..... .__. __...41
137
AMENDMENT ... ...... ....._ __....
....__ .._....02
13.8
SEVERABILITY ............_ _..._
.....__
13.9
COIIMFERPARTS ...... ..__.
.._ ..............A2
_....... ._. 42
13.10
EXHIBITS.... _. _... ...__...
....
........ ..._....._....42
List of Exhibit$
A Schedule for Liguldated Damages
B Se=arys Certification
C Statement of Applicam's Understanding and Representations
D Approved ProcesAug and Residue Disposal Facilities
City of Ffesno NPu-Exclmive Roll -Off Agreement
41/11 Page iii
NON-EXCLUSIVE FRANCRISE AGREEMENT
RErpVM
THE CITY OF FRESNO
AND
V11Qb+CYn 4.1Id l�lrzlo
FOR ROLL -OFF COLLECTION SERVICES
ev iis.npn-extlmive franchise agree" t (Agreement) is made and entered into this J& dry of
�lJ (.(y 20'''' bbyy qqd between rhe City, of Fresno, a national corpomtioo, fCity)
a LA C I'd 1f. Sim (Contractor)
RECITALS
This. Agreement is entered into with reference to the following facts and circumstances
WHEREAS, the Legislamre of the State of California, by enactment of the Cahfomia Integrated
Waste Mmegement Act of 1989, modified M California Public Resources Code Section 60000 et seq.
("Act") ), has declared that it is m the public interest to authorize and regwm local agencies to mere
adequate provisions for Solid Waste Collection within Neirjunffiction; and
WHEREAS, the State of California C'Stare) has found end declared that the amount of Solid Waste
generated in California, coupled with diminishing landfill space and potential adverse environmental
impacts into landfilling and the need to comerve nature resources, have created an urgent need for
State and loce agencies to trusts and implement an aggressive integrated waste management program.
The State hes. through enactment of the Ach directed the responsible State agency and all local
agencies, to promote Diaposel Site Environs and to maximize the use of feasible Solid Waste
reduction, re -use. Recycling. and Composting optloas in order to reduce the amount of Solid Wrote
that must he Disposed of ut Dispose Sites: and
WHEREAS, the Act requires local agencies to duveft 50% of discarded materials from landfills', and.
WHEREAS, the City Council established goals of achieving 15% diversion by 2012 and zero waste
status by 2025 on June 26, 2001, and approved a Zero Waste Strategic Action Plan on February 11,
2009; and
W REREAS, the City finds that reading, Re ychng, and Composting Recyclable Materials, Organic
Materials, and Construction and Demolition Debris (CdD) and herehciil use or composibing of
Organic Materials is essential to further the City's efforts to reduce Solid Waste Disposal and comply
with the Act and the City's aro waste Posts; and
WHEREAS, purposes to the powers granted the City is a charter city by Article M. nation 5(a) of
the California Constitution and Article %111 of the Prison City Cbarer, the City has determined that
the public hestth, safety, and well-being tegwm that a franchise agreement defining von<xclueiva
rights be awarded to qualified companies to provide for the roll -of container collection of Permitted
MmeneS except for collection of materials excluddin she Cirv's Municipal Code, ase other services
related to meeting requirements of the Act: and
WHEREAS, the City requires all breers providing Roll -Off Collection services for Permitted
Materiels in the City to obtain a non-exclusive franchise in oder to regains this business, court its
City of Fresno Roll -Off Agreement page I
Vs(1I
orderly operation. achieve Its diversion goals, and to minimize the patentid for adverse effects it
may have on the local enviaame at. and
WHEREAS, rhe City Council has determined through an applmation process that the Contractor. by
demaostrateci experience, reputation, and capacity, is qualified to provide for the Rall -Off Container
Collection of Pmati ted Materials within the corporate limits of the City and the Tmnsportattan of
inch material to appropriate places of Recycling, Pmceasiag, "d/ar Oispowl, and can provide
Insurance consistent with the City's regdrem"tsun
. The City Council desires that Contractor he
engaged to perfarmsuch services on the basis set forth in this AgreemenCand
WHEREAS, Commerce intends to ow the Car's s rcels, alleys. other public tights -of wry, and
infrastructure to provide Roll-0ff Collection services to the Ciry's residents and businesses: and
WHEREAS. the City intends to receive ,just and reasonable fees Gam the Contractor for City's
administration of the Agreement "d for Contractor's use of the Cil) streets, afieye, other public
rights-of-way, and infiasmmmre which the City may lawfully impose and the companies are obligated
to pay; and
NOW, TREREEORE, in consideration of the mutual promises, easement, and conditions contained
in this Agreement and for other good and valuable consideration, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agrxmenl, unless a differeni meaning is clearly regithml, the fallowing words
and phrases Audi have the following meanings respectively amnbnf to them by this Arsicle and shall
be capitalized throughout this Agreement'.
'Act' means the Cdifomia Integrated Waste Management Act of 1989 (Division 30 of the
California Public Resumes Cade), a amended, mpplemcnreJ, mperseded, and replaced from time to
time.
'Agreements names this Alinement betwren the City and Contractor for RoIWOR Container
Collmtiom Processing, and Disposal of Palliated Materials retailing all exhibits, and any fume
amendments hereto_
"Applicable Law" means at Pedmal, State, and toed lease, regulations. rales, orders, judgments,
degrees, Permits, approvals, or office requirements of any governmental agency having jurisdiction
over the Rall -Off Container Collection, Transportation, Recycling, Processing and Disposal of
Permuted Materials that are in fame on the Eff Live Date and as they may be "acted issued, or
amended during the Term of this Agreement.
`Approved COLD Processing Site' seems the processing site specified in Exhibit D, which was
selected by Contractor and approved by the Cary.
'Approved Disposal Site- means a DISPOW Site selected by the Contractor or in Subcontremr(O
and Disposal aprove by the City for Disposed of residre from Approved Processing Site(s). Approved
)ate listed in Exhibit D.
City of Fresno Rall -Off Agreement Page 2
Velli
"Approved Organics Processing Site' meccas the processing site specified in Exhibit D. which
was selected by Contractor and approved by the City
`Approved Processing Site(s)" means the Approved CAD Processing Site. Approved Caginies
Processing Site, and/or Approved Recyclables Processing Site.
'Approved Processor' means the operator of m Approved Processing Site.
`Approved Recyclabies Proceaal ng Site- means the processing site specified of Exhibit D. which
was selected by Contractor and approved by the City.
"Bin" means a container with capacity of approximately Due (I) to eight (8) Dobie yardft with a
hinged lid, and with wheels, that is typically serviced by a front end-IDadng Collection vehicle.
"Busi n en Days' mean days during which City offices are open to do business with the public.
"Cart" means a plastic container with a hinged lid and wheels that is typically cervi ed by an
automated or semi -summated Collection vehicle. A Cart has capacity of 30, 35, fie, or 96 galom
(or similar volumes)
"C®D" means Construction and Demolition Debris.
"Change In Low -any of the following events or conditions that have a material and
adverseeffect on themeans
performance by the Parties of their respective obligations under this
Agreement (e.ecpt for payment obligations):
a. The manement, adoption, promulgaum, issuance, modification, 9r written change in
administrative orMicia nt epimna em on or after the Effective Date of any Applicable
Law; or
b. The order orjudgm run of any governmental body, on or after Ne Effective Dae. to the
extent such order or judgment is not the scoot of wiiQ l or negligent action, error or
OMISSLOn or lack of reasonable diligenm of the City or of the Contractor, whichever is
asserting the occurrence of a Change in Law; provided however, that the contrsnng in
goad faith of the folum in good Nth to contest my men order or judgment shall not
constitute or be c9mtrned as such a willful of negligent ammo, error or omission or lack
of reasonable diligence.
-city- means the City of Fresno. California, a municipal corporation. and all the territory lying
within the municipal iwunderies of the City as presently co mn8 or as such bommrles may he
modified during The Term.
"City's Municipal Code' means the City of Fresno Municipal Code.
"Co11eeP of •Collection^ means the act of Infecting Permitted Matemis and other maleml at
the place of generation In the City.
"Commercial- shall mean of, from or pettaming to von -Residential Premiseswhen business
activity is conducted, including, but not limited to, retail sales, wrimus, wholesale opermosm.
manufacturing and indmtnal ointments, but excluding businesses conducted upon Residential property
which are permitted tuner applicable coning regulations and m not the primary use of the property.
-Compactor- means a neehmical apparatus that compresses materials ata a which
container may be detachable. For the purposes of Ilm Agreement, Compactors shill include only
City of f resno Roll -Off Agreemem
4/8/11 Page J
Compactors wish container capacities of ren (10) to fifty CHR cubic yand that me serviced by ROD -
Off Collection Trucks
"Compost" Or -Composting' includes a controlled biological decomposition of Cogaaic Materials
yielding a safe and common free Compost Prodoct.
"Campart ProducC means the product resulting from the controlled hiological decomposition of
Organic Materials that am Steven Separated from the Solid Waste site=. or which we separated at a
centralized faculty.
'Construction and Demolition Debris (CBD)- means maorvls resulting from conotmctita
emodelmg, repute. cleanup. or demolition operations that are not hazardous as defined in Catfomia
Code of Regulations. Title 22 Section 66261.3. This term includes. but is not fimimil to, asphalt.
concrete. cement concrete. brick, lumber, gypsum wallboard, concrete board caMboard, and other
associated packaging, roofing materiel ceramic We. contacting, plastic pipe and heel, as wall as
vegetative matter reanlong Dom rand clearing and landscaping including but art limited to rock, soil.
tree stumps. Construction and Demolition Debris excluces puttresuble wales,
"Contract W294erv) 60ii O0.4C (maesl contructor's mance), a
SOle fis"OD Ie orzFp (;treat earpomtio4 eolotumpeetprsbip, pmmemhip n epproprute) organized
d Operating under the laws of the State of California and its affects, directors, employees, ageom,
companies, and Subwntracors.
"Contractor Party(ies)" shall mean Contractor, offcem. directors. management employees, or
fiscal employees (where "mainatommal employee and any employee with direct of indirect
responsibility for direction and control over the Contractor's artivibes order this Agmemeat and
"fiscal employee" ensure an employee with a"necl or indirect responsibility and a ntrol duties relating
to financial maters under this Agreemm).
"Criminal Activity" means those activities dercubed in Section 12.12.1.
"Customer" means the Person whom Contractor cohorts hitting ovaries to and collects payment
from for Collection services provided.
"Designated Disposal Site" means the American Avenue Landfill at 18950 W American Avenue
in Tranquility. California fon the purposes of Disposing Solid Waste.
"Designated Waste" accus non-Hienammus Wastes that may pose special Disposed problems
Woman of to potential to communicate the environmeat antl which may be Disposed of only in Chas
11 Disposal Sites or Class III Disposal Sites pursuant to a variance issud by the Ca ifrrrom Department
of Health Services.
"Director" shall mean the Public Utilities Director of the City or an authorized rmremnmtive of
the Public Utilities Rotator.
"Discarded Materials' boom Solid Waste, Recyclable Materials, Organic Materials, or C@D
placed
la ed by nc aal r in a receptacle author at a location Net is designated for Collection p formal to
t
tys Mmp
"Disposal or Dispose (or variation thereof)" means the final disposition of Solid Waste at a
Disposal Site
-Disposal She" means a fambre for ultimate Dispose] of Solid Waste
City of Fresno Roll -Off Agreement Page 4
418111
'Divers inn' means activities that reduce or eliminate the amount of Solid Wane from Solid Waste
Dosposal incluxIM& but not Whited to, Recycling and Composting.
'Drop Bra" means an open -lop consumer with capacity ham six (6) to f By (50) cubic yards that is
used for Collection of Permitted Materials and that is serviced by ROH -Off Collection Track. Own
Boxes with capeaties of less than ten (10) cubic yards may only be used for the Purposes of
Collecting CAD, A Drop Box, which is ulna known as a mil -Off box and/or debris box, is a type of
RnD-Off Continues.
"Effective Date" means the date set forth in the introductory paragraph of this Agreement.
'Federal' means belonging to or pertaining to the national general government of the United
States.
"Food Scraps" means thus Nswded meseriJs that will decompose and/or putrefy including (i) all
kitchen and table fond waste. (ii) mimJ or vegetable wase that is generated daring or results &am
the storage, preparation, cooking or handling of food staffs. fiat discarded paper that is contemwamd
with Food Scrape: (iv) unit waste, grain wsste, darty waste. meal and fish waste: and, (v) nnn -
Recyclable Paper orcontaminated! paper . Ford Scraps me are a subset ofOsuric Materials.
'Franchise Fee^ means the fee paid by Contractor to City for she privilege to hold the non
excluove rights granted by this Agreement.
'Generator' means any Person whose act or process produces Permitted Mamdds, or whose act
find reuse Permitted Materials m became subject m regulation.
"Green Waste Material" means any materials generated from the maintenance or alteration of
public, commercial, or residential Bounda ries that will decompose uNor putrefy including, But not
lunised to, Yazd d1PPings, grass, leaves, shmbvlree trimmings at promises (less Nan 4" in character).
bosh, flowers, weeds, dead plants, smdl pieces of contacted and untreated wood and other types of
muscle waste. For the purposes of this Agteement, such materials shell be Soured Separated and
placed by a Generator in a receptacle slaves at a location that is duummed for Collection. Green
Waste Material is aaWsm of Organic Materials.
-Desertions Waste means all substantia defined u Hrzardam Waste, acutely Ha dons Waste. or
extremely Haum rdaWaste by she State in Health and Safety Core §2511002, §25 L 15, and §25117
or in the furore amendments to or ruodifieatiaaa of such statutes of idandfied and listed as
Hazardous Waste by the LLS Environmental Protection Agency (EPA), purawnt to the Resamce
Conservation and Recovery Net (42 USC §6901 e) _), all Powre. amendments thereto. and au mica
and rdgulanaus promulgated thcrewder.
'Holidays' are canard as New Year's Buy, Thanksgiving Day, and Chrismrss Day.
'infectious Waste" means biomedical waste generated at hospitals, public or private medical
clinics, dental Offices, research laboratories, pharmaceutical dogwoods, blood barks, comments.
veterinary facilities and other similar enabl hmenta u defined in Hath and Safety Code Section
2511).5.
'Liquidated Damaged' means the amounts due by Contractor m City for fJd to meet specific
quutifabic nandards of perfannance ss decnbcd iv 5<aian 11 4 and Exhibit A.
'Organic Materials" means those discarded matefiala that will decompose and/or putrefy including
Drtrn Were Material and Food Scraps such as, bud are not limited to, green Wmminga grass, words,
leaves, pinnings, branches, dead plants, India. Mcc trimmings, dud trees, smell woad pieces, other
types of organic yard waste. vegemble watt, fmlt waste, gram weak, dairy was¢, rant wssm, fish
City of Frena Roll-0ff Agreement page 5
VillII
were. paper contaminated with Food Scraps, pieces of imported and untreated wood, and pieces of
nmt�ceMl
disciatim material Climate
unless north maend is Separated from Sold Waste, Me mmot1%&D or Other
materials.
-Parent Company^ refers to a company owaiog more than fifty percent (50%) of the shares of
another company (mbsidimyl ora company that has management control Overmuch subsidiary.
-Party or parties- refers to the City and Cnumelon individually of together.
'Permitted Materials" refers to Solid Waste, Source Separated Recyclable Materials, source
SeparatedOrg rano Materials and C&D. Permitted Matenals excludes source SepantM Food Semps
`Personal" means my individual, firm, association. organization, partnership, cafporiu me.
business trust, joint venture, the flirted States, the State of California the County of Fresno, and
special purpose districts.
"Premises" means any land or building in the City where Permitted Matenals are generated or
accumulated.
"Processing" means to propose, treat. or convert through some special method.
"Processing site" mems any pint or site used for coning, deeming, treating, or ream stimhng
Permitted Materids for the propose of making such material available for reuse.
"Putresellse Waste" means Solid Wastes originated fiom living organisms and then metabolic
waste Frductx std Rom petroleum, which contains naturally produced Oregon: compounds sed which
re biologically decomposable by m Orubisl end fungal action into the camtiment compounds d
water, carbon dioxide and other simpler organic compouads.
"Rates" means the charges and fres Contractor bills and collects fi en rich Customer receiving
sery ca pursuant to this Agreement.
"Recyclable Materials" means those Demanded! Materials that the City Code permits. direcia
mllor requires Generators to met out in Recyelables Materiels containers for Collection for the
purpose of Recvcling. NO Discarded Materiels mail be considered Recyclable Materials unlems such
trial is sepnratd from Solid Waste and Organic Materials. Recyclable Materials "I include, but
not be limited to newspaper (including inserts, coupons, and store advertisements); mixed paper
(including Office paper, computer paper, magazines, junk mail, catalogs; brown paper begs. brown
paper. paperboard, paper egg canons, telephone books, gocery bags, colored paper, construction
papas, envelopes. Iegel pad backings, shoe boxes, map boxes, cereal said other similar food boxes);
chipboard; cardboard, paper milk cmaous; glass containers of any color (including glass bottles and
jars all colors), aluminum cars, fabric sidener commoners; heel, tin or bi-metal cam, plastic
containers (clear or green plastic soda and water bottle, plastic containers and fomes and plastic
bags with no, L d or 3 on the bouom); mid food contributes from potato selei pasta cold, whipped
cream, etc.
"Recycle or Recycling" means the preens of collecting,. mrrimg, cleansing, vesting, sed
conmiating materials for the purpose of using the altered form in the manuflcture of a new
product. Recyckrigdoes not include bunting iommeding, or thermally destroying solid waste.
'•Resfi entialo mail mean of. from. or pertaining to a single -family Premises, mWn-plan. or multi-
family Premises including alnglenfamily homes, apartments, condominiums, townhouse complexes,
module home perks, cooperative apartments. and yacht LaAms and minimum where scandal live
aboard boats.
City of Fresno ROIdOfF Agreement Page y
4/21/11
•Roll -OR Container" means a Drop Bax or Compactor OEM her Collection of Petmined Materials
and serviced by a Roll -of Collection Truck_ RDII-Off Contalaem with capacities of less Ihim has (10)
cubic yards may only be used for the purposes of Collecting C&D.
"Roll -Ott Collection Truck" means a collection vehicle with a mechamcel device such as a which
that pulls or his a ROTI -Off Container onto the track bed or attached retailer and separately
transports each Roll -Off Conlamer to a Disposal Site Or Processing Site.
'Solid Waste" means solid waste in defined in California Public Steamiest Code, Division 30, Part
1. Chapter 2. §40 19 1 and regulations promulgated thereunder and those Discarded Materials that the
City Code regturts Grammes Edition the City to set Out for Collection. Exclided fmm the defbutim
of Solid Waste are C&D, Hazardom Waste, lofectiOm Waste, Designated Waste, Source Separated
Recyclable Materials, Source terminated Organic Materials, and radioactive waste. Notwithstan&ng
any provision to the contrary.' Solid Waste- may include de minims volumes or concentrations of
waste of a type and amount normally found in Residential Solid Waste after implementation of
Programs for the safe collection, recycling, treatment and disposal of household hazwdons waste in
compliance with Section 41500 and 41802 of the Celiforttin Public Resources Code.
"Source Separated' means the segregation, by the Generator, of materials designated for Estimate
Collection for some form of Recycling, Processing, Composting, recovery. or reuse.
"State^ means the Sm1e of Cal3ors a
"Subcontractor" means a party who has entered into aeontract. express of implied, with [be
Contractor for the performance of an set that is necessary for the Contragni s fulfillment of its
obligations urMer ibis Agreement.
'Term' means the Term of this Agreement, inchtding extension periods if granted im pri vided for
in Article 3.
`Ton" means a wit of measure for weight egwvaleat to 2,000 standard pounds where each pound
coati ins 16 ounces.
"Tonnages means the total weight in Tons Collected Recycled, Composted Divined or Disposed
of, as the context requlrn.
"Transportation" means the act of transporting or state atoning transported
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR
2.1 REPRESENTATIONS AND WARRANTIES
The Contractor, by execution of this Agreement, represents and warrant is the foilowiag to City, for
the purposef inducing City to enter into this Agreement and to contain sit the tramections
contemplated henry.
A Corporate Status. Contractor is duly otgwized, validly existing and in good standing under
the laws of the State. It is qualified to trawact business in the City and State and has the
City of Fresno Roll-OffAgmemeat
418111 Page 7
Power to own its properties end to carry on its business as now awned am operated Said as
required by this Agreement.
B. Authorization. Contractor has the authority to enter Nis Agummut and perform its
Obligations under this Agreement, The Board of Diremom of Contractor (or the
shareholders, if neeasmy), salt proprietor, or partners have taken all actions requhed by law.
its articles of incorporation, its. bylaws, or otherwise, to authorize the execution of this
Agreement The Person signing this Agreement on behalf of Contractor represents and
warrants that they have authority to do so and the corporate secretary's certificate in
Exhibit B confirms this. This Agreement completes Ne [CO. valid, and homing obligation
of the Contractor.
C. Agreement Will Not Cause Breach. To the beat of Contractor's knowledge after
reasonable myro igation, the execution or delivery of this Agreement or the performance by
Contractor of its oblrgedom hereunder docs not conflict with. violate. or result in a breach:
li) of any lower governmental regulation applicable to Contractor: (nippy term or condifion
of anyjudg scat, order, or decree of any court, administrative agency or othergovarnmental
authority; on (iii) any Agreement or instrument to which Con trampr is a party or by which
Contractor or any of in properties. or assets us bound, or constitute default thereunder.
D. No Litigation. To the bat of Contractors knowledge after reasonable investigation, there
IS or Belton. suit proceeding or imestigetioq at low or in equity, before or by any court or
governmental authority, commission, hoard, agency or instmmentalov decided, pending or
threatened against Contractor wherein in unfavorable decision, ruling or funding in any single
case or in the aggregate, would:
I. Materially adversely affect the Worriment by Contractor of its obligations
hereunder,
_. Adversely affect the validity or enfameability of this Agreemenq or
1. Have a material adverse effect on she finuncial condition of Contractor, o any
nrrety or entity guaranteeing Contractors Performance order Nis Agm
ceme. r
E. No Adverse Judicial Decisions_ To the beat of Contractor's knowledge after reasonable
investigation, there is no judicial decision that would prohibit this Agreement or subject this
Agreement to legal chdlenge.
E. No Legal Prohibition. To the best of Contractor's knowledge after reasonable
investigation, there is no Applicable Lou in effect In the date Contractor sipped this
Agreement that weadd prohibit the Contractor's performance of it obligations under this
Agreement and Ne transactions contemplated hereby.
G. Contractor's Statements, The Convertor Application and soy other supplementary
information submitted to the City, which the City has relied on to entering this Agreement.
do not (i) contain any unimt statement of a material fact. or (ii) omit to state a material
fact that is necessary in order to make the statements made, in light of the circumstances w
which they were made, ant misleading.
H. Contractor's Investigation. Contractor me made an Independent investigation
(ubsfactory to iG of the conditions and Circumstances sumnunding the Agreement and the
work to he performed hereunder. Connector has Considered such matters in entering this
Agreement to provide semen in exchange for the compensation provided for under the
terms of this Agreement.
City of Fresno Roll -Off Agrrement
4VIi Page g
L Ability to Perform. Contractor possession the budnes, professional, and technical expertise
to Collect, Transport. Recycle. process, and Dispose Permitted Materials generated in the
City Contractor positions the equipment, finsliry(nes), end employee resource rapdrcd to
perform its obligations order chis Agreement.
ARTICLE 3
TERM OF AGREEMENT
3.1 EFFECTIVE DATE
Contractor may provide the Roll -Off Container Collection. Transportation, Recycling, processing,
Composting and Disposal services amhonzed by this Agreement commencing on the Effective Dote.
3.2 CONDITIONS TO EFFECTIVENESS OF AGREEMENT
The obligation of City to permit this Agreement to become effective and to perform its undertakings
provided for m this Agreement is subject to the satisfaction of ag Oe conditions below, each of
which may be waved, in written form, in whole or to part by City.
A. Accuracy of Representations. The representational and warranties made in Article 2 of
this Agreement arc true end correct on and as of the Effective Date,
B. Absence of Litigation. There is no litigation pending on the Effective Date to any court
challenging the award or execution of this Agreement or seeking to restrain or enjoin its
performance.
C Furnishings of Insurance. Contractor hM firmishd evidence of the insurance required by
Article la that is satisfactory to the Cit.
D, Effectiveness of City Council Action. The City Council action approving this
Agreement shell have became effective and all Penin shall have signed the Agreement
forecast
to asbeen prior to or on the Elective Date, provided that no restraining
order
3.3 INITIAL TERM
The initial Term of this Agreement sball commence on the Effective Date and continue in full force
for five (5) years, until June 10. 2016, The Term may be extendoi pumuent to Sections 3A or
terminated early in aeeo dome with Section t 1.2.
3.4 OPTION TO EXTEND
Subject to City Council approval, the City shot have the Option to extend this Agreement for an
eddibonal term of up to five (5) years. If the City extends the Agreement, it shall give written
notice to Contractor at least one hundred eighty (180) calendar days prior to expiration of the Initial
Term, The City's written notice slid[ specify the number of years by which it titan to extend the
City of Fresno ROIGOff Agreement Page 0
418111
Term of this Agreement and the revised expiration dine of the Agreement Any such extension shall
not become effective unless Contractor agrees to the extension in writing, at learn one hundred fifty
(150) calendar days prior to expiration of the must Term.
ARTICLE 4
SCOPE OF AGREEMENT
0.1 SCOPE OF AG REEMENT
Phis non-exclusive franchise, Printed to C'on trsc tor, authorizes Contractor to Collect. Transport,
Recycle, Process, Compost, and Dispose or Pcrmlved Materiels placed by Residential or Commemial
Claimants in Roll-0ff Containers for Collection. provided that the Customer has volunudly
managed for Contractor to provide Collection smites.
The Contractor shall be responsible for the following services:
A. Conectiag Permitted Materials placed by cash Customer in a Roll-0ff Container for
Collection not requested by Customer.
B, Providing each Customer, upon delivery of Roll -Off Container, a printed list that specifies
the materials that tamer he placed in the Roll -OR Container (i,e. Hazardous Winter) and a
list of acceptable Recyclable Materials, pagetic Mvtcrials, and C&D that may W placed. as
the Roll -Off Commoner.
C Transporting Collected Solid Wutc tp the Dcaignaled Disposal Site and transporting older
materials to an Approve Processing Sia.
D. COnisiting dl iabm, supervision vehicles. Rall -Off Containers, other rotational, rnatmala
supplies. and all other items and services necessary to perform its obligations under this
Agreement.
E Paying all expenses related to provision Of services imposed by this Agreement including. hal
not limned to, Franchise Fees, taxes. regulatory Res. Collection costs. Transportation costs,.
Processing awe, Disposed costs. utilities etc
F. Providing all services required by this Agreement in a thorough and Professional manner sol
that residents, businesses, and the City are provide timely; reliable, courteous and high-
quality service at all times_
G. Performing ell services in substmtid accordance with this Agreement at all nines using best
industry practice for comparable operations.
H. Complying with Applicable Law.
i. Performing Or providing all other services necessary to adult Its obligadorm seder this
.Agreement
1. Diverfing a minimum Of 50".e of the C&D Collimated Sam DispoW. The Dlvcrston rate shall
be calculated curb month based upon the weights of C&D Collected and Mverte 1,
City of Cristo Roll -Off Agreement Page 10
VVI I
K. Collaring a minimum of ]0% of the Recyclable Materials Collected &am Disposal. The
Diversion rate shall be calculated each month based upon the weights of Recyclable Materials
Collected and Diverted.
L. Diverting n,nimum of po% Organic Materials the OMaterials Collected from Disposal. The
Diversion rate shall be calculated each month based upon the weights of Organic Materials
Collected and Diverted.
The momentum and specification of furnisher aspects of servi, labor, or amopment requirements
shill not relieve Contractor of the duty of accomplishing all other aspects necessary to habit its
obligations under this Agreement whether such requirements are enumerated elsewhere in the
Ageement or not.
4.2 LIMITATIONS TO SCOPE
The scope of the Agreement shall be non-exclusive. Permitted Materials may be Collected and
Transported by other Persons provided that such Persons do so in accnrAnce with the City's
Municipal Cade, oachadeng but not limited to the following.
A. Permitted Muefidi, Collected by Other Nen-Exclusive Franchise Haulers.
Permitted Materials Collected by a parry that but executed a Non-Excluvve Reactor
Agreement with the City for Ron -Off Container Collection Services.
B. Permitted Materials Collected by City. Permard Meteorite collected by the City's
municipal collection mwolaIpn including. (1) materials Collected crop management, such u
Carts and Bins, not regulated by this Agreement (2) intends Collected from Cory facilities.
and special events and venues sponsored by the City, which may be Collected in Cans. Boris,
or Rall -Off Containers by the City's trial collection operation or City crews.
C. Donated Recyclable Materials. Recyclable Materials Generate] in the City that we
Source Separated and donated by the Generator to youth, civic, charitable, or other nonprofit
commissions.
D. Materials Hauled by Owner or Occupant. or its Contractor. Permuted Materials that
are oved from any Premises and ere Transported to a Disposal Site or Processing Site by
1p the (Tuner or Occupant of each Premises, (it) by fall -time employee of (Tuner o
Occupant that uses the Oamer's or Omantrafs equipment to (tampon ma c ial, or fill by q
airstrnmion or demolition contractor performing consmmian or demolition work at the
Premises, whom removal of the Permitted Materials is incidental to the service being
performed (u defined in Section 6-lOSIH(iii) of the City's Municipal Code) and such
contractor removes materials at no additional or separate fee umag contractor's employees
and contractor s equipment.
E. Green Wane Material. Private collection of Green Wrote Material resulting from
landscaping orgardim g service Performed by the person collecting such materials.
P. Other Recyclable Materials. Private collection by any person or company that
triasports Recvclable Materials through me of its own vehode(s), and receives no
compensation for such Collection or Tmnsponstion,
City of Fresno Roll -Off Agreement page I]
4110I1
G. Materials from Public Schools and Other Government Facilities. The removal of
any materials mcomated by public schools, cities, the County, fir federal facilities (with the
exception of those facilities subject to 42 U.S.C. Section 696lay.
4.3 CITY'S RIGHT TO GRANT MULTIPLE NON-EXCLUSIVE AGREEMENTS
The Cily may grant to an badminton number of adthtional Persons sector non-cxclwi,e franeMss
agreements for ROS -Of( Container Collection, Transportation. Recycling, Processing, Composting,
and Disposal of Permitted Mmcrials.
4.4 CITY'S RIGHT TO EXCLUDE NEWLY ANNEXED TERRITORY FROM SCOPE OF
FRANCHISE
The City reserves the right to exclude mrshory Ihat 1s annexed into the wrpnmte limits of the City
subsequent m the Effective Date from the scope of this fauchise.
4.6 AGREEMENT CONSISTENT WITH APPLICABLE LAW
This Agreement and scope of this frmchdu shall be interpreted to be consistent with Applicable Law,
now and moving the Termif Moore Judicial imerpmrationn of current law or new Iowa, mutilations, or
judicial interpretations limit the ability of the City to lawfully provide for the scope of smites as
specifically est forth herein, Contractor sews that the scope of the Agreement will he limited to
those services and materiels which may he lewfidly provided and that the City shall not be responublc
but any lost profits or losses claimed by Contractor to sou out of limitations of the scope Of the
Agreement set forth herein. In such an event, it shell be the responsibility of Contractor to
Minimize the financial impact of such futmejudicial interpretations or new laws.
4.9 OWNERSHIP OF MATERIALS
Once Permitted Materials we placed in a ROTI.OR Cooperate for Collection by Contractor. ownership
and the eight to possession of such materials shelf transfer directly ram the Cmtomerto Contractor.
On a short -Term basis not to exceed more than five (5) Wendar days per year, City may obmih
ership or possession of Permitted Materials placed in the Rall -OR Container for Collection, for
purposes of waste: characterization studies, upon written notice to Contractor of its intent to do so,
However, nothing in this Agreement shall be romtruvi in giving rise to any inference that City has
such Ownership or possession unless such written notice hu been Seven to Contractor.
4.7 NOTIFICATION TO CITY OF NON -FRANCHISED HAULERS
If Contractor can produce evidence that other Persons are Collecting Permitted Marmots and do not
have rights to db so as grantud by non-exclusive
- xcdus mwith a franchise agreeent the City or otherwise, or
in 4 manner that is not consistent with the City's Municipal Code. Contractor shell notify the City
he writing, within ten (10) calwdm days of Contractor witnessing such cinurnistances. The
Contractors notice seal include the name and telephone number of the Person a company
Collecting Permitted Materials (if known). the date the Contractor witnessed the event, thlocation
City of From Roll -Off Agreement Page 12
4/ant
of the RWI-Off Container Wong with Contractors evidence of the violation of the rights granted by
this non-exdumt franchise.
ARTICLE 5
COLLECTION, PROCESSING, AND DISPOSAL SERVICES
5.1 COLLECTION
Contractor is hereby connoted W Collect Permitted Materials from residents and busumons n the
City cunt ROTI -Off Containers. Contractor shall Collect Permitted Materials from Cmmmers that
vola mrily subsonic in or request Roll -off Container Collection services from Contractor.
Contractor shall provide its Customers with a Roll -Off Container for Permitted Materials CoUmfion
or shall allow its Customers to provide a Roll -Off Container. Contractor shall Collect Permitted
Materials from Premises as frequently as scheddd by Contractor or rmally agreed wib
Customer, but not leu than once a week for Solid Waste aM Organic Materials. Contractor shall
Provide requested service to its Cusmmers and slid[ charge Customers for service at Rams mutually
agreed by Customer and Contractor.
Contractor shell Transport Said Waste Collected pursuant to bis Agreement to the Desigoeted
Disposal Site and other matmds to an Approved Processing Site [hat has been selected by The
Contractor end approved by the City. The Approved Processing Sim(s) must So able to demonstrate
Diversion rates in accordance ndb Sections 4.1 and 5.3.
Contractor may color into contracts with Customers for Collection winces provided that in no cats
&bell IM1e tem of such contracts extend beyond The Term of this Agreement, and provided that in the
ant the City termivtes this Agreement The contracts with any and all Customers shall terminate
on the terminemoo date of this Agreement.
5.2 PROCESSING AND MARKETING SERVICES
A. Processing. Contractor agrees to Transport and deliver Ip all CAD in Collects in the City
to the Approved C@D Processing Site. (ii) all Recyclable Materiels it Collects in the City to
the Approved Recyclable Processing Site. and fill) ell Organic Materials it Collects in The City
to the Approved Organics Processing Site. Resiedefium the CBD. Recyclable Materials. and
Organics Processing and Composting activities shell be Disposed of by Contractor or its
Approved Processor at an Approved Disposed Site selected by Contractor in accordance with
Section 5 4 Contractor selected the Approved Processng Site(s) and Approved Disposal
Sim(s), which are identified in Exldbit D. Contractor shall permit or amnge for the City in
inspect the Approved Processing Sim(s) and observe operations an any time during the Term.
Contractor or as Approved Pm turfs) shall posses all permits and approval& memory for
e of the Approved PmcevngcSIM(s) in RH mgdal(ry compliance. Contractor shell, upon
City Pettiest. provide of request from its Approved Procemm(s) and provide copies of notices
of violation or Remiss to the City. Upon mgonl of the City. Contractor ball provide a
cer i(ed statement from its Approved Processors) documenting its Diversion rate.
If Contractor elects to use a Processing Sites) that is different than the Approved Processing
Suets) apecifid n Exhibit D. it ball request written approval from the City sixty (60)
City of Fresno Roll -Off Agreement Page 13
4/8/11
calendar days prior to use of the site and obtain the City s written approval no Inver than ten
(10) calendar days prior to use of the site.
If Contractor is unable to use an Approved Processing Site due to an emergency or slakbo
unforeseen closure of the Approved Processing She. Contractor may rise an alternative
Processing Site provided that (i) the Contractor provides verbal and written move to the
City within twenty-four (24) hours of we of an alternative Processing Sim, and (ii) the
alternative Processing Site is fully permitted and in compliance with all Applicable Lows
The written notice shall include a deseription of the reasons the Approved Processing Sita in
not feasible and the period of time Contractor proposes to use the alternative Processing
Site. Contractor shall use the alternative Proccusing Site for no more than twenty -Pour (24)
hourswithout obtaining City'swriuen approval.
B. Marketing. The Contractor or its Approved Processor shall he responsible for marketing
C&D. Recyclable hlamrials, and Organic Materials Collected in fee City .and Diverted.
Contractor and/or its Approved Processormry retain all revenues generated from the sale of
Permitted Materials that are Diverred
Upon requntt. Contractor or its Approved Processor shall provide proof lin the form of sales
receipts showing end-user) to the City that all C&D, Recyclable Materials, and Organic
Materials Diverted are marketed for Recycling Or reuse in such a turner that materiels shall
be considered as Diverted in accordance with rise State regulations established by the Act All
residual material from the Processing activities that ismarketed for e shall be
accounted rm
per as Disposal Tonnage at a permitted Disposal Site us
No Permitted Material shall
be
ma mportml to a domestic Or foreign location if Solid Waste Disposal of such material is its
intended use.
Contractor or its Approved Processor shall provide the City. upon written requar, with a list
of brokerhuyers it uses to market C&D, Recyclable Materials, and Organic Materials
Diverted. City may audit backers or buyers to confirm that materials use being Recycled and
Diverted from Dispnul, If Contractor becomes aware that a broker or buyer has illegally
handled or Disposed of material generated by the City or elsewhere. Contractor shall
mmedlately inform the City and terminale its contract or working relationship with such
Party immediately.
C Processing and Marketing Coats. Contractor shall pay all costs associated with
Processing and marketing of Permitted Materials including payment of my gate fees charged
at The Approved Processing Sites,
5.3 DIVERSION REQUIREMENT
Contractor shall Divert from landfill decimal at lent (i) 50A by weight of all C&D it Collects within
the City, in) y0% by weight of ail Reemolahle Materials it Collects within the Ciry. and (w) 906v by
weight of all Organic Materials it Collects within the City during enh calendar month by Processing.
Recycling, or Composting some or all of the C&D, Recyclable Materials. and Organic Materials
Centered.
If Contractor Seals to meet the Diversion regwremenis stated in the preceding paragraph during a
calendar month, the City may terminate the Agreement in accordance with Section 11.5.
City of Fresno PullOffAgreement Page 14
4/8/11
6.4 DISPOSAL
A. Disposal of Solid Waste Collected. Contractor stall Transport all Said Waste Collared
In the City m the Designated Disposal Sao. which the City specifies shell be the American
Avenue Landfill in t'nntuility, Cathartic. Contractor shell pay of costs aswvieRd with
'transporting and Disposal of Solid Waste iimludiog payment of any gate Res charged at the
Designated Disposal Site.
B. Disposal of Processing Residue. Contractor shall, or shall®tulre its Approved Processor
to. Dispose of residue ham Processing of CAD, Recyclable Materials, and Organic Materials
C011ectd within the City, that are not Diverted through Procroswg activities, by
Transporting the residue to an Approved Disposal Site specified in Exhibit D. which is
lawfully anthaded to accept such mamdal.
C, Permitted Site. Contractor or In Approved Processor atall only Dispose of materials ata
permitted Disposal Sim that is in full mandatory compliance. Contractor, or its Approved
Processor, shall keep or confirm of existing permits and approvals necessary for use of the
Disposal Sire(s) in full regulatory compliance. Contractor shall, upon romed, provide copies
of notices of violation of permits to the City.
D. Compliance with Regulations. Contractor shall observe and comply with all regulators
n effect at the Designated Disposal Site and Approved Disposal Sile(s)and cooperate with
the operator thereof with respect to delivery of Solid Write, including directions to udoad
Collection vehicles in daignatd areas, accommodating operations and mwmmmme
activities, and complying with Hevadnm Waste exclusion fragments.
E. Disposal at Approved Site. Contractor, or its Approved Processor, Shell not Dispose of
such residua by depositing. it on my probe or paivate tend, in any river, stream, or other
waterway, or in any sewtary sewer or storm drainage system or in my other summer which
violates .Applicable Laws. Contractor, or in Approved Processor. selected the Approved
Disposal Sams) for residue Disposed specified in Exhibit D. Contractor shall ertmge for the
City to inspect the Approved Disposal Sim(s)and ohmrve operations at my time during the
Term.
P. Alternative Disposal Site. If Contractor, or its Approved Processor, elects to use
Disposal SimD) that is different than the Approved Disposal Sim(g) listed in Exhibit D, it
(hell retain written approval from the City 60 ®leader days prior to use of the site and
obtain the Coy'swtltren approval no later than 10 calendar days prior to use of the site
If Contractor, or ifs Approved Processor, is gable to use the Approved Disposal Site due to
an meagency or sddm unforeseen closure of the Approved Disposal Site, Contractor, or its
.Approved Processor,
may use Contractor
Disposal Site provided that (i) the Coractor
provides erhuland evident notice to the City within twenty-four (24) hear of use of an
automotive Disposal Site, and fill the alternative Processing Site is fully permitted and in
compliance with e0 Applicable "on. The written notice stall include a dacnlitio s of the
amarms the Approved Disposal Site is not Pacific and the petid of time Contractor, or in
Approved Processor, proposes to use the emanative Disposal Site Contractor shall ase the
alternative Disposal Site for no more than twenty-four (24) hours without obtaining City's
written approval.
City of Fresm Roll -Off Agreement Page 15
418111
5.5 BILLING
Contractor shall bill all Customers and collect biWvgs in accordance wish Con tractor-whati isle i
Ratan, which are set in ae
consistent with provisions of Section 9 3. The Contractor shall
prepare. mail, said collect bills (or is wrm iureceipts for cash payments) for Collection
services provided by Contractor. Contractor shall he responsible for collection of payment From
Customers with past due accounts.
Contractor shall maintain copies of all billingsand receipts, each in chronological order, for five (5)
years after enpiration or termination of this Agreement Contractor seal retrieve and make
cvailable to the City copies of the billings and revering within five (5) days of the Director's northern
arrier for the billings and receipts. The Contractor may, at its option, foreign those retards in
computer form, on mscrnfichan
e. or in y other manner, provided that the records can be preserved
nd retriever for inspection and vetificeton in a timely manner.
5.6 CUSTOMER SERVICE
Contractor shall maintain a business office wi Wn the City of within a ramonabie &stance of the City
limits approved by the Director. The hminew office shall staff at [eat one customer service
representative capable of accepting payments from Customers, an wrong service gooniona, and
ma0lving Customer service issues. Contractor sual have a toll-free Customer service telephone
earlier and shall have staff available to answer calls from at lent 8.00 a.m. to 6.00 p.m . Monday
eW ough Friday. An governing machos shall named Customer calls and voice messages bargain 6:00
p.m. and 8:00 am,
ARTICLE 6
STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT,
AND PERSONNEL
6.1 OPERATING DAYS, HOURS, AND SCHEDULES
A. Days and Hour$ of Cnlhatirn
1, Residential Premirea. Delivery or Collection of a Roll -Off Container to or from
Residential Premise shall only occur betwean the hours of 6:00 a.m and 6x00 p m., tiny
dry of the week.
2, Commercial Premises. Delivery or Collection of a Roll -Off Container to or from
Commercial Premises the are 200 feet Or less from Residents] Premises shall only
cur berwcen the noun of 6:00 a.m. and 6:00 p. m_ any dayof the week. Delivery or
Colection of a Roll -Off Container to or from Commercial Premises that art more than
200 feet from Residential Premises shall only occur between the hours of 5:00 a.m. and
>t00 p. m., any day of the week. The Director may acquire modifications to hours for
delivery and Collection from Commercial Premiss to resolve mince complaints, and, in
such case, the Director may change the allowable operating. hours.
3. Exceptions. In the event of an anthrsee0 consumption, the Contractor may deliver or
Collect a Roll -Off Contractor from Residential or Commercial Premises that are 200 feet
City of Fresno Roll -Off Agreement Page 16
4/8/11
Or less from Residential Premises belwem the hours of 590 a.m. and 10'.00 p.m.. upon
Prior ssrittm approval from the Director.
4. Failure to Comply. If the Contractor falls to comply with the Collection boon
described in this Section, the Contractor shall pay the City Liquidated Damages in
described in Section 11.4 and Exhibit A.
6.2 COLLECTION STANDARDS
6.2.1 Instructions to Customer
Contractor shall Homes Cmmtoem as to any preparation of Permitted Mmenals necessary prior to
placing in the Roll-DITContsiner. Contractor shall, in waders form, inform all Consultant as to the
acceptable materials that can be wbluded in the Roll-ORContaimer end any unacceptable mater Ws to
be excludml from Collection
6.2.2 Care of Private Property
Contractor shall not damage private property. Contractor shall mane that its employees', (i) close
all gates opened to making Collections. targets otherwise directed by the Customer. (6) do not cross
landscaped areas, and (iii) do not climb orjump over hedgm end fences.
City shall refer ventilating about damage to private property to Contractor. Contractor shed] repair
all damage to private and public property earned by its employees to its previous condition.
6.2.2 Litter Abnem em
A. Minimization of SPHIS Contractor shall use due care 10 prevent vehicle o8 and vehicle
but from being spilled or scattered during Collection and Transportarion operations. If any
Permitted Materials we spilled or scattered during Collection or Transportation operation.
the Contractor shall promptly clean up edl spilled and scattered materials.
Contractor shall nm transfer loads from one vehicle to another on any public street. unless it
is my t0 do sur because of mechauicai fmlure, hot load (combustion of matelot in the
suck). Occidental damage 10 a vehicle. Or urgers approved by the City.
If Contractor rails 10 perform some or ell of the requirements described to this Section, the
Contractor shall pay the City Liquidated Damages as described in Section 11 4 and Exhibit A.
B. Clean-tfp. Each Collection vehicle shall carry prolective gloves, a broom, and shovel at all
times For cleaning up litter and absorbent material for claming up liquid spills. The
Contractor shall discuss instances of repealed spillage not camed by it with the Customer of
the Premises where spillage occurs, and Contractor era8 report such instances to City. If rhe
Contractor hm attempted t0 have a Customer stop creating spillage hit is anmcunsful, the
City will attempt. upon notice by the Contractor. to rectify such situation with the
Customer.
C. Covering of Loads. Contractor shall cover all Roll -Of Containers al the pickup locanan
before lfarmpoeting materials to prevent Permitted Materials from "coping Aunts
Transportation,
6.2.4 Noise
All Collection operations shall be conducted "quietly " possible and shall conform to Applicable
Law. Contractor will promptly resolve any Complaints of noise during the morning or evening hours
City of Fresno Roll -Off Agreement Page 17
4/8/11
of the day to the satteaction of the City. In the event of repeat occumencee of noise levels in
excess of75e A),theContractorthill pay Liquidated Damages in mwirdencnwith Section 11.4 end
Exhibit A.
6.3 VEHICLE REQUIREMENTS
A. General. Vehicles used to provide services under this Agreement shall the kept in a some
neat, clean, and operable condition at all times If Contractor fails to keep Calliermn
vehicles in a net and sanitary condition, the Contractor strait pay the City Liquidated
Damages as deswri to Section IIA and Exhibit A.
B. Specifications. Contractor shall register all vehicles with the California Department of
Motor Vehicles. All such vehicles shill comply with Califomu Envifoomentd Protection
Agency (EPA) noise emission and air quality regulations and other applicable noise central
regulations.
C, Vehicle Identification. Contractors name, IoW telephone number, and a adgm
Identification number for each vehicle weed to provide services under this Agreement, shall be
high.
Prominently
ne nttmctmiawal on shdl not Baca the Clefvehicles, in t
letters ani numbers
vme� �l me a minimum of 4 inches
P ft °b t Males.
O. Cleaning and Maintenance
L Cleaning. Collection vehicles shall be thoroughly washed and thoroughly steam clemed as
fec pirtmenl onmevehide to Present A clwn appearance of the exterior and interior
com_. Maintenance. Contractor shill inspect each vehicle they to ensure that au equipment is
upcoming properly. %chicles that am not operating properly shall be taken out of service
until they are repaired and operating properly Contractor shill perform all mhedded
maintenance fmmmns in accordance with the manufedmer's specifiutioos and schedule or
in accordance with California Highway patrol standards, whichever arc moa stringent.
Contractor &Wl keep accurate records of all vehicle maintenance, rmoobad according to date
and mileage, and And make such records available to the City upon request to the extent
access" to perform the irojimmions demnbed in Sections 6.3.17 and 6.6,
3 Repairs Cantractor shell mpair or artange for the mpeir or. di of im vehicles and
equipment for which repairs are needed because of accident, breakdown, or my other cause
O,
as to maintain ail equipment in a We and operable condition. Contractor shall maintain
accurate records Of mosir, week shill include the dme/mJeage name of repair and the
titanium of a maintenancesupervisor that the repair but been properly performed
4. Storage. Contractor that arrange to store all vehicles and other equipment in safe and
secure Intercede) in accordance with City's applicable zoning regulations.
E. Operation. Vehicles shill b< operated in compliance with the Caldorwa Vehicle Code, and
dl applicable safety and loch ordmmces. Contractor shall not load vehicles in excess of the
manufacturer's recommendations or limitations imposed by State Or IoW weight restrictions
for vehicles and roads. Contractor All have each Collection vehicle weighed at each
Approved Procesvng Sites or Hesignate'I Disposal Site to determine the unloaded weight
("rare weighC) of The vehicle_ and the total loeded weight of each load delivered to the
Approved Processing encs and Designated Disposal Site
City of Fresno Rall -Off Agreement Page Ie
4/6111
F. Veh is le In election. City may inspect vehicles at any time to determine compliance with
the requirements of this Agreement. Contractor shell make velids available to the City
and/or Fresno County Health Department for inspection, at any frequency City reasonably
regnesta
6.4 ROLL4FF CONTAINER REQUIREMENTS
A. General. All Rall -Off Containers shall meet applicable Federal, State. City and local
regamions for safety.
a Specifications
C Prevent Leakage. If the type of materials placed in flue container may result in leakage of
liquids, Contractor shall take precautions to prevent the leskage of liquids. In accordance
with Sections 173 15 of Chapter 3 of Title 14 of rhe California Code of Regulations, Roll -Off
Containers used to Collect garbage and promotes materiels and/or garbage and putrmcibles
mixed with rubbish shall be von -absorbent water -right, vector-resmiss. durable, easily
cleanable, and she] he designed for safe bandmit and the containment of refuse.
2. Provision of Sufficient Capacity. In accordance with Station 173 15 of Chapter 3 or
Title 14 of the California Code of Regulations, Containers far gmbage and rubbish should be
Of an adequate sae and in sufficient numbers to contain without overflowing, all the refuse
that a household or other establishment generates within the designated removal period.
3. Use or Containers with Less than Ten (10) Cubic Yards of Capacity. Roll -Off
Containers with capmitio Of Teat Om ten (10) ethic yards may only be used for the purposes
of Collecting CA D.
C. Roll -Off Container Identification. All Connuctor-providel Roll -Off Containers shall
prominently display the Contractor's name, local telephone number. a =Joe Roll-OffContainer identification number, and a be of acceptable mrism. As appropriate. Roll -Off
Containers shall be labeled fon Solid Were, Recyclable Materials. Organic Materiels, or
CAD. Such labeling may be temporary labeling in the form of magnetic m detachable signs.
H Convector Oils to comply with the provisions of this Section 6.4, the Contractor shall
pay the Cin Liquidated Damages as described in Section 11 A and Exhibit A.
O. Cleaning, Pal its ng, ano Mai nten once. All Roll -Oe Containers she] be maimainedoa
safe, servrwablc, and functional condition. Contractor shall steam clean and repaint all Hall-
Off
OILOff Containers In least every two yearn, or more frequently. to present a clam gmffti-Ree
appearance
F.. Roll -Off Container Inspections. City may inspect RaR-Off Containers at any dme to
dere mane compliance with sanitation requi¢ments. Contractor shall make Containers
fumble to the City at my frequency it ttquasts. The City shall have the right to prohibit
the use of any KOH Off Canlaincr that fails to comply with the provisions in this Section
64.
F. Abandoned Roll -Off Containers. Contractor shall not Abandon my Roll -OR Container
teed no provide Perm arej Materials COIRIHIon services under this Agreement. If the
Contractor Abandons a Contractor -owned Roll -OH Container, City may remove the Roll -Off
Container and process and Distance of the contents. If the City removes a Roll-0ff
Container Abandoned by Contractor. the City may, charge Contractor for the City's favor
City of Fresno Roll -Off Agreement Page 19
4/8/11
incurred removing. such Roll -Off Container, Transporting, Processing, and Disposing of its
contents, andlor the cost of storing such Roll -Off Container shall reimburse the
City for such vests within francen (I4) calendar days of the date of the Cory's invoice to the
Contractor for inch costs. If the Contractor does nor pay the invoice mount within
fourteen (14) days, the City shell become the Roll -Off Container owner if the invoice stated
the City's intent to become the Container owner in Imuring or at leant 12 prior font.
For the purposes of this Section 6.4.F. "Abandon' means the following:
I, Contractor's Summa to remove a COnimctorowned Roll -Off Cummer within five (5)
caiOrdar days of receiving a written correct from a Customer or the City or within five
(5) caiendar days after the termination of the customer service agreement ironware
Convector and the Cusmrrmr, or
2. Contractor's failure to remove a Contractor -owned Rall -Off Container within ten (10)
calendar days upon expiration or termination of this Agreement, except in the use
where Contractor hes been panted an examine of the Term of the Agreement o
Contractor bas been printed a subsc ount agreement authorizing Contractor to Collect
and ttmnport the type or types of meteirsers for which the Roll -Off Container was used
pmamnt to this Agreement.
6.5 PERSONNEL
A. General. Contractor shall furnish such qualified drivers, maintenance, supervisory,
Customer service, clerical suit other personnel as maybe necessary to provide the services
required by this Agreement in a safe and effaciant manner.
B. Driver Qualifications. All drivers shall be trained and ceWfied in the operation of
Criterion vehicle, and must have in effect a valid license, of the appropriate class, issued by
the California Department of Motor Vehiclm. Contractor shall use the Class B California
Department Of Motor Vehicles employer 'put Notice Propem" to monitor its drivers for
seen,
C, Safety Training. Contractor shall provide suitable operational and softy training for all of
its employees who Operate C'.ollection vehicles or equipment or who are otherwise directly
involved in such CollectloO, Disposal, Or Processing. Contractor shall here its employees
evolved in Collection to Identify, and not to extract. Hazardous Waste or Infectious Waste.
Upon the City S request, Commence shall provide a copy of its safety policy and safety
Usiaing program, the time of its safety officer, and the frequency of its hearings.
D. Employee Conduct and courtesy. Contractor shall use in best efforts to emme that all
employs present a neat appearance and conduct themselves in a wurreom manner.
contractor shell rlarly ain its employees in Comments courtesy, shell prohibit the me o
egurf
laud or profane language and shall simmer Collation employees to perform the work as
county as possible. If any employee is found not to be courteous or not to be performing
xwrvicesi in the sooner required by this Agreement Contractor chat mite all appropriate
corrective measures and shat pay the City Liquldered Damage in described in Section 11 d
and Exhibit A.
E_ Employee Identification. While performing services woes this Agreement all of the
Contractor's emplovees performing field service shall he dressed in clean clothes and shell
War badges that include the employee's name anctim employee number, and Contractor's
name, in approved by the Ciry.
City of Fresno Roll -Off Agreemem Page 20
4/g/H
6.6 HAZARDOUS WASTE INSPECTION AND HANDLING
A. Response to Hazardous Waste Identified during Collection. If Contactor determines
that material placed in any Roil -Off Container for Collection is a Hazardom Waste that may
not legally be Disposed of at a D micart Site or hounded at the Processing Site, or presents e
banned to CaiefraClnr's employees. lite. Contractor shall refuse to accept such material. The
Contractor shall contact the Customer and reports the Customer tp measure proper Disposal.
If the Generemr cannot be reached immediately, the Contactor shall, before leaving the
Premises, leave a tog at least two inches by am inches IT' 0 V) in size, which indicates the
reason for remains to Collect the masenat and lists a phone number for obtaining
information on proper disposal of the Hsrardom Wash. Under no circumstances shill
Contractor's employees knowingly Collect Hazardous Waste.
If Hazsldous Waste is found in a Roll -Off Container that could possibly result in imminent
danger to people or propmty. the Contractor shal immediately minty the City's Fire
Department ming the 9) 1 emergency number.
The Contractor shall notify the City of any Haurdaas Waste identified in Roll -Off
Containers or left army pretences within 24 hour of identification of such material.
B. Response to Hazardous Wastes Identified at Disposal Site or Processing Site. Thn
Contractor, or its Approved Processor, or Disposal Site operator shall provide load checkers
and equipment operators at the Processing or Disposal Sails) to identify Haanrdous Wastes
Ibr storage in approved. on-site, haemdom materials storage contrimv(s), Contractor shall
make restrainable efferm to identify and notify the Customer. Contactor shall arrange for
removal of the HUWous Wastes by permitted bodies in accordance with Applicable Laws
and regulatory requirements.
If the Hazardous Wastes delivered to a Disposed Site or Processing Site by Contractor before
its presence is detected. and the Generator cannot be identified or fails to remove the
material atter being retransmit to do so, the Contractor shill marine forits proper Disposal.
The Contractor may make a good faith effort to recover the cost of Disposal from the
ancestor. and the cost of this effort, m post m the cost of Disposal shall be chargeable to
the Generator.
C. Rego dations aad Record Keeping. Contactor shall comply with emergency notification
procedures required by Applicable Lsvrs and ragelatory requircmmts. All meet& required by
regulations shill be maintained at the Contractor's facility. These emends shall include.
waste manifests, waste inventories, waste characterization retards, inspection records,
incident reports, and star ning records
61 NON-USCRIMINATION
Contactor shall not discriminate or the provision of Service or the employment of Pentons engaged
in performance of this Agremicirt a account of race, color, normal migie, ancestry, religion,
gender, marital status, sexual onenmtlonage, physical or mental disability in .violation of my
Applicable Law.
City of Fresm Roll -Off Agreement Page 3I
419/11
6.8 COMMUNICATION AND COOPERATION NTH CITY
A. Communications. If requested, the Contractor shall meet anth the City or its agent to
discuss service issue.
R. Inspection by City. The City, or in designated representatives, shall have the right to
Observe and review Contractor operations. processing Sites and Disposal Sites d by
and
Contractor, eprocuse
enter Contractor's premise for the purposes of such observation and review
rhuing reasonable beam without advance notice.
C Cooperate with City-inc at ed Studies, Contractor shill cooperate with and assist the
City or its agent with the performance of City -initiated studies of Permitted Minerals such
as, but not limited to. warm charatoenzatiun and composition studies,
ARTICLE 7
RECORD KEEPING AND REPORTING
T.1 GENERAL
1.1.1 Maintenance of Records
Contractor agrees to conduct data collection Information and second kccpmg, and reporting
activities ncaded to comply with and to meet We reporting and Permitted Matesiils program
manag m ent needs of City, the Act and other Applicable Lawn, and the reenactments of this
Agreement
This Article is intended to Itiypligm the general crown of records and reports to be maintained by
Contractor, and their minimum content. This Article is not meant to comprehensively define what
the records and reports are to be and their content. With the written direction by or approval of
City, the recordsand reports to be maintained and provided by Contractor in accordance with this
and other Articles of the Agreement shall be adjusted or number, format, or fre tracy. Rewrite and
reporting may be revised to refect control record keeping and reporting requirements.
To the extent such requirements are set out in this and other Articles of this Agreement, they shad!
not M considered limiting of necessarily complete.
7.1.2 Retention of Records
Unless otherwise required in this Article, Contactor shill retain all reverse sed data regWred to he
maintained by this Agreement for the Term of this Agreement plus five (5) years after its expiration
or earlier termination. Records and data shall he in chronological under and mostly and emily
mterpreted.
7.13 Inspection of Records
The Ctty, its wdients and other agents, shall have the right, during regular bunions hours, to inspect
specific documents or meet& required by this Agmemwt or any other similar records or reports of
the Contractor that the City shall deewn. at its sole discretion, necessary to evaluate the Contractors
performance provided for in this Agreement. The City may make copies of any documents it deems
relevant to this Agreement. The City shall provide Contractor written notice at least three (y)
Rusinea Days prior to any inspection of them records. and Contractor shell retrieve and make
available to the City the intimated documents and records air that time.
City of Fresno Roll -Off Agreement page 22
atom
The City reserves the fight to inspect encomia for the purposes of wtliting the Contranoor's reports.
reported Diversion level, and fee payments to the City. If an audit conducted by the City, or its
representatives, finds: 0) that the Contraecor has made mv intentional m srepresentetion with
respect to the fees doom to the City be g.. Franchise Fees or other fees due to the City) in an amount
greater than $1 ,000 or 10% of the fees due to the City during the period covered by the audit,
Whichever is greater. or (it) that the Diversion level is 5% different than the Divenian level reported
by the Contractor, den in addition to any other remedies mvuhtble to the City. Contractor shall
imburse the City for the City's ears incurred in the performance of the audit. Such rcimbursocal
stud be Food by Contractor along with my underpaid fees and Cicuideled Damages refused by
Section 114 and Exhibit A. within thirty (30) calendar days of the date the City notifies the
Contractor of the mount due.
7.1.4 Record Security
Contractor shall maintain adequate record security to preserve retards from events that can be
reasonably anticipated such as fire, theft, and earthquake. Electronically montund data and records
shall be protected and hacked -up.
7.2 RECORDS
0.2.1 Financial and Operational Records
Connector shall maintain accurate and complete accounting records containing the underlying
financial and operating data relating to and showingthe but for computation of all re
dated with providing Permitted Materials Collection, Transportation, Processing, venues
Composting, and Disposal services. The accounting records shall IK preperd in accordance with
Generally Accepted Accounting Principles (GMP) consistently applied
At a minimum, the following operational records shell be rommind by Contractor for City relating
to:
A. Customer account information and billing records:
9. Tonnage of material Cohered by type (eg., Solid Waste, Recyclable Moaner, Organic
Material, or C&D) listed by Processing Sate or Disposal Site where such materials wee
selected Where Possible. affirmation is to be influential by Supplmeial and Commercial
Customers.
C Tomage of Recyclable Materials. Orgadc Material, and C&D Diverted from Disposal by
Contractor and supporting documentation.
D. Diversion level, which shall equal Tonnage Droned by Contractor divided by the Tonnage
Collected by Contractor mollified by 100. listed separately by month for the previous
canner. Tonnage Diverted shall reflect Permitted Materials Processed less residue Disposed.
E. Residue levels of Processed or Composted materials.
F. Weight tickets from (1) Desigoatd Disposal Site doeumenling the Tannage of Solid Waste
Collected within the City and delivered to the Designated Disposal Site; (it) Processing Sites
docnm sting the Tonnage of Permitted Materials Collected within the City and delivered to
the Approved Processing Sires; antl, fiatApproved Disposal Sites documenting the Tonnage
of residue delivered to Appmvd Dispovl Site by vehicle, rose. and time.
G. End use and markets for recovered mnenals.
City of prison Roll -Off Agreement Page 23
4/%111
Contractor shut make records available to the City upon requst.
7.3.3 Customer Records
Contractor shat maintain accurate and complete records containing [be number and types of
accounts sited by the Contractor. the retards shall comma, at a nuvimum, the Customers name.
type of busmess phone number, address of Roll -Of Container delivery end Collection location, date
of delivery and Collection, Itemized found of services performed, type of Permitted Malarial
Collected, tonnage Collected, and the amount charged to provide services. The information slid) b<
provided to the City upon request.
0.3.3 CERCLA Defense Records
City views its Wilily to defend itself against Comprehensive Environmcnul Response, Compemmnon
and Liability Act (CERCLA). and related htigmom as a matter of great importance. For this remon.
the City reports its ability to prove where permitted Materims Collected by the Contractor we taken
for Processing, Recycling, Composting, Transfer, or Laterad, as wet re as whethey are not taken, to
be matters of concern. Contractor shall maimdn. retain and preserve records witch can establish
where permitted Materials Collected were Processed, Composted, and Disposed (end therefore
establish where they mere 1101). This provision shut survive the examinant or earlier timnioation of
this Agreement. Contractor shall maintain these records for a minimum of ten (10) years beyond
expiration or earlier termination of the Agreement Contractor shall provide these records to City
(upon request or at the end of the record mention period) in an orgunieed and indexed mannan rather
than destroying or disposing of them.
7.3 GENERAL REPORTING REQUIREMENTS
The format of each report shrill be approved by City. Contractor may propose report formats that
responsive to the objectives Contractor agrees In and a copy of ell reports and submit all
r
reports on computer disc„by a -mail, or by modem in a format compatible with City'a soRwere and
computers at no additional charge. Contractor will provide a ceulhcation statement under penalty
Or Penney by the responsible Contractor Official, that the report being Maximum is rose and correct
to The best knowledge. ofsuch official after their reasonable inquiry.
Contractor shall submit monthly reports within fifteen (15) calender days of The end of each month.
If Contractor doer not Submit the monthly reports by the dates required in this .Artcle, Contractor
shall pay the City Liquidated Dunnages as described in Section 11 4 and Exhibit A.
Contractor shall suhnut (via mail and a -mail) ml reports to.
Solid Waste Division Manager
City of Fresno
1335 EI De redo SVcm
Fresno. CA 93706
7.4 MONTHLY REPORT
The monthly report slim] present the fotowing information.
A. Tocol Tonnage. Total Permitted Materials Tonunge Collected by Contractor within the
City during the previ0m gorOm, lined separately by material type and by month.
City Of Fresno Rot -Oft Agreement Page 34
418/11
B. Diverted Tonnage. Pam] [led Materials Tonnage Collected by Contractor within The City
that was Diverted dimrg the previous nomas, listed separately by matdal type and by
month
C. Disposed Tannage. Permitted Materials Tonnage Collected by Contractor wiN]a the City
that was Disposed during the previous quarter, listed separately by mouth.
0. Diversion Level. 3'nnnage Darted by Contractor divided by the Tonnage Collected by
Con van or multiplied by tori, 1rated acparately by month for the previous quaver. Tonnage
Div'ertd shall reflect Permitted Mater ads processed less residue Disposed
E. C®D. Tonnage generated from construction and demolition permitted sites, noting the
permit member, the site address, the Tonnage hauled, the date handed, god the facilities to
which the material was hauled.
F Disposal and Processing Locations. Contractor shall provide a list of the tames and
ddrcmes of where Permitted Materials Collected within the City during. the pravious algal
was Diverted .and Disposed. Such list shall include rite amount of Permitted Motorola
Tonnage Diverted and/or Disposed at each location during The previous quaver, listed
separately by material type and by month.
G. Revenues. Gass revenues (egcash receipts) earned on all Roll -Off Container Collection,
Transportation, Processing, patching, or
ng, Compting, and/or Disposals s provided to
Customers within the City during the previous claimer, listed separately by month.
H. Insurance. Updatdinsmanecoatificates,
1, Account Information. to table format the number of Customers various the City limits
served and number of Roll -Off Conuinen serviced per month listed by Roll -Off Container
type (Drop Box or Compactor). Roti IT Container not, and listed Separately by Permitted
Material type, and regularly schedule servo" and unsshdWed (on-call) service.
1. Contractor Officers and Board Members. Provide a list of Contractor's officers and
embers of in board of directors (only regained with the December monddy report each
year, or in the event of a change in the officers or bund MCMWn').
The City reserves the right to request additional repom from Contactor, and upon City's romest.
Contactor shall provide information required above for the time pend cockerel by the City. It is
the desire of the City to track the above required raf ecation on an ongoing basis throughout the
term of this Agreement.
7.5 AS 888 COUNTY SURCHARGE REPORTING
Contractor acknowledges that City is a parry to that "pain AS 939 Memorandum of Understanding
with the County of Fresno and venous other jurisdictions dated January 6, 2006 (the "AB 939
MOL"), and firmer acknowledges having received and reviewed u copy of the AS 939 MOU. The
Parties agree that Contactor is a' bouncing's Helder", as that Tnns is used or Pmt IV, Section H of
the AS 939 MOU. Contractor shall comply with a requirements of Part IV. Section H of the AS
939 MOU that are applicable to e lurivirchon i Hasid. including but not limited to submittal of
repom and payment of the AH 939 Surcharge (as that tem. is defined in the AB 939 MOU).
City of Fresno Roll -Off Agreement Page 25
4/8/11
ARTICLE 8
FRANCHISE FEES AND OTHER FEES
8.1 GENERAL
Contractor shell collect the fees dacrihed in this Section from Customers through ConmactoA
regWar billings and remit collected am Fanls to City con monthly hail a dvicebd iv Section 8.5.
8.2 FRANCHISE FEE
In consideration of the exclusive rights provided Contractor herein, Contractor shall pay Franchise
Feesto the City each month equal to 10% of actual gross Rate revenues (e IT. cash receipts) remitted
to Contractor by Customers for services provided by Contractor under this Agreement.
8.3 OTHER FEES
The City may set "other" additional fees, as it deems necessary. The amount, time, and method of
payment and adjustment process will be set in a customer similar to that for other fees described in this
Article.
8.4 ADJUSTMENT TO FEES
City may adjust the. fees established In this All augustly at any time during the Term of this
Agreement.
8.6 PAYMENT SCHEDULE AND LATE FEES
On Or before the Toth day of each month during the Term of this Agreement. Contractor shin remit
to City Franchise Fees slid other fees as described w this Article. If such remittance is not paid to
the City on or before the 20th day of any month. Contractor shall pay, in addition to the amount
Deed to City. 2% of the amount owing for that month; plus an additional 2% owing on any unpaid
balance for each following thirty 130) calendar day period the fee remains unpaid
Each monthly remittance to City shell he accompanied by a statement imm tong each fee pod:
detailing calculation of all fees; sating actual gross revenues (e N, cash nechm) for the monthly
Freud collected from all operations conducted or permitted by this Agreement. and sating the
umber and sim of Con tainers serviced by Contractor forte monthly penult. Eachreminance
melding all supporting documentation shall be provided! to:
Ann: City Consultor, Finance Department
City of Fresno
2600 Fresno Street
Fresno. CA 93721-3624
City of Fresno Roll -Off Agreement Page 26
4AVI T
8.6 OVERPAYMENT OF FEES
If Contractor behoves it has paid Framlyi n Fees or other fees as chneribN in this Article, in excess of
the fees Aa to the City, Centimeter may submit a moralist for refund to the Director. If proof of
osatisfactory issatisfactory to the Director, the Director shill nutharim the City to mind the
overpayment to the Contractor Contractorshall not apply any overpayment as a credit against my
Franchise Fee or other summary payable to [be City, unless specifically authorized to do m by the
Director in writing.
8.7 NON -CITY FEES; AB 989 COUNTY SURCHARGE
Pursuant to Section 7.5, Contractor shall pay the County of Fresno an AN 939 amdutge as
applicable in accordance with the All 939 MOU.
ARTICLE 9
CONTRACTOR'S COMPENSATION AND RATES
8.1 CONTRACTOR'S COMPENSATION
Contractor's compensation for performance of ill its obligations under this Apartment shall be: (i)
actual Ram revenues paid to Contractor fe.g. cash receipts) by Customers that attained Contractor's
Collection servicesless feesdue to the ('it) in accordance with Article 8, and (ii) revenues generated
by the sale of Collected materials Diverted &am Disposal.
Contrachls compensation provided for in this Article shell be the full, entire, and complete
compensation due to Contractor payment to this Agreement for all labor equipment materials and
mpplics. Processing. Composting, and Disposal fees, regulatory, fees. City fees. taxes. insurance
bonds, overhead, operations, profit and all other things necessary to perform all the services m the
manner supposed by this Agreement.
If Contractor's cos m than Contractor's compeosntion, Contractor shall not be
compensated for the difference in costs and revenges. If Contractors costs are less shin
Contractor's compensation, Contractor shall retain the diffrmi ce.
9.2 CITY'S RIGHT TO SET MAXIMUM RATES
The City reserves the right to establish maximum Rates for Permitted Materials Collection services
provided under this Agreement in the event that. (a) there are three or fawn companies holding non-
exclusive franchise agreements for Cot ectinn of Permitted Materials, or (b) the Rates charged by the
companies bolding non-exclusive franchise agreements for Collection of Permitted Matni as ere no
longer comparable to those of other junadictiom. a reasonably determined by City if the City
chooses to exercise its right 10 aur maximum Rates. City shall notify Contractor at least 180 calendar
days prior to the dale that maximum Rohs become effective. In such case. City will sd maximum
Rales with consideration of reasonable and necessary calls for Collection, processing, Comp rming
and Disposal and with the intention of setting maximum Rates that will matte partin, including the
Contractor, that have executed Non -Exclusive Franck m Agmements with the City for Roll -Off
City of Fresno Roll -Off Agreement Page 27
4bm1
Container Collection Services the ability to recover reasonable and necessary costs and a reasonable
profit.
9.0 CONTRACTOR'S RATES
Contractor shall set the Rates n chargee its Costumers for ROILOff Collection x The
Contractor's Rates shell Rot exceed City-estaf ished maximum Rates, if the City exercises its rights
under Section 9.2.
ARTICLE 10
INDEMNITY AND INSURANCE
10.1 INDEMNIFICATION
Contractor shall indemnify, defend with counsel acceptable to the City. protea and hold harmless
the City and each Of ins Officers, affords employees, vithureem, and agents (collectivity.
Indemnitees) from nod against A claims, damages (including Wt net limited to specid, consequential,
natural resource and positive damages); numles, costs, (including without limit any and ill response,
and removal costs), losses, deanda debts, liens, liabilities, causes of action, amts, lead
contribution madministrative proceedings. interest. fines, charges, penalties, and expenses (including vfthaat
limit attorneys' expert witness fees and costs incurred in connection with defending against any of
the foregoing or in eWarcing this indemnity), (collectively. "Damages') of xray kind whatsoever
paid, incurred or suffered by, or asserted against, imbalances ansing tram or attributable to the rats
Or missions of Contractor whether or not negligent or otherwise culpable, in connection vita or
related to the performance of this Agreement, except such lass or damage which was caused by the
sole negligence orwil101 misconduct of the City
Contractor's duty to defend and indemnify herein shall nitrate Damages Russia from or attributable
to any operations, repairs, clean-up or demxifieation. or other plan (regardless of whether
molecules due to govemmenml action) concerning my Hiturdous Waste Collected in the City.
Contractor shall be required to indemnify the Civ, for the costs for Ray claims arising from the
Processing. Compastivg. or Disposal of Promised Matenalz including, but not limited to, claims
'sing ander the Comprehensive Environmental Response Compensation and Liability Act
(CERCLA). The foregoing is intruded to operate as an agreement to defend ural indemnify and bold
harmless indemnities to the For extent permitted far habdiity pommnt to Section IW(c) of
CERCLA, 42 U SC Section 9607(e) and California Hedra and Safety Code Scotian 25364.
In addition, Contractor s duty to defend and indemnify herein include at fines author penalties
imposed by the Califomia Department of Resource; Recycling Rod Recovery, mbdect to the
restrictions set forth in Public Resources Code section 40059 1, if the requirements of the Act are
not met by the Contractor with respect to the Permitted Materials Collected under this Agreement.
and such failure is due to Contractor delays in pravidlag information that prevents Contractor or
City from submitting reports acquired by the Act in a timely mariner.
This provision will .survive the expiration or culler termination of this Agreement and shall not he
contained as a valuer of rights by City to contribution or indamaity from third parties..
City of Fresno Roll -Off Agreement Page 29
418111
IlL2 INSURANCE
10.2.1 Minimum Scope of insurance
Coverage shall be at least as broad as
A. Immm<e Services Office Commercial Careful Liability coverage.
1. personal injury
_. Convention] liability
R. Imarmce Service Office covering Automobile Liability, code 1'my auto
A. Worker's Compensation insurance as te.9umd by the Labor Code of the Sum of California
and Employers Liability IngaaaLe..
B Such other insurance coverages and limits as may be required by the CITY.
10.2.2 Minimum Limits oflasuranee
Contractor shall maintain limas no leas Nm:
A. General Liabi4ty: $1.000,000 each Occurrence for bodily injury and property damage;
$1,000.000 for personal sad sdvenising jury; S2,OOg000 products and completed
Operations segregate, and $2,000,000 general aggregue. If Commercial General Liability
inamence Or other form with a Second aggregate liabdiry is used, either the Several apprentice
limit shall apply sepemely to this projeculocati0n or the demand aggregate limit shill he
twice the required occurrence limit.
R. Automobile Liability: SI000.000 per accident for bodily injury and propelry damage.
C. Workers' Compensation'. Workers compensation limits as ngwed by the labor Code of
the State ofCilifomm
D. Employer' a Liability: 51,000.000 each accident for bodily injury.
%1,000,000 discrete each employee.
S 1.000,000 disease policy him 1.
E. pollution Legal Liability: 51,000,000 per clalwoaaufmce and $2.000,000 aggregate for
bodily jury. property damage, and remediation of contaminated site.
10.2.3 Deductibles; and Self -Insured Retentions
Any deductibles or self-insured retentions mmt be declared to add approved by the City. At the
option of the City, ember 'be easier shall rate or eliminetc such deductibles or celfinsured
retentions in respects the City, its officials mail employace; or the Contractor shill pracum a band
guarmteemg payment of losses and related investigations, claim adminiatfativn and defense expenses.
10.2.4 Other Insurance Provisions
The policies are to contain, or be endorsed to contain, the fallowing provisions:
A. General Ludiity, and AmomoWe Liability Coverages
I The City its affairs, otTcials,employees, nsmm and volunteers we to he covered m
addmonai insmeda an respects: liability arising Out of activities performed by or on behalf
of the Contractor: products and completed operations of the Contractor, premises
City of frame Rall -Off Agreement Page 29
VIC 11
weed, Im ed or used by the Contractor, or automobile& owned, leased hued or borrowed
by the Contractor. The coverage shall contain no spread limitations on the scope of
Porcelain Worried to the City. its officials, employees, or volunteers. The automobile
lia ithty is indorsed to comfun MCA -90 coverage.
_. The Contractor's insurance coverage shall be primmy insurance as respects the City, its
officals, employees, and volunteers. Any insurance or self-inamame maintained by the
City, in officals,rmployee volunteers shall be excess of the Contractor's'fourmce
had shall not contribute with Ser
3. Any failure 10 comply with reporting previsions of the policies shall not affect coverage
provided to the City, its officials, employees, or volunteers
4. Coverage shall state that the Contractor's dose shall apply separately to each
insured human wham alum is made or an is brought, except with respect to the limits
of the insurer's liability.
0. WorkersCompensation and Employers Liability Coverage. The insurer shell apace to waive
all rights of subrogation against the City, its officers, employees, tied volunteers for losses
arising from work performed by the Contractor for the City.
C All Coverages, push iosumoce policy required by this clause shall be endorsed to state that
coverage shall not W susp oded. voided. canceled by either party, reduced in coverage or in
limits except after 30 calendar days' prior contain notice by certified mail, return receipt
requested, has been given to the Cly.
10.3.5 Acceptability of Insurers
The insurance policies requit by this Section shall be issued by an insurence company or companies
unionized to d0 hsswess in the Sure of Californiaread with a rating in the most recent edition of
Best's Insurance Reports ofsize category VII or larger and a ruling classification of A or better.
10.3.6 Verification of Coverage
Contractor shall famish Contractor's iasuamce spent a copy of these spectficatiom, and direct the
agent to provide the City with certificates of immence and with criglrW emememeons affecting
coverage required by this doorimmure of documentation indicates the Contractor's insurance
implies with these provisions. The certificates said endorsements for each insurance policy are to
he signed by a Person authorized by that imurer to load coverage on its behalf The certificates and
endorsements are to be received and approved by the City before work veterinarian. The City may
center complete. certified copies mind requirN reservoirs: policies, at any time.
10.2.7 Required Eadursemehts
A The Workers Compensation policy shall contain an endorsement in swimmingly the
following form'.
"Thirty calendar days' prior written notice shall he given to the City of Forma in the event
oraancewtion. reduction in coverage, as sin -renewal of this policy."
Director of Public Utilities
City of Fresno
3000 Fresno Street
Fresno, CA 93]? I-3630
City of Fresno Rall -Off Agreement Page 30
4/8/11
R. The Commemlal General Liability, Rmwess and Automobile Liability. and Pollution Legal
Liabuity pohdo shall common endorsements in suhsnntially the following farm:
1. "Thirty calendar days' prior written entice shall be given to the City of Fresno in the
event of cancellation, reduction in coverage, or mass -renewal of this policy -
Iffiecmr of Public Witter
City of Fresno
2600 Fresno Sheet
Fresno, CA 93721-3620
2. The City of Fresno, its officers, employees, and agents me additional mmush; on this
pohry.'
3. "This policy shall be considered primary insurance as respects any other valid and
collectible insurance mainmhmd by the City of Fresno, including any relf-insured
retention or program of self-insurance, and any other such insurance shall be considered
excess insurance only."
4. 'Inclusion of the City of Fresno as an insured shall not affect the City's rights as respects
any claim, demand sat or judgment brought or recovered against the Contractor. This
policy shill protect Contractor and the Ciry, in the same mamer as though a separate
policy had been issued to each, but this shell not operate to increase the Contractor's
liability as set forth in the policy beyond the amount shown or to which the Contractor
would have been liable if only one party had been named as m insurN'
10.2.8 Delivery of Proof of Coverage
Simultaneously with the execution of this Agreement. Contactor shall furnish the City certificates
Of each policy of Insurance required hereunder, in form add armistice satisfactory to City. Such
certificates shell show the type and amutnt of coverage, effective does and dates of expiration of
policies and Shea have ill required endorsements. If the City requests, copies of each policy, together
with all endorsements, shall ileo be promptly delivered to City.
Renewal certificates will be mmishm annually to City to demonstrate mawtmance of the required
coverages throughout the Term.
10.2.9 OR er l Hsu ranee Req u rem enm
A_ If any services are delegated to a Sammunactor, the Contractor shall mature such
Subcontractor to provide statutory Workers COMPHot tion insurance and employer's babday
insurance for all of the Subcontractor's employees engaged in the work in accordance with
Seclisns 10 22.0 and 10 2 2 D and 10248. The liability insurance required by Section
10.22A shall cover all Subcontractors or the Subcontractor must famish evidence of
mentiounce provided by it meeting W of the requiremener of this Swoon 10 2
B. If at any time during the life of the Agreement or any extension. Contractor or any of its
subvorlorn m fail to maintain my required insurance in full force and effect. Contractor
shill be in breach of the .Agreement until notiw is miceivell by City that the required
Insurance has Berestored to full force and effect and that the premiums therefore have
been paid for a period satisfactory to Ciry. Any failure to notation the required insurance
shall he sufficient cause for City to terminate this .Agreement No action taken by City
pursuant to this Section shall In any way relieve Contractor of its responsibilities under this
Agreement.
City of Frmna Roil -C f AgeemmI Page 31
418)11
C. The Contractor shall comply with au requirements of the insurers issuing policies. The
n ngOfsceranceSKAJrelieve Contractor mbliga on order this Agreement
If
Carrying
Y claim B emaanl any deductibles oro .
lltsured reserves is made by my
Third person against the Contractor or my Subcontractor Income of any occurrence sclated
to this Agreement, the Contractor shall promptly report the facts in writing to the insurance
comer and to the City,
D. The Commercial General Liability. Automobile Liability, and Pollution Legal Liability
lummatimin policies shat] M written on an "cocutrence,' anther than a -claims made" basis. If
Contractor is unable to purchase Pollution Legal Liability insurance on an occurrence form
and must pmehme such insurance on a claims -made form:
1. The "Reba Date' must Ist shown, and most he before the effective date of the
Agreement or the commencement of work by Contractor.
2. The policy shell be endorsed to provide not less than a 5�year discovery period. 'this
requirement shall survive expiration or termination of the Agreement
3. If coverage of canetled or non-renuwad, and not replaced with another claims -made
policy form with "Retro
a Date 'prior to the efrective due of the Agreement.
Contractor most purchase "cxtaded reporting' c varum for a minimum of 5 years
following the expiration or termination of the Agreement.
4. A copy of the quints reporting requirements must he submitted to City for review.
5, These requirements shall survive expiration or termination of this Agreement.
ARTICLE 11
DEFAULT AND REMEDIES
11.1 EVENTS OF DEFAULT
Each of the folloxmgshall constitute an event of default CEvent of Default") heeunder
A. Contractor finds to perform its obligations under this Agreement, or fture amendment to this
Agreement, including. but not limited to, Contractor's failure to pay Franchise Fees end other
City fees in accordance. with Article 8 of this Agreement, and the breach comments for more
than 10 Business Wys after often notice from the City for the correction thereof,
B. Contractor's failure to Divest 50°0 of the CRD, 70% of the Ravelable Materials, and 90%
Of Organic Mmmi s CaBedM in the City as required by Section 53 of this Agreement after
Contractor is given an opportunity to remedy the nonperformance as desimbM in Saudis
11.5.
C Any representation, waranty, or disclosure made to City by Contractor in connection with
or as an inducement to entering into this Agreement or any future sma dmal to this
Agreement, which pmvn iso he eve or mislwd %in any material teapea as of the time Such
representation or disclosure is made, whether or not any such representation, watranty, or
disclosure!
appears as part of this Agreement:
D. There is a seizure or attachment father Than a pre -judgment attachment) of, or levy
affecting possession on, the operating equipment of Caraimmq including without limit its
Gly of Franc Roll -Off Agreement Page 32
ago
vehicles, mainlCnanm Or office fmditia, or any pmt thereof of such proportion as to
substantially impair Contractor's obgity to perform under this Agreement and which cannot
be releaad, bonded, or otherwise lifted within 68 boom excluding weekends and Holidays;
E. Contractor fres a summary petition for debt relief under any applicable bankruptcy;
Insolvency, debtor react, or other similar law now or hereafter in effect, or shall consent to
the appointment of or taking of possession by a receiver. ligual awristee (other than as a
put of a trarufer of equipment no longer useful to Contractor Or ry fur this
Ageemrnq. trustee (other dean as secunly for an obligation order a deed of vast, custodies,
sequestrator (or similar official) of the Contractor for any part of Contractor's operating
any substantial pan of COV reactor's property, or shell make any wi l assignment
for the benefit of Contractor's creditors. or shall fail gmaally to pay Contractor's debts as
they become due or shall take any action in furtherance of any of the foregoing:
F, A cow having jurisdiction shall enter a decree or Order for relief in respect of the
Contactor, in my involuntary two bought umber anyankmptoy, insolvency, debtor relief,
or studio law now or hereafter in effect. or Contractor shell convent to or shall fail to
Oppose any such praceedwg. or any such cowl 911111 mar a decree or order appointing a
mouser. hquidmor, "Met, custodies trustee, sequaermor
Contractor or for any put of the Contractor's o(Or stmily official) of the
putting cquipmmt or assets, or orders the
winding up or liquidation of the affair of Cmtmcmr:
11.3 RIGHT TO TERMINATE UPON DEFAULT
LPon a default by Contractor. the City may terminate this Agreement within 10 calendar days of the
default but no later than 180 calendar days after the default. Such Termination shall be CWeti ve 10
calendar days following the City's written notice to Contractor, cud mob tarmination shau be
effective without the need for any hearing, suit. or legal action.
11.3 CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE
the City's right to terminate the Agreement undo Section 11 2 is not exclunwe, Had the City',
termination Of the Agreement admr the intimating of Liquidated Demaga shall not constitute an
election of remedieslostend, these rights shall M in edditim s to any and all other legal and comable
rights and remetlles which the City may have.
By virtue of the mtum Of this Agreement, the agency Of timely. Continuous artd high Mabry
service, the lead time required to effect alternative smite, and the rights granted by City to the
Contractor. the remedy of damages for a breach hereof by Contractor is inadequate and City shell be
entitled to interactive relief,
11.0 LIQUIDATED DAMAGES
A. General. The Parties find that as of the time of the exception of this Agreement, it is
impractical, if not impossible, to reasonably awertam the extent of damages which shed! be
moaned by City as a result of a breach by Contractor of its obligations wader this Agreement.
The factors rehting to the impracticability of stweneining damages include, but we not
bmltcd to, the fan that: (fl sume"4111 damage results to members of IM1e public who me
denied urvlces or denied quality or re1101C service: (ii) such breaches cause mconvenlenee,
zesty. frasami on, and deprivation of the batters of the Agreement to individual members
City of Fresno Roll -Off Agreement Page 33
418111
Of the general public for whose benefit Ines Agreement exists, in subjective ways and in
varying degrees of intemoy which are loanable Of memumment in precise monetary turns,
(iii) that services might be available at substantially lower costs than alternative services and
the mavemry, loss restating from denied of services or deuial of quality or reliable services is
impossible to calculate in precise monetary terms and (iv) the termination of this
Agreement for such breaches, and other remedies are. at besh a means of fume correction
and not remedies which make the public whole for past breaches.
D. Service Performance Standards; Liquidated Damages for Failure to Meet
Standards. The Parties further acknowledge that transient, reliable Roll -Off Collection.
Processing, and Disposal Service is of utmost importance to City end that City has considered
and relent on Connector's representations as to in gmlity of service commitment in
executing this Agreement. The games recognize that some quantified standards of
Performance. are necessary and appropriate to ensure
nsist nt and reliable service and
performance. The Paries further recognize that if Contractor fads to achieve the
performance stmdmds, or F'Is to submit required documents is a firmly manner, City and its
residents and busineem wdl suffer damages, and that it regimented will be. immented end
extremely difficult to investor and detetmive the exact amount of damages that City will
suffer. Therefore, without prejudice to City's right to beat such non-performance as an
vent of defatat order his Aricle. the Parties agree then the Liquidated Damages emowts
established in Exhibit A of this Agreement and the following Ungrounded Damage ammmn
represent aonable estimate of the sat of such damage considering all of the
circumstances existing non the Effective Dole of this Agreement, including the relationship of
the sums to the range of Farm to City that venerably could be mfiaepeted and the
anrieipction that proof of actual damages would the costly or empmchatif
Contractor agrees to pay (m Liquidated Damages and not as a penalty) the smowts set forth
in the Schedule of Liquidated Damages, Exhibit A.
City may demlmene the occurrence Of events giving rise to Liquidated Damages through the
observation Of its awn employees Or representative or Investigation of complaints by
Customers. occupants, and Generator.
Liquidated Damages will only he msmsed after Contractor has been given the opporuIOV but
Fled to rectify the damages as described in this Agreement. Before a necong Ligmdated
Damages. City shell give Contractor notice of its intention to do so. The notice will middle
A beef description of the incidem(s) wall tion-wrfatmence. The City may review (tad
make copies at its own expense) ell information in We possession of Contractor reunion to
omengS) and non-performmce. City may, within 10 calendar days after iaamrg the notice,
request a memivg with Contractor. City may present evidence of non-performance in
writing and through mammary of In..employees and others relevant to the incidem(a) and
ontirefmmance, City will provide Contractor with a wnuen explanation of its
de¢rmimmon on each incidents) and non-peffo=ncc prior to enhancing the assessment
of founded Damages mtdm this Section 11 4. The decision of City shill be final and City
shell not be subject to, or required to exhaust. any further administrative Iront n
C. Amount. City may move Liquidated Damages for each wlmdm day or event, as
app
heome. specified that Contractor is determined to be liable in accordance with this Agreement in
t
to Exhibit A subjnl to annml adjustment described below.
The amount of Liquidated Damages specified in Exhibit A shall be adjusted anntally on the
anniversary of the Fffective Dete. The Wilmtment shall be rounded to the nearest cent.
Liquidated Damage amounts shall be, aojui to reDect changes In the Consumer price btlex
— All Urban Consumers (CPf-U) compiled and published by the US Department of Estate,
City of Fresno Roll -Off Agreement Page 34
418111
Bureau of Labor Statistics or its successor agency, ming the following Bureau of Labor
Statistics pmemelc6
Not Seasonally Adjusted
Area - Loa Angeles -Riverside -Orange County, CA
Item - All Items
Beer Pertain 1982-84=100
The formula for annual adjustment is as follows.
Adjusted Liquidated Damage Then -current LlgWdated Dumage Amount
Amount most current CPI-Ulpreviom 12 -month CPI -D
For exampte.
Current Liquidised Damage Amount = St 50.00
Most recently published index (January 20 10) = 220.610
Index puldished 12 months prior to most recently published index
(lareary 2009)— 220.719
Adjusted Liquidated Damage Amaum - $ 150.00 x (224.610/220 ]I9) - $152.64
If the CP 1-U is discontinued of revised during the Term by the United! States Department of
Labor such other government index or uompuufion worth which it is replaced shall be used in
order to obtain substantially the upon msWp u would be obtained if the CPI had not been
discantiuud or mvisd.
D. Timing of Payment. Contractor shall pay any Liquidised Damages insessed by City within
10 celrndar days of the date the Liquidated Damages ue restated. If they an: not paid within
the l0-0ay period, City may order the termination of the rights or "rtmchiss' granted by
this Agreement
11.5 DIVERSION NONPERFORMANCE
If the Contractor's Diversion level is less than 5011. for CAD, less than JOA for Recyclable
Materials, and/or less than 90% for Organic Materims Collected in the City for a monthly reporting
period, the following steps slid[ be followed by the City and Contractor.
A. Warning. The City shall issue a venture winning to the Contractor within In Wmdu parrs
of receipt of the Contractor'a monthly report documenting the Diversion level for the
monthly reporting period The warning notice shall specify the amount of time (i e.
rection proud') the City grana the Comment to improve its performance and meet
the Diversion requirements defined in Section 5.3.
B. Opportunity to Improve Performance. The Contractor shall modify its Collection,
Processing, Diversion, and public education and outreach programs (subject to the Ciry's
'approval) to improve the Diversion level. At the end of the correction peal. Contractor
shat] submit a written report to the City identifying the Diversion level and providing the
supporting documentation. If the City determines that the Diversion level equals or exceeds
Divenion retuiremrms defined in Section 5.3, We Contractor than continue to perform
services in such a manner an to mention at improve the Diversion level and the City shall
City of Fresno Roll -W Agreement Paye 35
dig/Il
native iA rights to proceed with steps outlined in subsection C and D of this Section 115
during the remainder of then -current reporting period.
C Liquidated Damages, If the Contractor fails to improve the Diversion level so that it u
equal to or greater than Diversion requirements defined M Section 5 3 by the end of the
correction period granted in subsection A of this Section, the Ciry may levy, and Contractor
shall pay. Liquidated Damages described in Section 11.4.
D. Termination or the Agreement. If Coutractor's f h to achieve a Diversion level that
e noels or exmed Diversion regmemens defined in Section 13 within six months of the date
the City levied Liquidated Damages, the failure to meet the Diversion requirements defined in
Section 5.3 shall be considered an event of default and the City may terminate the
A&cement in accordance with Section 113.
11.8 CONDITIONS UPON TERMINATION
In the event this Agreement is terminated order the provisions of this Article, the following
conditions shall he effective.
A. Prohibit Roll -Off Collection Services. Contractor shall have no right or authority to
engage in Roll -Off Collection services le the City for a period of five years from the date of
termination. After Ove years, should the Contractor provide proof that the event causing
the Contractor m default under this Agreement has been corrected. the Contractor may
reapply for a non-exclmive Roll -Off Collection service flanchise, and the City, at the sole
and complete discretion of the City, may reinstate the Contractor based on review of its
reapplication.
9. Continuing Liabilities. Contractor shall remain liable to the City for:
I. Fees due in accordance with Article 8 that would Otherwise be payable by the Contractor.
2. Liquidated Damages assessed percent to Section l 14.
3 Reports required by Article 7 for ROII-Off Collection activities performed by Contractor
up to and including the date of termination.
4. Indemnity obligations under Section 10.1.
5. Re rind keeping and retention obligation order Sections 7. l and 7.2.
C Release Customers and Generators from Obligations. Contractor shall allow
Permitted Materials Gencratoes served by Contractor to mnnge for Fortune Materials
Collection services with a hauler authorized to perform such services, without penalty or
liability for breach Of any contract between Contractor and its Customers or Generators.
D. Remove Roll -Off Containers. Contractor shall remove all of Contractor's RoIhOIT
Containers from all of Contractor's Collection locations and shall properly Recycle, Process.
Compost. or Dispose of Petmith d Materialsin such RoILOfTConteiners.
City Of Fresno RollOffAgreemom
518/11 page 36
ARTICLE 12
OTHER AGREEMENTS OF THE PARTIES
12.1 RELATIONSHIP OF PARTIES
The Parties intend that Contractor shall Perform the services "ward by [his Agreement as in
independent Contractor engaged by City and not n an officer nor employee of the City, nor as a
Proper Of, orjouit venlu or with, the City. No employee or agent of Contractorshotbe, or shall be
deemed to he, an employee or agent of the Cory, Except as expressly provided herein. Contractor
shill have control over the manner and means of conducting the ROILOff Container Collection,
Transportation, Processing, Reryvimil, Composting, and Disposal services performed order this
Agreement.endomma
and all
Persons
serf
performing m
such services. Contractor shalt be solely responsible for the
actoldestemployers, employees, Subcpractom. and spent,. Neither Contractor norits
p yen, Subcontractors end agmbshaN obtain any rights to retirement benefits, workers'
compensation benefits, or an miv other benefits which anemic to City employee by virtue of their
employment with the City.
12.2 PERMITS AND LICENSES
Contactor shall obtain and maintain, at Contractor's sole cost and expense. W permits and licenses
applicable to Contractor's operations tender this Agreement which ere required by any governments!
agency.
12.3 COMPLIANCEWITHIAW
Contractor shall. at all times, at its sole cost, comply wish all Applicable Laws.
12.4 GOVERNING LAW
This Agreement shall be governed by, and convinced Wad enforced in accordance with, the laws of the
State of Calif oma.
12.5 JURISDICTION
Any lawsuits between the Parries urismat out of this Agreement shall be brought and concluded ui the
Of Fresno County in the state of Celifornoa, which .shall have exelusrve jurisdiction over snob
counts t,.
With respect to viriffilli the Penin agree that this Agrremnnt is made in and will be performed in
poison. County.
12.6 BINDING ON SUCCESSORS
The provisions of this Agreement ,lull inure to she bereft b% and be binding on, the successors and
permitted assigns of the Parties.
City of Fresno Rall -Off Agreement
4/8/11 Page 37
shall constitute a material breach of this Agreement. Under no circumstances shall any assignment be
considered by City if Contractor is In default at any time during the period of consideration.
12.8 PARTIES IN INTEREST
Nothing In this Agreement, whether express or Implied, is Intended to confer any rights on any Persons
other than the Parties to Rand their representatives, successgrs and plumitted assigns.
12.9 WAIVER
Tile waiver by either Party of any breach or violation of any provisions of this Agreement shall not be
deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach
of violation of the same or any other provision. The subsequent acceptance by either Parry of any
monies which become due hereunder, shall not he deemed to be a waiver of any pre existing or
concurrent breach or violation by the other Parry of any provision of this Agreement.
12.10 NOTICE PROCEDURES
All notices, demands, requests, proposals, approvals, consents, and other cpmmprivations which this
Agreement requires, authorizes or contemplates all, shall be In writing and shall either he personally
delivered to a representative of the Parties at the address below or deposited In the United Stales mail,
first class portage prepaid, addressed as follows:
A If to City:
Public Utilities Director
City of Fresno
260D Fresno Sc, Room 3065
Fresno, CA 93721-3624
B, If to Contactor:
WESTERN SOLID WASTE
P O g0%354
FRIANT CA 93626
The address to which communications may be delivered may be changed from time to time by a notice
given In accordance with this Section.
Notice shall be deemed given on the day it Is personally delivered or, if mailed, three calendar days from
the date 8 is deposited In the mail.
City of Fresno Roll Off Agreement Page 41
4/8/11
11.11 REPRESENTATIVES OF THE PARTIES
References in this Agreement to the `City- shall mean the City Council and all actions to he taken
by the City shall be taken by the City Council except in provided below. The City Council may
delegate, in writing, authority to the Director and/or to other City official and may permit such
officials, in turn, to delegate in writing some or all of such authority la subordinate officers. The
Contractor may rely upon actions taken by such delegates if they are within the scope of the
authority properly delegated to them.
The Contractor shall. by the Effective Date, designate in writing a responsible officer who shall serve
as the representative of the Contractor in all matters related to the Agreement and shall inform the
City in writing of such designation and Of any limitations upon his or her authotity to bind the
Contractor. The City may rely upon action taken by such designated representative in actions of the
Contractor unless they are outside the scope of the authority delegated to himarm by the Contractor
as communicated to Crty.
11.11 CRIMINAL ACTIVITY OF CONTRACTOR
12.11.1 Criminal Activity
For purpose Of this Section,. Criminal Activity shell mean my of the following events or
Circumstances:
A. Convictions. The entry against my Contractor Party or its Officers, of a mammal
conviction or a permanent conciliatory or probibirory injunction from a court, municipality,
or regulatory agency of competent jurisdiction, bared on acts taken in his or her official
capacity on behalf of Cmttramor with impact to:
1. Fraud or minimal offense in connection with obtaining, attempting to Obtain, procuring
or performing a pubkc Or Private agreement related to municipal Solid Waste services of
my kind (including Collection, Transportation, transfer, Processing_ Recycling,
Contrasting, or Disposal), including. this Agreement or any amendment thmeno;
2. Bribery Or attempting to bribe a public officer or employee of a local, State. of Federal
agency.
3. Embezzlement, extortion, racketeering, false claims, false statements, forgery,
fa.mfication Or destruction of records, obstmcuon ofjmtice, knowingly receiving stolen
properly, theft, or misprision tfalme to dreamer) Of a felony:
4. Unlawful disposid Of Haurdous Wastes. the occurrence of which my Contractor Patty
knew or should have known,
5, Violation Of saftmsi laws, including leers relating to price-fixing, bid rigging, and sides
and market allocation, and ofuvfor and anti-competitive trade practices laws.
6. Violation of mccomes laws: and
7. Felonies.
B. Pleas. Entry of a plea of "guilty, "'nolo contendere,' or 'no matter- by n Contractor
Party based on acts taken in his, her, or id Official capacity on behalf of Contractor with
respect to the condum described in preceding Section 12.12. LA,
City of Fresno Roll -Off Agreement Page 39
4/8111
11.13.2 Notice
Counter shall ramify cry in McBMS Wuhm ave calendar days of occurrence of my Cnmmd
Activity by any Contractor Party.
12.12.3 Contractor's Cure
Uf We foilon anng, of my Crunmal Activity Contractor shall immediately do or came to be done all
A. Terminate from employment or remove from office my oR ndlog individual Contractor
Party, unless otherwise directed or ordered by a court or regulatory agency of competent
jummiction or authority, and unless that termination would constitute a breach of my labor
agreement cmmed Into by Contractor, and
H. Eliminate participation by any offending individual Contractor Party in my management,
uvpervision, or decision actiyhy that affects or could affect. directly or indirectly, the
performance of the Conlranor under this Agreement.
12A2.4 Transfer and Hiring
Contractor shall ret allow or cause to be alffawad to him or transfer any indiviAW from any Parent
Company orsubsidiary company or business entity of Contractor who hu committed Criminal
Activity as a Contractor representative, field supe mar, officer, or director who is directly or
indirectly responsible for performmce of this Agreement without obtaining prior written consent of
6tyV following tuff disclosure to City of the facts and circumstances surrounding such Criminal
12,125 City's Remedy
In the event of any occurrence of C'mind Activity, the Ciry, in its sole discretion may terminate
the Agreement within 30 calendar days written notice to Comment, or may imposn other smctmor
(which may include financial sanctions, temporary suspensions, or my other condition deemed
appropriate short of termination) ns it will deem proper, in the following events:
A. Contractor tole to comply with the foregoing obligation of Wu Section. or
N. The Criminal Activity concerns or reams directly or indirectly to Wim Agreement.
Contractor shall he given the opportunity to primat Evidence in mitigation during the 30- shcadm
day never penod
12.13 ACKNOWLEDGMENT OF PUBLIC RESOURCES CGDE SECTION 49520 NOTICE
I IContractor his lawfully provided mlid waste collection services in the City for more than three (3)
years prior 10 July I, 2011 (end is therefore emitted to the nobne provided form Public Resources
Code 49520). Contractor shall considm "Ieution of this Agreement by the City m City'I notice to
Contractor, pursuant to public Resources Cade 49520, that Contractor may provide service for a
period of five (5) years beyond holy 1, 2011, after which time the City has the right to establish not
exclusive franchise collection system.
Cry, of Fresno Rall -Off Agreement P
4/9111 age 40
ARTICLE 13
MISCELLANEOUS AGREEMENTS
13.1 ENTIRE AGREEMENT
This Agreement, Including the F hiNm, represents the Poll and come Agreement between the Parties
with respect to the matters covered herein.
13.1 SECTION HEADINGS
The article headings and section headings in flux Agreement are for convenience of reRrcnce only
and are not intended to be umal in the contraction of flus Agreement nor to alter or affect any of its
Provinces,
13.3 REFERENCES TO LAWS.
.An references in this Agreement to laws shall be understood to include moth laws or they may be
subsequently amended or recodified, unim otherwise specifically provided
13.4 INTERPRETATION
This Agreement shell he interacted and construed reasonably and neither for not against either
Party, regardless of the degree to which either Party participated in in dmftlng.
13.6 PRONOUNS AND PLURALS; TENSE
When not inconsistent with the context. words and phrases used in the present tense
include the
fnure, and words and phrases road he the singular number Include the plural number Whenever the
context me ent shell include the corresponding comedian,
feminine andrneuter forms the food
rrsformm of news, promotion and verbs shall include the
plural nd vice vers..
13.6 TEXT TO CONTROL
The captions of the Article ar Smtiotss in this Agreement are for convenience only and m no way
define, limit. extend or dacribe the scope or intent of any of the provisions hereof, shell not he
deemed part of this Agreement and shall not be aced m construing or interpreting this Agreement.
City of Fresno Roll -Off Agreement Page 41
418111
19.7 AMENDMENT
Venin Agreement may not be modified or amended in any respm except in writing signed by the
s.
10.9 SEVERABILITY
If any n n -material provision of Wim Agreement is for my Mason deemed to b< invalid and
unenfommblc, the invalidity or menforceability, of such provision shall not affect any of We
remaining provisions of this Agreement, which shall be enforced as if such invalid or mfarceeble
provision m
sion had not been contained herein.
19.9 COUNTERPARTS
This Agreement may be executW in commonness, each Ofwhich shall he considered an origimL
19.10 EXHIBITS
Each of the Exhibits identified as Exhibit "A' through ^D" is attached hereto and incorporated
herein and probes pan gereofby this reference.
City of Fresno Roll -Off Agreement Page 41
4/gill
IN WITNESS WHEREOF,
the Parties have caused the Agreement to be executed on the day and year first
above written.
CITY OF FRESNO
CONTRAMR
A MunicipalCorporation
q
WESTERN SOLID WASTE
--
Director
Name
FRED DOW (OWNER
APPROVED AS TO FORM:
Tithe
PO BOX 254 2
l_
Atltlress'--
1
FRIANT, CA 93626
Cry Attorney
airy
Business License
Risk Manager
ATTEST:
City of Fresno Roll -Off Agreement Page 46
4/e/u
LYHIRrrA
SCHEDULE FOR LIQUIDATED DAMAGES
Contractor may be aas¢sed Liquidated Damages if Contractor fuss to fulfill in obligations sari@
scandal m the events
encs listed in this Exhibit in accordance with the terms and conditions of the
Agreement withregards to the time frame for arompliahng each evert and nature of the
msimmilohly associated with the event unless otherwise stated in this Exhibit.
1.
Diversion. Feilmc to achieve and maintain a minimum of 50%
0
The greater;Ci�,
Diversion per month of all C&D Collected withn the City, ]0'G
or 10%aft
Diversion per month. of all Recyclable Materials Collected within
Rate revenued
the City, and 9WN of all Organic Materials Collected within the
for providin
Crary.
Recyclable ,
and Organic s
Z=
reare 10
ices n tfor
the most12-month
2.
Leaks, Litter or Spills. Par each occurrence m five during a
J,,$ invent
aMditT year of umeeonible leaks, fitter, or spills of Permitted
Materials near or on public mree s and failure to pick up or clean up
inch castanet Immediatel
3,
Onamhorbird Collection Hours. Forcing Occtmence overfive
S30U/event
during a calendar year of Collecting Permitted Materials Aving
unauthorized hears_
4.
Excessive Noise. For each occumnce over 10 &ni a aelendar
3001 event
m o(excessive noise.
S.
Cleaning Collection Vehicles. For each occurrence over five
8150/event
dmhtg a calendar year for (Wool to keep Collection vehicles in a
sere and senita condition.
b.
labeling of Roll -Off Containers. For each occuranec of
$300/event
Contractor's failure to ca ec ly label Contradar-owned Roll -Off
Comeinens a
in eordence with cot 4d.C.
].
Oieevurteoua Rehavlar. Far each o of discourteous
ecustomer
$5001 event
behaviorby Collection vehicle Personal, serve
monad br other em to a sol'CDntradar.
g.
Injurrea [o Otters. For each incident of personal injury lona
$5.0001 incident
Persian requirinS medical treatment or hospitalization, where the
negligence of the Contractor or its personnel was a contributing
factor to the hi
4.
M1rpnthly Reports. FW me Iv submit monthly reports n the
$3001 days
limefremes rifled in thisA mens.
10.
Repan Drsvduua Weals For each fdhlle to notify the
$5001 event
a r0 mete authorities or re ormhla run of Hnvrdous Waste.
I L
Failure of Other Obligat ns. Fulme 10 perform any of the
5150/ roc each
obligehaea set forth in this AW in last not sacci(W ly sated above
obligation per dry until
end not mrreeted or pmc¢ch in good full to eorteet within 24
obbgation is performed
hours tin 24 hour notificetionb ci
county terms shall be co mdaad hate Doul each to and complain
onlhly real is larval by Cay Fm tort. exual hey Ian
export u h¢, the daily
Liquiyted Du,uge, scull M as informed in the monably refects section above
A -I
In pIaco@ Designee's initials at the places pro vided, each Pony specifically cont: s Hie Autrecy of
the statements made above and the fact that each Party has had Ample opportunity to coastal said,
hgtl counsel and obtain as explanation of Liquidated Damage provisions of the time that the
Agreement was made.
Contractor City
Initial Here Initial Here:
A-2
IXR16ff 8
SECRETARY'S CERTOICATION
The undersigned, being We secretary or not 4 CorporafioYj_
Glifornia corporation ("the Company.). db hereby certify that
the following resolutionwasadopted
by the Board of Directors or the Company and [bar such resolution has not been amended. modified
Or rescinded and is in full force and ellen es of the doe hereof
RESOL4£D. that be, and hereby is. authonzed to
u.m=oftt.am.ua igpn;eaii
execute by and on behalf of the Company any and all agreements, instruments, documents or pi
so heishe may deem appropriate or neciewry. pertaining to or relating to the Non-Exclmive
Franchise Agreement buhceen the. City of Fresno and Company for Roll -Off Container Collection,
Trmoporiing, Processing. Recycling. ConIposliIg and dsposal of Pennine! Materials and that any
such action taken to date is hereby roti Pied and approved
Dated:
P-1
Title
ECHIBITC
STATEMENT OF APPLICANT'S DNDERSfANDING
AND REPRESENTATIONS
The undersigned (who is duly authorized to bind the company suhmitting this application) has reviewed
the requirements of the no -exclusive franchise agreement for Rolbff Collection, Transporting,
processing, Recycling, Composting, and Disposal services for Solid Waste, Recyclable Materials, Organic
Materials, and C&D, its exhibits, and reference documents. In addition, the undersigned attests that this
application and any other supplementaryinPonnatiin submitted with this application do not (i) contain
any untrue statement of a material Fact, pi( ronem'maccurate Or misleading information, or (ti) omit oz
state a material fact that is necessary to make the statements made, In light of the circumstances in
which they were made, not misleading.
print Name Date
WMERNSOLID WASTE
Company Name
CI
ExHIRITO
APPROVED PROCESSING AND RESIDUE DISPOSAL FACILITIES
The following facilities were selected by the Contractor and approved by the City.
Approved CIED Processing Srte Approved Organs¢ Prapessing
sRe
Facility name BFI GREEN VALtV RECYCLING
Facility address IIW63 N RICE RD 2365 E NORTH AVE
FRESNO, CA 93730 FRESNO, CA 93725
SWIS number
Owner
UNKNOWN UNKNOWN
Operator
Approved liecyclables Processing Approved Disposal Site
Site (Applicable for Residue Ourri
Faculty, name
RFI
Facility, address
BEI
10463 N RICE RD 10463 N RICE RD
FRESNO, CA 9]]30 FRESNO CA 93730
SWIS number
Owner
UNKNOWN
Operator
Approved Recyclables Processing Approved Disposal SNe
Site (Applicable for Residue Onlyi
Facill[y name
facility address
AMERICAN AVE
I8950 W AM ERICAN AVE
HERMAN, CA 93630
SWISWr
-
Own er
er
— UNKNOWN
Operator
• All SOIitl Waseslvl pe
J
Disposetl of at the Designated Disposal Facuuy
Contactor
City
Initial Hese:
"YZI
JL
Initial Here: / ]//(/
D1
EXHIBIT
Da
"PROVED PROCESSING AND RESIDUE DISPOSAL.
FACILITIES
The Following facilitier
were selectetl by the Contractor and approved by the City.
Approved C&D Processing Site Approved Organics Processing
Facilit y na me
_ _ Site
L.
r, p SYNAGHO WE$T.INC
ICBM CENTRAL VALLEY
Facility addressCOMPOSTING
3457 A CEDAR AVE
13157 S HARMON RD
FRESNO, CA 93725 005 PAL OS, CA 9363c
SWIS number
Owner
CAGLIA
Operator
UNKNOWN
Approved Recyclablec Processing Approved Disposal Site
Facility name
SHE (Appleable For Residue Only('
Facility address
SUNSET SUNSET
2]DIISELM
FRESNOrSNO,UASSOC FRESNO, CA 93]O6
SWIS number
Owner
N40HOFF
Open for
MOHOFF
Approved Rerytlables Prccessing Approved Disposal Site
Facility name
site (Applicable far Residue Only('
T
CARS CARTS
Facility address
3457 A CL OAR AVE 345]5 CEDAR AVE
FRESNO, CA 9372S FRESNO, CA 93725
SWls number
— -
- _
CAGLIA CgGLIA
LAS
All Solar
' OIitl Wash shall be Disposed :f,o he Oesigenteel Disposal Facility.
Contractor
City
Initial Here.- '
Initial
Here:
Da