HomeMy WebLinkAboutKochergen Farms Composting, Inc. First Amendment To Service Agreement - 11-16-23 //� /(0 -,,!)-3
DocuSign Envelope ID:611 E82A7-A5E8-4C49-ABE6-AA8B68A07E7A
FIRST AMENDMENT TO SERVICE AGREEMENT
THIS FIRST AMENDMENT TO AGREEMENT (this "Amendment") made and
entered into as of this 16th day of November 20 23, amends the Service Agreement
entered into between the CITY OF FRESNO, a municipal corporation (the "City"), and
Kochergen Farms Composting, Inc., a California corporation (hereinafter referred to as
the "Service Provider"). This Amendment and its provisions shall be effective
commencing on November 16 20 23, unless otherwise specified herein.
RECITALS
WHEREAS, the City and the Service Provider entered into that certain Service
Agreement, dated May 1, 2016, for the processing of Green Waste materials generated
in the City (the "Agreement"); and
WHEREAS, the City and the Service Provider now desire to modify the terms of
the Agreement by executing this Amendment, in order to comply with Senate Bill 1383
titled "Reducing Short-Lived Climate Pollutants in California", signed into law in 2016 (SB
1383), and to adjust for changing and existing conditions in performance of services; and
WHEREAS, this Agreement will be administered for the City by its Director of
Public Utilities (hereinafter referred to as "Administrator") or his/her designee.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals, the mutual promises
herein contained, and for other good and valuable consideration hereby acknowledged,
the parties agree as follows:
1. Section 1(b), the definition of"Business Days" is deleted.
2. Section 1(d), the definition of "Green Waste Materials", is deleted and replaced
with a new definition of"Organic Materials" which shall read as follows:
"Organic Material(s) - means those discarded materials that will decompose and/or
putrefy including green waste material and food scraps such as, but not limited to, green
trimmings, grass, weeds, leaves, prunings, branches, dead plants, brush, tree trimmings,
dead trees, small wood pieces, other types of organic yard waste, vegetable waste, fruit
waste, grain waste, dairy waste, meat waste, fish waste, carpets, paper contaminated
with food scraps, pieces of unpainted and untreated wood, and pieces of unpainted and
untreated wallboard generated by, and as collected by the City, from City of Fresno Solid
Waste Division Green Waste Material residential customers. No discarded material shall
be considered to be Organic Materials unless such material is "source separated organic
waste," as defined in 14 CCR Section 18982(a)(69)."
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All instances of the former defined term "Green Waste Material(s)" shall be replaced
with the new defined term "Organic Material(s)".
3. Section 1(e), the definition of "Holiday(s)", shall be amended to read as follows:
"Holiday(s) — shall mean Memorial Day, Labor Day, Thanksgiving Day, Christmas Day,
and New Year's Day."
4. Section 1(g), the definition of"Process or Processing", shall be amended to read
as follows:
"Process or Processing - shall mean the controlled separation, Recovery, volume
reduction, conversion, or recycling of Organic Materials for the purpose of Recovery,
including but not limited to composting, anaerobic digestion, or other methods defined in
14 CCR Section 17402(a)(20)."
S. Section 1(h), the definition of"Processing Facility", shall be amended to read as
follows:
"Processing Facility - shall mean the primary location where the Service Provider
receives, stores, transfers, or Processes the collected/delivered Organic Materials prior
to storage, shipment, and/or the sale as Compost, or any other approved Processing,
Recovery, conversion, volume reduction, or recycling program for the respective material.
The Processing Facility location for purposes of this Agreement shall be at the Service
Provider's facility located at: 33915 Avenal Cutoff Rd, Avenal, CA 93204. The primary
phone number of the Processing Facility is: (559) 498-0900."
6. Section 1(1), the definition of"Working Days", shall be amended to read as follows:
"Working Day(s) — shall include all days the Service Provider is open for normal
operations— i.e., Monday through Friday from 6:00 am to 5:30 pm and Saturday 6:00 am
to 4:30 pm but excluding Holidays, and from 6:00 am to 3:00 pm with limited staff on
Independence Day, Christmas Eve and New Year's Eve. The Service Provider can
petition the City to modify these working hours to meet conditions of the Service Provider's
permit; however, the City shall be under no obligation to agree to any additional
compensation for any modification."
7. The definition of "Recover" or "Recovery" is added as Section 1(m) and shall
read as follows:
"Recover" or "Recovery" means any Organic Waste recovery activity, as defined in 14
CCR Section 18982(a)(49), including facilities or operations deemed to constitute a
reduction of landfill disposal described in 14 CCR Section 18983.1(b), including but not
limited to, composting, use as a soil amendment, and/or land application."
8. The definition of"Non-organic Materials" is added as Section 1(n) and shall read
as follows:
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"Non-organic Materials" means all waste that is not Organic Materials, including non-
putrescible or non-hazardous recyclable wastes, painted or treated wallboard, painted or
treated wood, drywall and other construction and demolition materials."
9. The first paragraph of Section 4, "Term of Agreement and Time for
Performance", shall be amended to read as follows:
"The expiration date of this Agreement will be extended from June 30, 2026 to June 30,
2031 and this Agreement shall be effective from the date first set forth above ("Effective
Date") and shall continue in full force and effect through June 30, 2031, subject to any
earlier termination in accordance with this Agreement (the "Term"). Prior to expiration of
this Agreement on June 30, 2031, both parties may agree to extend the Term of this
Agreement for an additional five years until June 30, 2036. Any such extension shall not
become effective unless both parties agree to the extension, in writing, at least ninety
calendar days prior to expiration of the then-current Term. Under no circumstances will
either party be obligated to extend the Term beyond June 30, 2031."
10. Section 6(a), "Compensation", shall be amended to read as follows:
"The Service Provider's compensation for satisfactory performance of all services
required or rendered pursuant to this Agreement shall be a per ton amount based on the
volume of Organic Materials Processed (the "Service Fee"). The Service Fee includes all
expenses incurred by the Service Provider in the performance of the services, except as
provided in Section 9(b) below. The Service Fee amounts beginning December 1, 2023
through June 30, 2028 shall be as follows:
Date Service Fee Amount
December 1, 2023 —June 20, 2024 $22.50 per ton
July 1, 2024 —June 20, 2025 $27.00 per ton
July 1, 2025 —June 30, 2026 $30.00 per ton
July 1, 2026 —June 30, 2027 $31.50 per ton
July 1, 2027 —June 30, 2028 $32.50 per ton
For the Service Fee amount effective July 1, 2028, a full detailed rate analysis will be
conducted, completed and presented to the City Council for review and approval, by the
Service Provider, by April 1, 2028. Such detailed rate analysis will examine the revenues
and expenses of the Service Provider for the 2027 calendar year (including expenses
incurred to satisfy the SIB 1383 regulations) and will assure profit based on an operating
ratio of 90%. The detailed rate analysis will be based on the Service Provider's Compiled
Financial Statements for the 2027 calendar year. All revenue from the City (i.e., Service
Fees and fees for Compost procured by the City)will be examined against the expenses
of the Service Provider allocated to the City based on the City's tonnage of Organic
Materials Processed by the Service Provider, as a percentage of total the total tonnage
of Organic Materials Processed by the Service Provider. The City's tonnage of Organic
Materials Processed currently represents approximately 13% of all tonnage Processed
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by the Service Provider. A 90% operating ratio will be applied to the total expenses
allocated to the City to determine the new Service Fee. For all subsequent years, the
Service Fee will be adjusted every July 1st during the Term or extended Term of this
Agreement by the annual percentage change in the Consumer Price Index (CPI), as
defined in the next sentence. The annual percentage change shall be calculated by
taking the value of the Consumer Price Index for All Urban Consumers for Pacific Cities
and U.S. City Average, West compiled and published by the Bureau of Labor Statistics,
United States Department of Labor or its successor agency, for the most recent month of
December over the same index for the month of December of the previous year, rounded
to the nearest hundredth of a percent. If the annual CPI adjustment calculation results in
a negative annual percentage change, no adjustment shall be made and the Service Fee
from the previous rate period will remain effective. If the adjustment index has increased
over the base index by more than three percent (3%), the Service Fee adjustment shall
be three percent (3%) and any excess percentage beyond the 3% cap will be added to
the subsequent years' adjustments, provided that in any index-based adjustment year,
the total Service Fee adjustment shall not exceed 3%.
All other fixed fees and charges provided for in this Agreement shall be adjusted annually
every July 1st during the Term or extended Term of this Agreement in accordance with
the CPI adjustment described above."
11. Section 6(d) shall be amended to read as follows:
"Notwithstanding subsection (a) or (c) above, the Service Provider may submit to
the Administrator a request for a Service Fee adjustment, along with documentation
supporting the request, if any of the following occur:
(i) A material change in law (for example, minimum wage, zero emission
vehicle (ZEV) or other regulatory requirement) affects the net cost to
perform the services herein by a margin of at least 10 percent (based upon
cost at the commencement of the Agreement);
(ii) A material change in inflationary costs (for example fuel increases) causes
one of the operating costs of the Service Provider to negatively affect the
operating ratio by 2% on a stand-alone basis;
(iii) Costs to Service Provider in performance of Processing or Recovery
activities increase at least 10% due to the presence of Non-organic
Materials, non-compostable materials, or other contaminants in materials
delivered by the City to the Processing Facility."
12. Section 7(a), "Termination, Remedies and Force Majeure" shall be amended to
read as follows:
"This Agreement will terminate without any liability of the City to the Service Provider upon
the earliest of: (i) the City's non-appropriation of funds sufficient to meet its obligations
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hereunder during any City fiscal year of this Agreement, or insufficient funding for the
Project; (ii) any material change to the Service Provider which affects the Service
Provider's obligations to the City; (iii) six (6) months' prior written notice with or without
cause by the City to the Service Provider; or (iv) expiration of this Agreement. The City's
obligations to pay the Service Provider are subject to availability of revenue from utility
fees levied on the City's customers, and this obligation is subordinate to the pledge of
these revenues to any and all bonded indebtedness of the City. In no event is the City
pledging or obligating under this Agreement any other revenues, including the City's
General Fund, or any real and personal property taxes, sales taxes or any other tax
revenues."
13. Section 7(b)(i) is amended to read as follows:
"If the Service Provider shall fail to complete delivery, within the time or times specified
herein, of all or any part of the services to be provided under this Agreement, the City
Manager of the City or his/her designee, acting for and on behalf of the City, may at any
time after the expiration of the time for cure as set forth in Section 7(b)(ii), terminate this
Agreement as to the whole thereof, or in the event partial delivery has been made and
accepted, as to such of the services to be furnished which have not been delivered or
accepted prior to such termination."
14. Section 8(e), "Receiving Green Waste Materials" shall be amended to read as
follows:
"In the event that the Service Provider determines that a load of Organic Materials
delivered by the City or one of its agents or haulers pursuant to this Agreement contains
"hazardous material" as defined in Division 4.5 of Title 22 of California Code of
Regulations, then the Service Provider may reject such load and return it to the City or
have the City retrieve it at the City's sole expense, provided that the Service Provider
provides to the City clear evidence that the load rejected by the Service Provider (i) was
originally delivered by the City or one of its agents or haulers pursuant to this Agreement,
and (ii)that the load contained materials that constituted "hazardous material" as defined
in Division 4.5 of Title 22 of California Code of Regulations."
15. Section 8(f), "Receiving Green Waste Materials" shall be amended to read as
follows:
"The Service Provider shall provide weight tickets from a State of California registered
and certified scale on a monthly basis. Weight tickets are to be signed by an employee
of the City or its agent or hauler delivering the Organic Materials. The Service Provider
shall electronically transmit data of all weight tickets to the City for each Working Day,
with the monthly statement. The Service Provider shall provide hard copies to the
delivery vehicle driver to transport to the City office. The electronic format is to be
compatible with Access, Dbase, FoxPro, Excel, or ASCII. The Service Provider shall
develop a format and electronic transfer process satisfactory to the City with assistance
of the City's information systems specialist. If the City or any of its agents or haulers
delivers any Organic Materials without receiving a weight ticket, or outside of operating
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hours during Working Days, such loads will either be returned to the City at the City's
sole expense or processed by the Service Provider at the usual Service Fee plus a
penalty of$500 per load, such choice to be in the Service Provider's sole discretion.
The Service Provider shall prepare each weight ticket by assigning each a unique ticket
number, identifying thereon the Receiving Facility by name, and including thereon the
following printed information: Inbound Date and Time, Weighmaster Outbound Date and
Time, Weighmaster City, agent or hauler Truck Number, Description of material, Gross
Weight in pounds, Gross Truck Tare Weight in pounds, Net Weight in pounds, Driver
Signature."
16. Section 9(a), "Processing Green Waste Materials" shall be amended to read as
follows:
"The Service Provider shall be responsible for transporting all Organic Materials from the
Receiving Facility to the Processing Facility and for the storage, Processing, transfer, sale
and final disposition of the City's Organic Materials at the Processing Facility in a manner
ensuring compliance with permits issued by federal, state or local governmental bodies
or agencies for the sites of both the Receiving Facility and the Processing Facility. Final
end-use of Processed Organic Materials shall conform to California Integrated Waste
Management Board ("CIWMB"), now "CalRecycle," Assembly Bill 939 ("AB 939")
requirements to enable the City to receive maximum diversion credits. Processing of
Organic Materials shall conform to Senate Bill 1383 ("SB 1383") in a manner which
constitutes a reduction in landfill disposal pursuant to Title 14, Division 7, Chapter 12 of
the California Code of Regulations. The Service Provider shall use commercially
reasonable efforts to comply with the provisions of the Source Reduction and Recycling
Element ("SRRE") plan adopted by CalRecycle for the City to meet such AB 939
requirements (e.g., end-use for materials thereunder may include Compost, Mulch,
anaerobic digestion, biomass fuel, etc.). The Service Provider shall comply with AB 939
and SB 1383 requirements for final disposition of the City's Organic Materials."
17. Section 9(b), "Processing Green Waste Materials" shall be amended to read as
follows:
"The City shall be responsible for all tip fee costs related to disposal of Residuals, as
set forth in Exhibit A."
18. Section 9(d), "Processing Green Waste Materials" shall be added to read as
follows:
"The parties to this Agreement acknowledge the mutual benefits to be derived from having
the Service Provider act as a direct service provider to assist the City in attempting to
meet its SB 1383 required procurement target. These requirements include the required
product requirements, standards, and procurement records (14 CCR Section 18993).
Toward this commitment, upon request, The Service Provider shall offer compost
products for purchase to the City at a market price. In the event that the Service Provider,
through performance of its obligations under this Agreement, becomes able to further
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assist the City in meeting its procurement target under SIB 1383 (including but not limited
to large scale compost sales for use within the City, or use of SIB 1383 eligible fuels such
as RNG), the parties agree to meet and confer to discuss contributing such activities
toward the City's SIB 1383 procurement target."
19. Section 12, "Indemnification" shall be amended to read as follows:
"To the furthest extent allowed by law, the Service Provider shall indemnify, hold harmless
and defend the City and each of its officers, officials, employees, agents and volunteers
from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether
in contract, tort or strict liability, including, but not limited to, personal injury, death and
property damage), and from any and all claims, demands and actions in law or equity
(including reasonable attorney's fees, litigation expenses, and costs to enforce this
Agreement) that arise out, pertain to, or relate to the negligence, recklessness, or willful
misconduct of the Service Provider, its principals, officers, employees, agents or
volunteers in the performance of this Agreement, except to the extent caused by the
negligence or willful misconduct of the City or any of its officers, officials, employees,
agents or volunteers.
This Section 12 shall survive termination or expiration of this Agreement."
20. Section 16(b), "Audits" shall be amended to read as follows:
"Records of the Service Provider's expenses pertaining to this Agreement shall be kept
on a generally accepted accounting principles basis and shall be available to the City or
its authorized representatives upon request during regular business hours throughout the
term of this Agreement and for a period of three years after final payment or, if longer, for
any period required by law. In addition, all books, documents, papers, and records of the
Service Provider pertaining to this Agreement shall be available for the purpose of making
audits, Service Fee adjustments, examinations, excerpts, and transcriptions for the same
period of time. If any litigation, claim, negotiations, audit, or other action is commenced
before the expiration of said time period, all records shall be retained and made available
to the City until such action is resolved, or until the end of said time period whichever shall
later occur. This Section 16(b) shall survive expiration or termination of this Agreement."
21. The first paragraph of Exhibit A, "Scope of Services" shall be amended to read
as follows:
"The Service Provider shall provide to the City services related to Organic Materials and
Processing as follows:
1. The Service Provider will receive, Process, recycle, Recover and/or reuse
Organic Materials (excluding manure, biosolids, and wallboard)collected by
the City of Fresno or its assigned agents and delivered to the Service
Provider in accordance with the terms of this Agreement. The City
acknowledges that while manure, biosolids, and certain types of wallboard
are included in the definition of Organic Materials as of the Effective Date,
those materials are unable to be received under the Service Provider's
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permits, and as such are outside the scope of this Agreement. The City
understands that to the extent any wallboard and/or other C&D materials
are delivered to the Receiving Facility, that such materials shall be removed
at the City's expense. In the event that the Service Provider becomes able
to accept and Process such materials during the Term of this Agreement at
the Processing Facility, the City and the Service Provider will meet and
confer regarding inclusion of such materials in the scope of this Agreement.
2. The Service Provider will be expected to charge the City on a per ton basis
for all Organic Materials delivered to the Receiving Facility, as set forth in
the terms of this Agreement.
3. The Service Provider will deliver all Residuals that cannot be Recovered or
recycled to the American Avenue Landfill, located at 18950 W. American
Avenue, Kerman, CA 93630, which is owned and operated by Fresno
County. The City shall be responsible for all tip fee costs associated with
the disposal of Residuals.
4, The Service Provider shall be required to submit monthly tonnage reports
for Organic Materials delivered to the Receiving Facility by the City and its
agents and haulers, and the tonnage reports shall include the method of
Processing of the Materials, as well as the quantities of Residuals delivered
to the American Avenue Landfill.
The City makes no guarantee on the quantity or quality of Organic Materials to be
delivered to the Receiving Facility in the future."
[SIGNATURES FOLLOW ON NEXT PAGE.]
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, on the day and year first above written.
CITY OF FRESNO, Kochergen Farms Composting, Inc.,
A Califgrarnunicipal corporation A California corporation
�1� 11/17/2023 L�i_
gned by:
By: WCUky 10/27/2023
Brock uche, PE, PLS, Director By: �'�
Department of Public Utilities
Name: Mike J. Kochergen
APPROVED AS TO FORM: Title: President
ANDREW JANZ (If corporation or LLC, Board Chair, Pres.
City Attgm"�yi by: or Vice Pres.)
By: _-o1w A"& 10/31/2023 By:
Angela . Karst Date
Senior Deputy City Attorney Name'
ATTEST: Title:
TODD STERMER, CMC (If corporation or LLC, CFO, Treasurer,
Secretary or Assistant Secretary)
City Signed by:
lNa qb€cY 11/17/2023 REC 1N ❑ BY:
By: " ,
Deputy Date 10/26/2023
Tina M Your — ssa
Lorenzo Nadara
Addresses:
CITY: SERVICE PROVIDER:
City of Fresno Kochergen Farms Composting, Inc.
Attention: Ahmad Alkhayyat Attention: Mike J. Korchergen
Assistant Director President
1325 El Dorado St. PO Box 11006
Fresno, CA Fresno, CA 93706 Fresno, CA 93771
Phone: (559) 621-1801 Phone: (559) 498-0900
E-mail: Ahmad.Alkhayyat@fresno.gov E-mail: Mike@allvalleyenv.com
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SERVICE AGREEMENT
CITY OF FRESNO, CALIFORNIA
THIS AGREEMENT is made and entered into effective the/28ay of
2016, by and between the CITY OF FRESNO, a California municipal corpora on
(hereinafter referred to as "CITY"), and Kochergen Farms Composting, Inc., a California
corporation, (hereinafter referred to as "SERVICE PROVIDER"), individually each a
"Party" and collectively "the Parties".
RECITALS
WHEREAS, CITY desires to obtain Green Waste Processing services for
materials collected by CITY and its agents, hereinafter referred to as the "Project"; and
WHEREAS, SERVICE PROVIDER is engaged in the business of furnishing
services as a green waste recycler and hereby represents that it desires to and is
physically and legally capable of performing the services called for by this Agreement;
and
WHEREAS, SERVICE PROVIDER acknowledges that this Agreement is subject
to the requirements of Fresno Municipal Code Section 4-107; and
WHEREAS, this Agreement will be administered for CITY by its Director of Public
Utilities (hereinafter referred to as "Administrator") or his/her designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions, and promises hereinafter contained to be kept and performed by the
respective Parties, it is mutually agreed as follows:
1. Definitions
For the purposes of this Agreement, the definitions and identifications set forth
below are agreed upon by the Parties.
(a) Approval — shall mean a discretionary approval which shall not be
unreasonably withheld, unless stated otherwise.
(b) Business Day(s) -shall mean Monday through Saturday.
(c) Compost -- shall mean an end product of Green Waste Material which has
undergone processing meeting or exceeding current market standards and
the requirements of all applicable respective regulatory agencies, including,
without limitation,the California Integrated Waste Management Board.
(d) Green Waste Material(s) (also "Material") - shall mean "Green Waste" as
defined by the California Integrated Waste Management Board, and shall
include any waste derived from plant material including, but not limited to,
grass, sawdust, wood shavings, pallets, untreated wood waste, plants and
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flowers, leaves, weeds, shrubbery cuttings, tree trimmings, palm fronds and
Christmas trees generated by, and as collected by CITY from, City of
Fresno Solid Waste Division Green Waste Material residential customers.
(e) Holiday(s) - shall mean Thanksgiving Day, Christmas Day, and New Year's
Day.
(f) Mulch - shall mean Green Waste Material that can be shredded for
landscaping usage but is not acceptable as Compost.
(g) Process or Processing - shall mean the method(s) by which SERVICE
PROVIDER prepares the Green Waste Material for storage, shipment,
and/or for sale, application to land, Compost, or a combination thereof, or
any other approved reuse program for the Material.
(h) Processing Facility - shall mean the primary location where SERVICE
PROVIDER stores, transfers, or Processes the collected/delivered Green
Waste Material prior to storage, shipment, and/or for sale as Compost,
application to land, or a combination thereof, or any other approved reuse
program for the respective material. The Processing Facility location for
purposes of this Agreement shall be at SERVICE PROVIDER's facility
located at 33915 Avenal Cutoff Rd, Avenal, CA 93204. The phone number of
the Processing Facility is (559) 386-9501.
(i) Receiving Facility - shall mean the location where SERVICE PROVIDER
receives deliveries of Green Waste Material from CITY and from where
SERVICE PROVIDER hauls the Green Waste Material to the Processing
Facility. The Receiving Facility location for purposes of this Agreement
shall be at SERVICE PROVIDER's subsidiary company, Green Valley
Recycling, located at 2365 E. North Avenue, Fresno, CA 93725. The
phone number of the Receiving Facility is (559) 226-2650. CITY must
approve the location of the Receiving Facility and any proposed changes to
location of the Receiving Facility.
(j) Residuals - shall mean any material that cannot be composted and found
mixed with loads of Green Waste Materials.
(k) Ton - shall mean 2,000 pounds avoirdupois.
(1) Working Day(s) - shall include all days the City of Fresno Green Waste
collection services are operational, as set by the City of Fresno solid waste
collection schedule. SERVICE PROVIDER may petition CITY to modify these
working hours to meet the conditions of its permit; however, CITY shall be
under no obligation to agree to any modification.
2. Scope of Services. SERVICE PROVIDER shall perform to the satisfaction of CITY
the services described in Exhibit A, including all work incidental to, or necessary to
perform, such services even though not specifically described in Exhibit A. By
executing this Agreement, SERVICE PROVIDER guarantees it currently has the site
capacity, staffing, and equipment to fully meet the requirements of this Agreement.
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3. Non-Exclusive-Agreement. CITY agrees to deliver to SERVICE PROVIDER's
Receiving Facility approximately 50 percent of Green Waste Materials it (or its
agent) collects daily. SERVICE PROVIDER acknowledges and agrees this is a non-
exclusive Agreement and CITY is not obligated by this Agreement to deliver a
minimum quantity of Green Waste Materials to the Receiving Facility, but only
approximately 50 percent of whatever is collected.
Furthermore, CITY makes no guarantee on tonnages of Green Waste Material to be
anticipated by SERVICE PROVIDER. CITY retains the right to divert negligible
quantities of Green Waste Materials for various purposes at its sole discretion.
4. Term of Agreement and Time for Performance. This Agreement shall be effective
from the date first set forth above ("Effective Date") and shall continue in full force
and effect through June 30, 2026, subject to any earlier termination in accordance
with this Agreement.
The services of SERVICE PROVIDER as described in Exhibit A are to commence
upon the Effective Date and shall be completed in a sequence assuring expeditious
completion, but in any event, all such services shall be completed prior to expiration
of this Agreement and in accordance with any performance schedule set forth in
Exhibit A.
5. Business License. If the SERVICE PROVIDER does not have a City of Fresno
Business License, it shall obtain such a license prior to the Effective Date of this
Agreement and maintain in effect throughout the term of this Agreement.
6. Compensation.
(a) SERVICE PROVIDER'S sole compensation for satisfactory performance of all
services required or rendered pursuant to this Agreement shall be a total fee of
$16.75 per ton of Green Waste Material Processed. Such fee includes all
expenses incurred by SERVICE PROVIDER in performance of the services. No
price escalators shall be implemented for the duration of this Agreement.
(b) Detailed statements shall be rendered monthly for services performed in the
preceding month and will be payable in the normal course of CITY business.
(c) SERVICE PROVIDER understands and agrees any request by SERVICE
PROVIDER to adjust the payment to CITY other than as set forth in this
Agreement, make material changes to this Agreement, or otherwise decrease
revenue or increase costs to CITY under this Agreement, may result in CITY
either, in the CITY's sole discretion: (1) issuing a new Request for Proposals for
these services; or (2) entering into an agreement with another provider of the
same service then currently under contract to complete the balance of the term of
this Agreement pursuant to the terms of the other contract; either of which may
result in termination of this Agreement if CITY awards a contract to another
service provider.
(d) Notwithstanding subsection (c) above, three years or later from the Effective
Date of this Agreement, SERVICE PROVIDER may submit to the Administrator
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a request for a price adjustment, along with documentation supporting the
request, if all the following occur:
(i) A material change in law (for example, minimum wage or regulatory
requirements) affects the net cost to perform the services herein by a
margin of at least 10 percent (based upon cost at the commencement of
the Agreement);
(ii) The change in law negatively affects feasibility of providing the services as
set forth in Exhibit A, based upon the net cost to SERVICE PROVIDER
and considering a combination of commodity market gains, lower fuel
costs, or other offsets to the costs incurred due to a change in law; and
(iii)The negative impact continues for a period of at least one year.
Should the request demonstrate all of the above criteria, the Administrator shall
consider the request, and the Parties shall have 60 days to negotiate a price
adjustment and amendment to this Agreement, subject to approval of the City
Council. If no agreement is reached, the Parties may agree to continue the
Agreement without a change in terms, or if no agreement is reached, the CITY
will issue a Request for Proposals or enter into an agreement with another
provider of the same service then currently under contract, as set forth in
subsection (c) above.
(e) Should the Parties mutually agree to modify this Agreement to increase or
decrease the scope of services provided in this Agreement or provide for the
rendition of additional services not required by this Agreement, such modification
may include an adjustment to SERVICE PROVIDER'S compensation. Any
change in the scope of services must be made by written amendment to the
Agreement signed by an authorized representative for each Parry. SERVICE
PROVIDER shall not be entitled to any additional compensation if services are
performed prior to a signed written amendment.
7. Termination, Remedies and Force Maw.
(a) This Agreement may terminate without any liability of CITY to SERVICE
PROVIDER upon the earlier of: (i) CITY'S non-appropriation of funds sufficient to
meet its obligations hereunder during any CITY fiscal year of this Agreement, or
insufficient funding for the Project; (ii) any material change to SERVICE
PROVIDER which affects SERVICE PROVIDER's obligations to CITY; or
(iii) expiration of this Agreement. CITY's obligations to pay SERVICE PROVIDER
are subject to availability of revenue from utility fees levied on CITY's customers,
and this obligation is subordinate to the pledge of these revenues to any and all
bonded indebtedness of CITY. In no event is CITY pledging or obligating under
this Agreement any other revenues, including CITY's General Fund, or any real
and personal property taxes, sales taxes or any other tax revenues.
(b) Termination for cause:
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(i) If the SERVICE PROVIDER shall fail to complete delivery, within the time
or times specified herein, of all or any part of the materials, equipment,
supplies or services to be provided under the Agreement, the City
Manager of the City of Fresno or his/her designee, acting for and on
behalf of the City, may at any time after the expiration of the time for cure,
terminate the Agreement as to the whole thereof, or in the event partial
delivery has been made and accepted, as to such of the items or service
to be furnished which have not been delivered or accepted prior to such
termination.
(ii) Either Party may terminate this Agreement if the other Party materially
breaches any of its obligations under this Agreement and fails to
commence and diligently pursue reasonable efforts to cure such breach
within 15 days after written notice by the other Party specifically describing
the breach.
(iii)Such termination shall be effective upon receipt by a Party of written
notice of termination from the authorized representative of the other Party,
which notice shall be deemed to have been received by the other Party, if
mailed by certified mail, within 48 hours to the Party's address as
contained this Agreement, or, if personally delivered, upon the delivery
thereof to the Party, the authorized representative of the Party, or to the
Party's said address.
(c) Immediately upon any termination or expiration of this Agreement, SERVICE
PROVIDER shall (i) stop all work hereunder; and (ii) return to CITY any and all
unearned payments and all properties and materials in the possession of
SERVICE PROVIDER that are owned by CITY. Subject to the terms of this
Agreement, SERVICE PROVIDER shall be paid compensation for services
satisfactorily performed prior to the effective date of termination. SERVICE
PROVIDER shall not be paid for any work or services performed or costs
incurred which reasonably could have been avoided.
(d) In the event of termination due to failure of SERVICE PROVIDER to satisfactorily
perform in accordance with the terms of this Agreement, CITY may withhold an
amount that would otherwise be payable as an offset to, but not in excess of,
CITY'S damages caused by such failure. In no event shall any payment by CITY
pursuant to this Agreement constitute a waiver by CITY of any breach of this
Agreement which may then exist on the part of SERVICE PROVIDER, nor shall
such payment impair or prejudice any remedy available to CITY with respect to
the breach.
(e) Upon any breach of this Agreement by SERVICE PROVIDER, CITY may
(i) exercise any right, remedy (in contract, law or equity), or privilege which may
be available to it under applicable laws of the State of California or any other
applicable law; (ii) proceed by appropriate court action to enforce the terms of the
Agreement; and/or (iii) recover all direct, indirect, consequential, economic and
incidental damages for the breach of the Agreement.
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(f) SERVICE PROVIDER shall provide CITY with adequate written assurances of
future performance, upon Administrator's request, in the event SERVICE
PROVIDER fails to comply with any terms or conditions of this Agreement.
(g) SERVICE PROVIDER shall be liable for default unless nonperformance is
caused by an occurrence beyond the reasonable control of SERVICE
PROVIDER and without its fault or negligence such as, acts of God or the public
enemy, acts of CITY in its contractual capacity, fires, floods, epidemics,
quarantine restrictions, strikes, unusually severe weather, and delays of common
carriers. SERVICE PROVIDER shall notify Administrator in writing as soon as it
is reasonably possible after the commencement of any excusable delay, setting
forth the full particulars in connection therewith, and shall remedy such
occurrence with all reasonable dispatch, and shall promptly give written notice to
Administrator of the cessation of such occurrence.
B. Receiving Green Waste Materials.
(a) SERVICE PROVIDER shall make the Receiving Facility available for deliveries
of Green Waste Material on Working Days (between the hours of 6:30 a.m. and
5:30 p.m., Monday through Friday and from 7:OOa.m. to 12:00 p.m. on
Saturdays, except Holidays), or such other times as the Parties may agree.
(b) Except as expressly provided in this subsection, SERVICE PROVIDER will
accept the Green Waste Material "as is" and will assume all risks in handling
such material. CITY will ensure that it retains any mandated classification under
Division 4.5 of Title 22 of California Code of Regulations of "non-hazardous
waste" for its curb-side residential Green Waste Material.
(c) Green Waste Material delivered to the Receiving Facility by CITY shall be
received by SERVICE PROVIDER's employees and equipment onto grounds of
Receiving Facility. SERVICE PROVIDER shall provide adequate staff and make
the Receiving Facility available such that CITY's vehicles are able to complete
delivery of a load in ten minutes or less, measured from time of weigh-in prior to
unloading the Materials through weigh-out after unloading the Materials.
(d) SERVICE PROVIDER shall make accessible clean, sanitary, well-maintained
restroom facilities conveniently located at the Receiving Facility for drivers
delivering Green Waste Materials. Said restrooms shall remain available during
all hours the Receiving Facility may receive Green Waste Materials.
(e) In the event that SERVICE PROVIDER determines an entire single load of
Green Waste Material delivered by a CITY vehicle pursuant to this Agreement
constitutes "hazardous material" as defined in Division 4.5 of Title 22 of
California Code of Regulations, then SERVICE PROVIDER may reject such
load and return it to CITY; provided that SERVICE PROVIDER provides to CITY
clear and convincing evidence that the entire load returned by SERVICE
PROVIDER (i) was originally contained in a single load delivered by a CITY
vehicle pursuant to this Agreement, and (ii) that such entire single load
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constituted "hazardous material" as defined in Division 4.5 of Title 22 of
California Code of Regulations.
(f) SERVICE PROVIDER shall provide weight tickets from a State of California
registered and certified scale. Weight tickets are to be signed by the delivering
CITY employee. SERVICE PROVIDER shall electronically transmit data of all
weight tickets to CITY for each Working Day, by the following Working Day.
SERVICE PROVIDER shall sort the original hard copy weight tickets by date
and mail or deliver the weight tickets to CITY's Solid Waste Management
Division office on a daily basis. This requirement may be satisfied by giving
such hard copies to a CITY delivery vehicle driver to transport to such Division
office. The electronic format is to be compatible with Access, Dbase, FoxPro,
Excel or ASCII. SERVICE PROVIDER shall develop a format and electronic
transfer process satisfactory to CITY with assistance of CITY's information
systems specialist.
SERVICE PROVIDER shall prepare each weight ticket by assigning each a
unique control number, identifying thereon the Receiving Facility by name, and
including thereon the following printed information: Inbound Date and Time,
Weighmaster Outbound Date and Time, Weighmaster CITY Truck Number,
Vehicle License Plate Number, Description of material, Gross Weight in pounds,
Gross Truck Tare Weight in pounds, Net Weight in pounds, Driver Signature,
Route Number.
(g) SERVICE PROVIDER shall comply with all applicable federal, state and local
agency regulations in receiving Green Waste Materials.
9. Processing Green Waste Materials.
(a) SERVICE PROVIDER shall be responsible for transporting all Green Waste
Materials from the Receiving Facility to the Processing Facility and for the
storage, Processing, transfer, sale and final disposition of CITY's Green Waste
Materials at the Processing Facility in a manner ensuring compliance with
permits issued by federal, state or local governmental bodies or agencies for the
sites of both the Receiving Facility and the Processing Facility. Final end-use of
Processed Green Waste Materials shall conform to California Integrated Waste
Management Board ("CIWMB"), now "CalRecycle," Assembly Bill 939 ("AB939")
requirements to enable CITY to receive maximum diversion credits. SERVICE
PROVIDER shall comply with the provisions of the Source Reduction and
Recycling Element (SRRE) plan adopted by CalRecycle for CITY to meet such
AB939 requirements (e.g., end-use for materials thereunder may include
Compost, Mulch, mine reclamation, land application, biomass fuel, etc.). The
end use of one hundred percent of CITY's Green Waste Materials received and
Processed by SERVICE PROVIDER as either Compost, biomass fuel, mine
reclamation, land application, clean wood fines, or as a soil amendment to be
used by end users shall be subject to the approval of CITY's Representative.
SERVICE PROVIDER shall comply with AB939 requirements for final disposition
of CITY's Green Waste Materials.
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(b) SERVICE PROVIDER shall be responsible for all costs related to, and disposal
of, Residuals.
(c) SERVICE PROVIDER shall meet all federal, state and local laws, as well as
CalReycle regulations and standards for the methods of Processing of Green
Waste Materials.
10. Confidential Information and Ownership of Documents.
(a) Subject to State regulations, any reports, information, or other data prepared or
assembled by SERVICE PROVIDER pursuant to this Agreement shall not be
made available to any individual or organization by SERVICE PROVIDER
without the prior written approval of the Administrator. During the term of this
Agreement, and thereafter, SERVICE PROVIDER shall not, without the prior
written consent of CITY, disclose to anyone any Confidential Information. The
term Confidential Information for the purposes of this Agreement shall include all
proprietary and confidential information of CITY, including but not limited to
business plans, marketing plans, financial information, materials, compilations,
documents, instruments, models, source or object codes and other information
disclosed or submitted, orally, in writing, or by any other medium or media. All
Confidential Information shall be and remain confidential and proprietary in CITY.
Confidential Information shall not include daily tonnage records of materials
received from CITY
(b) Any and all writings and documents prepared or provided by SERVICE
PROVIDER pursuant to this Agreement are the property of CITY at the time of
preparation and shall be turned over to CITY upon expiration or termination of
the Agreement. SERVICE PROVIDER shall not permit the reproduction or use
thereof by any other person except as otherwise expressly provided herein.
(c) This Section shall survive expiration or termination of this Agreement.
11.Representation of Skill. It is further mutually understood and agreed by and between
the Parties hereto that inasmuch as SERVICE PROVIDER represents to CITY that
SERVICE PROVIDER is skilled in the industry and shall perform in accordance with
the standards of said industry necessary to perform the services agreed to be done
by it under this Agreement, CITY relies upon the skill of SERVICE PROVIDER to do
and perform such services in a skillful manner and SERVICE PROVIDER agrees to
thus perform the services. Therefore, any acceptance of such services by CITY
shall not operate as a release of SERVICE PROVIDER from said industry standards
or those set forth in this Agreement.
12.Indemnification. To the furthest extent allowed by law, SERVICE PROVIDER shall
indemnify, hold harmless and defend CITY and each of its officers, officials,
employees, agents and volunteers from any and all loss, liability, fines, penalties,
forfeitures, costs and damages (whether in contract, tort or strict liability, including
but not limited to personal injury, death at any time and property damage), and from
any and all claims, demands and actions in law or equity (including reasonable
attorney's fees and litigation expenses) that arise out of, pertain to, or relate to the
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negligence, recklessness or willful misconduct of SERVICE PROVIDER, its
principals, officers, employees, agents or volunteers in the performance of this
Agreement. The SERVICE PROVIDER's obligations under the preceding sentence
shall apply regardless of whether CITY or any of its officers, officials, employees,
agents or volunteers are actively or passively negligent, but shall not apply to any
loss, liability, fines, penalties, forfeitures, costs or damages caused by the gross
negligence or by the willful misconduct of CITY or any of its officers, officials,
employees, agents or volunteers.
This section shall survive termination or expiration of this Agreement.
13.Insurance.
(a) Throughout the life of this Agreement, SERVICE PROVIDER shall pay for and
maintain in full force and effect all insurance as required in Exhibit B, which is
incorporated into and part of this Agreement, with an insurance company(ies)
either (i) admitted by the California Insurance Commissioner to do business in
the State of California and rated no less than "A-VII" in the Best's Insurance
Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or
his/her designee at any time and in his/her sole discretion. The required policies
of insurance as stated in Exhibit B shall maintain limits of liability of not less than
those amounts stated therein. However, the insurance limits available to CITY,
its officers, officials, employees, agents and volunteers as additional insureds,
shall be the greater of the minimum limits specified therein or the full limit of any
insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension, SERVICE
PROVIDER fails to maintain any required insurance in full force and effect, all
services and work under this Agreement shall be discontinued immediately, and
all payments due or that become due to SERVICE PROVIDER shall be withheld
until notice is received by CITY that the required insurance has been restored to
full force and effect and that the premiums therefore have been paid for a period
satisfactory to CITY. Any failure to maintain the required insurance shall be
sufficient cause for CITY to terminate this Agreement. No action taken by CITY
pursuant to this section shall in any way relieve SERVICE PROVIDER of its
responsibilities under this Agreement. The phrase "fail to maintain any required
insurance" shall include, without limitation, notification received by CITY that an
insurer has commenced proceedings, or has had proceedings commenced
against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by SERVICE PROVIDER shall not be
deemed to release or diminish the liability of SERVICE PROVIDER, including,
without limitation, liability under the indemnity provisions of this Agreement. The
duty to indemnify CITY shall apply to all claims and liability regardless of whether
any insurance policies are applicable. The policy limits do not act as a limitation
upon the amount of indemnification to be provided by SERVICE PROVIDER.
Approval or purchase of any insurance contracts or policies shall in no way
relieve from liability nor limit the liability of SERVICE PROVIDER, its principals,
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officers, agents, employees, or persons under the supervision of SERVICE
PROVIDER, vendors, suppliers, invitees, consultants, sub-consultants, or
anyone employed directly or indirectly by any of them.
(d) Upon request of CITY, SERVICE PROVIDER shall immediately furnish CITY with
a complete copy of any insurance policy required under this Agreement,
including all endorsements, with said copy certified by the underwriter to be a
true and correct copy of the original policy. This requirement shall survive
expiration or termination of this Agreement.
14:Conflict of Interest and Non-Solicitation.
(a) Prior to CITY'S execution of this Agreement, SERVICE PROVIDER shall
complete a City of Fresno conflict of interest disclosure statement in the form as
set forth in Exhibit C. During the term of this Agreement, SERVICE PROVIDER
shall have the obligation and duty to immediately notify CITY in writing of any
change to the information provided by SERVICE PROVIDER in such statement.
(b) SERVICE PROVIDER shall comply with all applicable (i) professional canons
and requirements governing avoidance of impermissible client conflicts; and (ii)
federal, state and local conflict of interest laws and regulations including, without
limitation, California Government Code Section 1090 et. seq., the California
Political Reform Act (California Government Code Section 87100 et. seq.) and
the regulations of the Fair Political Practices Commission concerning disclosure
and disqualification (2 California Code of Regulations Section 18700 et. seq.). At
any time, upon written request of CITY, SERVICE PROVIDER shall provide a
written opinion of its legal counsel that, after a due diligent inquiry, SERVICE
PROVIDER is in full compliance with all laws and regulations. SERVICE
PROVIDER shall take reasonable steps to avoid any appearance of a conflict of
interest. Upon discovery of any facts giving rise to the appearance of a conflict of
interest, SERVICE PROVIDER shall immediately notify CITY of these facts in
writing.
(c) In performing the work or services to be provided hereunder, SERVICE
PROVIDER shall not employ or retain the services of any person while such
person either is employed by CITY or is a member of any CITY council,
commission, board, committee, or similar CITY body. This requirement may be
waived in writing by the City Manager, if no actual or potential conflict is involved.
(d) SERVICE PROVIDER represents and warrants that it has not paid or agreed to
pay any compensation, contingent or otherwise, direct or indirect, to solicit or
procure this Agreement or any rights/benefits hereunder.
(e) SERVICE PROVIDER shall have no interest, direct or indirect, in any other
contract with a third parry in connection with this Project unless such interest is in
accordance with all applicable law and fully disclosed to and approved by the
City Manager, in advance and in writing. Notwithstanding any approval given by
the City Manager under this provision, SERVICE PROVIDER shall remain
responsible for complying with Section 9(a), above.
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(f) This Section shall survive expiration or termination of this Agreement.
15.Recycling Program. In the event SERVICE PROVIDER maintains an office or
operates a facility(ies), or is required herein to maintain or operate same, within the
incorporated limits of the City of Fresno, SERVICE PROVIDER at its sole cost and
expense shall:
(a) Immediately establish and maintain a viable and ongoing recycling program,
approved by CITY'S Solid Waste Management Division, for each office and
facility. Literature describing CITY recycling programs is available from CITY'S
Solid Waste Management Division and by calling City of Fresno Recycling
Hotline at (559) 621-1111.
(b) Immediately contact CITY'S Solid Waste Management Division at (559) 621-
1452 and schedule a free waste audit, and cooperate with such Division in their
conduct of the audit for each office and facility.
(c) Cooperate with and demonstrate to the satisfaction of CITY'S Solid Waste
Management Division the establishment of the recycling program in paragraph
(i) above and the ongoing maintenance thereof.
16.General Terms.
(a) Authorized signature. Except as otherwise provided by law, all notices expressly
required of CITY within the body of this Agreement, and not otherwise specifically
provided for, shall be effective only if signed by the Administrator or his/her
designee.
(b) Audits. Records of SERVICE PROVIDER'S expenses pertaining to the Project
shall be kept on a generally recognized accounting basis and shall be available
to CITY or its authorized representatives upon request during regular business
hours throughout the life of this Agreement and for a period of three years after
final payment or, if longer, for any period required by law. In addition, all books,
documents, papers, and records of SERVICE PROVIDER pertaining to the
Project shall be available for the purpose of making audits, examinations,
excerpts, and transcriptions for the same period of time. If any litigation, claim,
negotiations, audit or other action is commenced before the expiration of said
time period, all records shall be retained and made available to CITY until such
action is resolved, or until the end of said time period whichever shall later occur.
This Section 16(b) shall survive expiration or termination of this Agreement.
(c) License. Prior to execution of this Agreement by CITY, SERVICE PROVIDER
shall have provided evidence to CITY that SERVICE PROVIDER is licensed to
perform the services called for by this Agreement (or that no license is required).
17.Nondiscrimination. To the extent required by controlling federal, state and local law,
SERVICE PROVIDER shall not employ discriminatory practices in the provision of
services, employment of personnel, or in any other respect on the basis of race,
religious creed, color, national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a
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disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during
the performance of this Agreement, SERVICE PROVIDER agrees as follows:
(a) SERVICE PROVIDER will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed, color,
national origin, ancestry, physical disability, mental disability, medical condition,
marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran
or veteran of the Vietnam era be excluded from participation in, be denied the
benefits of, or be subject to discrimination under any program or activity made
possible by or resulting from this Agreement.
(b) SERVICE PROVIDER will not discriminate against any employee or applicant for
employment because of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era. SERVICE PROVIDER shall ensure that applicants are employed,
and the employees are treated during employment, without regard to their race,
religious creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, age, sexual orientation, ethnicity,
status as a disabled veteran or veteran of the Vietnam era. Such requirement
shall apply to SERVICE PROVIDER'S employment practices including, but not
be limited to, the following: employment, upgrading, demotion or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay or other
forms of compensation; and selection for training, including apprenticeship.
SERVICE PROVIDER agrees to post in conspicuous places, available to
employees and applicants for employment, notices setting forth the provision of
this nondiscrimination clause.
(c) SERVICE PROVIDER will, in all solicitations or advertisements for employees
placed by or on behalf of SERVICE PROVIDER in pursuit hereof, state that all
qualified applicants will receive consideration for employment without regard to
race, religious creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, age, sexual orientation, ethnicity,
status as a disabled veteran or veteran of the Vietnam era.
(d) SERVICE PROVIDER will send to each labor union or representative of workers
with which it has a collective bargaining agreement or other contract or
understanding, a notice advising such labor union or workers' representatives of
SERVICE PROVIDER'S commitment under this section and shall post copies of
the notice in conspicuous places available to employees and applicants for
employment.
18.Independent Contractor.
(a) In the furnishing of the services provided for herein, SERVICE PROVIDER is
acting solely as an independent SERVICE PROVIDER. Neither SERVICE
PROVIDER, nor any of its officers, agents or employees shall be deemed an
officer, agent, employee, joint venturer, partner or associate of CITY for any
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purpose. CITY shall have no right to control or supervise or direct the manner or
method by which SERVICE PROVIDER shall perform its work and functions.
However, CITY shall retain the right to administer this Agreement so as to verify
that SERVICE PROVIDER is performing its obligations in accordance with the
terms and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture between
SERVICE PROVIDER and CITY. SERVICE PROVIDER shall have no authority
to bind CITY absent CITY'S express written consent. Except to the extent
otherwise provided in this Agreement, SERVICE PROVIDER shall bear its own
costs and expenses in pursuit thereof.
(c) Because of its status as an independent SERVICE PROVIDER, SERVICE
PROVIDER and its officers, agents and employees shall have absolutely no right
to employment rights and benefits available to CITY employees. SERVICE
PROVIDER shall be solely liable and responsible for all payroll and tax
withholding and for providing to, or on behalf of, its employees all employee
benefits including, without limitation, health, welfare and retirement benefits. In
addition, together with its other obligations under this Agreement, SERVICE
PROVIDER shall be solely responsible, indemnify, defend and save CITY
harmless from all matters relating to employment and tax withholding for and
payment of SERVICE PROVIDER'S employees, including, without limitation, (i)
compliance with Social Security and unemployment insurance withholding,
payment of workers compensation benefits, and all other laws and regulations
governing matters of employee withholding, taxes and payment; and (ii) any
claim of right or interest in CITY employment benefits, entitlements, programs
and/or funds offered employees of CITY whether arising by reason of any
common law, de facto, leased, or co- employee rights or other theory. It is
acknowledged that during the term of this Agreement, SERVICE PROVIDER
may be providing services to others unrelated to CITY or to this Agreement.
19.Notices. Any notice required or intended to be given to either Parry under the terms
of this Agreement shall be in writing and shall be deemed to be duly given if
delivered personally, transmitted by facsimile followed by telephone confirmation of
receipt, or sent by United States registered or certified mail, with postage prepaid,
return receipt requested, addressed to the Party to which notice is to be given at the
party's address set forth on the signature page of this Agreement or at such other
address as the Parties may from time to time designate by written notice. Notices
served by United States mail in the manner above described shall be deemed
sufficiently served or given at the time of the mailing thereof.
20.Binding. Once this Agreement is signed by all parties, it shall be binding upon, and
shall inure to the benefit of, all Parties, and each Parties' respective heirs,
successors, assigns, transferees, agents, servants, employees and representatives.
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21.Assignment.
(a) This Agreement is personal to SERVICE PROVIDER and there shall be no
assignment, transfer, sale, or subcontracting by SERVICE PROVIDER of its
rights or obligations under this Agreement without CITY approval. Any attempted
assignment by SERVICE PROVIDER or its successors without CITY approval
shall be null and void and may result in termination of this Agreement, at the
election of the CITY.
(b) SERVICE PROVIDER hereby agrees not to assign the payment of any monies
due SERVICE PROVIDER from CITY under the terms of this Agreement to any
other individual(s), corporation(s) or entity(ies). CITY retains the right to pay any
and all monies due SERVICE PROVIDER directly to SERVICE PROVIDER.
22.Compliance With Law. In providing the services required under this Agreement,
SERVICE PROVIDER shall at all times comply with all applicable laws of the United
States, the State of California and CITY, and with all applicable regulations
promulgated by federal, state, regional, or local administrative and regulatory
agencies, now in force and as they may be enacted, issued, or amended during the
term of this Agreement.
23.Waiver. The waiver by either Party of a breach by the other of any provision of this
Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Agreement. No provisions
of this Agreement may be waived unless in writing and signed by all Parties to this
Agreement. Waiver of any one provision herein shall not be deemed to be a waiver
of any other provision herein.
24.Governing Law and Venue. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction.
Venue for purposes of the filing of any action regarding the enforcement or
interpretation of this Agreement and any rights and duties hereunder shall be Fresno
County, California.
25.Headings. The section headings in this Agreement are for convenience and
reference only and shall not be construed or held in any way to explain, modify or
add to the interpretation or meaning of the provisions of this Agreement.
26.Severability. The provisions of this Agreement are severable. The invalidity or
unenforceability of any one provision in this Agreement shall not affect the other
provisions.
27.Interpretation. The Parties acknowledge that this Agreement in its final form is the
result of the combined efforts of the Parties and that, should any provision of this
Agreement be found to be ambiguous in any way, such ambiguity shall not be
resolved by construing this Agreement in favor of or against either Party, but rather
by construing the terms in accordance with their generally accepted meaning.
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28.Attorney's Fees. If either Parry is required to commence any proceeding or legal
action to enforce or interpret any term, covenant or condition of this Agreement, the
prevailing Party in such proceeding or action shall be entitled to recover from the
other Party its reasonable attorney's fees and legal expenses.
29.Exhibits. Each exhibit and attachment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
30.Precedence of Documents. In the event of any conflict between the body of this
Agreement and any Exhibit or Attachment hereto, the terms and conditions of the
body of this Agreement shall control and take precedence over the terms and
conditions expressed within the Exhibit or Attachment. Furthermore, any terms or
conditions contained within any Exhibit or Attachment hereto which purport to modify
the allocation of risk between the Parties, provided for within the body of this
Agreement, shall be null and void.
31.Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive
but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
32. No Third Party, Beneficiaries. The rights, interests, duties and obligations defined
within this Agreement are intended for the specific Parties hereto as identified in the
preamble of this Agreement. Notwithstanding anything stated to the contrary in this
Agreement, it is not intended that any rights or interests in this Agreement benefit or
flow to the interest of any third parties.
33. Extent of Agreement. Each Party acknowledges that they have read and fully
understand the contents of this Agreement. This Agreement represents the entire
and integrated agreement between the Parties with respect to the subject matter
hereof and supersedes all prior negotiations, representations or agreements, either
written or oral. This Agreement may be modified only by written instrument duly
authorized and executed by both CITY and SERVICE PROVIDER.
///
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IN WITNESS WHEREOF, the Parties have executed this Agreement at Fresno,
California, the day and year first above written.
CITY OF FRESNO, Kochergen Farms Composting, Inc.,
a California municipal corporation a California corporation
-�
By: L By:
Thomas Esqueda rector _
Department of P is Utilities Name: �' �= �
ATTEST: J Title:
YVONNE SPENCE (if corporation or LLC, Board
City Clerk Chair, Pres. or Vice Pres.)
Deputy
Name:
APPROVED AS TO FORM-
DOUGLAS T. SLOAN Title:
City Attar ey (if corporation or LLC, CFO,
Treasurer, Secretary or Assistant
By: �-/fP//(o Secretary)
Amanda B. Free an Date
Deputy City Attorney
Addresses:
CITY: SERVICE PROVIDER:
City of Fresno Kochergen Farms Composting, Inc.
Attention: Jerry Schuber, Assistant Attention: Mike Kochergen, President
Director of Public Utilities 523 N. Brawley Street, Suite B
1325 El Dorado St. Fresno, CA 93706
Fresno, CA 93706 Phone: (559) 498-0900
Phone: (559) 621-1801 FAX: (559) 498-8383
FAX: (559) 266-1009
Attachments:
Exhibit A - Scope of Services
Exhibit B - Insurance Requirements
Exhibit C - Conflict of Interest Disclosure
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Exhibit A
SCOPE OF SERVICES
Service Agreement between City of Fresno
and Kochergen Farms Composting, Inc.
Green Waste Processing
The Service Provider shall provide to City services related to Green Waste Materials
and Processing as follows:
1. The Service Provider will receive, process and beneficially reuse or recycle Green
Waste Materials collected by the City of Fresno or its assigned agents and delivered
to the Service Provider in accordance with the terms of this Agreement.
2. The Service Provider will be expected to charge the City on a per ton basis for all
Green Waste Materials delivered to the Service Provider processing site and
prepared for beneficial reuse, as set forth in the terms of this Agreement.
3. The Service Provider will assume all responsibility for the legal and proper disposal
of residual waste materials that cannot be beneficially reused or recycled by the
vendor(s). All residual waste materials shall be disposed of at the American Avenue
Landfill, which is owned and operated by Fresno County.
4. The Service Provider shall be required to submit monthly tonnage reports for Green
Waste Materials delivered to the Service Provider's processing site by the City, and
the tonnage reports shall include the quantities of residual waste materials delivered
to the American Avenue Landfill.
The City makes no guarantee on the quantity or quality of Green Waste Materials to be
delivered to the Service Provider's processing sites in the future.
Description of Current Services
The City currently provides residential solid waste collection service to all single-family
residential housing units (up to four dwelling units) located within the City's municipal
corporate limits. All residents receive solid waste collection, co-mingled recyclables
collection, and green waste collection services on a designated day for their
neighborhood, and are provided with 96-gallon carts for each of the three material
streams. Additional 96-gallon carts can be provided upon request, and an additional
charge, for Co-mingled recyclables and green waste. The materials accepted through
that program are listed on the City's website at:
htt www.fresrto. ov Governmen De artmentDirecto PublicUtilities SolidWaste Resi
dentialServices Blue.htm
Green waste collection includes grass, leaves, weeds, sawdust, palm fronds, untreated
wood, fruit and vegetables. Christmas trees are collected for recycling after the
holidays. An additional 96 gallon cart is available to residents for an additional monthly
charge. Information on the City's current green waste collection program can be found
on the City's website at:
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htt www.fresno. ov Governmen De artmentDirector PublicUtilities Sol!dWaste Resi
dentialServices/Green.htm
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Exhibit B
INSURANCE REQUIREMENTS
Service Agreement between City of Fresno ("CITY")
and Kochergen Farms Composting, Inc. ("SERVICE PROVIDER")
Green Waste Processing
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial
General Liability Coverage Form CO 00 01, providing liability coverage arising
out of your business operations. The Commercial General Liability policy shall be
written on an occurrence form and shall provide coverage for "bodily injury,"
"property damage" and "personal and advertising injury" with coverage for
premises and operations (including the use of owned and non-owned
equipment), products and completed operations, and contractual liability
(including, without limitation, indemnity obligations under the Agreement) with
limits of liability not less than those set forth under "Minimum Limits of
Insurance."
2. The most current version of ISO *Commercial Auto Coverage Form CA 00
01, providing liability coverage arising out of the ownership, maintenance or use
of automobiles in the course of your business operations. The Automobile Policy
shall be written on an occurrence form and shall provide coverage for all owned,
hired, and non-owned automobiles or other licensed vehicles (Code 1- Any
Auto). If personal automobile coverage is used, the CITY, its officers, officials,
employees, agents and volunteers are to be listed as additional insureds.
3. Workers' Compensation insurance as required by the State of California
and Employer's Liability Insurance.
MINIMUM LIMITS OF INSURANCE
SERVICE PROVIDER shall maintain limits of liability of not less than those set
forth below. However, insurance limits available to CITY, its officers, officials,
employees, agents and volunteers as additional insureds, shall be the greater of
the minimum limits specified herein or the full limit of any insurance proceeds
available to the named insured:
1. COMMERCIAL GENERAL LIABILITY:
(a) $2,000,000 per occurrence for bodily injury and property damage;
(b) $2,000,000 per occurrence for personal and advertising injury;
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(c) $4,000,000 aggregate for products and completed operations; and,
(d) $4,000,000 general aggregate applying separately to the work
performed under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
3. WORKERS' COMPENSATION INSURANCE as required by the State of
California with statutory limits and EMPLOYER'S LIABILITY with limits of liability
not less than
(a) $1,000,000 each accident for bodily injury;
(b) $1,000,000 disease each employee; and,
(c) $1,000,000 disease policy limit.
5. CONTRACTORS' POLLUTION LEGAL LIABILITY (CPL) (and/or other
applicable policies as determined by the City's Risk Manager or his/her designee,
e.g. Asbestos Legal Liability) unless waived in writing by the CITY'S Risk
Manager or his/her designee shall be written on either an occurrence form, or a
claims-made form, and is required for all environmental and water remediation
work and for all work transporting fuel. CPL is also required for demolition,
renovation, HVAC, plumbing and electrical work (including, without limitation,
lighting) on any structure built prior to the year 1990 with limits of liability of not
less than the following:
(a) $1,000,000 per occurrence or claim; and,
(b) $2,000,000 general aggregate per annual policy period.
(i) In the event this Agreement involves any lead based, mold or asbestos
environmental hazard, either the CAL policy or other appropriate insurance policy
shall be endorsed to include Transportation Pollution Liability insurance covering
materials to be transported by APPLICANT pursuant to the Agreement.
(ii) In the event this Agreement involves any lead-based environmental
hazard (e.g., lead based paint), and/or asbestos environmental hazard (e.g.
asbestos remediation), and/or mold environmental hazard (e.g. mold
remediation) the CPL insurance policy or other appropriate policy shall be
endorsed to include coverage for lead based environmental hazards and/or
asbestos environmental hazards and/or mold environmental hazards and
"microbial matter including mold" with the definition of"Pollution" and
UMBRELLA OR EXCESS INSURANCE
In the event SERVICE PROVIDER purchases an Umbrella or Excess insurance
policy(ies) to meet the "Minimum Limits of Insurance," this insurance policy(ies)
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shall "follow form" and afford no less coverage than the primary insurance
policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also
apply on a primary and non-contributory basis for the benefit of the CITY, its
officers, officials, employees, agents and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
SERVICE PROVIDER shall be responsible for payment of any deductibles
contained in any insurance policy(ies) required herein and SERVICE PROVIDER
shall also be responsible for payment of any self-insured retentions. Any
deductibles or self-insured retentions must be declared on the Certificate of
Insurance, and approved by, the CITY'S Risk Manager or his/her designee. At
the option of the CITY'S Risk Manager or his/her designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects CITY, its officers, officials, employees, agents and
volunteers; or
(ii) SERVICE PROVIDER shall provide a financial guarantee, satisfactory to
CITY'S Risk Manager or his/her designee, guaranteeing payment of losses and
related investigations, claim administration and defense expenses. At no time
shall CITY be responsible for the payment of any deductibles or self-insured
retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
(i) All policies of insurance required herein shall be endorsed to provide that
the coverage shall not be cancelled, non-renewed, reduced in coverage or in
limits except after thirty (30) calendar days written notice has been given to CITY,
except ten (10) days for nonpayment of premium. SERVICE PROVIDER is also
responsible for providing written notice to the CITY under the same terms and
conditions. Upon issuance by the insurer, broker, or agent of a notice of
cancellation, non-renewal, or reduction in coverage or in limits, SERVICE
PROVIDER shall furnish CITY with a new certificate and applicable
endorsements for such policy(ies). In the event any policy is due to expire during
the work to be performed for CITY, SERVICE PROVIDER shall provide a new
certificate, and applicable endorsements, evidencing renewal of such policy not
less than fifteen (15) calendar days prior to the expiration date of the expiring
policy.
(ii) The CGL, CAL and CPL policies of insurance shall be endorsed to name
CITY, its officers, officials, agents, employees and volunteers as additional
insureds. SERVICE PROVIDER shall establish additional insured status for the
City and for all ongoing and completed operations by use of ISO Form
CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed
manuscript insurance company endorsement providing additional insured status
as broad as that contained in ISO Form CG 20 10 11 85.
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(iii) For any claims related to this Agreement, SERVICE PROVIDER'S
insurance coverage shall be primary insurance with respect to the CITY, its
officers, officials, agents, employees and volunteers. Any insurance or self-
insurance maintained by the CITY, its officers, officials, agents, employees and
volunteers shall be excess of the SERVICE PROVIDER'S insurance and shall
not contribute with it. SERVICE PROVIDER shall establish primary and
noncontributory status by use of ISO Form CG 20 01 04 13 or by an executed
manuscript insurance company endorsement that provides primary and
noncontributory status as broad as that contained in ISO Form CG 20 01 04 13.
(iv) Should any of the required policies provide that the defense costs are paid
within the Limits of Liability, thereby reducing the available limits by any defense
costs, then the requirement for the Limits of Liability of these polices will be twice
the above stated limits.
(v) The coverage shall contain no special limitations on the scope of
protection afforded to CITY, its officers, officials, employees, agents and
volunteers. Any available insurance proceeds in excess of the specified
minimum limits and coverage shall be available to the Additional Insured.
(v) The Workers' Compensation insurance policy shall contain, or be
endorsed to contain, a waiver of subrogation as to CITY, its officers, officials,
agents, employees and volunteers.
PROVIDING CITY WITH DOCUMENTS - SERVICE PROVIDER shall furnish
CITY with all certificate(s) and applicable endorsements effecting coverage
required herein All certificates and applicable endorsements are to be
received and approved by the CITY'S Risk Manager or his/her designee
prior to CITY'S execution of the Agreement and before work commences.
All non-ISO endorsements amending policy coverage shall be executed by a
licensed and authorized agent or broker. Upon request of CITY, SERVICE
PROVIDER shall immediately furnish CITY with a complete copy of any
insurance policy required under this Agreement, including all endorsements, with
said copy certified by the underwriter to be a true and correct copy of the original
policy. This requirement shall survive expiration or termination of this
Agreement.
CLAIMS-MADE POLICIES - If any coverage required is written on a claims-
made coverage form:
(i) The retroactive date must be shown, and must be before the effective date
of the Agreement or the commencement of work by SERVICE PROVIDER.
(ii) Insurance must be maintained and evidence of insurance must be
provided for at least five (5) years after completion of the work or termination of
the Agreement, whichever first occurs.
(iii) If coverage is canceled or non-renewed, and not replaced with another
claims-made policy form with a retroactive date prior to the effective date of the
Agreement, or work commencement date, SERVICE PROVIDER must purchase
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"extended reporting" period coverage for a minimum of five (5) years after
completion of the work or termination of the Agreement, whichever first occurs.
(iv) A copy of the claims reporting requirements must be submitted to CITY for
review.
(v) These requirements shall survive expiration or termination of the
Agreement.
MAINTENANCE OF COVERAGE - If at any time during the life of the Agreement
or any extension, SERVICE PROVIDER fails to maintain any required insurance
in full force and effect, all work under this Agreement shall be discontinued
immediately until notice is received by CITY that the required insurance has been
restored to full force and effect and that the premiums therefore have been paid
for a period satisfactory to CITY. Any failure to maintain the required insurance
shall be sufficient cause for CITY to terminate this Agreement. No action taken
by CITY hereunder shall in any way relieve SERVICE PROVIDER of its
responsibilities under this Agreement. The phrase "fail to maintain any required
insurance" shall include, without limitation, notification received by CITY that an
insurer has commenced proceedings, or has had proceedings commenced
against it, indicating that the insurer is insolvent.
The fact that insurance is obtained by SERVICE PROVIDER shall not be
deemed to release or diminish the liability of SERVICE PROVIDER, including,
without limitation, liability under the indemnity provisions of this Agreement. The
duty to indemnify CITY shall apply to all claims and liability regardless of whether
any insurance policies are applicable. The policy limits do not act as a limitation
upon the amount of indemnification to be provided by SERVICE PROVIDER.
Approval or purchase of any insurance contracts or policies shall in no way
relieve from liability nor limit the liability of SERVICE PROVIDER, its principals,
officers, agents, employees, persons under the supervision of SERVICE
PROVIDER, vendors, suppliers, invitees, consultants, sub-consultants, or
anyone employed directly or indirectly by any of them.
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Exhibit C
DISCLOSURE OF CONFLICT OF INTEREST
Kocher en Farms Composting. Inc. Green Waste Processing
YES* NO
1 Are you currently in litigation with the City of Fresno or any of ❑
its agents?
2 Do you represent any firm, organization or person who is in ❑
litigation with the City of Fresno?
3 Do you currently represent or perform work for any clients ❑
who do business with the City of Fresno?
4 Are you or any of your principals, managers or professionals,
owners or investors in a business which does business with ❑
the City of Fresno, or in a business which is in litigation with
the City of Fresno?
5 Are you or any of your principals, managers or professionals,
related by blood or marriage to any City of Fresno employee ❑
who has any significant role in the subject matter of this
service?
6 Do you have, or expect to have, any interest, direct or
indirect, in any other contract in connection with this Project? ❑
* If the answer to any question is yes, please explain in full below.
Explanation:
AA �� Signature
IV Y111ILY1� _c�_
A N-ccr Date
\Jdk�k
(name) LIZ
(company).
(address)
❑ Additional page(s) attached. -- C1 -3
(city state zip)(
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h�aF Fk,�� 2600 Fresno Street
City of Fresno Fresno,CA93721
� '0 www.fresno gov
oaRpoAIE�ti� Legislation Text
File #: ID16-206, Version: 1
REPORT TO THE CITY COUNCIL
February 25, 2016
FROM: DOUG SLOAN, City Attorney
Office of the City Attorney
SUBJECT
Actions pertaining to processing of Green Waste (Citywide):
1. Adopt a finding pursuant to CEQA Guideline 15061(b)(3) of No Possibility these actions may
have a significant effect on the environment.
2. Award a ten year agreement to Kochergen Farms Composting, Inc. (Kochergen), to process
50 percent of the City's Green Waste (green waste) at a cost to the City of$16.75 per ton.
3. Award a ten year agreement to West Coast Waste, Inc. (West Coast), to process 50 percent
of the City's Green Waste at a cost to the City of$16.75 per ton.
EXECUTIVE SUMMARY
On December 10, 2015, Council directed the City Attorney to negotiate agreements with the top two
proposers for green waste and recyclables processing, with each to receive approximately 50
percent of the City's materials collected.
Council may award two, ten-year agreements - one to Kochergen to process 50 percent of the City's
green waste for $16.75 per ton, and another to West Coast to process the remaining 50 percent on
the same terms. After a month of negotiations, the parties have reached agreements, subject to
Council approval.
BACKGROUND
In May 2015, the City issued Request for Proposals (RFP) 3405, seeking proposals to process both
green waste and recyclables. The RFP sought bidders to create new cost structures for green waste
processing agreements, which expired on December 31, 2015. Of the responses received, the lowest
proposed processing charge for green waste was from Kochergen, at $16.75 per ton, and West
Coast was second at $18.00. On October 8, 2015, Council was asked to approve an agreement with
Kochergen, subject to negotiation of the final terms. The item was continued to allow the
Administration to pursue a "best and final offer" from the top proposers. However, that request was
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rescinded on October 21, 2015, and the RFP was repealed on October 23, 2015. Subsequently
Council directed the City Attorney to negotiate with the top two proposers in each category.
2002 Green Waste Agreement
On October 1, 2002, the city entered into an agreement with Kochergen for processing green waste
materials from facilities located at the waste water treatment plant.
2005 Green Waste Agreements
Following distribution of an RFP, on April 30, 2005, Council approved the award of two interim
agreements to Kochergen and West Coast for processing curbside green waste materials, to expire
on June 30, 2005. Council approved another extension of the agreement, extending the date to
November 30, 2005, to allow to finalize the RFP process. On November 29, 2005, Council awarded
contracts to Synagro and West Coast Waste for the processing of green waste through December
31, 2010.
First Amendments to Green Waste Agreements
Both Synagro and West Coast Waste agreements were extended for five years, until December 31,
2015. Both entities have agreed to continue processing green waste for the City on a month-to-
month basis through June 30, 2016, subject to sixty day's written notice to terminate the agreement.
Current Negotiations
The City Attorney's Office negotiated contracts with the service providers. The agreements before
Council are identical, including the following material terms:
• City pays $16.75/ton of green waste processed (currently City pays $23.97/ton).
• Request by service provider to change price results in City issuing an RFP for the services or
awarding services to another service provider currently contracted to perform the services, at the
City's option.
• Only exception to above is, three years or later after effective date of the agreement, if a
material change in law causes a greater than 10 percent net decrease in funds to service provider
for more than a year, the service provider may submit a request for price adjustment along with
documentation supporting a negative effect on its bottom line, and the City may negotiate the rate
with the service provider for 60 days. If no agreement is reached, City may issue RFP or award
to another service provider currently contracted to perform the services, at the City's option.
The reduction in processing costs for green waste will reduce our current costs from an estimated
$1,800,000 to $1,250,000, providing a cost reduction of approximately $550,000 annually. Based
upon these negotiations, the City Attorney believes the contractual terms likely would not improve
should the City reject these contracts and send the contracts out to another RFP process.
ENVIRONMENTAL FINDINGS
Pursuant to CEQA Guidelines section 15061(b)(3), there is no possibility that awarding these
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agreements will have a significant effect on the environment and this project is not subject to CEQA.
This is because awarding the service agreements does not directly affect the environment. Each
service provider must comply with CEQA regulations in performing its services, and construction of
any new facilities required to fulfill these agreements will be assessed separately prior to
construction.
LOCAL PREFERENCE
Although all the service providers are local businesses, local preference was not considered because
FMC 4-109 does not require local preference for non-consulting, non-professional services contracts.
FISCAL IMPACT
Last year the City paid over $1,800,000 to process approximately 75,000 tons of green waste. The
new agreements will reduce costs by $7.22 per ton, saving the City and rate payers approximately
$550,000 annually.
Attachments:
Agreement with Kochergen
Agreement with West Coast
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Certificate of Authorization
This is to certify that Mike J Kochergen, hereinafter referred to as the"Authorized Signatory," holds,the
authority to sign and execute contracts on behalf of Kochergen Farms Composting, Inc.,a California
corporation(the"Company").
The Authorized Signatory holds the following positions with the Company:
1. President
2.Secretary
3.Chief Financial Officer.
In his capacity as the President,Vice President,and Secretary of the Company,the Authorized Signatory
is empowered to act on behalf of the Company,and his signature shall be considered binding and
conclusive for all purposes, including but not limited to contracts,agreements,and other legal
transactions.
This Certificate of Authorization is issued on October 24,2023 and is effective until further notice. It may
be presented to third parties,organizations,and individuals as evidence of the Authorized Signatory's
authority to represent the Company, in contractual matters.
Executed this)Lq day of October,2023, by the Company's duly authorized Secretary.
Mike J acnerg
DocuSign Envelope ID:611E82A7-A5EB-4C49-ABE6-AA8B68A07E7A
CALIFORNIA ACKNOWLEDGMENT CIVIL CODE g 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document
to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California 1
County of
On f�/a-� ��3 before me, ��- ry lost� d �4c .
_ _
Date 11 Here Insert
Name and Title of th Oflrrer
AA personally appeared +I A Y i 1 {7(,h rrafin
Norne(s)of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) Ware subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s),or the entity
upon behalf of which the person(s)acted,executed the instrument
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
�•r COLE E.KASABIAN
NataryPubOc-CalHornia paragraph is true and correct
Fresno County s
Commission P 2424925 WITNESS my hand and official seal.
,•... '1 FAY Comm.Expires Oct 31,2026
Signature
Place Notary Seal and/or Stamp Above Signature of Notary Public
- - — OPTIONAL —
Completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document:
DocumentDate:— _ Number of Pages: —
Signer(s) Other Than Named Above: ---
Capacity(ies) Claimed by Signer(s)
Signer's Name: . _ Signer's Name:
1 ❑ Corporate Officer-Title(s): _ ❑Corporate Officer-Title(s): _
❑ Partner- ❑ Limited ❑ General ❑ Partner- ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact ❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator ❑ Trustee ❑ Guardian or Conservator
❑ Other: _ ❑ Other:
Signer is Representing: Signer is Representing:
02019 National Notary Association