HomeMy WebLinkAboutValley Dumpster Service LLC - Agreements - 04.27.23NON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN
THE CITY OF FRESNO
VALLEY DUMPSTER SERVICE LLC
FOR
ROLL -OFF COLLECTION SERVICES
Au u , 2023
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Table of Contents
RECITALS... ........ .............................................. ........................................ 7
ARTICLEDEFINITIONS................................................................................................... 8
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR.......... 15
2.1 REPRESENTATIONS AND WARRANTIES.......................................................... 15
ARTICLE 3 TERM OF AGREEMENT............................................................................... 16
3.1 EFFECTIVE DATE.................................................................................. .......... 16
3.2 CONDITIONS TO EFFECTIVENESS OF AGREEMENT....... ...... ........................ 17
3.3 INITIAL TERM................................................................................................. .. 17
3.4 OPTION TO EXTEND........................................................................................... 17
ARTICLE 4 SCOPE OF AGREEMENT............................................................................ 18
4.1 SCOPE OF AGREEMENT.................................................................................... 18
4.2 LIMITATIONS TO SCOPE.................................................................................... 19
4.3 CITY'S RIGHT TO GRANT MULTIPLE NON-EXCLUSIVE AGREEMENTS.......... 20
4.4 CITY'S RIGHT TO EXCLUDE NEWLY ANNEXED TERRITORY FROM SCOPE
OFFRANCHISE................................................................................................... 20
4.5 AGREEMENT CONSISTENT WITH APPLICABLE LAW ...................................... 20
4.6 OWNERSHIP OF MATERIALS............................................................................. 20
4.7 NOTIFICATION TO CITY OF NON -FRANCHISED HAULERS ............................. 21
ARTICLE 5 COLLECTION, PROCESSING, AND DISPOSAL SERVICES ...................... 21
5.1 COLLECTION......................................................................................................21
5.2 PROCESSING AND MARKETING SERVICES ..................................................... 21
5.3 DIVERSION REQUIREMENT............................................................................... 23
5.4 DISPOSAL...................................................................................................... . . 23
5.5 BILLING........................................................................................................ ... .. 24
5.6 CUSTOMER SERVICE......................................................................................... 25
ARTICLE 6 STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT,
ANDPERSONNEL........................................................................................................... 25
6.1
OPERATING DAYS, HOURS, AND SCHEDULES ................................................
25
6.2
COLLECTION STANDARDS...........................................................................-...
25
6.3
VEHICLE REQUIREMENTS.................................................................................
27
6.4
ROLL -OFF CONTAINER REQUIREMENTS.........................................................
28
6.5
PERSONNEL........................................................................................................30
6.6
HAZARDOUS WASTE INSPECTION AND HANDLING ........................................
30
6.7
NON-DISCRIMINATION.......................................................................................32
6.8
COMMUNICATION AND COOPERATION WITH CITY.... ............ ........................
32
ARTICLE
7 RECORD KEEPING AND REPORTING.......................................................
32
7.1
GENERAL ............ ........... .............................................................._.......
32
7.2
RECORDS .................... ........................................................................................33
7.3 GENERAL REPORTING REQUIREMENTS ...... ................................................... 35
7.4 MONTHLY REPORT............................................................................................. 35
7.5 AB 939 COUNTY SURCHARGE REPORTING.................................................... 36
ARTICLE 8 FRANCHISE FEES AND OTHER FEES ....................................................... 37
8.1 GENERAL............................................................................................................ 37
8.2 FRANCHISE FEE...............................................................................................1. 37
8.3 OTHER FEES....................................................................................................... 37
8.4 ADJUSTMENT TO FEES..................................................................................... 37
8.5 PAYMENT SCHEDULE AND LATE FEES............................................................ 37
8.6 OVERPAYMENT OF FEES.................................................................................. 38
8.7 NON -CITY FEES; AB 939 COUNTY SURCHARGE ............................................. 38
ARTICLE 9 CONTRACTOR'S COMPENSATION AND RATES ...................................... 38
9.1 CONTRACTOR'S COMPENSATION.................................................................... 38
9.2 CITY'S RIGHT TO SET MAXIMUM RATES-....... ................................................. . 38
9.3 CONTRACTOR'S RATES................................................................ ................. 39
ARTICLE 10 INDEMNITY AND INSURANCE.................................................................. 39
10.1 INDEMNIFICATION............................................................................................... 39
10.2 INSURANCE................................................•.................................. 40
ARTICLE 11 DEFAULT AND REMEDIES........................................................................ 44
11.1 EVENTS OF DEFAULT........................................................................................ 44
11.2 RIGHT TO TERMINATE UPON DEFAULT..........................................................1 45
11.3 CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE ........................ 45
11.4 LIQUIDATED DAMAGES...................................................................................... 45
11.5 DIVERSION NON-PERFORMANCE.................................................................... 47
11.6 CONDITIONS UPON TERMINATION................................................................... 48
ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES ................................................ 49
12.1
RELATIONSHIP OF PARTIES..............................................................................
49
12.2
PERMITS AND LICENSES...................................................................................
49
12.3
COMPLIANCE WITH LAW........................................................................................50
12.4
GOVERNING LAW...............................................................................................
50
12.5
JURISDICTION.....................................................................................................50
12.6
BINDING ON SUCCESSORS...............................................................................
50
12.7
ASSIGNMENT......................................................................................................50
12.8
PARTIES IN INTEREST.......................................................................................
50
12.9
WAIVER...............................................................................................................
50
12.10
NOTICE PROCEDURES......................................................................................
51
12.11
REPRESENTATIVES OF THE PARTIES.............................................................
51
12.12
CRIMINAL ACTIVITY OF CONTRACTOR............................................................
51
12.13
ACKNOWLEDGMENT OF PUBLIC RESOURCES CODE SECTION
49520 NOTICE............ ................... ........... ........ ...........................
53
ARTICLE 13 MISCELLANEOUS AGREEMENTS........................................................... 53
13.1 ENTIRE AGREEMENT........................................................................................ 53
13.2
SECTION HEADINGS..................................................................................I.......
53
13.3
REFERENCES TO LAWS.....................................................................................
54
13.4
INTERPRETATION...............................................................................................
54
13.5
PRONOUNS AND PLURALS; TENSE..................................................................
54
13.6
TEXT TO CONTROL ....... ........ ..................................... ..........
.............................. 54
13.7
AMENDMENT......................................................................................................
13.8
SEVERABILITY............ ................................................ ........................................
54
13.9
COUNTERPARTS ................................................................................................
54
13.10
EXHIBITS.............................................................................................................
54
List of Exhibits
A Schedule for Liquidated Damages
B Secretary's Certification
C Statement of Applicant's Understanding and Representations
D Approved Processing and Residue Disposal Facilities
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NON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN
THE CITY OF FRESNO
AND
VALLEY DUMPSTER SERVICE LLC
FOR ROLL -OFF COLLECTION SERVICES
This non-exclusive franchise agreement (Agreement) is made and entered into is 27th day
of April,2023 by and between the City of Fresno, a municipal corporation (City), and Valley
Dumpster Service LLC (Contractor).
RECITALS
This Agreement is entered into with reference to the following facts and circumstances:
WHEREAS, the Legislature of the State of California (State), by enactment of the
California Integrated Waste Management Act of 1989, codified at California Public
Resources Code Section 40000 et seq. (Act)), has declared that it is in the public interest
to authorize and require local agencies to make adequate provisions for Solid Waste
Collection within their jurisdiction; and
WHEREAS, the State has found and declared the amount of Solid Waste generated
in California, coupled with diminishing landfill space and potential adverse environmental
impacts from landfilling and the need to conserve natural resources, have created an urgent
need for State and local agencies to enact and implement an aggressive integrated waste
management program. The State has, through enactment of the Act, directed the
responsible State agency and all local agencies, to promote Disposal Site Diversion and to
maximize the use of feasible Solid Waste reduction, re -use, Recycling, and Composting
options in order to reduce the amount of Solid Waste that must be Disposed of in Disposal
Sites; and
WHEREAS, the Act requires local agencies to divert 75% of discarded materials
from landfills; and
WHEREAS, the City Council established goals of achieving 75% diversion by 2012
and zero waste status by 2025 on June 26, 2007, and approved a Zero Waste Strategic
Action Plan on February 11, 2009; and
WHEREAS, the City finds that reusing, Recycling, and Composting Recyclable
Materials, Organic Materials, and Construction and Demolition Debris (C&D) is essential to
further the City's efforts to reduce Solid Waste Disposal and comply with the Act and the
City's zero waste goals; and
WHEREAS, pursuant to the powers granted the City as a charter city by Article XI,
Section 5(a) of the California Constitution and Article XI I I of the Charter of the City of Fresno,
the City has determined that the public health, safety, and well-being require a franchise
agreement defining non-exclusive rights be awarded to qualified companies to provide for
the roll -off container collection of Permitted Materials except for collection of materials
City of Fresno Non -Exclusive Roll -Off Agreement Page 7
excluded in the City's Municipal Code, and other services related to meeting requirements
of the Act; and
WHEREAS, the City requires all haulers providing Roll -Off Collection services for
Permitted Materials in the City to obtain a non-exclusive franchise in order to regulate this
business, ensure its orderly operation, achieve its diversion goals, and to minimize the
potential for adverse effects it may have on the local environment; and
WHEREAS, the City Council has determined through an application process that the
Contractor, by demonstrated experience, reputation, and capacity, is qualified to provide
for the Roll -Off Container Collection of Permitted Materials within the corporate limits of the
City and the Transportation of such material to appropriate places of Recycling, Processing,
and/or Disposal, and can provide insurance consistent with the City's requirements. The
City Council desires that Contractor be engaged to perform such services on the basis set
forth in this Agreement; and
WHEREAS, Contractor intends to use the City's streets, alleys, other public rights -
of way, and infrastructure to provide Roll -Off Collection services to the City's residents and
businesses; and
WHEREAS, the City intends to receive just and reasonable fees from the Contractor
for City's administration of the Agreement and for Contractor's use of the City streets, alleys,
other public rights -of -way, and infrastructure which the City may lawfully impose, and the
companies are obligated to pay.
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
conditions contained in this Agreement and for other good and valuable consideration, the
Parties agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, unless a different meaning is required, the following words
and phrases shall have the following meanings and shall be capitalized throughout this
Ag reement:
A. "Act" means the California Integrated Waste Management Act of 1989
(Division 30 of the California Public Resources Code), as amended,
supplemented, superseded, and replaced from time to time.
B. "Agreement" means this Agreement between the City and Contractor for Roll -
Off Container Collection, Processing, and Disposal of Permitted Materials,
including all exhibits and attachments, and any future amendments hereto.
C. "Applicable Law" means all Federal, State, and local laws, regulations, rules,
orders, judgments, degrees, permits, approvals, or other requirements of any
governmental agency having jurisdiction over the Roll -Off Container
Collection, Transportation, Recycling, Processing, and Disposal of Permitted
City of Fresno Non -Exclusive Roll -Off Agreement Page 8
Materials that are in force on the Effective Date and as they may be enacted,
issued, or amended during the Term of this Agreement.
D. "Approved C&D Processing Site" means the Processing Site specified in
Exhibit D, which was selected by Contractor and approved by the City.
E. "Approved Disposal Site" means a Disposal Site selected by the Contractor
or its Subcontractor(s) and approved by the City for Disposal of residue from
Approved Processing Site(s). Approved Disposal Site(s) are listed in Exhibit D.
F. "Approved Organics Processing Site" means the Processing Site specified
in Exhibit D, which was selected by Contractor and approved by the City.
G. "Approved Processing Site(s)" means the Approved C&D Processing Site,
Approved Organics Processing Site, and/or Approved Recyclables Processing
Site.
H. "Approved Processor" means the operator of an Approved Processing Site.
I. "Approved Recyclables Processing Site" means the Processing Site
specified in Exhibit D, which was selected by Contractor and approved by the
City.
J. "Bin" means a container with capacity of approximately one (1) to eight (8)
cubic yards, with a hinged lid, and with wheels, that is typically serviced by a front
end -loading Collection vehicle.
K. "Business Days" mean days during which City offices are open to do
business with the public.
L. "Cart' means a plastic container with a hinged lid and wheels that is typically
serviced by an automated or semi -automated Collection vehicle. A Cart has
capacity of 20, 35, 64, or 96 gallons (or similar volumes).
M. "Change in Law" means any of the following events or conditions that have
a material and adverse effect on the performance by the Parties of their
respective obligations under this Agreement (except for payment obligations):
The enactment, adoption, promulgation, issuance, modification, or written
change in administrative or judicial interpretation on or after the Effective Date of any
Applicable Law; or The order or judgment of any governmental body, on or after
the Effective Date, to the extent such order or judgment is not the result of
willful or negligent action, error or omission or lack of reasonable diligence of
the City or of the Contractor, whichever is asserting the occurrence of a
Change in Law; provided, however, that the contesting in good faith or the
failure in good faith to contest any such order or judgment shall not constitute
or be construed as such a willful or negligent action, error or omission or lack
of reasonable diligence.
N. "City" means the City of Fresno, California, a municipal corporation, and all
City of Fresno Non -Exclusive Roll -Off Agreement Page 9
the territory lying within the municipal boundaries of the City as presently
existing or as such boundaries may be modified during the Term.
O. "City's Municipal Code," "Municipal Code" or "FMC" means the Municipal
Code of the City of Fresno.
P. "Collect" or "Collection" means the act of collecting Permitted Materials and
other material at the place of generation in the City.
Q. "Commercial" shall mean of, from or pertaining to non -Residential Premises
where business activity is conducted, including, but not limited to, retail sales,
services, wholesale operations, manufacturing and industrial operations, but
excluding businesses conducted upon Residential property which are
permitted under applicable zoning regulations and are not the primary use of
the property.
R. "Compactor" means a mechanical apparatus that compresses materials into
a container, which container may be detachable. For the purposes of this
Agreement, Compactors shall include only Compactors with container
capacities of ten to fifty cubic yard that are serviced by Roll -Off Collection
Trucks.
S. "Compost" or "Composting" includes a controlled biological decomposition of
Organic Materials yielding a safe and nuisance free Compost Product.
T. "Compost Product" means the product resulting from the controlled biological
decomposition of Organic Materials that are Source Separated from the Solid
Waste stream, or which are separated at a centralized facility.
U. "Construction and Demolition Debris (C&D)" means materials resulting
from construction, remodeling, repair, cleanup, or demolition operations that
are not hazardous as defined in California Code of Regulations, Title 22
Section 66261.3. This term includes, but is not limited to, asphalt, concrete,
cement concrete, brick, lumber, gypsum wallboard, concrete board,
cardboard, and other associated packaging, roofing material, ceramic tile,
carpeting, plastic pipe and steel, as well as vegetative matter resulting from
land clearing and landscaping including but not limited to rock, soil, tree
stumps, or as otherwise defined by Title 27 Chapter, Article 2, Section 20164.
Construction and Demolition Debris excludes putrescible wastes.
V. "Contractor" means Valley Dumpster Service LLC, a Sole Proprietorship
organized and operating under the laws of the State of California and its officers,
directors, employees, agents, companies, and Subcontractors.
W. "Contractor Party(ies)" shall mean Contractor, officers, directors,
management employees, or fiscal employees (where "management
employee" means any employee with direct or indirect responsibility for
direction and control over the Contractor's activities under this Agreement and
City of Fresno Non -Exclusive Roll -Off Agreement Page 10
"fiscal employee" means an employee with direct or indirect responsibility and
control duties relating to financial matters under this Agreement).
X. "Criminal Activity" means those activities described in Section 12.12.1.
Y. "Customer" means the Person whom Contractor submits billing invoice to and
collects payment from for Collection services provided.
Z. "Designated Disposal Site" means the American Avenue Landfill at 18950
W American Avenue in Tranquility, California for the purposes of Disposing
Solid Waste.
AA. "Designated Waste" means non -Hazardous Wastes that may pose special
Disposal problems because of its potential to contaminate the environment,
and which may be disposed of only in Class II Disposal Sites or Class III
Disposal Sites pursuant to a variance issued by the California Department of
Health Services.
BB. "Director" shall mean the Public Utilities Director of the City or an authorized
representative of the Public Utilities Director.
CC. "Discarded Materials" means Solid Waste, Recyclable Materials, Organic
Materials, or C&D placed by a Generator in a receptacle and/or at a location
that is designated for Collection pursuant to the City's Municipal Code.
DD. "Disposal or Dispose (or variation thereof)" means the final disposition of
Solid Waste at a Disposal Site.
EE. "Disposal Site" means a facility for ultimate Disposal of Solid Waste.
FF. "Diversion" means activities that reduce or eliminate the amount of Solid
Waste from Solid Waste Disposal including, but not limited to, Recycling, and
Composting.
GG. "Drop Box" means an open -top container with capacity from 6 to 50 cubic
yards that is used for Collection of Permitted Materials and that is serviced by
a Roll -Off Collection Truck. Drop Boxes with capacities of less than 10 cubic
yards may only be used for the purposes of Collecting C&D. A Drop Box, which
is also known as a roll -off box and/or debris box, is a type of Roll -Off Container.
HH. "Effective Date" means the date set forth in the introductory paragraph of this
Agreement.
[l. "Federal" means belonging to or pertaining to the national general
government of the United States.
JJ. "Food Scraps" means those discarded materials that will decompose and/or
putrefy including (i) all kitchen and table food waste, (ii) animal or vegetable
City of Fresno Non -Exclusive Roll -Off Agreement Page 11
waste that is generated during or results from the storage, preparation, cooking
or handling of food stuffs, (iii) discarded paper that is contaminated with Food
Scraps; (iv) fruit waste, grain waste, dairy waste, meat and fish waste; and, (v)
non -Recyclable paper or contaminated paper. Food Scraps are a subset of
Organic Materials.
KK. "Franchise Fee" means the fee paid by Contractor to City for the privilege to
hold the non-exclusive rights granted by this Agreement.
LL. "Generator" means any Person whose act or process produces Permitted
Materials, or whose act first causes Permitted Materials to become subject to
regulation.
MM. "Green Waste Material" means any materials generated from the
maintenance or alteration of public, commercial, or residential landscapes that
will decompose and/or putrefy including, but not limited to, yard clippings,
grass, leaves, shrub/tree trimmings or prunings (less than 4" in diameter),
brush, flowers, weeds, dead plants, small pieces of unpainted and untreated
wood, and other types of organic waste. For the purposes of this Agreement,
such materials shall be Source Separated and placed by a Generator in a
receptacle and/or at a location that is designated for Collection. Green Waste
Material is a subset of Organic Materials.
NN. "Hazardous Waste" means all substances defined as Hazardous Waste,
acutely Hazardous Waste, or extremely Hazardous Waste by the State in
Health and Safety Code §25110.02, §25115, and §25117 or in the future
amendments to or recodifications of such statutes or identified and listed as
Hazardous Waste by the U.S. Environmental Protection Agency (EPA),
pursuant to the Resource Conservation and Recovery Act (42 USC §6901 et
seq.), all future amendments thereto, and all rules and regulations promulgated
thereunder.
00. "Holidays" are defined as New Year's Day, Thanksgiving Day, and Christmas
Day.
PP. "Infectious Waste" means biomedical waste generated at hospitals, public or
private medical clinics, dental offices, research laboratories, pharmaceutical
industries, blood banks, mortuaries, veterinary facilities, and other similar
establishments, as defined in Health and Safety Code Section 25117.5.
QQ. "Liquidated Damages" means the amounts due by Contractor to City for
failure to meet specific quantifiable standards of performance as described in
Section 11.4 and Exhibit A.
RR. "Organic Materials" means those discarded materials that will decompose
and/or putrefy including Green Waste Material and Food Scraps such as, but
are not limited to, green trimmings, grass, weeds, leaves, prunings, branches,
dead plants, brush, tree trimmings, dead trees, small wood pieces, other types
City of Fresno Non -Exclusive Roll -Off Agreement Page 12
of organic yard waste, vegetable waste, fruit waste, grain waste, dairy waste,
meat waste, fish waste, paper contaminated with Food Scraps, pieces of
unpainted and untreated wood, and pieces of unpainted and untreated
wallboard. No discarded material shall be considered to be Organic Materials,
unless such material is Source Separated from Solid Waste, Recyclable
Materials, C&D, or other materials.
SS. "Parent Company" refers to a company owning more than 50% of the shares
of another company (subsidiary) or a company that has management control
over such subsidiary.
TT. "Party or Parties" refers to the City and Contractor, individually or together.
UU. "Permitted Materials" refers to Solid Waste, Source Separated Recyclable
Materials, Source Separated Organic Materials, and C&D. Permitted Materials
excludes Source Separated Food Scraps.
VV. "Person(s)" means any individual, firm, association, organization,
partnership, corporation, business trust, joint venture, the United States, the
State of California, the County of Fresno, and special purpose districts.
WW. "Premises" means any land or building in the City where Permitted Materials
are generated or accumulated.
XX. "Processing" means to prepare, treat, or convert through some special
method.
YY. "Processing Site" means any plant or site used for sorting, cleansing,
treating, or reconstituting Permitted Materials for the purpose of making such
material available for reuse.
ZZ. "Putrescible Waste" means Solid Wastes originated from living organisms
and their metabolic waste products and from petroleum, which contains
naturally produced organic compounds and which are biologically
decomposable by microbial and fungal action into the constituent compounds
of water, carbon dioxide and other simpler organic compounds.
AAA. "Rates" means the charges and fees Contractor bills and collects from each
Customer receiving service pursuant to this Agreement.
BBB. "Recyclable Materials" means those Discarded Materials that the City Code
permits, directs and/or requires Generators to set out in Recyclables Materials
containers for Collection for the purpose of Recycling. No Discarded Materials
shall be considered Recyclable Materials unless such material is separated
from Solid Waste and Organic Materials. Recyclable Materials shall include,
but not be limited to: newspaper (including inserts, coupons, and store
advertisements); mixed paper (including office paper, computer paper,
magazines, junk mail, catalogs, brown paper bags, brown paper, paperboard,
paper egg cartons, telephone books, grocery bags, colored paper,
City of Fresno Non -Exclusive Roll -Off Agreement Page 13
construction paper, envelopes, legal pad backings, shoe boxes, soap boxes,
cereal and other similar food boxes); chipboard; cardboard; paper milk
cartons; glass containers of any color (including glass bottles and jars all
colors); aluminum cans; fabric softener containers; steel, tin or bi-metal cans;
plastic containers (clear or green plastic soda and water bottles, plastic
containers and bottles and plastic bags with no. 1, 2 or 3 on the bottom); and
food containers from potato salad, pasta salad, whipped cream, etc.
CCC. "Recycle or Recycling" means the process of collecting, sorting, cleansing,
treating, and reconstituting materials for the purpose of using the altered form
in the manufacture of a new product. Recycling does not include burning,
incinerating, or thermally destroying solid waste.
DDD. "Residential" shall mean of, from, or pertaining to a single-family Premises,
multi-plex, or multi -family Premises including single-family homes, apartments,
condominiums, townhouse complexes, mobile home parks, cooperative
apartments, and yacht harbors and marinas where residents live aboard boats.
EEE. "Roll -Off Container" means a Drop Box or Compactor used for Collection of
Permitted Materials and serviced by a Roll -off Collection Truck. Roll -Off
Containers with capacities of less than 10 cubic yards may only be used for the
purposes of Collecting C&D.
FFF. "Roll -Off Collection Truck" means a collection vehicle with a mechanical
device such as a winch that pulls or loads a Roll -Off Container onto the truck
bed or attached trailer and separately transports each Roll -Off Container to a
Disposal Site or Processing Site.
GGG. "Solid Waste" means solid waste as defined in California Public Resources
Code, Division 30, Part 1, Chapter 2, §40191 and regulations promulgated
thereunder and those Discarded Materials that the City Code requires
Generators within the City to set out for Collection. Excluded from the definition
of Solid Waste are C&D, Hazardous Waste, Infectious Waste, Designated
Waste, Source Separated Recyclable Materials, Source Separated Organic
Materials, and radioactive waste. Notwithstanding any provision to the
contrary, "Solid Waste" may include de minimis volumes or concentrations of
waste of a type and amount normally found in Residential Solid Waste after
implementation of programs for the safe collection, recycling, treatment and
disposal of household hazardous waste in compliance with Section 41500 and
41802 of the California Public Resources Code.
HHH. "Source Separated" means the segregation, by the Generator, of materials
designated for separate Collection for some form of Recycling, Processing,
Composting, recovery, orreuse.
III. "State" means the State of California.
JJJ. "Subcontractor" means a party who has entered into a contract, express or
implied, with the Contractor for the performance of an act that is necessary for
City of Fresno Non -Exclusive Roll -Off Agreement Page 14
the Contractor's fulfillment of its obligations under this Agreement.
KKK. "Term" means the Term of this Agreement, including extension periods if
granted, as provided for in Article 3.
LLL. "Ton" means a unit of measure for weight equivalent to 2,000 standard
pounds where each pound contains 16 ounces.
MMM. "Tonnage" means the total weight in Tons Collected, Recycled, Composted,
Diverted, or Disposed of, as the context requires.
NNN. "Transportation" means the act of transporting.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE
CONTRACTOR
2.1 REPRESENTATIONS AND WARRANTIES
The Contractor, by execution of this Agreement, represents and warrants the following to
City, for the purpose of inducing City to enter into this Agreement and to consummate the
transactions contemplated hereby:
A. Corporate Status. Contractor is duly organized, validly existing and in good
standing under the laws of the State. It is qualified to transact business in the City
and State and has the power to own its properties and to carry on its business as
now owned and operated and as required by this Agreement.
B. Authorization. Contractor has the authority to enter this Agreement and perform its
obligations under this Agreement. The Board of Directors of Contractor (or the
shareholders, if necessary), sole proprietor, or partners have taken all actions
required by law, its articles of incorporation, its bylaws, or otherwise, to authorize the
execution of this Agreement. The Person signing this Agreement on behalf of
Contractor represents and warrants that they have authority to do so and the
corporate secretary's certificate in Exhibit B confirms this. This Agreement
constitutes the legal, valid, and binding obligation of the Contractor.
C. Agreement Will Not Cause Breach. To the best of Contractor's knowledge after
reasonable investigation, the execution or delivery of this Agreement or the
performance by Contractor of its obligations hereunder does not conflict with, violate,
or result in a breach: (i) of any law or governmental regulation applicable to
Contractor; (ii) any term or condition of any judgment, order, or decree of any court,
administrative agency or other governmental authority; or, (iii) any Agreement or
instrument to which Contractor is a party or by which Contractor or any of its properties or
assets are bound or constitute a default thereunder.
D. No Litigation. To the best of Contractor's knowledge after reasonable investigation,
there is no action, suit, proceeding or investigation, at law or in equity, before or by
any court or governmental authority, commission, board, agency, or instrumentality
City of Fresno Non -Exclusive Roll -Off Agreement Page 15
decided, pending, or threatened against Contractor wherein an unfavorable decision,
ruling or finding, in any single case or in the aggregate, would:
Materially adversely affect the performance by Contractor of its obligations
hereunder;
2. Adversely affect the validity or enforceability of this Agreement; or
3. Have a material adverse effect on the financial condition of Contractor, or any
surety or entity guaranteeing Contractor's performance under this Agreement.
E. No Adverse Judicial Decisions. To the best of Contractor's knowledge after
reasonable investigation, there is no judicial decision that would prohibit this
Agreement or subject this Agreement to legal challenge.
F. No Legal Prohibition. To the best of Contractor's knowledge after reasonable
investigation, there is no Applicable Law in effect on the date Contractor signed this
Agreement that would prohibit the Contractor's performance of its obligations under
this Agreement and the transactions contemplated hereby.
G. Contractor's Statements. The Contactor's Application and any other
supplementary information submitted to the City, which the City has relied on in
entering this Agreement, do not: (i) contain any untrue statement of a material fact,
or (ii) omit to state a material fact that is necessary in order to make the statements
made, in light of the circumstances in which they were made, not misleading.
H. Contractor's Investigation. Contractor has made an independent investigation
(satisfactory to it) of the conditions and circumstances surrounding the Agreement
and the work to be performed hereunder. Contractor has considered such matters
in entering this Agreement to provide services in exchange for the compensation
provided for under the terms of this Agreement.
Ability to Perform. Contractor possesses the business, professional, and technical
expertise to Collect, Transport, Recycle, Process, and Dispose Permitted Materials
generated in the City. Contractor possesses the equipment, facility(ies), and
employee resources required to perform its obligations under thisAgreement.
ARTICLE 3
TERM OF AGREEMENT
3.1 EFFECTIVE DATE
Contractor may provide the Roll -Off Container Collection, Transportation, Recycling,
Processing, Composting, and Disposal services authorized by this Agreement commencing
on the Effective Date.
City of Fresno Non -Exclusive Roll -Off Agreement Page 16
3.2 CONDITIONS TO EFFECTIVENESS OF AGREEMENT
The obligation of City to permit this Agreement to become effective and to perform its
undertakings provided for in this Agreement is subject to the satisfaction of all the conditions
below, each of which may be waived, in written form, in whole or in part by City.
A. Accuracy of Representations. The representations and warranties made in Article
2 of this Agreement are true and correct on and as of the Effective Date.
B. Absence of Litigation. There is no litigation pending on the Effective Date in any
court challenging the award or execution of this Agreement or seeking to restrain or
enjoin its performance.
C. Furnishings of Insurance. Contractor has furnished evidence of the insurance
required by Article 10 that is satisfactory to the City.
D. Effectiveness of City Council Action. The City Council action approving this
Agreement shall have become effective and all Parties shall have signed the
Agreement pursuant to Applicable Law prior to or on the Effective Date, provided
that no restraining order of any kind has been issued.
3.3 TERM
The Term of this Agreement shall commence on the Effective Date and continue until June
30, 2028. The Term may be extended pursuant to Section 3.4 or terminated early in
accordance with Section 11.2.
3.4 OPTION TO EXTEND
Subject to City Council approval, the City shall have the option to extend this Agreement
for an additional term of up to five years. The City's written notice shall specify the number
of years by which it elects to extend the Term of this Agreement and the revised expiration
date of the Agreement. Any such extension shall not become effective unless the City
agrees to the extension, in writing, at least one hundred fifty calendar days prior to expiration
of the Agreement.
3.5 TERMINATION FOR CONVENIENCE
A. The City may terminate this Agreement for convenience upon thirty (30) days' written
notice. In such event, City shall have no liabilities to the Contractor on the terminated
agreement including, but not limited to, liabilities for any loss of revenues or profits
or stranded contractors or stranded assets on the terminated Agreement.
B. Effect of Termination. The City's termination of this Agreement for convenience shall
not preclude City from taking any action in law or equity against Contractor for:
a. Improperly submitted claim forms;
b. Any failure to perform the work in accordance with the terms of the Agreement;
City of Fresno Non -Exclusive Roll -Off Agreement Page 17
C. Any breach of any term or condition of the Agreement;
d. Any actions under warranty, express or implied;
e. Any claim of professional negligence or;
Any other matter arising from or related to this Agreement, whether known,
knowable, or unknown before, during or after the date of termination.
ARTICLE 4
SCOPE OF AGREEMENT
4.1 SCOPE OF AGREEMENT
This non-exclusive franchise, granted to Contractor, authorizes Contractor to Collect,
Transport, Recycle, Process, Compost, and Dispose of Permitted Materials placed by
Residential or Commercial Generators in Roll -Off Containers for Collection, provided that
the Customer has voluntarily arranged for Contractor to provide Collection services.
The Contractor shall be responsible for the following services:
A. Collecting Permitted Materials placed by each Customer in a Roll -Off Container for
Collection as requested byCustomer.
B. Providing each Customer, upon delivery of Roll -Off Container, a printed list that
specifies the materials that cannot be placed in the Roll -Off Container (i.e.,
Hazardous Wastes) and a list of acceptable Recyclable Materials, Organic Materials,
and C&D that may be placed in the Roll -Off Container.
C. Transporting Collected Solid Waste to the Designated Disposal Site and transporting
other materials to an Approved Processing Site.
D. Furnishing all labor, supervision, vehicles, Roll -Off Containers, other equipment,
materials, supplies, and all other items and services necessary to perform its
obligations under this Agreement.
E. Paying all expenses related to provision of services required by this Agreement
including, but not limited to, Franchise Fees, taxes, regulatory fees, Collection costs,
Transportation costs, Processing costs, Disposal costs, utilities, etc.
F. Providing all services required by this Agreement in a thorough and professional
manner so that residents, businesses, and the City are provided timely, reliable,
courteous, and high -quality service at all times.
G. Performing all services in substantial accordance with this Agreement at all times
using best industry practice for comparable operations.
H. Complying with all Applicable Law.
City of Fresno Non -Exclusive Roll -Off Agreement Page 18
1. Performing or providing all other services necessary to fulfill its obligations under this
Agreement.
J. Diverting a minimum of 75%, or state -mandated diversion percentages, whichever
is higher, of the C&D Collected from Disposal. The Diversion rate shall be calculated
each month based upon the weights of C&D Collected and Diverted.
K. Diverting a minimum of 70% of the Recyclable Materials Collected from Disposal.
The Diversion rate shall be calculated each month based upon the weights of
Recyclable Materials Collected and Diverted.
L. Diverting a minimum of 90% of the Organic Materials Collected from Disposal. The
Diversion rate shall be calculated each month based upon the weights of Organic
Materials Collected and Diverted.
The enumeration and specification of particular aspects of service, labor, or equipment
requirements shall not relieve Contractor of the duty of accomplishing all other aspects
necessary to fulfill its obligations under this Agreement whether such requirements are
enumerated elsewhere in the Agreement or not.
4.2 LIMITATIONS TO SCOPE
The scope of the Agreement shall be non-exclusive. Permitted Materials may be Collected
and Transported by other Persons provided that such Persons do so in accordance with the
City's Municipal Code, including but not limited to the following:
A. Permitted Materials Collected by Other Non -Exclusive Franchise Haulers.
Permitted Materials Collected by a party that has executed a Non -Exclusive
Franchise Agreement with the City for Roll -Off Container Collection Services.
B. Permitted Materials Collected by City. Permitted Materials collected by the City's
municipal collection operation including: (1) materials Collected using equipment,
such as Carts and Bins, not regulated by this Agreement (2) materials Collected from
City facilities, and special events and venues sponsored by the City, which may be
Collected in Carts, Bins, or Roll -Off Containers by the City's municipal collection
operation or City crews.
C. Donated Recyclable Materials. Recyclable Materials Generated in the City that are
Source Separated and donated by the Generator to youth, civic, charitable, or other
nonprofit organizations.
D. Materials Hauled by Owner or Occupant, or its Contractor. Permitted Materials
that are removed from any Premises and are Transported to a Disposal Site or
Processing Site by (i) the Owner or Occupant of such Premises, (ii) by full-time
employee of Owner or Occupant that uses the Owner's or Occupant's equipment to
transport materials; or (iii) by a construction or demolition contractor performing
construction or demolition work at the Premises, whose removal of the Permitted
Materials is incidental to the service being performed (as defined in Section 6-
205(f)(iii) of the City's Municipal Code) and such contractor removes materials at no
City of Fresno Non -Exclusive Roll -Off Agreement Page 19
additional or separate fee using contractor's employees and contractor's equipment.
E. Green Waste Material. Private collection of Green Waste Material resulting from
landscaping or gardening service performed by the person collecting such materials.
F. Other Recyclable Materials. Private collection by any person or company that
transports Recyclable Materials through use of its own vehicle(s) and receives no
compensation for such Collection or Transportation.
G. Materials from Public Schools and Other Government Facilities. The removal of
any materials generated by public schools, cities, the County, or federal facilities
(except for those facilities subject to 42 U.S.C. Section 6961(a)).
This Agreement and scope of this Franchise shall be interpreted to be consistent with
Applicable Law, now and during the Term of the Agreement. If future judicial interpretations
of current law or new laws, regulations, or judicial interpretations limit the ability of the City
to lawfully provide for the scope of services as specifically set forth herein, Contractor agrees
that the scope of the Agreement will be limited to those services and materials which may
be lawfully provided and that the City shall not be responsible for any lost profits or losses
claimed by Contractor to arise out of limitations of the scope of the Agreement set forth
herein. In such an event, it shall be the responsibility of Contractor to minimize the financial
impact of such future judicial interpretations or new laws.
4.3 CITY'S RIGHT TO GRANT MULTIPLE NON-EXCLUSIVE AGREEMENTS
The City may grant to an unlimited number of additional Persons similar non-exclusive
franchise agreements for Roll -Off Container Collection, Transportation, Recycling,
Processing, Composting, and Disposal of Permitted Materials.
4.4 CITY'S RIGHT TO EXCLUDE NEWLY ANNEXED TERRITORY FROM SCOPE OF
FRANCHISE
The City reserves the right to exclude territory that is annexed into the corporate limits of
the City after the Effective Date from the scope of this franchise.
4.5 AGREEMENT CONSISTENT WITH APPLICABLE LAW
This Agreement and scope of this franchise shall be interpreted to be consistent with
Applicable Law, now and during the Term. If future judicial interpretations of current law or
new laws, regulations, or judicial interpretations limit the ability of the City to lawfully provide
for the scope of services as specifically set forth herein, Contractor agrees that the scope
of the Agreement will be limited to those services and materials which may be lawfully
provided and that the City shall not be responsible for any lost profits or losses claimed by
Contractor to arise out of limitations of the scope of the Agreement set forth herein. In such
an event, it shall be the responsibility of Contractor to minimize the financial impact of such
future judicial interpretations or new laws.
4.6 OWNERSHIP OF MATERIALS
Once Permitted Materials are placed in a Roll -Off Container for Collection by Contractor,
City of Fresno Non -Exclusive Roll -Off Agreement Page 20
ownership, and the right to possession of such materials shall transfer directly from the
Customer to Contractor.
On a short-term basis not to exceed more than five calendar days per year, City may obtain
ownership or possession of Permitted Materials placed in the Roll -Off Container
for Collection, for purposes of waste characterization studies, upon written notice to
Contractor of its intent to do so. However, nothing in this Agreement shall be construed as
giving rise to any inference that City has such ownership or possession unless such written
notice has been given to Contractor.
4.7 NOTIFICATION TO CITY OF NON -FRANCHISED HAULERS
If Contractor can produce evidence that other Persons are Collecting Permitted Materials
and do not have rights to do so as granted by non-exclusive franchise agreement with the
City or otherwise, or in a manner that is not consistent with the City's Municipal Code,
Contractor shall notify the City in writing, within ten calendar days of Contractor witnessing
such circumstances. The Contractor's notice shall include the name and telephone number
of the Person or company Collecting Permitted Materials (if known), the date the Contractor
witnessed the event, the location of the Roll -Off Container along with Contractor's evidence
of the violation of the rights granted by this non-exclusive franchise.
ARTICLE 5
COLLECTION, PROCESSING, AND DISPOSAL SERVICES
5.1 COLLECTION
Contractor is hereby authorized to Collect Permitted Materials from residents and
businesses in the City using Roll -Off Containers. Contractor shall Collect Permitted
Materials from Customers that voluntarily subscribe to or request Roll -Off Container
Collection services from Contractor. Contractor shall provide its Customers with a Roll- Off
Container for Permitted Materials Collection or shall allow its Customers to provide a Roll -
Off Container. Contractor shall Collect Permitted Materials from Premises as frequently as
scheduled by Contractor or as mutually agreed with Customer, but notless than once a
week for Solid Waste and Organic Materials. Contractor shall provide requested service to
its Customers and shall charge Customers for service at Rates mutually agreed by
Customer and Contractor.
Contractor shall Transport Solid Waste Collected pursuant to this Agreement to the
Designated Disposal Site and other materials to an Approved Processing Site that has been
selected by the Contractor and approved by the City. The Approved Processing Site(s)
must be able to demonstrate Diversion rates in accordance with Sections 4.1 and 5.3.
Contractor may enter into contracts with Customers for Collection services provided that in
no case shall the term of such contracts extend beyond the Term of this Agreement, and
provided that in the event the City terminates this Agreement the contracts with any and all
Customers shall terminate on the termination date of this Agreement.
5.2 PROCESSING AND MARKETING SERVICES
City of Fresno Non -Exclusive Roll -Off Agreement Page 21
A. Processing. Contractor agrees to Transport and deliver (i) all C&D it Collects in the
City to the Approved C&D Processing Site, (ii) all Recyclable Materials it Collects in
the City to the Approved Recyclable Processing Site, and (iii) all Organic Materials
it Collects in the City to the Approved Organics Processing Site. Residue from
the C&D, Recyclable Materials, and Organics Processing and Composting activities
shall be Disposed of by Contractor, or its Approved Processor at an Approved
Disposal Site selected by Contractor in accordance with Section 5.4. Contractor
selected the Approved Processing Site(s) and Approved Disposal Site(s), which are
identified in Exhibit D. Contractor shall permit or arrange for the City to inspect the
Approved Processing Site(s) and observe operations at any time during the Term.
Contractor or its Approved Processor(s) shall possess all permits and approvals
necessary for use of the Approved Processing Site(s) in full compliance with
Applicable Law, including but not limited to the requirements of Chapter 3 of Title 14
of the California Code of Regulations. Contractor shall, upon City request, provide
or request from its Approved Processor(s) and provide copies of notices of violation
or permits to the City. Upon request of the City, Contractor shall provide a certified
statement from its Approved Processor(s) documenting its Diversion rate.
If Contractor elects to use a Processing Site(s) that is different than the Approved
Processing Site(s) specified in Exhibit D, it shall request written approval from the
City sixty calendar days prior to use of the site and obtain the City's written approval
no later than ten calendar days prior to use of the site.
If Contractor is unable to use an Approved Processing Site due to an emergency or
sudden unforeseen closure of the Approved Processing Site, Contractor may use an
alternative Processing Site provided that (i) the Contractor provides verbal and
written notice to the City within twenty-four hours of use of an alternative Processing
Site, and (ii) the alternative Processing Site is fully permitted and in compliance with
all Applicable Laws. The written notice shall include a description of the reasons the
Approved Processing Site is not feasible, and the period of time Contractor proposes
to use the alternative Processing Site. Contractor shall use the alternative
Processing Site for no more than twenty-four hours without obtaining City's written
approval.
B. Marketing. The Contractor or its Approved Processor shall be responsible for
marketing C&D, Recyclable Materials, and Organic Materials Collected in the City
and Diverted. Contractor and/or its Approved Processor may retain all revenues
generated from the sale of Permitted Materials that are Diverted.
Upon request, Contractor or its Approved Processor shall provide proof (in the form
of sales receipts showing end -user) to the City that all C&D, Recyclable Materials,
and Organic Materials Diverted are marketed for Recycling or reuse in such a
manner that materials shall be considered as Diverted in accordance with the State
regulations established by the Act. All residual material from the Processing activities
that is not marketed for use shall be accounted for as Disposal Tonnage at a
permitted Disposal Site. No Recyclable Materials, Organic Materials, or C&D shall
be transported to a domestic or foreign location if Solid Waste Disposal of such
City of Fresno Non -Exclusive Roll -Off Agreement Page 22
material is its intended use.
Contractor or its Approved Processor shall provide the City, upon written request,
with a list of broker/buyers it uses to market C&D, Recyclable Materials, and Organic
Materials Diverted. City may audit brokers or buyers to confirm that materials are
being Recycled and Diverted from Disposal. If Contractor becomes aware that a
broker or buyer has illegally handled or disposed of material generated by the City
or elsewhere, Contractor shall immediately inform the City and terminate its contract
or working relationship with such party immediately.
Processing and Marketing Costs. Contractor shall pay all costs associated with
Processing and marketing of Permitted Materials including payment of any gate fees
charged at the Approved Processing Sites.
5.3 DIVERSION REQUIREMENT
Contractor shall Divert from landfill Disposal at least (i) 75% by weight of all C&D it Collects
within the City, (ii) 70% by weight of all Recyclable Materials it Collects within the City, and
(iii) 90% by weight of all Organic Materials it Collects within the City during each calendar
month by Processing, Recycling, or Composting some or all of the C&D, Recyclable
Materials, and Organic Materials Collected.
If Contractor fails to meet the Diversion requirements stated in the preceding paragraph
during a calendar month, the City may terminate the Agreement in accordance with Section
11.5.
5.4 DISPOSAL
A. Disposal of Solid Waste Collected. Contractor shall Transport all Solid Waste
Collected in the City to the Designated Disposal Site, which the City specifies shall
be the American Avenue Landfill in Tranquility, California. Contractor shall pay all
costs associated with Transporting and Disposal of Solid Waste including payment
of any gate fees charged at the Designated Disposal Site.
B. Disposal of Processing Residue. Contractor shall, or shall require its Approved
Processor to, Dispose of residue from Processing of C&D, Recyclable Materials, and
Organic Materials Collected within the City, that are not Diverted through Processing
activities, by Transporting the residue to an Approved Disposal Site specified in
Exhibit D, which is lawfully authorized to accept such material.
C. Permitted Site. Contractor or its Approved Processor shall only Dispose of materials
at a permitted Disposal Site that is in full regulatory compliance. Contractor, or its
Approved Processor, shall keep or confirm all existing permits and approvals
necessary for use of the Disposal Site(s) in full regulatory compliance. Contractor
shall, upon request, provide copies of notices of violation or permits to the City.
D. Compliance with Regulations. Contractor shall observe and comply with all
regulations in effect at the Designated Disposal Site and Approved Disposal Site(s)
and cooperate with the operator thereof with respect to delivery of Solid Waste,
City of Fresno Non -Exclusive Roll -Off Agreement Page 23
including directions to unload Collection vehicles in designated areas,
accommodating operations and maintenance activities and complying with
Hazardous Waste exclusion programs.
E. Disposal at Approved Site. Contractor, or its Approved Processor, shall not
Dispose of such residue by depositing it on any public or private land, in any river,
stream, or other waterway, or in any sanitary sewer or storm drainage system or in
any other manner which violates Applicable Laws. Contractor, or its Approved
Processor, selected the Approved Disposal Site(s) for residue Disposal specified in
Exhibit D. Contractor shall arrange for the City to inspect the Approved Disposal
Site(s) and observe operations at any time during the Term.
F. Alternative Disposal Site. If Contractor, or its Approved Processor, elects to use a
Disposal Site(s) that is different than the Approved Disposal Site(s) listed in Exhibit
D, it shall request written approval from the City sixty calendar days prior to use of
the site and obtain the City's written approval no later than ten calendar days prior to
use of the site.
If Contractor, or its Approved Processor, is unable to use the Approved Disposal Site
due to an emergency or sudden unforeseen closure of the Approved Disposal Site,
Contractor, or its Approved Processor, may use an alternative Disposal Site provided
that (i) the Contractor provides verbal and written notice to the City within twenty-
four hours of use of an alternative Disposal Site, and (ii) the alternative Processing
Site is fully permitted and in compliance with all Applicable Laws. The written
notice shall include a description of the reasons the Approved Disposal Site is not
feasible and the period of time Contractor, or its Approved Processor, proposes to
use the alternative Disposal Site. Contractor shall use the alternative Disposal Site
for no more than twenty-four hours without obtaining City's written approval.
5.5 BILLING
Contractor shall bill all Customers and collect billings in accordance with Contractor -
established Rates, which are set in a manner consistent with provisions of Section 9.3. The
Contractor shall prepare, mail, and collect bills (or shall issue written receipts for cash
payments) for Collection services provided by Contractor. Contractor shall be responsible
for collection of payment from Customers with past due accounts.
Contractor shall maintain copies of all billings and receipts, each in chronological order, for
five years after expiration or termination of this Agreement. Contractor shall retrieve and
make available to the City copies of the billings and receipts within five days of the Director's
written request for the billings and receipts. The Contractor may, at its option, maintain
those records in computer form, digitally, or in any other manner, provided that the records
can be preserved and retrieved for inspection and verification in a timelymanner.
City of Fresno Non -Exclusive Roll -Off Agreement Page 24
5.6 CUSTOMER SERVICE
Contractor shall maintain a business office within the City or within a reasonable distance of
the City limits approved by the Director. The business office shall staff at least one customer
service representative capable of accepting payments from Customers, answering service
questions, and resolving Customer service issues. Contractor shall have a toll -free Customer
service telephone number and shall have staff available to answer calls from at least 8:00 a.m.
to 6:00 p.m., Monday through Friday. An answering machine shall record Customer calls and
voice messages between 6:00 p.m. and 8:00 a.m.
ARTICLE 6
STANDARDS AND REQUIREMENTS FOR SERVICES,
EQUIPMENT, AND PERSONNEL
6.1 OPERATING DAYS, HOURS, AND SCHEDULES
A. Days and Hours of Collection
Residential Premises. Delivery or Collection of a Roll -Off Container to or
from Residential Premises shall only occur between the hours of 6:00 a.m.
and 6:00 p.m., any day of the week.
2. Commercial Premises. Delivery or Collection of a Roll -Off Container to or
from Commercial Premises that are 200 feet or less from Residential
Premises shall only occur between the hours of 6:00 a.m. and 6:00 p.m., any
day of the week. Delivery or Collection of a Roll -Off Container to or from
Commercial Premises that are more than 200 feet from Residential Premises
shall only occur between the hours of 5:00 a.m. and 7:00 p.m., any day of the
week. The Director may require modifications to hours for delivery and
Collection from Commercial Premises to resolve noise complaints, and, in
such case, the Director may change the allowable operating hours.
3. Exceptions. In the event of an unforeseen circumstance, the Contractor may
deliver or Collect a Roll -Off Container from Residential or Commercial
Premises that are 200 feet or less from Residential Premises between the
hours of 5:00 a.m. and 10:00 p.m., upon prior written approval from the
Director.
4. Failure to Comply. If the Contractor fails to comply with the Collection hours
described in this Section, the Contractor shall pay the City Liquidated
Damages as described in Section 11.4 and Exhibit A.
6.2 COLLECTION STANDARDS
6.2.1 Instructions toCustomer
Contractor shall instruct Customers as to any preparation of Permitted
Materials necessary prior to placing in the Roll -Off Container. Contractor shall,
in written form, inform all Customers as to the acceptable materials that can
be included in the Roll -Off Container and any unacceptable materials to be
City of Fresno Non -Exclusive Roll -Off Agreement Page 25
excluded from Collection.
6.2.2 Care of Private Property
Contractor shall not damage private property. Contractor shall ensure that its
employees: (i) close all gates opened in making Collections, unless otherwise
directed by the Customer; (ii) do not cross landscaped areas; and (iii) do not
climb or jump over hedges and fences.
City shall refer complaints about damage to private property to Contractor.
Contractor shall repair all damage to private and public property caused by its
employees to its previous condition.
6.2.3 LitterAbatement
A. Minimization of Spills. Contractor shall use due care to prevent vehicle oil
and vehicle fuel from being spilled or scattered during Collection and
Transportation operations. If any Permitted Materials are spilled or scattered
during Collection or Transportation operations, the Contractor shall promptly
clean up all spilled and scattered materials.
Contractor shall not transfer loads from one vehicle to another on any public
street, unless it is necessary to do so because of mechanical failure, hot load
(combustion of material in the truck), accidental damage to a vehicle, or unless
approved by the City.
If Contractor fails to perform some or all of the requirements described in this
Section, the Contractor shall pay the City Liquidated Damages as described in
Section 11.4 and Exhibit A.
B. Clean -Up. Each Collection vehicle shall carry protective gloves, a broom, and
shovel at all times for cleaning up litter and absorbent material for cleaning up
liquid spills. The Contractor shall discuss instances of repeated spillage not
caused by it with the Customer of the Premises where spillage occurs, and
Contractor shall report such instances to City. If the Contractor has attempted
to have a Customer stop creating spillage but is unsuccessful, the City will
attempt, upon notice by the Contractor, to rectify such situation with the
Customer.
C. Covering of Loads. Contractor shall cover all Roll -Off Containers at the
pickup location before Transporting materials to prevent Permitted Materials
from escaping during Transportation.
6.2.4 Noise
All Collection operations shall be conducted as quietly as possible and shall
conform to Applicable Law. Contractor will promptly resolve any Complaints of
noise during the morning or evening hours of the day to the satisfaction of the
City. In the event of repeat occurrences of noise levels in excess of 75 decibels,
the Contractor shall pay Liquidated Damages in accordance with Section 11.4
and Exhibit A.
City of Fresno Non -Exclusive Roll -Off Agreement Page 26
6.3 VEHICLE REQUIREMENTS
A. General. Vehicles used to provide services under this Agreement shall be kept in a
safe, neat, clean, and operable condition at all times. If Contractor fails to keep Collection
vehicles in a safe and sanitary condition, the Contractor shall pay the City Liquidated
Damages as described in Section 11.4 and Exhibit A.
B. Specifications. Contractor shall register all vehicles with the California Department
of Motor Vehicles. All such vehicles shall comply with California Environmental
Protection Agency (EPA) noise emission and air quality regulations and other
applicable noise control regulations.
C. Vehicle Identification. Contractor's name, local telephone number, and a unique
identification number for each vehicle used to provide services under this
Agreement, shall be prominently displayed on all vehicles, in letters and numbers
that are a minimum of 4 inches high. Contractor shall not place the City's logo on its
vehicles.
D. Cleaning and Maintenance
1. Cleaning. Collection vehicles shall be thoroughly washed and thoroughly
steam cleaned as frequently as necessary to present a clean appearance of
the exterior and interior compartment of the vehicle.
2. Maintenance. Contractor shall inspect each vehicle daily to ensure that all
equipment is operating properly. Vehicles that are not operating properly shall
be taken out of service until they are repaired and operating properly.
Contractor shall perform all scheduled maintenance functions in accordance
with the manufacturer's specifications and schedule or in accordance with
California Highway Patrol standards, whichever are more stringent.
Contractor shall keep accurate records of all vehicle maintenance, recorded
according to date and mileage, and shall make such records available to the
City upon request to the extent necessary to perform the inspections
described in Sections 6.31 and 6.8.
3. Repairs. Contractor shall repair, or arrange for the repair of, all of its vehicles
and equipment for which repairs are needed because of accident, breakdown,
or any other cause, so as to maintain all equipment in a safe and operable
condition. Contractor shall maintain accurate records of repair, which shall
include the date/mileage, nature of repair and the signature of a maintenance
supervisor that the repair has been properly performed.
4. Storage. Contractor shall arrange to store all vehicles and other equipment
in safe and secure location(s) in accordance with City's applicable zoning
regulations.
E. Operation. Vehicles shall be operated in compliance with the California Vehicle
Code, and all applicable safety and local ordinances. Contractor shall not load
City of Fresno Non -Exclusive Roll -Off Agreement Page 27
vehicles in excess of the manufacturer's recommendations or limitations imposed by
State or local weight restrictions for vehicles and roads. Contractor shall have each
Collection vehicle weighed at each Approved Processing Sites or Designated
Disposal Site to determine the unloaded weight ("tare weight") of the vehicle, and
the total loaded weight of each load delivered to the Approved Processing Sites and
Designated Disposal Site.
F. Vehicle Inspection. City may inspect vehicles at any time to determine compliance
with the requirements of this Agreement. Contractor shall make vehicles available to
the City and/or Fresno County Health Department for inspection, at any frequency
City reasonably requests.
6.4 ROLL -OFF CONTAINER REQUIREMENTS
A. General. All Roll -Off Containers shall meet applicable Federal, State, City, and local
regulations for safety.
B. Specifications
1. Prevent Leakage. If the type of materials placed in the container may result
in leakage of liquids, Contractor shall take precautions to prevent the leakage
of liquids. In accordance with Section 17315 of Chapter 3 of Title 14 of the
California Code of Regulations, Roll -Off Containers used to Collect garbage
and putrescible materials and/or garbage and putrescibles mixed with rubbish
shall be non -absorbent, water -tight, vector -resistant, durable, easily
cleanable, and shall be designed for safe handling and the containment of
refuse.
2. Provision of Sufficient Capacity. In accordance with Section 17315 of
Chapter 3 of Title 14 of the California Code of Regulations, Containers for
garbage and rubbish should be of an adequate size and in sufficient numbers
to contain without overflowing, all the refuse that a household or other
establishment generates within the designated removal period.
3. Use of Containers with Less than 10 Cubic Yards of Capacity. Roll- Off
Containers with capacities of less than 10 cubic yards may only be used for
the purposes of Collecting C&D.
C. Roll -Off Container Identification. All Contractor -provided Roll -Off Containers shall
prominently display the Contractor's name, local telephone number, a unique Roll -
Off Container identification number, and a list of acceptable materials. As
appropriate, Roll -Off Containers shall be labeled for: Solid Waste, Recyclable
Materials, Organic Materials, or C&D. Such labeling may be temporary labeling in
the form of magnetic or detachable signs.
Any new Roll -Off Containers purchased and placed into service during the Term of
this Agreement shall have bodies and/or lids which conform to the color requirements
identified in Section 18984.7 of Chapter 12 of Title 14 of the California Code of
Regulations as follows: gray or black for Solid Waste, blue for Recyclable Materials,
City of Fresno Non -Exclusive Roll -Off Agreement Page 28
green for Organic Materials, and any other color for C&D provided that such color
does not conflict with the other Roll -Off Container colors. Labels for any such new
Roll -Off Containers shall comply with Section 18984.8 of Chapter 12 of Title 14 of
the California Code of Regulations.
If Contractor fails to comply with the provisions of this Section 6.4, the Contractor
shall pay the City Liquidated Damages as described in Section 11.4 and Exhibit A.
D. Cleaning, Painting, and Maintenance. All Roll -Off Containers shall be maintained
in a safe, serviceable, and functional condition. Contractor shall steam clean and
repaint all Roll -Off Containers at least every two years, or more frequently, to present
a clean, graffiti -free appearance.
E. Roll -Off Container Inspections. City may inspect Roll -Off Containers at any time
to determine compliance with sanitation requirements. Contractor shall make
Containers available to the City at any frequency it requests. The City shall have
the right to prohibit the use of any Roll -Off Container that fails to comply with the
provisions in this Section 6.4.
F. Abandoned Roll -Off Containers. Contractor shall not abandon any Roll -Off
Container used to provide Permitted Materials Collection services under this
Agreement. If the Contractor Abandons a Contractor -owned Roll -Off Container, City
may remove the Roll -Off Container and Process and Dispose of the contents. If the
City removes a Roll -Off Container Abandoned by Contractor, the City may charge
Contractor for the City's costs incurred removing such Roll- Off Container,
Transporting, Processing, and Disposing of its contents, and/or the cost of storing
such Roll -Off Container. Contractor shall reimburse the City for such costs within
fourteen calendar days of the date of the City's invoice to the Contractor for such
costs. If the Contractor does not pay the invoice amount within fourteen days, the
City shall become the Roll -Off Container owner if the invoice stated the City's intent
to become the Container owner in lettering of at least 12 pointfont.
For the purposes of this Section 6.4.F, "Abandon" means the following:
1. Contractor's failure to remove a Contractor -owned Roll -Off Container within
five calendar days of receiving a written request from a Customer or the City
or within five calendar days after the termination of the customer service
agreement between Contractor and the Customer; or,
2. Contractor's failure to remove a Contractor -owned Roll -Off Container within
ten calendar days upon expiration or termination of this Agreement, except
in the case where Contractor has been granted an extension of the Term of
the Agreement or Contractor has been granted a subsequent agreement
authorizing Contractor to Collect and transport the type or types of materials
for which the Roll -Off Container was used pursuant to this Agreement.
City of Fresno Non -Exclusive Roll -Off Agreement Page 29
6.5 PERSONNEL
A. General. Contractor shall furnish such qualified drivers, maintenance,
supervisory, Customer service, clerical and other personnel as may be necessary
to provide the services required by this Agreement in a safe and efficient manner.
B. Driver Qualifications. All drivers shall be trained and qualified in the operation of
Collection vehicles, and must have in effect a valid license, of the appropriate class,
issued by the California Department of Motor Vehicles. Contractor shall use the
Class B California Department of Motor Vehicles employer "Pull Notice Program" to
monitor its drivers for safety.
C. Safety Training. Contractor shall provide suitable operational and safety training for
all of its employees who operate Collection vehicles or equipment or who are
otherwise directly involved in such Collection, Disposal, or Processing. Contractor
shall train its employees involved in Collection to identify, and not to collect,
Hazardous Waste or Infectious Waste. Upon the City's request, Contractor shall
provide a copy of its safety policy and safety training program, the name of its safety
officer, and the frequency of its trainings.
D. Employee Conduct and Courtesy. Contractor shall use its best efforts to ensure
that all employees present a neat appearance and conduct themselves in a
courteous manner. Contractor shall regularly train its employees in Customer
courtesy, shall prohibit the use of loud or profane language, and shall instruct
Collection employees to perform the work as quietly as possible. If any employee is
found not to be courteous or not to be performing services in the manner required
by this Agreement, Contractor shall take all appropriate corrective measures and
shall pay the City Liquidated Damages as described in Section 11.4 and Exhibit A.
E. Employee Identification. While performing services under this Agreement, all of
the Contractor's employees performing field service shall be dressed in clean clothes
and shall wear badges that include the employee's name and/or employee number,
and Contractor's name, as approved by theCity.
6.6 PROHIBITED MATERIALS INSPECTIONAND HANDLING
A. Response to Hazardous Waste Identified during Collection. If Contractor
determines that material placed in any Roll -Off Container for Collection is a
Hazardous Waste that may not legally be Disposed of at a Disposal Site or handled
at the Processing Site, or presents a hazard to Contractor's employees, the
Contractor shall refuse to accept such material. The Contractor shall contact the
Customer and request the Customer to arrange proper Disposal. If the Generator
cannot be reached immediately, the Contractor shall, before leaving the Premises,
leave a tag at least two inches by six inches (2" x 6") in size, which indicates the
reason for refusing to Collect the material and lists a phone number for obtaining
information on proper disposal of the Hazardous Waste. Upon request by the City,
such tag shall include messaging in any non-English language spoken by a
substantial number of Generators in the City. Under no circumstances shall
City of Fresno Non -Exclusive Roll -Off Agreement Page 30
Contractor's employees knowingly Collect Hazardous Waste.
If Hazardous Waste is found in a Roll -Off Container that could possibly result in
imminent danger to people or property, the Contractor shall immediately notify the
City's Fire Department using the 911 emergency number.
The Contractor shall notify the City of any Hazardous Waste identified in Roll -Off
Containers or left at any Premises within twenty-four hours of identification of such
material.
B. Response to Hazardous Wastes Identified at Disposal Site or Processing Site.
The Contractor, or its Approved Processor, or Disposal Site operator shall provide
load checkers and equipment operators at the Processing or Disposal Site(s) to
identify Hazardous Wastes for storage in approved, on -site, hazardous materials
storage container(s). Contractor shall make reasonable efforts to identify and notify
the Customer. Contractor shall arrange for removal of the Hazardous Wastes by
permitted haulers in accordance with Applicable Laws and regulatory requirements.
If the Hazardous Wastes delivered to a Disposal Site or Processing Site by
Contractor before its presence is detected, and the Generator cannot be identified
or fails to remove the material after being requested to do so, the Contractor shall
arrange for its proper Disposal. The Contractor may make a good faith effort to
recover the cost of Disposal from the Generator, and the cost of this effort, as well
as the cost of Disposal shall be chargeable to the Generator.
C. Response to Other Prohibited Materials Identified During Collection. If
Contractor determines that material placed in any Roll -Off Container for Collection
is a non -hazardous contaminant for that Roll -Off Container, the Contractor may
refuse to accept such material. For purposes of this Section, "non -hazardous
contaminant" means: (i) materials placed in the Recyclable Materials, Organic
Materials, or C&D Roll -Off Container that are not included in the list of acceptable
materials for that container; or (ii) materials placed in the Solid Waste Roll -Off
Container that are acceptable Recyclable Materials, Organic Materials, and/or C&D,
provided the Customer has subscribed to those Collection services. Whether the
Contractor Collects the material or not, the Contractor shall, before leaving the
Premises, leave a tag at least two inches by six inches (2" x 6") in size, which
provides information on properly separating materials, and indicates the reason for
refusing to Collect the material (if applicable). Upon request by the City, such tag
shall include messaging in any non-English language spoken by a substantial
number of Generators in the City. If Contractor identifies non -hazardous
contaminants in an individual Customer's Roll -Off Container on more than three (3)
occasions, Contractor shall notify the City.
D. Regulations and Record Keeping. Contractor shall keep a record of all events of
non -Collection resulting from identification of prohibited materials and shall comply
with emergency notification procedures required by Applicable Laws and regulatory
requirements. All records required by regulations shall be maintained at the
Contractor's facility. These records shall include waste manifests, waste inventories,
City of Fresno Non -Exclusive Roll -Off Agreement Page 31
waste characterization records, inspection records, incident reports, and training
records.
6.7 NON-DISCRIMINATION
Contractor shall not discriminate in the provision of service, or the employment of Persons
engaged in performance of this Agreement on account of race, color, natural origin,
ancestry, religion, gender, marital status, sexual orientation, age, physical or mental
disability in violation of any Applicable Law.
6.8 COMMUNICATION AND COOPERATION WITH CITY
A. Communications. If requested, the Contractor shall meet with the City or its agent
to discuss service issues.
B. Inspection by City. The City, or its designated representatives, shall have the right
to observe and review Contractor operations, Processing Sites and Disposal Sites
used by Contractor, and enter Contractor's Premises for the purposes of such
observation and review during reasonable hours without advance notice.
C. Cooperate with City -Initiated Studies. Contractor shall cooperate with and assist
the City or its agent with the performance of City -initiated studies of Permitted
Materials such as, but not limited to, waste characterization and composition studies.
ARTICLE 7
RECORD KEEPING AND REPORTING
7.1 GENERAL
7.1.1 Maintenance of Records
Contractor agrees to conduct data collection, information and record keeping,
and reporting activities needed to comply with and to meet the reporting and
Permitted Materials program management needs of City, the Act and other
Applicable Laws, and the requirements of this Agreement.
This Article is intended to highlight the general nature of records and reports
to be maintained by Contractor, and their minimum content. This Article is not
meant to comprehensively define what the records and reports are to be and
their content. With the written direction by or approval of City, the records, and
reports to be maintained and provided by Contractor in accordance with this
and other Articles of the Agreement shall be adjusted in number, format, or
frequency. Records and reporting may be revised to reflect current record
keeping and reporting requirements.
To the extent such requirements are set out in this and other Articles of this
Agreement, they shall not be considered limiting or necessarily complete.
City of Fresno Non -Exclusive Roll -Off Agreement Page 32
7.1.2 Retention of Records
Unless otherwise required in this Article, Contractor shall retain all records and
data required to be maintained by this Agreement for the Term of this
Agreement plus five years after its expiration or earlier termination. Records
and data shall be in chronological order and readily and easily interpreted.
7.1.3 Inspection of Records
The City, its auditors, and other agents, shall have the right, during regular
business hours, to inspect specific documents or records required by this
Agreement or any other similar records or reports of the Contractor that the
City shall deem, at its sole discretion, necessary to evaluate the Contractor's
performance provided for in this Agreement. The City may make copies of any
documents it deems relevant to this Agreement. The City shall provide
Contractor written notice at least three Business Days prior to any inspection
of these records, and Contractor shall retrieve and make available to the City
the requested documents and records at that time.
The City reserves the right to inspect records for the purposes of auditing the
Contractor's reports, reported Diversion level, and fee payments to the City. If
an audit conducted by the City, or its representatives, finds: (i) that the
Contractor has made any intentional misrepresentation with respect to the fees
dues to the City (e.g., Franchise Fees or other fees due to the City) in an
amount greater than $1,000 or 10% of the fees due to the City during the period
covered by the audit, whichever is greater, or (ii) that the Diversion level is 5%
different than the Diversion level reported by the Contractor, then in addition
to any other remedies available to the City, Contractor shall reimburse the
City for the City's costs incurred in the performance of the audit. Such
reimbursement shall be paid by Contractor, along with any underpaid fees and
Liquidated Damages required by Section 11.4 and Exhibit A, within thirty
calendar days of the date the City notifies the Contractor of the amount due.
7.1.4 Record Security
Contractor shall maintain adequate record security to preserve records from
events that can be reasonably anticipated such as fire, theft, and earthquake.
Electronically maintained data and records shall be protected and backed -up.
7.2 RECORDS
7.2.1 Financial and Operational Records
Contractor shall maintain accurate and complete accounting records containing the
underlying financial and operating data relating to and showing the basis for
computation of all revenues associated with providing Permitted Materials Collection,
Transportation, Processing, Recycling, Composting, and Disposal services. The
accounting records shall be prepared in accordance with Generally Accepted
Accounting Principles (GAAP) consistently applied.
City of Fresno Non -Exclusive Roll -Off Agreement Page 33
At a minimum, the following operational records shall be maintained by Contractor for
City relating to:
A. Customer account information and billing records.
B. Tonnage of material Collected by type (e.g., Solid Waste, Recyclable Material,
Organic Material, or C&D) listed by Processing Site or Disposal Site where
such materials were delivered. Where possible, information is to be separated
by Residential and Commercial Customers.
C. Tonnage of Recyclable Materials, Organic Material, and C&D Diverted from
Disposal by Contractor and supporting documentation.
D. Diversion level, which shall equal Tonnage Diverted by Contractor divided by
the Tonnage Collected by Contractor multiplied by one hundred, listed
separately by month for the previous quarter. Tonnage Diverted shall reflect
Permitted Materials Processed less residue Disposed.
E. Residue levels of Processed or Composted materials.
F. Weight tickets from (i) Designated Disposal Site documenting the Tonnage of
Solid Waste Collected within the City and delivered to the Designated Disposal
Site; (ii) Processing Sites documenting the Tonnage of Permitted Materials
Collected within the City and delivered to the Approved Processing Sites; and
(iii) Approved Disposal Sites documenting the Tonnage of residue delivered to
Approved Disposal Sites by vehicle, date, and time.
G. End use and markets for recovered materials. Contractor shall make records
available to the City upon request.
7.2.2 Customer Records
Contractor shall maintain accurate and complete records containing the
number and types of accounts served by the Contractor. The records shall
contain, at a minimum, the Customers name, type of business, phone number,
address of Roll -Off Container delivery and Collection location, date of delivery
and Collection, itemized listing of services performed, type of Permitted
Material Collected, Tonnage Collected, and the amount charged to provide
services. The information shall be provided to the City upon request.
7.2.3 CERCLA Defense Records
City views its ability to defend itself against Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), and related litigation as
a matter of great importance. For this reason, the City regards its ability to
prove where Permitted Materials Collected by the Contractor are taken for
Processing, Recycling, Composting, Transfer, or Disposal, as well as where
they are not taken, to be matters of concern. Contractor shall maintain, retain,
and preserve records which can establish where Permitted Materials Collected
were Processed, Composted, and Disposed (and therefore establish where
City of Fresno Non -Exclusive Roll -Off Agreement Page 34
they were not). This provision shall survive the expiration or earlier termination
of this Agreement. Contractor shall maintain these records for a minimum of
ten years beyond expiration or earlier termination of the Agreement. Contractor
shall provide these records to City (upon request or at the end of the record
retention period) in an organized and indexed manner rather than destroying
or disposing of them.
7.3 GENERAL REPORTING REQUIREMENTS
The format of each report shall be approved by City. Contractor may propose report formats
that are responsive to the objectives. Contractor agrees to mail a copy of all reports and
submit all reports on computer discs, by e-mail, or by modem in a format compatible with
City's software and computers at no additional charge. Contractor will provide a certification
statement, under penalty of perjury, by the responsible Contractor official, that the report
being submitted is true and correct to the best knowledge of such official after their
reasonable inquiry.
Contractor shall submit monthly reports within fifteen calendar days of the end of each
month. If Contractor does not submit the monthly reports by the dates required in this
Article, Contractor shall pay the City Liquidated Damages as described in Section 11.4 and
Exhibit A.
Contractor shall submit (via mail and e-mail) all reports to:
Solid Waste Division Manager
City of Fresno
1325 El Dorado Street Fresno,
CA 93706
7.4 MONTHLY REPORT
The monthly report shall present the following information.
A. Total Tonnage. Total Permitted Materials Tonnage Collected by Contractor within
the City during the previous quarter, listed separately by material type and by month.
B. Diverted Tonnage. Permitted Materials Tonnage Collected by Contractor within the
City that was Diverted during the previous quarter, listed separately by material type
and bymonth.
C. Disposed Tonnage. Permitted Materials Tonnage Collected by Contractor within
the City that was Disposed during the previous quarter, listed separately by month.
D. Diversion Level. Tonnage Diverted by Contractor divided by the Tonnage Collected
by Contractor multiplied by 100, listed separately by month for the previous quarter.
Tonnage Diverted shall reflect Permitted Materials Processed less residue Disposed.
E. C&D. Tonnage generated from construction and demolition permitted sites, noting
the permit number, the site address, the Tonnage hauled, the date hauled, and the
facilities to which the material was hauled.
City of Fresno Non -Exclusive Roll -Off Agreement Page 35
F. Disposal and Processing Locations. Contractor shall provide a list of the names
and addresses of where Permitted Materials Collected within the City during the
previous quarter was Diverted and Disposed. Such list shall include the amount of
Permitted Materials Tonnage Diverted and/or Disposed at each location during the
previous quarter, listed separately by material type and by month.
G. Prohibited Materials. Contractor shall provide a list of all instances where
Contractor left a tag at a Customer Premises, as described in Section 6.6. Such list
shall identify each event by Customer, reason for the tag, and whether the event
resulted in non -Collection of the Customer's materials.
H. Revenues. Gross revenues (e.g., cash receipts) earned on all Roll -Off Container
Collection, Transportation, Processing, Recycling, Composting, and/or Disposal
services provided to Customers within the City during the previous quarter, listed
separately bymonth.
Insurance. Updated insurance certificates.
Account Information. In table format, the number of Customers within the City limits
served, and number of Roll -Off Containers serviced per month listed by Roll -Off
Container type (Drop Box or Compactor), Roll -Off Container size, and listed
separately by Permitted Material type, and regularly scheduled service and
unscheduled (on -call) service.
K. Contractor Officers and Board Members. Provide a list of Contractor's officers
and members of its board of directors (only required with the December monthly
report each year, or in the event of a change in the officers or board members).
The City reserves the right to request additional reports from Contractor, and upon City's
request, Contractor shall provide information required above for the time period requested
by the City. It is the desire of the City to track the above required information on an ongoing
basis throughout the term of this Agreement.
7.5 AB 939 COUNTY SURCHARGE REPORTING
Contractor acknowledges that City is a party to that certain AB 939 Memorandum of
Understanding with the County of Fresno and various other jurisdictions dated January 6,
2008 (the "AB 939 MOU"), and further acknowledges having received and reviewed a copy
of the AB 939 MOU. The Parties agree that Contractor is a "Jurisdiction's Hauler," as that
term is used in Part IV, Section H of the AB 939 MOU. Contractor shall comply with all
requirements of Part IV, Section H of the AB 939 MOU that are applicable to a Jurisdiction's
Hauler, including but not limited to submittal of reports and payment of the AB 939
Surcharge (as that term is defined in the AB 939 MOU).
City of Fresno Non -Exclusive Roll -Off Agreement Page 36
ARTICLE 8
FRANCHISE FEES AND OTHER FEES
8.1 GENERAL
Contractor shall collect the fees described in this Section from Customers through
Contractor's regular billings and remit collected amounts to City monthly as described in
Section 8.5.
8.2 FRANCHISE FEE
In consideration of the exclusive rights provided Contractor herein, Contractor shall pay
Franchise Fees to the City each month equal to 10% of actual gross Rate revenues (e.g.,
cash receipts) remitted to Contractor by Customers for services provided by Contractor
under thisAgreement.
8.3 OTHER FEES
The City may set "other" additional fees, as it deems necessary. The amount, time, and
method of payment and adjustment process will be set in a manner similar to that for other
fees described in this Article.
8.4 ADJUSTMENT TO FEES
City may adjust the fees established in this Article annually at any time during the Term of
this Agreement.
8.5 PAYMENT SCHEDULE AND LATE FEES
On or before the 20th day of each month during the Term of this Agreement, Contractor
shall remit to City Franchise Fees and other fees as described in this Article. If such
remittance is not paid to the City on or before the 20th day of any month, Contractor shall
pay, in addition to the amount owed to City, 2% of the amount owing for that month; plus,
an additional 2% owing on any unpaid balance for each following thirty calendar day period
the fee remains unpaid.
Each monthly remittance to City shall be accompanied by a statement itemizing each fee
paid; detailing calculation of all fees; stating actual gross revenues (e.g., cash receipts) for
the monthly period collected from all operations conducted or permitted by this Agreement
and stating the number and size of containers serviced by Contractor for the monthly period.
Each remittance including all supporting documentation shall be provided to:
Attn: City Controller, Finance Department
City of Fresno
2600 Fresno Street
Fresno, CA 93721-3624
City of Fresno Non -Exclusive Roll -Off Agreement Page 37
8.6 OVERPAYMENT OF FEES
If Contractor believes it has paid Franchise Fees or other fees as described in this Article,
in excess of the fees due to the City, Contractor may submit a request for refund to the
Director. If proof of overpayment is satisfactory to the Director, the Director shall authorize
the City to refund the overpayment to the Contractor. Contractor shall not apply any
overpayment as a credit against any Franchise Fee or other amounts payable to the City,
unless specifically authorized to do so by the Director in writing.
8.7 NON -CITY FEES; AB 939 COUNTYSURCHARGE
Pursuant to Section 7.5, Contractor shall pay the County of Fresno an AB 939 surcharge
as applicable in accordance with the AB 939 MOU.
ARTICLE 9
CONTRACTOR'S COMPENSATION AND RATES
9.1 CONTRACTOR'S COMPENSATION
Contractor's compensation for performance of all its obligations under this Agreement shall
be: (i) actual Rate revenues paid to Contractor (e.g., cash receipts) by Customers that
obtained Contractor's Collection services less fees dues to the City in accordance with
Article 8, and (ii) revenues generated by the sale of Collected materials Diverted from
Disposal.
Contractor's compensation provided for in this Article shall be the full, entire, and complete
compensation due to Contractor pursuant to this Agreement for all labor, equipment,
materials and supplies, Processing, Composting, and Disposal fees, regulatory fees, City
fees, taxes, insurance, bonds, overhead, operations, profit, and all other things necessary
to perform all the services in the manner required by this Agreement.
If Contractor's costs are more than Contractor's compensation, Contractor shall not be
compensated for the difference in costs and revenues. If Contractor's costs are less than
Contractor's compensation, Contractor shall retain the difference.
9.2 CITY'S RIGHT TO SET MAXIMUM RATES
The City reserves the right to establish maximum Rates for Permitted Materials Collection
services provided under this Agreement if: (a) there are three or fewer companies holding
non-exclusive franchise agreements for Collection of Permitted Materials, or (b) the Rates
charged by the companies holding non-exclusive franchise agreements for Collection of
Permitted Materials are no longer comparable to those of other jurisdictions, as reasonably
determined by City. If the City chooses to exercise its right to set maximum Rates, City shall
notify Contractor at least 18 0 calendar days prior to the date that maximum Rates become
effective. In such case, City will set maximurn Rates with consideration of reasonable and
necessary costs for Collection, Processing, Composting, and Disposal and with the
intention of setting maximum Rates that will enable parties, including the Contractor, that
have executed Non -Exclusive Franchise Agreements with the City for Roll -Off Container
Collection Services the ability to recover reasonable and necessary costs and a reasonable
City of Fresno Non -Exclusive Roll -Off Agreement Page 38
profit.
9.3 CONTRACTOR'S RATES
Contractor shall set the Rates it charges its Customers for Roll -Off Collection services. The
Contractor's Rates shall not exceed City -established maximum Rates if the City exercises
its rights under Section 9.2.
ARTICLE 10
INDEMNITY AND INSURANCE
10.1 INDEMNIFICATION
To the furthest extent allowed by law, CONTRACTOR 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) incurred by
CITY, CONTRACTOR or any other person, and from any and all claims, demands and actions in
law or equity (including reasonable attorney's fees, litigation expenses and cost to enforce this
agreement), arising or alleged to have arisen directly or indirectly out of performance of this
Agreement. CONTRACTOR'S obligations under the preceding sentence shall apply regardless of
whether CITY or any of its officers, officials, employees, agents or volunteers are negligent, but shall
not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the
gross negligence, or caused by the willful misconduct, of CITY or any of its officers, officials,
employees, agents or volunteers.
Contractor's duty to defend and indemnify herein shall include Damages arising from or
attributable to any operations, repairs, clean-up or detoxification, or other plan (regardless
of whether undertaken due to governmental action) concerning any Hazardous Waste
Collected in the City. Contractor shall be required to indemnify the City for the costs for any
claims arising from the Processing, Composting, or Disposal of Permitted Materials,
including, but not limited to, claims arising under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA). The foregoing is intended to operate
as an agreement to defend and indemnify and hold harmless indemnities to the full extent
permitted for liability pursuant to Section 107(e) of CERCLA, 42 U.S.C. Section 9607(e)
and California Health and Safety Code Section 25364.
In addition, Contractor's duty to defend and indemnify herein includes all fines and/or
penalties imposed by the California Department of Resources Recycling and Recovery,
subject to the restrictions set forth in Public Resources Code Section 40059.1, if the
requirements of the Act are not met by the Contractor with respect to the Permitted Materials
Collected under this Agreement, and such failure is due to Contractor delays in providing
information that prevents Contractor or City from submitting reports required by the Act in a
timely manner.
Nothing herein shall waive or limit City's governmental immunities. This provision will
survive the expiration or earlier termination of this Agreement and shall not be construed
as a waiver of rights by City to contribution or indemnity from third parties.
This section shall survive termination or expiration of this Agreement.
City of Fresno Non -Exclusive Roll -Off Agreement Page 39
10.2 INSURANCE
(a) Throughout the life of this Agreement, Contractor shall pay for and maintain
in full force and effect all insurance as required herein 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 herein 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, Contractor or
any of its subcontractors fail 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 Contractor 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
Contractor 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 Contractor shall not be deemed to
release or diminish the liability of Contractor, 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 Contractor. Approval or
purchase of any insurance contracts or policies shall in no way relieve from
liability nor limit the liability of Contractor, vendors, suppliers, invitees,
contractors, sub -contractors, subcontractors, or anyone employed directly or
indirectly by any of them.
Coverage shall be at least as broad as:
The most current version of Insurance Services Office (ISO) Commercial
General Liability Coverage Form CG 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
City of Fresno Non -Exclusive Roll -Off Agreement Page 40
(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.
a Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
MINIMUM LIMITS OF INSURANCE
Contractor shall procure and maintain for the duration of the contract, and for five years
thereafter, insurance with limits of liability 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:
COMMERCIAL GENERAL LIABILITY
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate applying separately to the work
performed under the Agreement.
COMMERCIAL AUTOMOBILE LIABILITY
$1,000,000 per accident for bodily injury and property damage.
Workers' Compensation Insurance as required by the State of California with statutory limits
and EMPLOYER'S LIABILITY with limits of liability not less than:
(v) $1,000,000 each accident for bodily injury;
(vi) $1,000,000 disease each employee; and,
(vii) $1,000,000 disease policy limit.
UMBRELLA OR EXCESS INSURANCE
In the event Contractor purchases an Umbrella or Excess insurance policy(ies) to meet the
"Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and afford no
less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess
City of Fresno Non -Exclusive Roll -Off Agreement Page 41
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
Contractor shall be responsible for payment of any deductibles contained in any insurance
policy(ies) required herein and Contractor 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) Contractor 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 calendar days written notice has
been given to City, except ten days for nonpayment of premium.
Contractor 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, Contractor 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, Contractor shall provide a new certificate, and applicable
endorsements, evidencing renewal of such policy not less than fifteen
calendar days prior to the expiration date of the expiring policy.
(ii) The Commercial General and Automobile Liability insurance policies
shall be written on an occurrence form.
(iii) The Commercial General, and Automobile Liability insurance policies
shall be endorsed to name City, its officers, officials, agents,
employees and volunteers as an additional insured. Contractor shall
establish additional insured status for the City and for all ongoing and
completed operations under Commercial General and Liability policies
by use of ISO Forms or an executed manuscript insurance company
endorsement providing additional insured status. The Commercial
General endorsements must be as broad as that contained in ISO
Forms: GC 20 10 11 85 or both CG 20 10 & CG 20 37.
City of Fresno Non -Exclusive Roll -Off Agreement Page 42
(iv) All such policies of insurance shall be endorsed so the Contractors'
insurance shall be primary, and no contribution shall be required of
City. The coverage shall contain no special limitations on the scope of
protection afforded to City, its officers, officials, employees, agents and
volunteers. If Contractor maintains higher limits of liability than the
minimums shown above, City requires and shall be entitled to
coverage for the higher limits of liability maintained by Contractor.
(v) Should any of these policies provide that the defense costs are paid
within the Limits of Liability, thereby reducing the available limits by
defense costs, then the requirement for the Limits of Liability of these
polices will be twice the above stated limits.
(vi) For any claims related to this Agreement, Contractor'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 Contractor's
insurance and shall not contribute with it.
(vii) 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 OF DOCUMENTS - Contractor 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, Contractor 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. All
subcontractors working under the direction of Contractor shall also be required to
provide all documents noted herein.
MAINTENANCE OF COVERAGE - If at any time during the life of the Agreement or
any extension, Contractor or any of its subcontractors fail 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 Contractor 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.
City of Fresno Non -Exclusive Roll -Off Agreement Page 43
The fact that insurance is obtained by Contractor shall not be deemed to release or
diminish the liability of Contractor, 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 Contractor. Approval or purchase of any insurance contracts or policies
shall in no way relieve from liability nor limit the liability of Contractor, its principals,
officers, agents, employees, persons under the supervision of Contractor, vendors,
suppliers, invitees, consultants, sub -consultants, subcontractors, or anyone
employed directly or indirectly by any of them.
SUBCONTRACTORS - If Contractor should subcontract all or any portion of the
services to be performed under this Agreement, Contractor shall require and verify
that all subcontractors maintain insurance meeting all the requirements stated herein
and Contractor shall ensure that City, its officers, officials, employees, agents, and
volunteers are additional insureds. The subcontractors' certificates and
endorsements shall be on file with Contractor and City prior to the commencement
of any work by the subcontractor.
ARTICLE 11
DEFAULT AND REMEDIES
11.1 EVENTS OF DEFAULT
Each of the following shall constitute an event of default (Event of Default) hereunder:
Contractor fails to perform its obligations under this Agreement, or future amendment to
this Agreement, including, but not limited to, Contractor's failure to pay Franchise Fees and
other City fees in accordance with Article 8 of this Agreement, and the breach continues for
more than ten Business Days after written notice from the City for the correction thereof.
A. Contractor's failure to Divert 75% of the C&D, 70% of the Recyclable Materials, and
90% of Organic Materials Collected in the City as required by Section 5.3 of this
Agreement after Contractor is given an opportunity to remedy the nonperformance
as described in Section 11.5.
B. Any representation, warranty, or disclosure made to City by Contractor in connection
with or as an inducement to entering into this Agreement or any future amendment
to this Agreement, which proves to be false or misleading in any material respect as
of the time such representation or disclosure is made, whether or not any such
representation, warranty, or disclosure appears as part of thisAgreement.
C. There is a seizure or attachment (other than a pre -judgment attachment) of, or levy
affecting possession on, the operating equipment of Contractor, including without
limit its vehicles, maintenance or office facilities, or any part thereof of such
proportion as to substantially impair Contractor's ability to perform under this
Agreement and which cannot be released, bonded, or otherwise lifted within 48
hours excluding weekends and Holidays.
City of Fresno Non -Exclusive Roll -Off Agreement Page 44
D. Contractor files a voluntary petition for debt relief under any applicable bankruptcy,
insolvency, debtor relief, or other similar law now or hereafter in effect, or shall
consent to the appointment of or taking of possession by a receiver, liquidator,
assignee (other than as a part of a transfer of equipment no longer useful to
Contractor or necessary for this Agreement), trustee (other than as security for an
obligation under a deed of trust), custodian, sequestrator (or similar official) of the
Contractor for any part of Contractor's operating assets or any substantial part of
Contractor's property, or shall make any general assignment for the benefit of
Contractor's creditors, or shall fail generally to pay Contractor's debts as they
become due or shall take any action in furtherance of any of the foregoing.
E. A court having jurisdiction shall enter a decree or order for relief in respect of the
Contractor, in any involuntary case brought under any bankruptcy, insolvency,
debtor relief, or similar law now or hereafter in effect, or Contractor shall consent to
or shall fail to oppose any such proceeding, or any such court shall enter a decree
or order appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Contractor or for any part of the Contractor's operating
equipment or assets, or orders the winding up or liquidation of the affairs of
Contractor.
11.2 RIGHT TO TERMINATE UPON DEFAULT
Upon a default by Contractor, the City may terminate this Agreement within ten calendar
days of the default but no later than one hundred eighty calendar days after the default.
Such termination shall be effective ten calendar days following the City's written notice to
Contractor, and such termination shall be effective without the need for any hearing, suit,
or legal action.
11.3 CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE
The City's right to terminate the Agreement under Section 11.2 is not exclusive, and the
City's termination of the Agreement and/or the imposition of Liquidated Damages shall not
constitute an election of remedies. Instead, these rights shall be in addition to any and all
other legal and equitable rights and remedies which the City may have.
By virtue of the nature of this Agreement, the urgency of timely, continuous, and high -quality
service, the lead time required to effect alternative service, and the rights granted by City
to the Contractor, the remedy of damages for a breach hereof by Contractor is inadequate
and City shall be entitled to injunctive relief.
11.4 LIQUIDATED DAMAGES
A. General. The Parties find that as of the time of the execution of this Agreement, it is
impractical, if not impossible, to reasonably ascertain the extent of damages which
shall be incurred by City as a result of a breach by Contractor of its obligations under
this Agreement. The factors relating to the impracticability of ascertaining damages
include, but are not limited to, the fact that: (i) substantial damage results to members
of the public who are denied services or denied quality or reliable service; (ii) such
City of Fresno Non -Exclusive Roll -Off Agreement Page 45
breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits
of the Agreement to individual members of the general public for whose benefit this
Agreement exists, in subjective ways and in varying degrees of intensity which are
incapable of measurement in precise monetary terms; (iii) that services might be
available at substantially lower costs than alternative services and the monetary loss
resulting from denial of services or denial of quality or reliable services is impossible
to calculate in precise monetary terms; and (iv) the termination of this Agreement for
such breaches, and other remedies are, at best, a means of future correction and
not remedies which make the public whole for pastbreaches.
B. Service Performance Standards; Liquidated Damages for Failure to Meet
Standards. The Parties further acknowledge that consistent, reliable Roll -Off
Collection, Processing, and Disposal service is of utmost importance to City and that
City has considered and relied on Contractor's representations as to its quality -of -
service commitment in executing this Agreement. The Parties recognize that some
quantified standards of performance are necessary and appropriate to ensure
consistent and reliable service and performance. The Parties further recognize that
if Contractor fails to achieve the performance standards or fails to submit required
documents in a timely manner, City and its residents and businesses will suffer
damages, and that it is, and will be, impractical and extremely difficult to ascertain
and determine the exact amount of damages that City will suffer. Therefore, without
prejudice to City's right to treat such non-performance as an event of default under
this Article, the Parties agree that the Liquidated Damages amounts established in
Exhibit A of this Agreement and the following Liquidated Damage amounts represent
a reasonable estimate of the amount of such damages considering all of the
circumstances existing on the Effective Date of this Agreement, including the
relationship of the sums to the range of harm to City that reasonably could be
anticipated and the anticipation that proof of actual damages would be costly or
impractical.
Contractor agrees to pay (as Liquidated Damages and not as a penalty) the amounts
set forth in the Schedule of Liquidated Damages, Exhibit A.
City may determine the occurrence of events giving rise to Liquidated Damages
through the observation of its own employees or representative or investigation of
complaints by Customers, occupants, and Generators.
Liquidated Damages will only be assessed after Contractor has been given the
opportunity but failed to rectify the damages as described in this Agreement. Before
assessing Liquidated Damages, City shall give Contractor notice of its intention to
do so. The notice will include a brief description of the incident(s) and/or non-
performance. The City may review (and make copies at its own expense) all
information in the possession of Contractor relating to incident(s) and non-
performance. City may, within ten calendar days after issuing the notice, request a
meeting with Contractor. City may present evidence of non- performance in writing
and through testimony of its employees and others relevant to the incident(s) and
non-performance. City will provide Contractor with a written explanation of its
determination on each incident(s) and non- performance prior to authorizing the
City of Fresno Non -Exclusive Roll -Off Agreement Page 46
assessment of Liquidated Damages under this Section 11.4. The decision of City
shall be final, and City shall not be subject to, or required to exhaust, any further
administrative remedies.
C. Amount. City may assess Liquidated Damages for each calendar day or event, as
appropriate, that Contractor is determined to be liable in accordance with this
Agreement in the amounts specified in Exhibit A subject to annual adjustment
described below.
The amount of Liquidated Damages specified in Exhibit A shall be adjusted annually
on the anniversary of the Effective Date. The adjustment shall be rounded to the
nearest cent. Liquidated Damage amounts shall be adjusted to reflect changes in
the Consumer Price Index — All Urban Consumers (CPI-U) compiled and published
by the U.S. Department of Labor, Bureau of Labor Statistics, or its successor agency,
using the following Bureau of Labor Statistics' parameters.
• Not Seasonally Adjusted
• Area — Los Angeles -Riverside -Orange County, CA
• Item — All Items
• Base Period—198284=100
The formula for annual adjustment is as follows:
Adjusted Liquidated Damage Amount= Then -current Liquidated Damage Amount x
most current CPI-U/previous 12-month CPI-U
For example:
Current Liquidated Damage Amount = $150.00
Most recently published index (January 2017) = 224.610
Index published 12 months prior to most recently published index (January 2016)
= 220.719
Adjusted Liquidated Damage Amount = $150.00 x (224.610/220.719) _ $152.64
If the CPI-U is discontinued or revised during the Term by the United States
Department of Labor, such other government index or computation with which it is
replaced shall be used to obtain substantially the same result as would be obtained
if the CPI had not been discontinued or revised.
D. Timing of Payment. Contractor shall pay any Liquidated Damages assessed by
City within ten calendar days of the date the Liquidated Damages are assessed. If
they are not paid within the ten-day period, City may order the termination of the
rights or "franchise" granted by this Agreement.
11.5 DIVERSION NON-PERFORMANCE
If the Contractor's Diversion level is less than 75% for C&D, less than 70% for Recyclable
Materials, and/or less than 90% for Organic Materials Collected in the City for a monthly
reporting period, the following steps shall be followed by the City and Contractor.
City of Fresno Non -Exclusive Roll -Off Agreement Page 47
A. Warning. The City shall issue a written warning to the Contractor within thirty
calendar days of receipt of the Contractor's monthly report documenting the
Diversion level for the monthly reporting period. The warning notice shall specify the
amount of time (i.e., "correction period") the City grants the Contractor to improve its
performance and meet the Diversion requirements defined in Section 5.3.
B. Opportunity to Improve Performance. The Contractor shall modify its Collection,
Processing, Diversion, and public education and outreach programs (subject to the
City's approval) to improve the Diversion level. At the end of the correction period,
Contractor shall submit a written report to the City identifying the Diversion level and
providing the supporting documentation. If the City determines that the Diversion
level equals or exceeds Diversion requirements defined in Section 5.3, the
Contractor shall continue to perform services in such a manner as to maintain or
improve the Diversion level and the City shall waive its rights to proceed with steps
outlined in subsections C and D of this Section 11.5 during the remainder of then -
current reporting period.
C. Liquidated Damages. If the Contractor fails to improve the Diversion level so that it
is equal to or greater than Diversion requirements defined in Section 5.3 by the end
of the correction period granted in subsection A of this Section, the City may levy,
and Contractor shall pay, Liquidated Damages described in Section 11.4.
D. Termination of the Agreement. If Contractor's fails to achieve a Diversion level that
equals or exceeds Diversion requirements defined in Section 5.3 within six months
of the date the City levied Liquidated Damages, the failure to meet the Diversion
requirements defined in Section 5.3 shall be considered an event of default and the
City may terminate the Agreement in accordance with Section 11.2.
11.6 CONDITIONS UPONTERMINATION
In the event this Agreement is terminated under the provisions of this Article, the following
conditions shall be effective:
A. Prohibit Roll -Off Collection Services. Contractor shall have no right or authority to
engage in Roll -Off Collection services in the City for a period of five years from the
date of termination. After five years, should the Contractor provide proof that the
event causing the Contractor to default under this Agreement has been corrected,
the Contractor may reapply for a non- exclusive Roll -Off Collection service franchise,
and the City, at the sole and complete discretion of the City, may reinstate the
Contractor based on review of its reapplication.
B. Continuing Liabilities. Contractor shall remain liable to the Cityfor:
Fees due in accordance with Article 8 that would otherwise be payable by the
Contractor.
2. Liquidated Damages assessed pursuant to Section 11.4.
City of Fresno Non -Exclusive Roll -Off Agreement Page 48
3. Reports required by Article 7 for Roll -Off Collection activities performed by
Contractor up to and including the date of termination.
4. Indemnity obligations under Section 10.1.
5. Record keeping and retention obligations under Sections 7.1 and 7.2.
C. Release Customers and Generators from Obligations. Contractor shall allow
Permitted Materials Generators served by Contractor to arrange for Permitted
Materials Collection services with a hauler authorized to perform such services,
without penalty or liability for breach of any contract between Contractor and its
Customers orGenerators.
D. Remove Roll -Off Containers. Contractor shall remove all of Contractor's Roll- Off
Containers from all of Contractor's Collection locations and shall properly
Recycle, Process, Compost, or Dispose of Permitted Materials in such Roll -Off
Containers.
ARTICLE 12
OTHER AGREEMENTS OF THE PARTIES
12.1 RELATIONSHIP OF PARTIES
The Parties intend that Contractor shall perform the services required by this Agreement as
an independent Contractor engaged by City and not as an officer nor employee of the City,
nor as a partner of, or joint venturer with, the City. No employee or agent of Contractor shall
be, or shall be deemed to be, an employee or agent of the City. Except as expressly
provided herein, Contractor shall have control over the manner and means of conducting
the Roll -Off Container Collection, Transportation, Processing, Recycling, Composting, and
Disposal services performed under this Agreement, and all Persons performing such
services. Contractor shall be solely responsible for the acts and omissions of its officers,
employees, Subcontractors, and agents. Neither Contractor nor its officers, employees,
Subcontractors, and agents shall obtain any rights to retirement benefits, workers'
compensation benefits, or any other benefits which accrue to City employees by virtue of
their employment with the City.
12.2 PERMITS AND LICENSES
Contractor shall obtain and maintain, at Contractor's sole cost and expense, all permits and
licenses applicable to Contractor's operations under this Agreement which are required by
any governmental agency, including a business license issued by the City of Fresno.
City of Fresno Non -Exclusive Roll -Off Agreement Page 49
12.3 COMPLIANCE WITH LAW
Contractor shall, at all times, at its sole cost, comply with all Applicable Laws permits and
licenses of the United States, the State and the 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.
12.4 GOVERNING LAW
This Agreement shall be governed by, and construed and enforced in accordance with, the
laws of the State of California.
12.5 JURISDICTION
Any lawsuits between the Parties arising out of this Agreement shall be brought and
concluded in the courts of Fresno County in the State of California, which shall have
exclusive jurisdiction over such lawsuits.
With respect to venue, the Parties agree that this Agreement is made in and will be
performed in Fresno County.
12.6 BINDING ON SUCCESSORS
The provisions of this Agreement shall inure to the benefit to, and be binding on, the
successors and permitted assigns of the Parties.
12.7 ASSIGNMENT
Neither Party shall assign its rights nor delegate or otherwise transfer its obligations under
this Agreement to any other Person without the prior written consent of the other Party. Any
such assignment made without the consent of the other Party shall be void and the
attempted assignment shall constitute a material breach of this Agreement. Under no
circumstances shall any assignment be considered by City if Contractor is in default at any
time during the period of consideration.
12.8 PARTIES IN INTEREST
Nothing in this Agreement, whether express or implied, is intended to confer any rights on
any Persons other than the Parties to it and their representatives, successors and permitted
assigns.
12.9 WAIVER
The waiver by either Party of any breach or violation of any provisions of this Agreement
shall not be deemed to be a waiver of any breach or violation of any other provision nor of
any subsequent breach of violation of the same or any other provision. The subsequent
acceptance by either Party of any monies which become due hereunder, shall not be
deemed to be a waiver of any pre-existing or concurrent breach or violation by the other
City of Fresno Non -Exclusive Roll -Off Agreement Page 50
Party of any provision of this Agreement.
12.10 NOTICE PROCEDURES
All notices, demands, requests, proposals, approvals, consents, and other communications
which this Agreement requires, authorizes, or contemplates all, shall be in writing and shall
either be personally delivered to a representative of the Parties at the address below or
deposited in the United States mail, first class postage prepaid, addressed as follows:
A. If to City:
Director of Public Utilities,
City of Fresno
2600 Fresno St., Room 3065
Fresno, CA 93721-3624
B. If to Contractor:
Valley Dumpster Service LLC
1187 N. Willow Ave. STE: 103 Unit 314
Clovis, Ca 93611
The address to which communications may be delivered may be changed from time to
time by a notice given in accordance with this Section. Notice shall be deemed given on
the day it is personally delivered or, if mailed, three calendar days from the date it is
deposited in the mail.
12.11 REPRESENTATIVES OF THEPARTIES
References in this Agreement to the "City" shall mean the City Council and all actions to be
taken by the City shall be taken by the City Council except as provided below. The City
Council may delegate, in writing, authority to the Director and/or to other City officials and
may permit such officials, in turn, to delegate in writing some or all of such authority to
subordinate officers. The Contractor may rely upon actions taken by such delegates if they
are within the scope of the authority properly delegated to them.
The Contractor shall, by the Effective Date, designate in writing a responsible officer who
shall serve as the representative of the Contractor in all matters related to the Agreement
and shall inform the City in writing of such designation and of any limitations upon his or her
authority to bind the Contractor. The City may rely upon action taken by such designated
representative as actions of the Contractor unless they are outside the scope of the
authority delegated to him/her by the Contractor as communicated to City.
12.12 CRIMINAL ACTIVITY OFCONTRACTOR
12.12.1 Criminal Activity
For purpose of this Section, Criminal Activity shall mean any of the following events
or circumstances:
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A. Convictions. The entry against any Contractor Party or its officers, of a
criminal conviction or a permanent mandatory or prohibitory injunction from a
court, municipality, or regulatory agency of competent jurisdiction, based on
acts taken in his or her official capacity on behalf of Contractor with respect to:
1. Fraud or criminal offense in connection with obtaining, attempting to
obtain, procuring, or performing a public or private agreement related to
municipal Solid Waste services of any kind (including Collection,
Transportation, transfer, Processing, Recycling, Composting, or
Disposal), including this Agreement or any amendment thereto;
2. Bribery or attempting to bribe a public officer or employee of a local,
State, or Federal agency;
3. Embezzlement, extortion, racketeering, false claims, false statements,
forgery, falsification or destruction of records, obstruction of justice,
knowingly receiving stolen property, theft, or misprision (failure to
disclose) of a felony;
4. Unlawful disposal of Hazardous Wastes, the occurrence of which any
Contractor Party knew or should have known;
5. Violation of antitrust laws, including laws relating to price-fixing, bid -
rigging, and sales and market allocation, and of unfair and anti-
competitive trade practices laws;
6. Violation of securities laws; and
7. Felonies.
B_ Pleas. Entry of a plea of "guilty," "nolo contendere," or "no contest" by a
Contractor Party based on acts taken in his, her, or its official capacity on
behalf of Contractor with respect to the conduct described in preceding Section
12.12.1.A.
12.12.2 Notice
Contactor shall notify City in writing within five calendar days of occurrence of any
Criminal Activity by any Contractor Party.
12.12.3 Contractor's Cure
Upon occurrence of any Criminal Activity, Contractor shall immediately do or cause
to be done all of the following:
A. Terminate from employment or remove from office any offending individual
Contractor Party, unless otherwise directed or ordered by a court or regulatory
agency of competent jurisdiction or authority, and unless that termination
would constitute a breach of any labor agreement entered into by Contractor,
City of Fresno Non -Exclusive Roll -Off Agreement Page 52
and
B. Eliminate participation by any offending individual Contractor Party in any
management, supervision, or decision activity that affects or could affect,
directly or indirectly, the performance of the Contractor under thisAgreement.
12.12.4 Transfer and Hiring
Contractor shall not allow or cause to be allowed to hire or transfer any individual
from any Parent Company or subsidiary company or business entity of Contractor
who has committed Criminal Activity as a Contractor representative, field supervisor,
officer, or director who is directly or indirectly responsible for performance of this
Agreement without obtaining prior written consent of City, following full disclosure to
City of the facts and circumstances surrounding such Criminal Activity.
12.12.5 City's Remedy
In the event of any occurrence of Criminal Activity, the City, in its sole discretion, may
terminate the Agreement within thirty calendar days written notice to Contractor, or
may impose other sanctions (which may include financial sanctions, temporary
suspensions, or any other condition deemed appropriate short of termination) as it
will deem proper, in the following events:
A. Contractor fails to comply with the foregoing obligation of this Section, or
B. The Criminal Activity concerns or relates directly or indirectly to this Agreement.
Contractor shall be given the opportunity to present evidence in mitigation
during the thirty calendar day notice period.
12.13 ACKNOWLEDGEMENT OF PUBLIC RESOURCES CODE SECTION 49520 NOTICE
If Contractor has lawfully provided solid waste collection services in the City for more than
three years prior to July 1, 2022, (and is therefore entitled to the notice provided for in
Public Resources Code 49520), Contractor shall consider execution of this Agreement by
the City as City's notice to Contractor, pursuant to Public Resources Code 49520, that
Contractor may provide service for a period of five years beyond July 1,2022, after which
time the City has the right to establish an exclusive franchise collection system.
ARTICLE 13
MISCELLANEOUS AGREEMENTS
13.1 ENTIRE AGREEMENT
This Agreement, including the Exhibits, represents the full and entire Agreement between
the Parties with respect to the matters covered herein.
13.2 SECTION HEADINGS
The article headings and section headings in this Agreement are for convenience of
reference only and are not intended to be used in the construction of this Agreement nor to
alter or affect any of its provisions.
City of Fresno Non -Exclusive Roll -Off Agreement Page 53
13.3 REFERENCES TO LAWS
All references in this Agreement to laws shall be understood to include such laws as they
may be subsequently amended or recodified, unless otherwise specifically provided.
13.4 INTERPRETATION
This Agreement shall be interpreted and construed reasonably and neither for nor against
either Party, regardless of the degree to which either Party participated in its drafting.
13.5 PRONOUNS AND PLURALS; TENSE
When not inconsistent with the context, words and phrases used in the present tense
include the future, and words and phrases used in the singular number include the plural
number. Whenever the context may require, any pronoun used in this Agreement shall
include the corresponding masculine, feminine and neuter forms, and the singular form of
nouns, pronouns and verbs shall include the plural and vice versa.
13.6 TEXT TO CONTROL
The captions of the Articles or Sections in this Agreement are for convenience only and in
no way define, limit, extend or describe the scope or intent of any of the provisions hereof,
shall not be deemed part of this Agreement and shall not be used in construing or
interpreting this Agreement.
13.7 AMENDMENT
This Agreement may not be modified or amended in any respect except in writing signed by
the Parties.
13.8 SEVERABILITY
If any non -material provision of this Agreement is for any reason deemed to be invalid and
unenforceable, the invalidity or unenforceability of such provision shall not affect any of the
remaining provisions of this Agreement, which shall be enforced as if such invalid or
unenforceable provision had not been contained herein.
13.9 COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be considered an
original.
13.10 EXHIBITS
Each of the Exhibits identified as Exhibit "A" through "D" is attached hereto and incorporated
herein and made a part hereof by this reference.
City of Fresno Non -Exclusive Roll -Off Agreement Page 54
IN WITNESS WHEREOF, the Parties have caused the Agreement to be executed on the
day and year first abovewritten.
CITY OF FRESNO,
A California municipal r
ion
By: of
Brock D. Buche, PE, PLS, Director
Department of Public Utilities
APPROVED AS TO FORM
ANDREW JANZ
City Attgrrrey-
g-=� f
Angela M. Karst Date
Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By:
Deputy Date
a California Contractor
By: Valley Dumpster Service LLC
Name: Margaret Funk
Title: General Partner
(If corporation or LLC, Board Chair,
Pres. or Vice Pres.)
By: S -1 S .Aoq,3
r
Name: Margaret Funk
Title: General Partner
(If corporation or LLC, CFO, Treasurer,
Secretary or Assistant Secretary)
g/I 5I Z Business License: 455266
3
City of Fresno Non -Exclusive Roll -Off Agreement Page 55
EXHIBIT A
SCHEDULE FOR LIQUIDATED DAMAGES
Contractor may be assessed Liquidated Damages if Contractor fails to fulfill its obligations
with regards to the events listed in this Exhibit in accordance with the terms and conditions
of the Agreement with regards to the time frame for accomplishing each event and nature
of the responsibility associated with the event unless otherwise stated in this Exhibit.
1. Diversion. Failure to achieve and maintain a minimum of
75% Diversion per month of all C&D Collected within the
City, 70% Diversion per month of all Recyclable Materials
Collected within the City, and 90% of all Organic Materials
Collected within the City.
4
a
Leaks, Litter or Spills. For each occurrence over five
during a calendar year of unreasonable leaks, litter, or spills
of Permitted Materials near or on public streets and failure
to pick up or clean up such material immediately.
Unauthorized Collection Hours. For each occurrence
over five during a calendar year of Collecting Permitted
Materials during unauthorized hours.
Excessive Noise. For each occurrence over 10 during a
calendar year
Cleaning Collection Vehicles. For each occurrence over
five during a calendar year for failure to keep Collection
vehicles in a safe and sanitary condition.
Labeling of Roll -Off Containers. For each occurrence of
Contractor's failure to correctly label Contractor -owned
Roll-OContainers in accordance with Section 6
ff.4 .
7. Discourteous Behavior. For each
occurrence of discourteous behavior by
_ Collection vehicle ersonnel, customer service
8 Injuries to Others. For each incident of personal injury to
a Person requiring medical treatment or hospitalization,
where the negligence of the Contractor or its personnel was
a contributing factor to the iNury.
9. Monthly Reports. Failure to submit monthly reports in the
timeframe specified in this A reement.
10. Report Hazardous Waste. For each failure to notify the
appropriate authorities of reportable quantities of
Hazardous Waste.
A-1
The greater of
$5,000 or 10% of
the gross Rate
revenues received
for providing C&D,
Recyclable
Materials, and
Organic Materials
services in the
City, for the most
recent 12- month
$300/ event
$300/ event
$300/ event
$150/ event
$500/ event
$500/ event
$5,000/ incident
$300/ day*
$500/ event
11. Failure of Other Obligations. Failure to perform any of the $150/ for each
obligations set forth in this Agreement not specifically stated obligation per day
above and not corrected or proceeding in good faith to until obligation i s
correct within 24 hours upon 24 hour notification erformed
* Monthly reports shall be considered late until such time as a correct and complete
monthly report is received by City. For each calendar day a report is late, the
daily Liquidated Damage shall be as indicated in the monthly reports section
above.
In placing Designee's initials at the places provided, each Party specifically confirms the
accuracy of the statements made above and the fact that each Party has had ample
opportunity to consult with legal counsel and obtain an explanation of Liquidated Damage
provisions of the time that the Agreement was made.
Contractor City
Initial Here. M .1k Initial Here:
A - 2
EXHIBIT B
SECRETARY'S CERTIFICATION
The undersigned, being the Secretary of Valle Dum ster Service LLC, a
Company Name
California corporation (the Company), do hereby certify that the following resolution was
adopted by the Board of Directors of the Company and that such resolution has not been
amended, modified or rescinded and is in full force and effect as of the date hereof:
RESOLVED, that Margaret Funk be, and hereby is, authorized to
Name of Designated Representative
execute by and on behalf of the Company any and all agreements, instruments,
documents, or papers, as he/she may deem appropriate or necessary, pertaining to or
relating to the Non -Exclusive Franchise Agreement between the City of Fresno and
Company for Roll -Off Container Collection, Transporting, Processing, Recycling,
Composting, and Disposal of Permitted Materials and that any such action taken to date
is hereby ratified and approved.
Dated: 04/2 /2023
_ �D
B-1
Signatur
Title
This page intentionally blank
EXHIBIT C
STATEMENT OF APPLICANT'S UNDERSTANDING
AND REPRESENTATIONS
The undersigned (who is duly authorized to bind the company submitting this application)
has reviewed the requirements of the non-exclusive franchise agreement for Roll -Off
Collection, Transporting, Processing, Recycling, Composting, and Disposal services for
Solid Waste, Recyclable Materials, Organic Materials, and C&D, its exhibits, and
reference documents. In addition, the undersigned attests that this application and any
other supplementary information submitted with this application do not: (i) contain any
untrue statement of a material fact, (ii) contain inaccurate or misleading information, or
(iii) omit to state a material fact that is necessary to make the statements made, in light
of the circumstances in which they were trade, not misleading.
Print Name Date
��, � Y�.ir 3 ! �nr•�! it
Title
I t, l U, l_Lf
Compan Name
Signature
C - 1
This page intentionally blank
EXHIBIT D
APPROVED PROCESSING AND RESIDUE DISPOSAL FACILITIES
The following facilities were selected by the Contractor and approved by the City -
Approved C&D Processing I Approved Disposal Site
Site (Applicable for Residue Only)
*
Facili name d 971
Facility address �n�,
RDRS number -
Owner
Operator -
Approved Recyclables Approved Disposal Site
Processing (Applicable for Residue
Site Only)
Facility name
Facility address
FCls�o
RDRS number
Owner -
Operator
Approved Organics ` Approved Disposal Site
Processing (Applicable for Residue
Site Only)
Facili name
Facility address AvP-
F_-boc, � 437a5
RDRS number
Owner
operator
* All Solid Waste shall be Disposed of at the Designated Disposal Facility.
Contractor City
Initial Here: `z Initial Here: _
D - 1
This page intentionally blank
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
Element LIMS'
Laboratory Information Management
Prepared for:
City of Fresno Wastewater Laboratory
2600 Fresno Street
Fresno, CA 93721
Jeremy Yarbrough
Prepared by: Rick Persichitte
Date: May 1, 2023
Order number: CO22020a
Promium, LLC
3350 Monte Villa Parkway, #220
Bothell, WA 98021-8963
1.877. PROMIUM
www.promium.com
PROMIUM
A CLINISYS GROUP COMPANY
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
PROMIUM
A CLINISYS GROUP COMPANY
HOSTED SERVICES AGREEMENT
3350 Monte Villa Parkway #220 Bothell, WA 98021 1.877,PROMIUM
City of Fresno Wastewater Laboratory
2600 Fresno Street
www.promium.com
1.877.PROMIUM
Order# CO22020a
Prepared by: Rick Persichitte
Fresno CA
US 93721
Jeremy Yarbrough 559-621-5160 Jeremy.Yarbrough@fresno.gov
Element LIMS® version 7 Currency: use Effective: 417312023
SOFTWARE License: Subscription Qty Price Subscription
BASE SOFTWARE
Configuration: Environmental/Water Testing
Application Components Concurrent Users
- Project Management Included
- Sample Control Included
- Laboratory Analysis Included
- Quality Assurance Included
- Reporting (Basic reports & EDDs) Included
Number of years 1 Subtotal
Element ClientConnect
Promium Hosting Subscription
Number of years 1 Subtotal
IMPLEMENTATION SERVICES Promium Hosted
Standard
On -site Assessment, other on-site/off-site hours defined at planning stage.
- Project initiation and assessment
- Configuration and development
- Initial system testing
- Parallel testing and validation
- Move to production and ready for go -live
Subtotal
Training
Administrator Training
User Training
Additional Services
Outputs: EDDs, Reports, DMRs
kSee Notes Below
Campus Online Resources
Legacy Data Migration
Data Migration
Onsite
Onsite
Subtotal
Subtotal
Included - no charge
Subtotal Data Migration
TOTAL SOFTWARE AND SERVICES
Annual
12 $ 2,600 $ - S 31,200
S - $ 31,200
Annual
1 $ 2,500 $ $ 2,500
$ - $ 2,500
Qty Price Total
1 $ 35,360 $ 35,360
$ 35,360
1 $ 6,320 $ 6,320
1 $ 8,260 $ 8,260
$ 14,580
1 5 2,340 $ 2,340
$ 2,340
S $ -
$ 10,000
$ 10,000
$ 62,280 $ 33,700
NOTES:
`Quoted reports includes these six reports: 13COF Bacti WMDLab Report, 13COF Nitrate WMDLab Report, 13PD Bacti WMDLab Report, 1SCOF
Nitrate WMDLab Report, Daily Sewage WMDLab Report, & Digester Soild WMDLab Report.
TERMS AND CONDIT01NS This proposal expires after: 12/29/2023
Payment for Element LIMS software is billed at shipment/download and is due upon receipt of invoice.
Payment due net 30 days unless otherwise specified.
Delay in payments can result in discontinuation of services, Late payments may be subject to a 1 1/2% monthly late fee.
Element LIMS maintenance renewal periods for license upgrades may be pro -rated to reconcile the renewal period of all users.
A 3% processing fee may be applied to credit card transactions for Element LIMS.
TAXES: Even if we do not collect sales tax from you, your state may still require you to pay tax, Promium collects sales tax in WA AZ, CA, FL, HI, IL, IN, MD, MI, NM, MO,
NJ, NY, PA, RI, TN, TX, WI. A sales tax is not collected if we have your tax exemption certificate on file.
Confidential - Not to be shared with any other parties
Rev: AML072822
Promium, LLC Element LIMS' Subscription Contract V7-r010422 2
DocuSign Envelope ID: 7510E3C5-BC9F-458C-8OF8-02E2C3365D7D
P ROM i V M www.promium.com
1.877.PROMIUM
A CLINISYS GROUP COMPANY
Hosted Service Agreement
This Hosted Software Service Agreement ("Agreement") is a legal agreement between the City of Fresno, a
California municipal Corporation, as applicable ("you" or "Customer") and Promium, L.L.C. ("Promium"). It governs
the use of the online, hosted service versions of Element LIMS computer software, and any related documentation or
downloadable applications provided to you by Promium (collectively, the "Software"). The term "Software" shall also
include any printed documentation that may be provided to you.
By entering an order for a subscription to one or more of the Software products or using any part of them, you agree
to be bound by the terms of this Agreement.
PROMIUM IS WILLING TO GRANT YOU A RIGHT TO USE ITS SOFTWARE ONLY IF YOU ACCEPT AND AGREE
TO BE BOUND BY ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. If you do not agree to these terms,
do not use the Software.
If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full
legal authority to bind your employer or the entity to this Agreement; and (ii) you agree, on behalf of the party that you
represent, to be bound by this Agreement. If you do not have such legal authority to bind your employer or the
applicable entity, please contact Promium and do not access, download (as applicable), or use the Software.
The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property
laws and treaties. The Software is licensed, not sold.
1. USE OF SOFTWARE.
a. Unless otherwise specified in writing by Promium, you may access and use the hosted version of the Software on
an unlimited number of computers; provided however, that they may be used by a single business or government
entity only.
b. For the Element LIMS product, the number of concurrent users of the Software shall be limited as described in
your Promium Quotation form. Laboratory facilities sharing a single Element LIMS Production Database may share a
single license, as long as all such facilities are both owned and operated by a single business or government entity.
c. The Software may not be loaned or shared with any other business or government entity, including any affiliated
companies, either by sharing log -in credentials or otherwise. Any such entity would need to purchase its own
subscription to use the Software.
d. If you enable the Element ClientConnect viewing and reporting functionality, you may allow your laboratory clients
to access appropriate data and reports via the Internet reporting features of the Software. If you enable the sample
submission functionality, you may allow your sample generators to submit chain -of -custody records online or through
the application, subject to any applicable terms of use for such usage.
Promium, LLC Element LIMS® Subscription Contract V7-r010422
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
PROMI UM
A CLINISYS GROUP COMPANY
www.promium.com
1.877.PROMIUM
e. You agree that Promium may audit and inspect your use of the Software for compliance with these terms within
thirty (30) days of a request. In the event that such audit reveals any use of the Software by you other than full
compliance with the terms of this Agreement, you shall take immediate steps and provide payment as appropriate, to
come into compliance.
f. To ensure optimal performance and security of the hosted Software, Promium will routinely perform maintenance
on a regularly scheduled basis within its published maintenance windows. This may require specific services to be
suspended during the maintenance period. Promium schedules maintenance windows outside of generally accepted
business hours. As applicable, Promium will use commercially reasonable efforts to notify you in advance of any
scheduled maintenance that may adversely affect hosted services. Under certain circumstances Promium may need
to perform emergency maintenance, such as security patch installation or hardware replacement.
2. MAINTENANCE AND SUPPORT.
Maintenance and support is in effect for the duration of your Software subscription. The maintenance and support
covers the current version of the Software product.
b. Unless otherwise communicated, telephone support is available Monday through Friday, 5:00am to 5:00pm Pacific
Time, not including holidays recognized by Promium. At other times, a telephone or email message may be left and
Promium personnel will respond within one business day. Emergency technical assistance provided outside of
normal business hours may incur additional charges. Online documentation and other support materials may be
available at www.promium.comisupport or accessible directly through the product. Promium website is available
twenty-four hours per day, seven days per week unless undergoing maintenance or repair.
c. Each customer requiring support must designate a primary contact person to manage technical support requests.
Support requests should be directed to:
Promium Customer Support (Help Desk)
425.286.9200 phone
425.286.9201 fax
support@promium.com
d. Promium may offer certain features, functions, reports, and other input or output which are not considered part of
core software or services offered by Promium. These items are considered custom work. Deliverables including but
not limited to, custom programming, custom reports, proprietary electronic deliverable programs, other special
program functions on behalf of the user, and other custom services, outside the original purchase agreement, may
incur additional charges as quoted by Promium.
e. Promium reserves the right to charge for support or programming services that are unrelated to the direct operation
of its software products. This includes conflicts that may cause software failure due to firmware or device drivers or
micro code problems introduced by the manufacturer or other parties. This also includes other software programs that
may interfere with its software products.
Promium, LLC Element LIMS® Subscription Contract V7-r010422
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
PRO . `+n./�+ I U M www.promium.com
1.877.877.PROMIUM
A CLINISYS GROUP COMPANY
3. PAYMENT
Software Subscription and Maintenance
Invoice #1: Software subscription, including maintenance, is invoiced after access to the software is granted.
Payment is due upon receipt.
Installation Services (including outputs, training, development, and other services)
The remaining portion of this order includes installation services and other deliverables as described in this contract
and will be billed in three increments per the schedule below unless otherwise specified in the contract. Payment is
due net thirty days.
Invoice #2: 35% billed at delivery of Administrator Training.
Invoice #3: 50% billed at delivery of User Training.
Invoice #4: 15% billed "Ready for Go -Live" stage.
For installations converting from a license purchase or lease (non -subscription) to a SaaS hosted subscription -based
license, implementation payment terms are as follows:
• Implementation/Training of conversion to SaaS will be billed upon completion of conversion and due net 30 days.
• Subscription and ClientConnect set up, if applicable, is billed upon order receipt.
Services for customers whose account includes invoices 30 days past due may be suspended until written payment
arrangements have been made and accepted by Promium. Payments not made on or before the payment deadline
shall be subject to a one -and -one-half percent (1'/2%) per month interest charge. In the event that Customer fails to
make timely payment under this Agreement, Promium reserves the right to terminate this Agreement by providing
Customer written notice of its election to do so.
Promium may revise subscription fees and per -unit charges from time to time upon 30-day written notice to
Customer. For subscriptions, such revisions shall be effective upon the renewal date of Customer's subscription.
4. OWNERSHIP.
a. Title. Use of the Software is licensed to you for use via the internet only under the terms of this Agreement. Except
as expressly licensed to you herein, Promium reserves the right, title and interest in the Software and all associated
copyrights, trademarks, and other intellectual property rights therein. Promium retains all proprietary rights, including
patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software and any corrections,
bug fixes, enhancements, updates or other modifications, including custom modifications, to the Software, whether
made by Promium or any third party. You shall own all right, title and interest to the information contained in any
database created by you for use with the Software. You shall not, however, own any right, title or interest to the
schema, structure or design of any databases developed for use with the Software by Promium and may not disclose
such schemas, structures or designs to a third party without the expressed written consent of Promium.
Promium, LLC Element LIMS® Subscription Contract V7-ro1o422
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
PROMI UM
A CLINISYS GROUP COMPANY
www.promium.com
1.877.PROMIUM
b. Confidentiality. You acknowledge that the Software contains confidential, proprietary information and trade secrets
of Promium. You agree, and shall take all appropriate steps, to ensure that the Software, or any portion thereof, is not
disclosed or made available by you or anyone in your organization to any other unauthorized person, firm or
organization without the prior written consent of Promium. You agree to properly restrict any persons permitted
access to the Software so as to enable you to satisfy your obligations under this Agreement.
c. Ownership and Retrieval of Data. All data created by you and residing in your database and records in the
Software is fully owned by you. During the term of your subscription and for at least 30 days afterwards, a download
of your data can be provided by Promium if requested. Additional fees may apply. After that time, your data will be
deleted according to Promium's data purge policy.
d. Storage Size of Data. Promium imposes a maximum storage limitation for each of its products per its then -current
storage policy, and it reserves the right to collect additional fees for or decline to accept excessive storage beyond
the storage limitations.
5. OTHER RIGHTS AND LIMITATIONS.
a. Restrictions on Use. You agree to use the Software only for your own business or organization. You shall not (i)
permit any parent, subsidiaries, affiliated entities or third parties to use the Software unless otherwise specifically
agreed in writing by Promium, (ii) use the Software to process or permit to be processed the data of any other parry,
including any of your affiliates or related companies, (iii) use the Software in the operation of an ASP service, service
bureau or similar services, or (iv) allow access to the Software through any computers located outside of your main
facility or your designated remote facilities (this does not preclude laboratory clients from accessing appropriate data
and reports and submitted chain -of -custody data via the features of the Software as discussed above).
b. Limitations on Downloading, Copying, Reverse Engineering, and Similar Activities. You may not download, copy,
reverse engineer, decompile, or disassemble the Software. For purposes of this Agreement, "reverse engineering"
shall mean the examination or analysis of the Software or Proprietary Information to determine its source code,
sequence, structure, organization, internal design, algorithms or encryption devices, and "Proprietary Information"
shall mean all data, material, text, software, scripts, processes, graphics, other information or materials or portions
thereof that are built into the Software.
c. Unauthorized Use. You may not distribute, rent, lease or sublicense the Software.
d. Non -Competition. In no event may you use the Software or Proprietary Information to provide services similar to
the Software in competition with Promium. In order to protect Promium's confidential information and trade secrets,
you may not develop, provide, sell, rent, or resell any product or service which competes with the Software, or create
or implement any such product or service for the purpose of competing with the Software provided hereunder while
this Agreement is in effect and for a period of one (1) year following termination of this Agreement.
6. RESPONSIBILITY FOR USE.
Promium, LLC Element LIMS® Subscription Contract V7-r010422
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
P ROM I UM
A CLINISYS GROUP COMPANY
www.promium.com
1.877.PROMIUM
a. Responsibility for Use. You assume sole responsibility for the use of the Software and for any results obtained by
you from the Software. You shall be solely responsible for necessary audit and verification of the sufficiency and
accuracy of all reports, documents and other information prepared using the Software. You shall also be solely
responsible for the nature and content of all data, information, materials or any other content submitted by you or your
users through the Software.
b. Responsibility for Content -- You acknowledge and agree that: (i) Promium does not screen content from the
sample generator users or any other content entered or imported into the Promium software, and it does not
guarantee or warrant the accuracy, integrity, or quality of any such content; (ii) you will evaluate and bear all risks
associated with the use by you or third parties of any such content, including any reliance on the accuracy,
completeness, or usefulness of any chain -of -custody information or any other information or data; and (iii) Promium
shall not be liable in any way for any such content, including, but not limited to, any errors or omissions in it, or for any
loss or damages of any kind incurred as a result of the use of any such content by you or any third party. You
acknowledge and agree that nothing in this Agreement or related to your use of the Software shall make Promium a
party to any chain -of -custody document or similar.
c. Compliance with Laws -- All Products. You agree not to use the Software to violate any applicable local, state,
national or international law or regulation. Although Promium does not actively monitor use of or data uploaded into
the Software by its clients or their users, Promium reserves the right to suspend any use of the Software or any part
thereof, or to remove or disable any content, which it reasonably believes violates this Agreement or any applicable
law or regulation.
d. Indemnification -- All Products. Customer shall indemnify and defend Promium and hold it harmless from and
against any loss, damage, or expense, including reasonable attorney's fees, arising out of: (i) claims by third parties
relating to analytical results, reports or other output provided to third parties by Customer from Customer's use of the
Software (unless such claim is due to Promium's willful misconduct); (ii) unauthorized use of the Software by
Customer as described in Sections 1 (Use of Software) and 6 (Other Rights and Limitations); (iii) any data,
information or other content processed through the Software by Customer or Customer's sample generators or other
users; or (iv) the failure of Customer to meet any of its obligations as described in this Agreement.
7. LIMITED SOFTWARE PRODUCT WARRANTY.
Promium warrants, for a period of ninety (90) days after access is first provided to you, that the Software will operate
in conformance with the documentation supplied with the Software. Promium's sole obligation under this warranty is
to, at Promium's sole option, correct or replace the Software so that it will perform as above warranted or refund a
prorated portion of the related service fee. This warranty is void if any unauthorized modifications are made to the
Software or if the Software is not used in compliance with its documentation.
8. DISCLAIMER OF WARRANTY AND LIMITATION OF REMEDIES AND LIABILITY.
a. THE LIMITED WARRANTY PROVIDED HEREIN IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES.
OTHER THAN THIS LIMITED WARRANTY, THE SOFTWARE AND ANY ASSOCIATED SERVICES ARE
Promium, LLC Element LIMS' Subscription Contract V7-r010422
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
PROMIUM
�O� � i U � 1 1 www.promium.com
r r�■Jj► 1.877. PROMIUM
A CLINISYS GROUP COMPANY
PROVIDED "AS IS," AND PROMIUM MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF ANY
KIND. PROMIUM HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND/OR
REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, THAT MAY ARISE EITHER BY THE
PARTIES' AGREEMENTS OR BY OPERATION OF LAW, INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON -INFRINGEMENT.
PROMIUM MAKES NO OTHER REPRESENTATIONS OR WARRANTIES INCLUDING, WITHOUT LIMITATION,
REPRESENTATIONS OR WARRANTIES THAT (A) THE SOFTWARE WILL MEET YOUR REQUIREMENTS, (B)
THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR (C) ANY DEFECTS
IN THE SOFTWARE WILL BE CORRECTED. This disclaimer shall not apply to the extent that it is prohibited by
applicable law.
b. Promium will not be liable for any loss or damage caused by delay in furnishing the Software or any other
performance under this Agreement.
c. Promium's entire liability and your exclusive remedies for liability of any kind (excluding liability for negligence as
detailed in Exhibit A) related to the Software covered by this Agreement and all other performance or
nonperformance by Promium under or related to this Agreement are limited to the remedies specified by this
Agreement. REGARDLESS OF WHETHER ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL
PURPOSE, THE LIABILITY OF PROMIUM SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE
AMOUNT OF THE SERVICE FEES PAID TO PROMIUM FOR USE OF THE SOFTWARE DURING THE TWELVE
(12) MONTHS PRIOR TO THE DATE OF THE CLAIM. IN NO EVENT SHALL PROMIUM BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, RELATED TO THE SOFTWARE OR ANY
ASSOCIATED SERVICES THAT PROMIUM MAY PROVIDE, EVEN IF PROMIUM HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
d. Some states or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for
consequential or incidental damages, so the above exclusion may not apply to you. In such situations, Promium's
liability shall be limited to the extent permitted by law. This warranty gives you specific legal rights, and you may also
have other rights which vary from state to state.
9. U.S. GOVERNMENT END -USERS.
For U.S. government end -users, Promium's Software and its documentation constitute a "commercial item," as that
term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software
documentation," as such terms are used in 48 C.F.R. 12.212 and 48 C.F.R. §227.7202. All U.S. government end -
users acquire the Software with only those rights set forth herein, consistent with 48 C.F.R. 12.212 or 48 C.F.R.
227.7202-1 through 227.7202-4, as applicable. Manufacturer/contractor is Promium, L.L.C., 3350 Monte Villa
Parkway, Suite 220, Bothell, Washington 98021.
Promium, LLC Element LIMS® Subscription Contract V7-r010422
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
P ROM I ` ' M www.promium.com
U 1.877.877.PROMIUM
A CLINISYS GROUP COMPANY
10. TERM and TERMINATION.
a. This Agreement shall continue for the period of your Software subscription, unless terminated earlier as provided in
this Agreement. Promium reserves the right to update or change it from time to time, effective upon the renewal of
your subscription. The initial term of this agreement will be for a subscription term of one (1) year. For purposes of
this agreement, the subscription term will commence once Customer confirms that it has been granted access to the
Software. Thereafter, Customer, at its sole discretion, may renew its subscription for five one (1) year terms.
Any revised Agreement shall have no force and effect unless in writing and signed by the Customer and Promium.
b. Without prejudice to any other rights, Promium may terminate this Agreement if you fail to comply with the terms
and conditions of this Agreement, including failing to make payments as due, by giving you written notice of such
termination. After any termination of this Agreement, you must cease all use of the Software and immediately return
any copies of the Software in your possession or under your control to Promium.
11. MISCELLANEOUS
a. In any suit, proceeding or action to enforce this Agreement, the substantially prevailing party shall be entitled to
recover from the other party reasonable attorneys' fees and costs and expenses in connection with such suit,
proceeding or action, including appeal. This Agreement shall be governed by and construed under the laws of the
State of California without regard to its conflict of laws principles. The jurisdiction and venue for any suit or action
between the parties shall be the state and federal courts of Fresno County, California.
b. Failure to enforce any rights granted herein shall not be deemed a waiver as to subsequent enforcement of such
rights. If any part of this Agreement is found void and/or unenforceable, it shall be modified in such manner as to be
valid and enforceable but so as to most nearly retain the intent of the parties; and if such modification is not possible,
it shall be deemed severed from this Agreement and shall not affect the validity and enforceability of the balance of
the Agreement. If any material limitation or restriction on the grant of any license or restrictions on use of the
Software under such license by Customer under this Agreement is found to be void or unenforceable, such license
shall immediately terminate.
c. This Agreement is not assignable by Customer and the licenses granted hereunder may not be sublicensed,
assigned or transferred by Customer in any manner without the prior written consent of Promium. Any such
attempted sublicense, assignment or transfer shall be void.
d. This Agreement, together with any accompanying Price quotation and Order, constitute the entire understanding
and agreement of the parties with respect to its subject matter. Any and all prior agreements, understandings or
representations with respect to its subject matter are merged herein. The terms and conditions of this Agreement
prevail over the terms and conditions of any other order (such as a purchase order) submitted by Customer for the
Software. This Agreement may be amended only by written instrument signed by both parties subsequent to the date
hereof. Any terms of this Agreement which by their nature extend beyond the Agreement termination or expiration
shall remain in effect until fulfilled. These include Sections 5, 6, 7, 9 and 12.
Promium, LLC Element LIMS® Subscription Contract V7-r010422
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
P ROM I U M
A CLINISYS GROUP COMPANY
www.promium.com
1.877. PROMIUM
e. Should you have any questions concerning this Agreement or its associated documents, or if you desire to contact
Promium for any reason, please contact:
Promium, L.L.C.
3350 Monte Villa Parkway, Suite 220
Bothell, Washington 98021
425.286-9200 Phone
425-286-9201 Fax
Master: 010120 Customer Revision:
Promium, LLC Element LIMS' Subscription Contract V7-r0i0422 10
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
PROMI UM
A CLINISYS GROUP COMPANY
Order
www.promium.com
1.877.PROMIUM
INSTALLATION
LOCATION
BILLING INFORMATION (if different)
Organization
Street
City
State/Province
Postal Code
Country
Organization
Street
City
State/Province
Postal Code
Country
County
County
Contact:
Contact
Title
Title
Phone
Phone
Email
Email
Fax
Fax
Purchase Order
Number:
❑ PO attached ❑ Not required ❑ PO Number only
Tax Exempt
❑ Yes
❑ Certificate attached
For GSA qualified labs:
❑ Use GSA ❑ Decline GSA
Maintenance Billing (if different)
Contact name:
Title:
Phone:
Email:
Fax:
Promium, LLC Element LIMS® Subscription Contract V7-r010422 11
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the day and
year first above written.
CITY OF FRESNO,
A California municipal corporation
Dxuftmd by:
6/28/2023 By
�'- eITUNBUche, PE, PLS
Director
Department of Public Utilities
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
By:�90 s q d by:
�clnln�F r �x,�.ilnatau U, 6/6/2023
"—JM TffVAB Quintanilla Date
Senior Deputy City Attorney
ATTEST:
TODD STERMER, CIVIC
City Clerk
Civ-Sig-d 4;
6/28/2023
By �[IA.Gt. M., G�our
mr"irina M. Your Date
Addresses:
CITY:
City of Fresno
Attention: Peter A. Maraccini, PE, PhD
Public Utilities Manager
1626 E Street
Fresno, CA 93706
Phone: (5S9) 621-1603
E-mail: Peter.Maraccini@Fresno.gov
Exhibit A — Indemnification and Insurance Requirements
Promium, L.L.C.
a Limited Liability Corporation
[I Sig-d by:
B �^,,� 6/6/2023
Y 100EFA1931AE452
Name:
Michael Simpson
Title: President
(If corporation or LLC., Board Chair, Pres. or
Vice Pres.)
Do .Slg d by: 6/6/2023
BY:
accEaa3D00F347d
Name:
Andrew Branski
Title: Chief Financial Officer and Treasurer
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
REVIEWED BY:
DOCUSigned by:
6/6/2023
Ir&PAOWNW,c@ini, PE, PhD
Public Utilities Manager
Department of Public Utilities
CONSULTANT:
Promium LLC
Attention: Rick Persichitte
Regional Account Manager
3350 Monte Villa Parkway, Suit 220
Bothell, WA 98021
Phone: (425) 318-6854
E-mail: rpersichette@promium.com
12
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
Exhibit A
Indemnification and Insurance Requirements
To the furthest extent allowed by law, Promium shall defend, indemnify and hold harmless Customer
from and against any and all direct and indirect claims, losses, liabilities, damages, costs and expenses
(including including losses and costs incurred by You and any reasonable attorney's fees and costs)
which arise from Promium's negligence or willful misconduct; a breach of Promium's confidentiality
(information not of public record) obligations arising from Promium's negligence or willful misconduct;
or Promium's violation of a law applicable to Promium's performance under the contract. Customer
must notify Promium promptly in writing of the claim and give Promium control over its defense or
settlement with Customer's approval, reasonable approval will not be withheld. Customer agrees to
provide Promium with reasonable assistance, cooperation, and information in defending the claim at
Promium's expense. Promium will defend, indemnify, and hold harmless Customer from third -party
claims that the software and/or documentation infringes an intellectual property.
This section shall survive termination or expiration of this Agreement.
Throughout the life of this Agreement, Promium shall procure and maintain the following insurance. -
Coverage shall be at least as broad as:
The most current version of Insurance Services Office (ISO) Commercial
General Liability Coverage Form CG 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 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).
3. Workers' Compensation insurance as required by the State of California
and Employer's Liability Insurance.
4. Technology Professional Liability (Errors and Omissions) insurance appropriate to
PROMIUM'S profession. Coverage shall be sufficiently broad to respond to duties
and obligations as is undertaken by PROMIUM in this agreement and shall include
but not be limited to, claims involving infringement of intellectual property, including
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
but not limited to infringement of copyright, trademark, trade dress, invasion of
privacy violations, information theft, damage to or destruction of electronic
information, release of private information, alteration of electronic information,
extortion and network security. The policy shall provide coverage for breach
response costs as well as regulatory fines penalties and credit monitoring
expenses with limits sufficient to respond to these obligations.
MINIMUM LIMITS OF INSURANCE
PROMIUM, or any party the PROMIUM subcontracts with, shall maintain limits of liability
of not less than those set forth below. However, insurance limits available to CUSTOMER,
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:
COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 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.
4. EMPLOYER'S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
5, TECHNOLOGY PROFESSIONAL LIABILITY (Errors and Omissions)
appropriate to the Promium's profession:
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate.
UMBRELLA OR EXCESS INSURANCE
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
In the event PROMIUM purchases an Umbrella or Excess insurance policy(ies) to meet
the "Minimum Limits of Insurance," this insurance policy(ies) 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 CUSTOMER, its officers, officials, employees, agents and volunteers.
DEDUCTIBLES AND SELF -INSURED RETENTIONS
PROMIUM shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and PROMIUM shall also be responsible for
payment of any self -insured retentions. Any deductibles or self -insured retentions must
be declared to on the Certificate of Insurance, and approved by, the CUSTOMER'S Risk
Manager or his/her designee. At the option of the CUSTOMER'S Risk Manager or his/her
designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self -insured
retentions as respects CUSTOMER, its officers, officials, employees,
agents and volunteers; or
(ii) PROMIUM shall provide a financial guarantee, satisfactory to
CUSTOMER'S Risk Manager or his/her designee, guaranteeing
payment of losses and related investigations, claim administration
and defense expenses. At no time shall CUSTOMER be responsible
for the payment of any deductibles or self -insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be
endorsed to contain, the following provisions:
CUSTOMER, its officers, officials, employees, agents and volunteers are to
be covered as additional insureds. PROMIUM shall establish additional
insured status for. the CUSTOMER and for all ongoing and completed
operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 0413 and
CG 20 37 04 13 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.
2. The coverage shall contain no special limitations on the scope of protection
afforded to CUSTOMER, 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.
3. For any claims relating to this Agreement, PROMIUM'S insurance coverage
shall be primary insurance with respect to the CUSTOMER, its officers,
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
officials, employees, agents and volunteers. Any insurance or self-
insurance maintained by the CUSTOMER, its officers, officials, employees,
agents and volunteers shall be excess of PROMIUM'S insurance and shall
not contribute with it. PROMIUM shall establish primary and non-
contributory status by using ISO Form CG 20 01 04 13 or by an executed
manuscript insurance company endorsement that provides primary and
non-contributory status as broad as that contained in ISO Form CG
2001 0413.
The Workers' Compensation insurance Policy is to contain, or be endorsed to contain, the
following provision: PROMIUM and its insurer shall waive any right of subrogation against
CUSTOMER, its officers, officials, employees, agents and volunteers.
If the Technoloqz Professional Errors and Omissions insurance Policy is written on a
claims -made form:
The retroactive date must be shown, and must be before the effective date
of the Agreement or the commencement of work by PROMIUM.
2. Insurance must be maintained and evidence of insurance must be provided
for at least five (5) years after completion of the Agreement work or
termination of the Agreement, whichever occurs first, or, in the alternative,
the policy shall be endorsed to provide not less than a five (5) year discovery
period.
3. 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 the commencement of work by PROMIUM, PROMIUM
must purchase "extended reporting" coverage for a minimum of five
(5) years completion of the Agreement work or termination of the
Agreement, whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to
CUSTOMER for review.
5. These requirements shall survive expiration or termination of the
Agreement.
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 by certified mail, return receipt requested, has been
given to CUSTOMER. PROMIUM is also responsible for providing written notice to the
CUSTOMER 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
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
limits, PROMIUM shall furnish CUSTOMER 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 CUSTOMER, PROMIUM 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.
Should any of these policies provide that the defense costs are paid within the Limits of
Liability, thereby reducing the available limits by defense costs, then the requirement for
the Limits of Liability of these polices will be twice the above stated limits.
The fact that insurance is obtained by PROMIUM shall not be deemed to release or
diminish the liability of PROMIUM, including, without limitation, liability under the
indemnity provisions of this Agreement. The policy limits do not act as a limitation upon
the amount of indemnification to be provided by PROMIUM. Approval or purchase of any
insurance contracts or policies shall in no way relieve from liability nor limit the liability of
PROMIUM, its principals, officers, agents, employees, persons under the supervision of
PROMIUM, vendors, suppliers, invitees, consultants, sub -consultants, subcontractors, or
anyone employed directly or indirectly by any of them.
VERIFICATION OF COVERAGE
PROMIUM shall furnish CUSTOMER with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable endorsements are to be
received and approved by the CUSTOMER'S Risk Manager or his/her designee prior to
CUSTOMER'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 CUSTOMER, PROMIUM shall immediately furnish CUSTOMER 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.