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E. Signs that may cause a traffic hazard or nuisance by distracting or confusing a motorist.
F. Signs that may cause glare, reflection, or which contain any moving or rotating parts; or which flash, blink or are otherwise animated. The provision of this subsection shall not apply to the following types of signs:
1. A conventional clock face.
2. A sign showing time and/or temperature and changes not more frequently than at five second intervals.
3. An on-premise barber pole of a length not to exceed ten feet in height measured from the finished grade to the top of the sign.
G. Signs that are not expressly permitted in a specific zone are otherwise prohibited.
H. Electronic message boards that do any of the following:
1. Display animated messages, including flashing, blinking, fading, rolling, dissolving, or any other effect that gives the appearance of movement;
2. Include or emit an audio message;
3. Display a message for a period less than 20 seconds;
4. Have the transition from one message to another that is not instantaneous as perceived from the human eye; or
5. Display messages that are not complete, requiring any message to continue by fading, scrolling, or other manner to a subsequent message.
All electronic message boards shall comply with this section and the requirements located in the definition of "electronic message boards" in Section 17.69.050.Q. of this chapter. (Ord. CS 711, 1994; Ord. CS 744, 10-13-1997; Ord. CS 925, § 2, 2-13-2012)
17.69.140 General requirements.
A. All signs shall be erected in compliance with adopted City codes and standards.
B. All signs shall be properly maintained.
C. All signs shall remain out of the City's recognized clear zones, as defined in section 17.12.120 and public rights-of-way, and in no way shall any sign constitute a vehicular traffic hazard by distracting or confusing a motorist.
D. No sign shall be attached to any City street tree, utility pole, street signal, street light, street name sign, traffic warning sign, bus shelter, or similar device or facility.
E. Signs if other wise authorized, are permitted to be located in a front, side, or rear yard. The projection of an authorized sign into any street or right-of-way shall be as follows:
1. Freestanding Sign No projection
2. Wall Sign Up to 14 inches in thickness
3. Marquee/Canopy Sign Not closer than two (2) feet from the face of the curb
4. Projecting Sign Not closer than two (2) feet from the face of the curb. (Ord. CS 711, 1994)
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17.69.160 Scenic corridors.
Freestanding signs erected along scenic corridors are subject to the following setback, landscaping, and design requirements:
A. No closer than ten feet to property line or 18 feet to curb face. Areas along Atwater Boulevard shall conform to established building setbacks.
B. Signs shall be of a monument style, mounted on a solid base, and not to exceed eight feet in height measured from the finished grade to the top of the sign.
C. The sign shall be placed in a landscaped area equipped with a seven-day automatic irrigation system.
D. The design and construction materials of monument signs shall be reviewed and approved by the Planning Department.
(Ord. CS 711, 1994; Ord. CS 744, 10-13-1997)
17.69.180 Gasoline service stations.
Permanent signs in service stations shall not exceed 300 square feet.
A. Identification Sign.
1. Signs may be permitted on pump islands, canopy uprights, or non-movable structures in the pump island. If there is no canopy, these signs shall not exceed three feet in height and shall not extend beyond the pump island.
2. No sign shall project above the canopy or beyond a building edge.
3. One freestanding sign is permitted not to exceed 90 square feet in sign area and 20 feet in height measured from the finished grade to top of the sign, except on a scenic corridor.
4. Wall signs shall be limited to two street frontages and shall not exceed one square foot of sign area per lineal foot of building frontage.
5. Temporary window signs for mini marts within service stations shall be limited to two principle street frontages and to 15 percent of each window area.
B. Motor Fuel Sign.
1. Motor fuel price signs for each street frontage of the site are permitted. Maximum square footage for all fuel price signs shall be 60 square feet.
2. Such signs may be on an individual sign or on a combination of cash and discount pricing signs.
3. If motor fuel signs are to be freestanding, then such signs must be combined with the freestanding identification signs and not to exceed the allowable sign area.
4. Sign copy of fuel price signs shall comply with applicable State codes and regulations. (Ord. CS 711, 1994; Ord. CS 744, 1997; Ord. CS 791, 3-12-2001)
17.69.200 Outdoor advertising signs, billboards.
Outdoor advertising signs may be permitted in the M-1 and M-2 zones provided the signs are located within 300 feet of the Freeway 99 right-of-way.
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A. Maximum sign area is 600 square feet and 50 feet in height measured from the finished grade to the top of the sign.
B. Signs located on property within 660 feet of the Freeway 99 right-of-way may be higher than 50 feet measured from the finished grade to the top of the sign or larger than 600 square feet subject to obtaining a conditional use permit with the following findings:
1. The Commission may grant approval if the applicant can show that an overcrossing of Freeway 99 or ramps thereto obstruct visibility of said sign. The applicant shall also present plans illustrating the means by which the minimum height necessary to clear said visual obstruction was determined.
2. In deciding whether to grant additional height and sign area, the Commission shall take into consideration the location, size, and proximity of the proposed sign and surrounding signs. (Prior Code § 10-5.113; Ord. CS 711, 1994; Ord. CS 744, 10-13-1997)
17.69.220 Commercial center uniform design standards.
Uniform Design Standards shall be a method to provide consistency, uniformity and coherence in design and construction of signs erected in commercial centers whose building square footage totals a minimum 5,000 square feet.
A. Uniform Design Standards shall be established at the site plan, use permit or at the initial development plan review stage. The design, construction, materials, color scheme and location of such signs shall be uniform, compatible and consistent with all other identification signs in the commercial center.
B. The Planning Commission shall establish the location, colors, and construction of the shopping center signs.
C. Subsequent signs in the same commercial center, even if the businesses are in separate ownership or on separate parcels, shall follow the Uniform Design Standards as established at the initial review stage.
D. Registered logos or trademarks may be used if the location, color, design and construction materials remain consistent with the adopted standards.
E. Illuminated, neon, or other self-lighted signs may be used.
F. In shopping centers over 50,000 square feet, the shopping center identification signs and the individual business identification signs shall be illuminated during the same time periods. Anchor tenants over 30,000 square feet shall establish their own illumination schedule.
G. One sign 25 feet in height measuring from the finished grade on arterial streets and one sign 15 feet in height measuring from the finished grade on secondary streets for shopping centers. (Ord. CS 711, 1994; Ord. CS 791, 3-12-2001)
17.69.240 Freeway corridors.
Businesses located within 300 feet of the Freeway 99 right-of-way may have one freestanding sign up to 50 feet in height measured from the finished grade to the top of the sign and 250 square feet in sign area, if the sign is oriented to attract freeway traffic. A use permit shall be required for signs higher than 50 feet measured from the finished grade to the top of the sign and larger than 250 square feet.
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A. For a freestanding tourist-oriented hotel, motel, restaurant, service station or similar business located on property within 300 feet of the Freeway 99 right-of-way, one freestanding identification sign exceeding 250 square feet in area and higher than 50 feet measured from the finished grade to the top of the sign may be approved subject to approval of a conditional use permit. Said use permit shall be dependent upon the following findings:
1. That the use or occupancy is a freestanding use. In this section, a freestanding use is defined as a use or occupancy that does not attract customers by its proximity to another business or businesses that jointly attract customers though their proximity to each other or be adequately identified by other signs otherwise permitted.
2. That the use or occupancy cannot be adequately identified by other signs otherwise permitted.
3. That an overcrossing of Freeway 99 or ramps thereto obstruct visibility of said sign to the northbound or south bound lanes of Freeway 99. Applicants shall present plans illustrating the means by which the minimum height necessary to clear said visual obstruction was determined. (Ord. CS 711, 1994; Ord. CS 744, 10-13-1997)
17.69.280 Real estate signs.
The following regulations apply to on site real estate signs in residential and commercial zones:
A. Residential Zones.
1. One unlighted For Sale or Rent sign, per street frontage, not to exceed eight square feet in area and four feet in height measured from the finished grade to the top of the sign.
2. Three unlighted For Sale, For Rent, or Open House signs, not to exceed four square feet each and three feet in height measured from the finished grade to the top of the sign.
3. Real estate rental signs may include copy describing the rental units and prices.
B. Commercial and Industrial Zones.
1. One freestanding sign per street frontage not exceeding 64 feet in area and ten feet in height measured from the finished grade to the top of the sign.
2. In a shopping center over 50,000 square feet, a permanent leasing sign may be installed providing the sign area does not exceed 32 square feet and ten feet in height measured from the finished grade to the top of the sign.
C. Real estate signs shall be removed 15 days after close of escrow, rent, or lease of the property or building.
D. Temporary off premise real estate open house signs are permitted subject to the property owner approval. The displays shall not be erected prior to one hour before, or shall be removed one hour after, the advertised time of the open house. The height and sign area shall comply with portable signs Section 17.69.340.C, E.1, E.2 and H.
(Ord. CS 711, 1994; Ord. CS 744, 10-13-1997)
17.69.290 Construction signs.
A. Residential Zones.
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1. One construction sign per residential development not to exceed 32 square feet in area and ten feet in height measured from the finished grade to the top of the sign.
2. Construction signs shall be removed no later than three years from date of erection or 30 days from completion of the last unit in the subdivision.
B. Commercial/Industrial Zones. One construction sign per property not exceeding 64 square feet in area and ten feet in height measured from the finished grade to the top of the sign provided such signs are removed no later than 30 days after completion of construction. (Prior Code § 10-5.109; Ord. CS 711, 1994; Ord. CS 744, 10-13-1997)
17.69.300 Subdivision real estate signs.
One subdivision sign per street frontage for residential subdivision not to exceed 64 square feet in area and ten feet in height measured from the finished grade to the top of the sign provided that such signs shall be removed no later than three years from the recording date of the subdivision except as follows:
A. The City Manager or Planning Director shall have the authority to extend the time period for one additional year. A request for an extension shall be submitted to the Planning Department prior to the expiration of the initial time approval.
B. Where building permits have been taken out for more than 50 percent, but less than 65 percent of the lots in such subdivision at the end of said three-year period, such sign may remain for an additional one-year period.
C. Where building permits have been taken out for 50 percent or less of the lots in such subdivision at the end of said three-year period, such sign may remain for an additional two-year period.
D. Up to three unlighted off-premise directional signs not exceeding 32 square feet in area and ten feet in height measured from the finished grade to the top of the sign may be permitted. These signs shall be removed at the same time as the subdivision sign.
E. Up to ten off-premise directional signs for weekend use may be displayed for each residential subdivision subject to the following requirements:
1. The signs shall be placed only on major collectors and provide the most direct routes to the advertised subdivision.
2. The signs shall not be placed in public rights-of-ways and shall have property owner approval where displayed.
3. The signs shall be displayed for weekend promotion only and shall be erected no earlier than 12:00 p.m. Friday, and shall be removed no later than 12:00 a.m. Monday.
4. The signs shall be no higher than four feet in height measured from the finished grade to the top of the sign, and no larger than four square feet in area. (Prior Code, § 10-5.107; Ord. CS 711, 1994; Ord. CS 744, 10-13-1997)
17.69.320 Temporary political signs.
In any zone, subject to obtaining property owner's or possessor's prior consent, temporary political signs shall be permitted to be on display for a maximum of ten days after the election involving the candidate or issue display has been held; provided that in no case shall any such sign be displayed for more than 140 days during any
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calendar year. One temporary political sign per candidate or issue is permitted and shall be subject to the same regulations of the zone in which it is located except as noted below.
A. In Residential zones, two signs per candidate or issue and shall not exceed 12 square feet in area and three feet in height measured from the finished grade to the top of the sign. (Prior Code § 10-5.112; Ord. CS 711, 1994; Ord. CS 744, 10-13-1997)
17.69.340 Portable signs.
A. One portable sign may be allowed for each business location.
B. Each portable sign shall be limited to a maximum display time of 60 days per year.
C. The sign may have two faces but not exceed a maximum of four feet in height measured from the finished grade to the top of the sign and six square feet in area for each face.
D. An annual permit must be obtained from the Building Official prior to placement of a portable sign and will specify the allowable days for display.
E. A portable sign shall only be permitted if the following conditions are met:
1. The sign shall not obscure or visibly impair vehicular traffic
2. The sign shall not be placed within the public right-of-way, on publicly owned property, or off the premises.
F. The portable sign is to be used for promotional advertising and shall not contain the business name.
G. The sign shall be constructed of permanent materials.
H. Any violations of the above requirements will result in forfeiture of the permit. (Prior Code § 10-5.111; Ord. CS 711, 1994; Ord. CS 744, 10-13-1997)
17.69.360 Temporary outdoor promotional displays.
A. Outdoor promotional displays are allowed for special promotional uses only and are authorized by permit from the Director or his/her designees.
B. Only one display may be used at a time.
C. Outdoor promotional displays are valid for a period of 15 days and may be used for no more than three promotional events per calendar year for a total of 45 days.
D. Outdoor promotional displays are to be used for promotional uses only and shall not contain the business name, address, or directional information.
E. One permanent Clip Board for temporary promotional signs may be used in commercial zones. The sign's design is subject to the wall sign regulations of the zone in which placed and is calculated in the permitted sign area.
(Prior Code § 10-5.110; Ord. CS 711, 1994; Ord. CS 744, 10-13-1997)
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17.69.380 Temporary window signs.
A. Temporary banners or posters may be installed inside windows when used in conjunction with national, state, holiday advertising programs or weekly market specials.
B. Window coverage of temporary window signs may not exceed 50 percent of the total window area.
C. For businesses with more than one frontage, 25 percent of window area of a second frontage may also be used.
(Ord. CS 711, 1994)
17.69.400 Temporary seasonal sales signs.
Signs erected for fireworks stands, pumpkin stands or Christmas tree lots shall not exceed 64 square feet in area and no higher than eight feet in height measured from the finished grade to the top of the sign and shall not encroach into any public right-of-way. Such signs shall be displayed for no more than the allowable, permitted time for that event.
(Ord. CS 711, 1994; Ord. CS 744, 10-13-1997)
17.69.420 Garage sale signs.
Two unlighted garage sale signs not exceeding three feet each in area and maximum of three feet in height measured from the finished grade to the top of the sign and may be displayed as follows:
A. Said signs may be displayed only at times when the garage sale is actually being held or conducted.
B. Said signs may only be erected and displayed on private property with the consent of the owner thereof.
C. No sign shall be attached or placed on any utility poles, traffic signal poles, or within the public right-ofway. (Ord. CS 711, 1994; Ord. CS 744, 10-13-1997)
17.69.440 Directional signs.
A directional sign shall not bear any advertising message and shall be located on the same premises as the use which it is intended to serve.
A. Two on-site directional signs are allowed for each egress or ingress. More than two on-site directional signs for each business shall require approval by the Planning Commission. The design and location shall be approved by the Planning Department.
B. Maximum allowable square footage is 12 square feet per sign.
C. Maximum allowable height is six feet measured from the finished grade to the top of the sign.
D. Directional signs shall not be calculated in the total allowable square footage allocated for a specific zone.
(Prior Code § 10-5.106; Ord. CS 711, 1994; Ord. CS 744, 10-13-1997; Ord. CS 791, 3-12-2001)
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17.69.460 Non-commercial signs.
Non-commercial signs may be established and maintained on private property provided that they conform to all applicable provisions of this chapter. If displayed on a parcel containing no permanent or temporary building, the applicable maximum height and area of such signs is that maximum applicable to signs for the predominant use within that zone district. The design, materials and placement of non-commercial signs shall conform to all applicable provisions of this Code.
(Ord. CS 711, 1994)
17.69.470 Residential zones.
Signs other than for religious or institutional uses are not permitted. (Ord. CS 744, 10-27-1997)
17.69.480 Multifamily zone.
One building or complex identification sign per frontage which may be either a monument type sign or a wall sign.
A. Monument signs shall not exceed 32 square feet in area for a maximum height of four feet measured from the finished grade to the top of the sign.
B. Wall signs shall not exceed 24 square feet in area, are limited in height to ten feet from ground level, and shall not be internally illuminated.
C. One manager's plaque sign may be permitted provided the sign does not exceed four square feet. (Prior Code § 10-5.106; Ord. CS 711, 1994; Ord. CS 744, 10-13-1997)
17.69.500 Institutional and religious signs.
A. Institutional Signs. The following signs are permitted for institutional uses including government buildings and facilities, museums, private schools, and convention or gathering halls:
1. One (1) monument sign not to exceed 64 square feet in area and eight (8) feet in height measured from the finished grade to the top of the sign.
2. Freestanding Reader Board or Electronic Message Board. One Freestanding Reader Board sign not to exceed 20 feet in height and 30 square feet in area, or one Electronic Message Board provided that the Electronic Message Board is integrated into either a permitted Monument Sign or Freestanding Reader Board to form a cohesive design unit and the Electronic Message Board component does not exceed 75 percent of the total sign area. An applicant may not have both a Freestanding Reader Board and an Electronic Message Board. An Electronic Message Board shall be subject to approval of a Conditional Use Permit, pursuant to Chapter 17.71 of this Code. Approval of the Conditional Use Permit shall also require the following findings:
a. The Electronic Message Board is consistent with Sections 17.69.500(A), 17.69.050(Q) and
17.69.120(H) of this Code.
b. The Electronic Message Board will be located adjacent to an established arterial or collector roadway as designated in the City's General Plan.
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c. The Electronic Message Board is consistent with the City's General Plan, the City's Zoning Code, City Municipal Code and all other applicable codes and regulations. d. The orientation of the face of the Electronic Message Board is not detrimental to the character of development in the immediate neighborhood, and does not pose a safety risk to motorists or pedestrians.
3. Two on-site directional signs per egress/ingress not to exceed 12 square feet in area and a maximum of six feet in height measured from the finished grade to the top of the sign. More than two signs per business shall require approval by the Planning Commission. The design and location shall be approved by the Planning Department.
4. One wall identification sign not to exceed one square foot per each linear foot of building frontage.
5. All monument signs, freestanding signs, and directional signs shall be placed within the landscaped area to be equipped with a seven day automatic irrigation system.
6. The design and materials of all monument signs shall be reviewed and approved by the Planning Department.
B. Religious Signs. The following signs are permitted for religious centers (churches):
1. One (1) monument sign per frontage (maximum of two) with One primary monument sign not to exceed 64 square feet in area and eight feet in height measured from the finished grade to the top of the sign and a secondary, provided the lot has two frontages, not to exceed 32 square feet in area and eight feet in height measured from the finished grade to the top of the sign.
2. Two on-site directional signs per egress/ingress not to exceed twelve square feet in area and a maximum of six feet in height measured from the finished grade to the top of the sign. More than two signs for each business shall be approved by the Planning Commission. The design and location shall be approved by the Planning Department.
3. One wall identification sign not to exceed one square foot per each linear foot of frontage.
4. Electronic Message Board. The use of an Electronic Message Board is permitted subject to the approval of a Conditional Use Permit. An Electronic Message Board shall be integrated into one of the two permitted Monument Signs or the wall identification sign as permitted within this section provided that the Electronic Message Board component does not exceed 75 percent of the total sign area and is integrated with the remainder of the sign to form a cohesive design unit. Only one Electronic Message Board will be allowed. An Electronic Message Board shall be subject to approval of a Conditional Use Permit, pursuant to Chapter 17.71 of this Code. Approval of the Conditional Use Permit shall also require the following findings:
a. The Electronic Message Board is consistent with Sections 17.69.500(B), 17.69.050(Q) and
17.69.120(H) of this Code.
b. The Electronic Message Board will be located adjacent to an established arterial or collector roadway as designated in the City's General Plan.
c. The Electronic Message Board is consistent with the City's General Plan, the City's Zoning Code, City Municipal Code and all other applicable codes and regulations. d. The orientation of the face of the Electronic Message Board is not detrimental to the character of development in the immediate neighborhood, and does not pose a safety risk to motorists or pedestrians.
5. All monument and directional signs shall be placed within a landscaped area equipped with a seven day automatic irrigation system.
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6. The design and materials of monument signs shall be reviewed and approved by the Planning Department.
(Ord. CS 711, 1994; Ord. CS 744, 10-13-1997; Ord. 791, 3-12-2001; Ord. CS 925, § 3, 2-13-2012; Ord. CS 933, § 1, 4- 8-2013)
17.69.520 Planned development zone.
All signs in Planned Developments shall be reviewed and approved by the Planning Commission as part of the Final Development Plan or by the Planning Department thereafter. (Ord. CS 711, 1994; Ord. CS 744, 10-13-1997)
17.69.540 Commercial center standards.
Commercial centers shall include all commercial complexes, whether retail or service oriented located in any of the commercial zones which contain 5,000 square feet or more commercial space and are developed as an integral unit on one or more contiguous parcels and utilize common off-street parking shall be subject to the Uniform Design Standards per Section 17.69.220
A. Freestanding Identification Sign.
1. One commercial center or complex identification sign may be erected for each street frontage.
2. The commercial center identification sign shall be limited to a maximum of 250 square feet of sign area and limited to 12 feet in height measured from the finished grade to the top of the sign except in scenic corridor.
3. The commercial center identification sign shall be located a minimum of ten feet behind the public right-of-way and not interfere with vehicular traffic or safety.
4. The sign copy shall be limited to the name of the center and may include the street address of the complex.
5. A commercial center sign may include the individual business names if the height, square footage, and all other requirements of this section are maintained.
6. The area surrounding the sign shall be attractively landscaped and be equipped with a seven-day automatic irrigation system.
B. Individual Business Identifications Sign.
1. One wall or fascia sign one and one half (1½) square feet per linear foot of building frontage.
Businesses with two frontages may have a second sign with a maximum of 50 percent of the main sign area. No sign shall exceed 300 square feet in area.
2. Window signs shall be limited to 15 percent of a window area.
3. Canopy signs shall be limited to one per business and not exceed 30 percent of the building frontage.
4. Under canopy signs shall be limited to eight square feet per side and have a minimum vertical clearance of seven feet, six inches above the finished grade.
C. Directional Sign.
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1. Two exterior directional signs per use is permitted and shall not exceed 12 square feet in area and six feet in height measured from the finished grade to the top of the sign. Business identification shall not exceed one-half (½) of the area on a given sign face. More than two signs per business shall require approval by the Planning Commission. Design and location shall be approved by the Planning Department.
2. As an alternative, any number of interior directional signs may be permitted providing each sign does not exceed four feet in area and four feet in height measured from the finished grade to the top of the sign.
D. Menu Sign. Two menu signs may be permitted for a drive-in restaurant or other eating place with drive-through facilities providing the sign does not exceed 48 square feet in area or six feet in height measured from the finished grade to the top of the sign.
E. Wall Menu Sign. For non drive-through restaurants, one wall menu sign at the main entrance is permitted provided the sign does not exceed 12 square feet in area. (Prior Code § 10-5.106; Ord. CS 711, 1994; Ord. CS 744, 10-13-1997; Ord. CS 791, 3-12-2001)
17.69.560 General commercial zone.
Total allowable square footage for all signs shall be 200 square feet per business.
A. Freestanding Sign. One freestanding sign per parcel not to exceed 70 square feet of total sign area or 12 feet in height measured from the finished grade to the top of the sign, except when located on a scenic corridor, the height shall not exceed eight feet.
B. Wall Sign.
1. One sign per business frontage not to exceed one and one-half square feet of sign area per linear foot of building frontage and not to exceed 300 square feet.
2. For businesses with a second frontage, a second wall sign is limited to 50 percent of the main sign.
C. Nameplate or Plaque Sign. One sign for each business or tenant may be permitted not to exceed four square feet in area and to be located near the principal business entrance.
D. Directory Sign. A directory sign shall be considered a freestanding sign. One sign per office complex or business establishment. If the office complex has more than one principal street frontage, then one directory sign may be allowed for each frontage providing the signs do not exceed 30 square feet each.
E. Canopy Sign. One sign for each business tenant not exceed 20 percent of the tenant's business frontage.
F. Permanent Window Sign. Window signs are limited to 15 percent of each window area. (Prior Code § 10-5.106; Ord. CS 711, 1994; Ord. CS 744, 10-13-1997; Ord. CS 791, 3-12-2001)
17.69.580 Central commercial zone.
A. General Regulations.
1. Freestanding signs are not permitted in the area along Broadway from Fifth Street to First Street and along the north side of Atwater Boulevard form Winton Way to First Street.
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2. Total maximum sign area for all signs including canopy, marquee, wall, projecting, freestanding, and window signs in the C-C zone is 200 square feet per parcel or lot.
B. Permitted Sign. The following signs are permitted in the C-C zone:
1. Freestanding Sign. One sign per property not to exceed 50 square feet in area and eight feet in height measured from the finished grade to the top of the sign.
2. Projecting Sign. One sign per business not to exceed 12 square feet in area.
3. Wall Sign. One sign per tenant, frontage not to exceed one square foot in area per lineal foot of building frontage. If suite with two frontages, 50 percent of allowable sign area can be used for the second frontage sign.
4. Canopy Sign/Marquee Sign. One sign per building frontage not to exceed 24 square feet in area.
5. Under Canopy Sign. One sign per building tenant not to exceed eight square feet in area and shall have a vertical clearance of seven and one-half feet from the finished grade.
6. Building/Tenant Identification. One plaque per tenant not to exceed four square feet in area. (Prior Code § 10-5.106; Ord. CS 711, 1994; Ord. CS 744, 10-13-1997; Ord. CS 791, 3-12-2001)
17.69.600 Industrial zone.
A. On-premise advertising signs in the industrial zones shall be limited to a total maximum square footage of 400 square feet per parcel.
B. Freestanding Sign.
1. One monument sign per lot or parcel may be allowed provided the sign is limited to 12 feet in height measured from the finished grade to the top of the sign, located ten feet behind the property line and does not exceed 100 square feet in area. The design and construction materials shall be reviewed and approved by the Planning Department.
2. Landscaping, a seven-day automatic irrigation system, is to be provided in an area surrounding the base of the sign.
3. The design, style and color scheme of the sign shall match or complement the design of the business.
C. Wall Signs. Each business occupant located in the industrial zone may have one wall sign per tenant building frontage. Such sign shall be limited to one square foot in area per linear foot of building frontage, and total sign area shall not exceed a maximum of 300 square feet for the entire parcel. (Prior Code § 10-5.106; Ord. CS 711, 1994; Ord. CS 744, 10-13-1997; Ord. CS 791, 3-12-2001)
17.69.620 Sign abatement.
After the date of adoption of this ordinance, the City shall commence a program to inventory and identify all illegal or abandoned signs within its jurisdiction and shall commence abatement of illegal or abandoned signs, pursuant to the same procedural rules set forth in section 17.69.640 of this Chapter. (Ord. CS 711, 1994)
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17.69.640 Nonconforming signs.
A nonconforming sign is one which was lawfully erected or placed upon real property, but which could not be established in the same manner under the present ordinance.
A. Nonconforming signs may be maintained, but not substantially altered, modified, added to, or increased in area. A change in copy shall be permitted if no structural changes are made. Any substantial changes would require full conformance with the provisions of this ordinance.
Notwithstanding this section, certain signs shall be required to conform.
B. A nonconforming sign which is destroyed or damaged to an extent in excess of 50 percent of its estimated value shall not be replaced or repaired, except by a sign which conforms to the provisions of this ordinance.
C. A nonconforming sign whose use is discontinued for over 180 days shall be removed within 30 days, unless within that period of time it is made to conform.
D. Each nonconforming sign shall be removed or made to conform to the provisions of this article at the sole cost of the owner thereof.
E. All nonconforming signs shall be provided a useful life of 15 years. Legal signs erected prior to March 12, 1983, shall remain in existence for a period of 15 years beginning March 12, 1983. (Prior Code § 10-5.114; Ord. CS 711, 1994)
17.69.660 Removal of illegal signs, procedure.
A. Any sign which is prohibited, illegally installed or which does not conform to the provisions of this Chapter, and any illegal nonconforming sign which meets the criteria set forth in California Business and Professions Code Section 5497, as it presently exists or as it may be amended, shall be either abated and removed, or in the alternative, brought into compliance with the provisions of this Chapter, without payment of any compensation to the owner, pursuant to the procedure provided herein.
B. The City Manager or the Director of Planning, after conducting an investigation, shall order the abatement and removal of any such sign, or direct that such sign shall comply with the provisions of this Chapter, by giving Notice of Violation to the business owner using said sign and to the owner of the real property upon which the sign is located. The Notice of Violation shall contain the following information:
1. It shall describe or otherwise identify the sign and specify the violation requiring its removal or correction.
2. It shall order that the sign be either removed or that in the alternative it be brought into compliance with the provisions of this Chapter within 30 days from the date that the Notice of Violation is mailed.
3. It shall contain a notice of the right to appeal as provided herein.
C. The Notice of Violation shall be sufficient if it is mailed via first class U.S. mail to the business owner at the business address upon which the sign is located, and to the property owner at the address shown on the last equalized assessment roll of the county. If there is no known business owner conduction business upon the property, then notice to the owner of the real property as provided herein shall be sufficient.
D. If the business owner and/or the real property owner do/does not agree with the determination of the City Manager or Planning Director, either or both such parties may appeal the determination by filling with the office of the Director a written Notice of Appeal, which notice shall be served and received by the Director not later than 30 days from the date that the Notice of Violation was mailed.
Created: 2022-03-02 09:21:41 [EST]
(Supp. No. 8, Update 5)
E. The City Manager or Planning Director shall have the authority to extend the 30 days time period for the removal or correction of a sign, if he/she determines that the affected party is acting in good faith. Such extensions of time shall not exceed a total of 120 days without prior approval of the Planning Commission.
F. Upon the timely receipt of written appeal by the City Manager or Planning Director, a Hearing shall be set before the Planning Commission within 30 days of receipt of the said Notice of Appeal. Written notice of the date of the hearing on the appeal shall be given to the appellant via first class U.S. mail at least ten days prior to the hearing date.
G. The Planning Commission shall hear and determine the appeal, and its decision shall be final.
H. Upon a determination by the Planning Commission that the offending sign must be removed, or in the absence of an appeal and upon the expiration of the 30-day compliance period, the City may cause the removal of the sign, either by use of its own personnel or by contracting for its removal with appropriate and qualified contractors. The owner of the real property and the owner of the business upon which the sign is located shall be jointly and severally responsible for all cost and expense incurred by the City for the removal of the sign, and the City may cause a lien to be placed against said real property for such costs plus administrative expense. Nothing contained herein shall otherwise limit the City from enforcing such other legal remedies.
I. Signs removed by the City pursuant to this Chapter shall be stored for a period of 30 days, during which time they may be recovered by the owner upon payment to the City of all costs of removal and storage. The City shall give written notice to the business owner and/or the owner of the real property of their to reclaim the stored property within 30 days upon the payment to the City of all costs of removal and storage. The written notice so given shall contain a statement of the amount required to redeem said property. Said notice shall be served as provided in Section 17.69.640.C hereof.
If said property is not recovered prior to the expiration of the 30-day period, the sign and supporting structures shall be deemed abandoned, title thereto shall vest in the City, and the City may sell or otherwise dispose of the property as it may determine, and apply any proceeds received therefrom to the satisfaction of its cost and expenses.
(Prior Code § 10-5.115; Ord. CS 711, 1994; Ord. CS 744, 10-13-1997)
17.69.680 Sign variance.
The Planning Commission may grant variances from the provisions of this article in accordance with the provisions of Section 17.74 of the Atwater Municipal Code. (Ord. CS 711, 1994)
17.69.700 Safety and maintenance.
All signs shall be subject to the following:
A. The owner of any sign shall maintain all parts, portions, units and materials composing the sign together with the frame, background, supports or anchorage thereof in a proper state of repair and safety and state of preservation.
B. All parts of the sign, inclusive of the frame, background, supports, or anchorage shall be maintained in a neatly painted condition.
C. All signs shall be inspected by the building official and shall be made to comply with this article when directed in writing by the City Manager or Planning Director.
Created: 2022-03-02 09:21:41 [EST]
(Supp. No. 8, Update 5)
D. An owner of a sign must comply within ten days after receiving Notice of Noncompliance, or the building official may cause such sign to be removed. Any expense incurred to remove the sign shall be paid by the owner of the business or real property.
(Prior Code § 10-5.104; Ord. CS 711, 1994; Ord. CS 744, 10-13-1997)
17.69.720 Enforcement.
It shall be the duty of the building official, the City Manager or Planning Director to enforce the provisions of this ordinance. Any sign installed, substantially altered, or relocated contrary to the provisions of this ordinance shall be declared to be in violation of this ordinance. Violation of this section shall constitute an infraction and will be punishable by a fine of up to $500.00 for each violation or subsequent violations. (Ord. CS 711, 1994; Ord. CS 744, 10-13-1997)
CITY COUNCIL
OF THE
CITY OF ATWATER
ORDINANCE NO. CS 1057
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ATWATER AMENDING CERTAIN
SECTIONS OF CHAPTER 17.69 “SIGN
REGULATIONS” OF THE ATWATER MUNICIPAL
CODE
WHEREAS, the City Council has adopted an ADA Transition Plan for the City of Atwater (“City”) to improve accessibility standards in the City, and this ordinance is intended to adhere to such standards by alleviating accessibility impediments; and, WHEREAS, in addition to accessibility impediments, some current sign placements are distracting to drivers and detrimental to the City’s aesthetics; and, WHEREAS, this ordinance is intended to improve the regulations of signs within the City by providing orderly and consistent methodology for sign placement and approvals, and continuing to beautify the City’s streetscapes and major traffic corridors; and, WHEREAS, the City Council finds it is in the interest of the public health, safety, and welfare to amend such sections in the municipal code.
NOW, THEREFORE, be it ordained by the City Council of the City of Atwater as follows:
SECTION 1: The City Council of the City of Atwater does hereby amend 17.69.120 of the Atwater Municipal Code to read as follows (deletions are marked in strikethrough, and additions are marked in underline):
17.69.120 Prohibited signs.
The following signs are not permitted:
A. Signs that portray indecent or morally objectionable language or descriptions.
B. Signs or displays that are affixed to Sstationary motor vehicles, trailers, and similar devices that contain displays for which the primary purpose of the vehicle, trailer, or device is advertising, and the intent is to circumvent the intent application of this ordinance.
Ordinance No. CS 1057 Page 2
C. Signs painted or mounted on roofs or placed above the roofline.Roof signs.
D. Signs of a nonpermanent or temporary nature that are hung, nailed, posted, or in any similar way attached to the outside of a structure for advertising purposes.
E. Because of the City’s compelling interest in ensuring traffic safety, any signs that simulate (in color, size, or design) any traffic control signal, or that make use of words, symbols, characters, or design Signs that may cause a traffic hazard or nuisance by distracting or confusing a motorist or pedestrian.
F. Signs that may cause glare, reflection, or which contain any moving or rotating parts; or which flash, blink or are otherwise animated. The provision of this subsection shall not apply to the following types of signs:
1. A conventional clock face.
2. A sign showing time and/or temperature and changes not more frequently than at five second intervals.
3. An on-premise barber pole of a length not to exceed ten feet in height measured from the finished grade to the top of the sign.
G. Signs that are not expressly permitted in a specific zone are otherwise prohibited.
H. Electronic message boards that do any of the following:
1. Display animated messages, including flashing, blinking, fading, rolling, dissolving, or any other effect that gives the appearance of movement;
2. Include or emit an audio message;
3. Display a message for a period less than 20 seconds;
4. Have the transition from one message to another that is not instantaneous as perceived from the human eye; or
5. Display messages that are not complete, requiring any message to continue by fading, scrolling, or other manner to a subsequent message.
All electronic message boards shall comply with this section and the requirements located in the definition of "electronic message boards" in Section 17.69.050.Q. of this chapter.
I. Portable signs, as defined in this chapter, including, but not limited to, A-frame signs.
J. Persons or costumed persons holding signs with the purpose of drawing attention to or advertising a commercial enterprise, including but not limited to sign spinners/twirlers, commercial mascots, and sign clowns.
Ordinance No. CS 1057 Page 3
K. Commercial flags, banners, or any signs attached to poles with the intent to flap in the wind.
SECTION 2: The City of Atwater does hereby remove the following sections from the Atwater Municipal Code:
17.69.340 Portable signs.
A. One portable sign may be allowed for each business location.
B. Each portable sign shall be limited to a maximum display time of 60 days per year.
C. The sign may have two faces but not exceed a maximum of four feet in height measured from the finished grade to the top of the sign and six square feet in area for each face.
D. An annual permit must be obtained from the Building Official prior to placement of a portable sign and will specify the allowable days for display.
E. A portable sign shall only be permitted if the following conditions are met:
1. The sign shall not obscure or visibly impair vehicular traffic
2. The sign shall not be placed within the public right-of-way, on publicly owned property, or off the premises.
F. The portable sign is to be used for promotional advertising and shall not contain the business name.
G. The sign shall be constructed of permanent materials.
H. Any violations of the above requirements will result in forfeiture of the permit.
17.69.360 Temporary outdoor promotional displays.
A. Outdoor promotional displays are allowed for special promotional uses only and are authorized by permit from the Director or his/her designees.
B. Only one display may be used at a time.
C. Outdoor promotional displays are valid for a period of 15 days and may be used for no more than three promotional events per calendar year for a total of 45 days.
D. Outdoor promotional displays are to be used for promotional uses only and shall not contain the business name, address, or directional information.
E. One permanent Clip Board for temporary promotional signs may be used in commercial zones. The sign's design is subject to the wall sign regulations of the zone in which placed and is calculated in the permitted sign area.
Ordinance No. CS 1057 Page 4
SECTION 3: The City Council does hereby amend section 17.69.720 of the Atwater Municipal Code to read as follows (deletions are marked in strikethrough, and additions are marked in underline):
17.69.720 Enforcement.
It shall be the duty of the building official, the City Manager, or Planning Director, or designee to enforce the provisions of this ordinance. Any sign installed, substantially altered, or relocated contrary to the provisions of this ordinance shall be declared to be in violation of this ordinance. Violation of this section shall constitute an infraction and will be punishable by a fine of up to $500.00 for each violation or subsequent violations.
Enforcement of this Chapter shall be in accordance with Section 8.32.030, 8.32.070,
8.32.080, 8.32.090 of this code.
SECTION 4: EFFECTIVE DATE. This ordinance shall take effect and be enforced thirty (30) days after its adoption.
Section 5: SEVERABILITY. If any provision of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable.
This City Council declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof and intends that the invalid portions should be severed, and the balance of the ordinance be enforced.
SECTION 6: CEQA. Approval of the amendments in this Ordinance is exempt from further environmental review under the general rule in California Environmental Quality Act (“CEQA”) Guidelines section 15061(b)(3), that CEQA only applies to projects that have the potential for causing a significant effect on the environment. As a series of text amendments and additions, it can be seen with certainty that there is no possibility that this Ordinance will have a significant effect on the environment.
SECTION 7: PUBLICATION. The City Clerk shall certify to the adoption of this Ordinance and cause it, or a summary of it, to be published in a newspaper of general circulation printed and published within the City of Atwater, pursuant to all legal requirements.
INTRODUCED:
ADOPTED:
AYES:
NOES:
ABSENT:
APPROVED:
Ordinance No. CS 1057 Page 5
________________________________
MIKE NELSON, MAYOR
ATTEST:
_________________________________
KORY J. BILLINGS, CITY CLERK
CITY COUNCIL
AGENDA REPORT
MEETING
DATE:
March 27, 2023
TO: Mayor and City Council
FROM: Sam Rashe, Senior Planner
PREPARED
BY:
Sam Rashe, Senior Planner
SUBJECT: Waiving the first reading, by title only and introducing an Ordinance Approving a Site Plan, Architectural Review and Zone Change No. 22-24-0400 to develop four vacant parcels located along the south side of Commerce Avenue and adopt an Initial Study and Mitigated Negative Declaration (Senior Planner Rashe)
RECOMMENDED COUNCIL ACTION
Open the public hearing and take any testimony given;
Close the public hearing; and,
Motion to waive the first reading, by title only, and introduce Ordinance No. CS 1060 approving a Site Plan No. 22-24-0100, Architectural Review No. 22-24-0300 and Zone Change No. 22-24-0400 to develop four vacant parcels located along the south side of Commerce Avenue and adopt an Initial Study and Mitigated Negative Declaration; (APNs: 056-241-012, 056-241-013, 056-241-014).
Motion to approve staff’s recommendation as presented.
I. BACKGROUND/ANALYSIS:
The project site is located on the south side of Commerce Avenue, less than a quarter mile west of its intersection of Industry Way, and consists of four parcels (APN: 056- 241- 012; 013; 014). It should be noted that the fourth parcel located on the south end of the project site does not have an APN (refer to figure 1). The project area is approximately twenty-two acres. The project proposes constructing seven buildings totaling 87,000 square feet with 234 parking spaces throughout the four parcels, including ADA-compliant and CalGreen parking.
Buildings One, Six, and Seven, identified in figure 1, will be the project's retail components. Building One will be approximately 10,000 square feet with an anticipated use as an automotive/trailer sales operation. Building Six, approximately 25,000 square feet, and Building Seven, approximately 10,000 square feet, will be used as a hardware
CITY COUNCIL
Mike Nelson, Mayor
Danny Ambriz Tyler Button
John Cale Brian Raymond
Agenda Report - Page 2
store and garden center. While the primary function of these facilities will be to operate as retail stores, they will hold seasonal sale events, which will include outdoor activities.
The project also intends to host mobile food vendors. However, the mobile food vendors will not be limited to the retail and industrial components of the project.
Buildings Two, Three, Four, and Five will be primarily used for industrial-type uses.
Buildings Two and Three are approximately 10,000 square feet each. Building Four is approximately 14,000 square feet, 3,000 square feet of which will be used as office space. Building Five, approximately 8,000 square feet, will be used as a maintenance/vehicle storage area. An above-ground tank containing approximately 12,000 gallons of diesel will be located between Buildings Four and Five. There will also be container drums that will store 250 gallons of unleaded gasoline. As a result, a Hazardous Materials Business Plan will need to be implemented.
Access to the project site will be from a roadway that the project proponent will dedicate to the City of Atwater and which will be configured as a cul-de-sac. The dedicated road will be located on the south side of Commerce Avenue, and Commerce Avenue will be reconstructed with a striped center turn lane. The dedicated roadway (cul-de-sac) will lead to the parking areas of all seven buildings. Much of the parking area will be constructed of asphalt, and the parking area around Building Seven will be concrete.
II. ANALYSIS:
The project has a land use designation of Institutional and is zoned as Industrial. As part of the Project, the applicant is seeking a rezone from Industrial to Business Park.
Environmental review for the Project was completed and resulted in the preparation of an Initial Study/Mitigated Negative Declaration (IS/MND) and Mitigation Monitoring Report Program (MMRP).
Institutional is intended for public and quasi-public facilities, including, but not limited to, government services and facilities, fire/police stations, wastewater treatment facilities, electrical substations, domestic water treatment and storage, and other similar uses.
New facilities may be appropriate in any land use category based on need and environmental review. The term "new facilities" within the land use designation of Institutional allows the City to place facilities in this land use designation that could range from commercial to industrial based on the environmental impact and the need of the community. Currently, there are no hardware stores located in the City of Atwater.
With the implementation of the mitigations from the IS/MND, the project is therefore, consistent with the land use designation.
Land Use Designation
The project currently has the zoning designation of Industrial. The purpose of the Industrial district is to provide sites to accommodate process-oriented industries, heavy commercial uses, and heavy industrial plants. Commercial uses are specifically excluded in the Industrial Zone (M-2); the proposed activities would not be permitted
Agenda Report - Page 3
either by right or with a Use Permit with the current zoning. As a result, the applicant is seeking a zone change from Industrial to Business Park.
Zoning
The Business Park District Overlay (Mixed Use District) was established to be consistent with the General Plan Land Use Element and to encourage a mixture of commercial and industrial development. The zone's objectives are to provide an attractively designed business park that allows mixed commercial and industrial uses made compatible through the promotion of architectural elements and to ensure that the developments are visually organized, clear, and coherent to achieve a "sense of place" for this district.
Recommendation
As previously stated, the current land use designation of Institutional is not limited to government services and facilities, and the term new facilities within the land use designation of Institutional allows the city to place facilities that could range from commercial to industrial based on the environmental impact and the need of the community. The zone change from Industrial to Business Park would also be consistent with the land use designation of Institutional.
II. FISCAL IMPACTS:
No negative fiscal impacts are anticipated with the approval of this project. The City does anticipate growth in tax revenue as a result of the approval of this Project. This item has been reviewed by the Finance Department.
III. LEGAL REVIEW:
This item has been reviewed by the City Attorney's Office.
IV. EXISTING POLICY:
LU-2: Ensure that the appearance of non-residential development contributes positively to the community's image.
LU-2.2: Encourage the design of large-scale commercial, industrial, and business park projects that are oriented to a human scale.
LU-11: Identify appropriate locations and timing for future Business Park development.
LU-12 Ensure the utilization of consistent City and County development standards within proposed growth areas.
V. ALTERNATIVES:
Agenda Report - Page 4
VI. INTERDEPARTMENTAL COORDINATION:
VII. PUBLIC PARTICIPATION:
The public hearing was noticed and advertised for the regularly scheduled City Council meeting. The public can provide comments on this item prior to City Council action.
VIII. ENVIRONMENTAL REVIEW:
An IS/MND was prepared for this project to comply with CEQA, which adequately addresses (with appropriate mitigation measures) the environmental impacts associated with the project. Staff is therefore recommending approval and adoption of the IS/MND.
Pursuant to the California Environmental Quality Act (CEQA), the Initial Study and Proposed Mitigated Negative Declaration (IS/MND) intends to identify and evaluate the potential environmental impacts and mitigation measures associated with the proposed project. Pursuant to Section 15367 LEAD AGENCY of the California Environmental Quality Act (CEQA) Guidelines, the Lead Agency (City of Atwater) has the principal responsibility for carrying out or approving/denying a proposed project. The IS/MND identified the following resources requiring mitigation:
Aesthetics:
Exterior Street lighting and lights from adjacent industrial areas already exist near the project area. The new source of lighting generated by project operations would be via exterior lighting for early morning and late evening operations. The new source of lighting created from the project will be hooded and faced downward, minimizing the impact of the project's contribution to the existing light sources.
Biological:
The project site is surrounded primarily by industrial and commercial uses and is devoidof vegetation. The project site is regularly disked for weed abatement and is unlikely used as a habitat for species of special status. Although it is unlikely the project would not impact the habitat of species with special status, the potential cannot be ruled out. Therefore, within fourteen days of the start of project activities, a pre-activity survey shall be conducted by a qualified biologist knowledgeable in the identification of these species. The surveys will cover the project site plus a 500 - foot buffer to include pedestrian surveys achieving 100 percent visual coverage will be conducted.
Cultural:
As defined by CEQA Guidelines Section 15064.5, "historical resources" are: A resource listed in, or determined to be eligible by, the State Historical Resources Commission, for listing in the California Register of Historical Resources (Public Resource Code Section 5024.1, Title 14 California Code of Regulations, Section 4850 et seq.).
Agenda Report - Page 5
• A resource included in a local register of historical resources, as defined in Section 5020.1(k) of the Public Resources Code or identified as significant in a historical resource survey meeting the requirements of Section 5024.1(g) of the Public Resources Code, shall be presumed to be historically or culturally significant. Public agencies must treat any such resource as significant unless the preponderance of evidence demonstrates that it is not historically or culturally significant. • Any object, building, structure, site, area, place, record, or manuscript which a Lead Agency determines to be historically significant or significant in the architectural, engineering, scientific, economic, agricultural, educational, social, political, military, or cultural annals of California may be considered to be an historical resource, provided the Lead Agency's determination is supported by substantial evidence in light of the whole record. Generally, a resource shall be considered by the Lead Agency to be "historically significant" if the resource meets the criteria for listing on the California Register of Historical Resources (Public Resources Code Section 5024.1, Title 14 CCR, Section 4852), including the following:
o Is associated with events that have made a significant contribution to the broad patterns of California's history and cultural heritage; o Is associated with the lives of persons important in our past; o Embodies the distinctive characteristics of a type, period, region, or method of construction, or represents the work of an important creative individual, or possesses high artistic values; or
o Has yielded, or may be likely to yield, information important in prehistory or history.
Impacts on cultural resources can result either directly or indirectly from preconstruction activities and construction of a project. Direct impacts are those that result from the immediate disturbance of resources from vegetation removal, vehicle travel over the surface, earthmoving activities, excavation, or alteration of a resource. Indirect impacts are those that result from increased erosion due to site clearance and preparation or from inadvertent damage or outright vandalism to exposed resource materials which could occur due to improved accessibility. It is unlikely that there will be a discovery of a significant historical resource. Despite this, there is still the possibility of a presence of undocumented tribal or cultural resources within the project site. Construction-related impacts on tribal or cultural resources could be potentially significant prior to mitigation.
Implementation of the following mitigation measure would require appropriate steps to preserve and/or document any previously undiscovered resources that may be encountered during construction activities, including human remains.
If prehistoric or historic-era cultural materials are encountered during construction activities, all work in the immediate vicinity of the find shall halt until a qualified archaeologist can evaluate the find and make recommendations. Cultural resource materials may include prehistoric resources such as flaked and ground stone tools and debris, shell, bone, ceramics, and fire-affected rock, as well as historic resources such as
glass, metal, wood, brick, or structural remnants. If the qualified archaeologist
Agenda Report - Page 6
determines
that the discovery represents a potentially significant cultural resource, additional investigations may be required to mitigate adverse impacts from project implementation.
These additional studies may include avoidance, testing, and evaluation or data recovery
excavation. Implementation of the mitigation measure below would ensure that the proposed project would not cause a substantial adverse change in the significance of a historical resource. Therefore, the project would have a less than significant impact with incorporation of mitigation measures.
Although unlikely, subsurface construction activities could cause a potentially significant impact to previously undiscovered human burial sites. Despite no human remains being discovered when the site was previously developed, construction would involve earth disturbing activities, and it is still possible that human remains may be discovered.
Implementation of the below mitigation measure would ensure that the project would not directly or indirectly destroy previously unknown human remains. The project would not disturb any known human remains, including those interred outside of formal cemeteries.
If human remains are discovered during construction or operational activities, further excavation or disturbance shall be prohibited pursuant to Section 7050.5 of California Health and Safety Code. The specific protocol, guidelines, and channels of communication outlined by the Native American Heritage Commission, in accordance with Section 7050.5 of the Health and Safety Code, Section 5097.98 of the Public Resources Code (Chapter 1492, Statutes of 1982, Senate Bill 297), and Senate Bill 447 (Chapter 44, Statutes of 1987), shall be followed. Section 7050.5(c) shall guide the potential Native American involvement, in the event of discovery of human remains, at the direction of the Merced County Coroner.
Hazards & Hazardous Materials:
Project construction would require the use of nominal amounts of fuels and lubricants for
operation of construction equipment and vehicles. All such use would be done in compliance with local, state, and federal management, transport, and disposal requirements. The project operations would not require the routine of transporting hazardous materials; however, the project does intend to store approximately 12,000 gallons of diesel and 250 gallons of unleaded gasoline. The State of California requires a
Hazardous Business Plan (HMBP) if a facility handles the following:
55 gallons (liquids), 500 pounds (solids), or 200 cubic feet for a compressed gas • The business is required to submit chemical inventory information pursuant to Section 11022 of Title 42 of the United States Code
• The business handles at any one time during the reporting year an amount of hazardous material that is equal to, or greater than the threshold planning quantity, under both of the following conditions:
• The hazardous material is an extremely hazardous substance, as defined in Section
Agenda Report - Page 7
355.61 of Title 40 of the Code of Federal Regulations
• The threshold planning quantity for that extremely hazardous substance listed in Appendices A and B of Part 355 (commencing with Section 355.1) of Subchapter J of Chapter I of Title 40 of the Code of Federal Regulations is less than 500 pounds. • A total weight of 5,000 pounds for solids or a total volume of 550 gallons for liquids, if the hazardous material is a solid or liquid substance that is classified as a hazard for purposes of Section 5194 of Title 8 of the California Code of Regulations solely as an irritant or sensitizer, unless the unified program agency finds, and provides notice to the business handling the product, that the handling of lesser quantities of that hazardous material requires the submission of a business plan, or any portion of a business plan, in response to public health, safety, or environmental concerns. • A total of 1,000 cubic feet, if the hazardous material is a compressed gas and is classified as a hazard for the purposes of Section 5194 of Title 8 of the California Code of Regulations solely as a compressed gas, unless the unified program agency finds, and provides notice to the business handling the product, that the handling of lesser quantities of that hazardous material requires the submission of a business plan, or any portion thereof, in response to public health, safety, or environmental concerns.
The project proponent will not store 12,000 gallons of diesel or 250 gallons of unleaded gasoline until a Hazardous Material Business Plan has been approved by Merced's County Department of Environmental Health.
IX. STEPS FOLLOWING APPROVAL:
The second reading and adoption of the ordinance will be scheduled for the next regular City Council meeting.
Submitted by: /s/ Sam Rashe, Senior Planner
Approved by:
Lori Waterman, City Manager
Attachments:
1. Ordinance No. CS 1060 Approving Site Plan, Architectural Review and Zone Change No. 22-24-0400
CITY COUNCIL
OF THE
CITY OF ATWATER
ORDINANCE NO. CS 1060
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ATWATER APPROVING SITE PLAN,
ARCHITECTURAL REVIEW AND ZONE CHANGE
NO. 22-24-0400 TO DEVELOP FOUR VACANT
PARCELS LOCATED ALONG THE SOUTH SIDE
OF COMMERCE AVENUE AND ADOPT AN
INITIAL STUDY AND MITIGATED NEGATIVE
DECLARATION
WHEREAS, a duly noticed public hearing on February 15, 2023, the Planning Commission of the City of Atwater reviewed Site Plan 22-24-0100, Architectural Review 22-24-0300, Zone Change 22-24-0400 (the Project), and an Initial Study/Mitigated Negative Declaration (IS/MND) and Mitigation Monitoring Report Program (MMRP) to recommend to City Council.
WHEREAS, The applicant, Terry Rolfe has submitted a Site Plan, Architectural Review, and Zone change.
WHEREAS, __ person(s) spoke in favor of the Zone Change, __ person(s) spoke in opposition of the Zone Change, and __ written comment(s) have been submitted either in opposition or in favor of the Zone Change; and,
WHEREAS, the proposed Site Plan No. 22-24-0100, Architectural Review No. 22-24-0300, and Zone Change No. 22-24-0400 would not have a detrimental effect on the health, safety, and welfare of the neighborhood nor have any adverse effect on the community; and, WHEREAS, pursuant to the IS/MND and MMRP, the applicant has proposed adequate mitigation measures for the environmental impacts associated with the Project; and WHEREAS, the City Council finds that the following findings can be made for Site Plan No. 22-24-0100, Architectural Review No. 22-24-0300, Zone Change No. 22-24-0400, and the IS/MND and MMRP in support of the Project:
Ordinance No. CS 1060 Page 2
1. The proposed zone change from Industrial to Business Park is consistent with the City’s General Plan, and will allow for development of this and future uses which are attractively designed and consist of a mix of commercial and industrial uses.
2. The Site Plan and Architectural Review components of the Project are consistent with the City’s General Plan and Zoning Ordinance.
3. The project underwent CEQA review, and an IS/MND and MMRP were prepared to adequately identify and address any environmental impacts associated with the Project.
4. The public hearing for this Project has been adequately noticed and advertised.
5. Adoption of the resolution will not have a detrimental effect on the health, safety, and welfare of the neighborhood or any adverse effects on the community.
NOW THEREFORE BE IT RESOLVED, that the recitals above are true and correct and hereby incorporated by reference. City Council of the City of Atwater does hereby approve and adopt an Initial Study/Mitigated Declaration, Mitigation Monitoring Reporting Program, Site Plan No. 22-24-0100, Architectural Review No. 22-24-0300, Zone Change No. 22-24- 0400 and;
1. The project is compliant with CEQA;
2. Consistent with the General Plan and Zoning;
3. Find no adverse effect on Public Health, Safety, and Welfare;
4. And is subject to the following conditions:
BUILDING
1. Building Construction Plans and calculations shall be developed by a California Licensed Engineer or Architect and shall meet all current California Building Codes, California Energy Codes, Federal and State accessibility requirements, and Atwater Municipal Code.
2. Any special inspections for welding, concrete pour break test, and any hardware securements as directed by the California Building Code will be witnessed by said special inspector(s) and passing reports developed and copies given to the Building Division.
FINANCE
3. When buildings are up and ready to connect to City Water and Sewer, owner must submit a Start Service Application for Water, Sewer, and Garbage services.
4. Before businesses are up and running, owner must submit a business license application for review and approval and pay all applicable taxes and fees.
FIRE
5. Project shall meet the latest Atwater Municipal Code and California Fire Code.
Ordinance No. CS 1060 Page 3
6. Must show location of closest hydrants or additional hydrants added and hydrants must be within 50ft of all risers.
7. A Knox box shall be installed on the exterior of the building, as per CFC 506.1, placed 5-6 feet in height within 10 feet of the main entry on the address side of the buildings and have keys with access to all common doors and gates.
MERCED IRRIGATION DISTRICT (MID)
8. If the project’s storm drainage is to be discharged to an MID facility or the adjacent Atwater Drain, the property owner must enter into a “Storm Drainage Agreement” with the Merced Irrigation District Drainage Improvement District No. 1 (MIDDID No. 1), paying only an annual maintenance fee. The connection fees are being waived because the entire project is within Drainage District No. 2. The annual maintenance fee will be assessed and collected on the Merced County tax rolls.
POLICE
9. All external utility connections, Electrical and Water, be enclosed in lockable boxes.
10. Fencing to have anti climb features in compliance with the Atwater Municipal Code.
11. Traffic issues need to anticipate future growth of the development and leave proper easements to accomplish them.
PUBLIC WORKS
12. No obstructions greater than 24" above street grade shall be located in the sight line that a motorist in their vehicle at the driveway limit line has to a point 555' east and west of the driveway to the center of oncoming through traffic lanes. These line-ofsight triangles shall be depicted on the project site plan from all project driveways to Commerce Avenue.
13. A turn assessment shall be completed at both driveways to ensure that trucks can safely make movement in and out of the driveways. The truck turn templates shall be included as part of the first submittal of the Project Street improvement plans.
14. Construct Commerce Avenue as a four-lane collector divided by a continuous twoway left turn lane adjacent to the Project. This two-way left turn lane should also extend west of the Project to align with Commerce Avenue west of the Project.
15. The Project shall construct at its sole expense the following improvements at the intersection of Commerce Avenue at Project Driveway which can be implemented as the following option:
Ordinance No. CS 1060 Page 4
a. Construct the intersection with two eastbound through lanes, an eastbound right-turn lane, two westbound through lanes, a westbound left-turn lane, a northbound left turn lane and a northbound right turn lane.
ENGINEERING
16. Not withstanding condition number 8, applicant shall deed or dedicate a basin of sufficient size to the City of Atwater as the project requires.
17. Indicate the location of the proposed above-ground fuel storage tank.
18. All geologic hazards must be plotted on a site plan.
19. Fire hydrants must be provided in compliance with Fire Department specifications. A 10- foot PUE is typically required, and the fire hydrant may be located in that easement if it cannot be located within the right of way. Waivers of street improvements do not waive fire hydrant requirements.
20. All necessary utility easements shall be retained, reserved, or dedicated.
21. The project shall establish or annex into a Lighting and Drainage District, as determined by the City, for on-going maintenance of the public systems.
22. Where required, automatic fire sprinkler systems shall be designated and installed in compliance with CCR Title 24 and NFPA (National Fire Protection Association) standards. Where required, Fire Department Connections (FDC’s) shall be located within 50 feet of a fire hydrant.
23. The grade of the fire apparatus access road shall be within the limits established by the code official based on fire apparatus. (Shall not exceed 10 percent.)
24. Fire apparatus access roads shall be designed and maintained to support the imposed loads of fire apparatus (75,000 pounds) and shall be surfaced so as to provide allweather driving capabilities.
25. Where applicable, NO PARKING – FIRE LANE signage and/or marking(s) shall be provided for fire apparatus access roads to identify such roads or prohibit the obstruction thereof.
26. Developer shall comply with all applicable regulations for above ground fuel tanks (ASTs), including but not limited to the California Building Code, the Aboveground Petroleum Storage Act, and the design requirements of Merced County and Cal Fire.
27. The developer shall cause On-Site Improvement Plans to be prepared. The plans shall be prepared by a Licensed Civil Engineer or under his/her direction. The plans shall be
Ordinance No. CS 1060 Page 5
prepared on 24” X 36” plan sheets and to a reasonable scale. The plans shall be in a format to be approved by the City Engineer and shall show all the proposed grading and on-site improvements for the proposed development. All proposed phasing of the project shall be identified on the improvement plans. The title of the plan shall be shown at the top of Sheet No. 1. Sheets shall be numbered in consecutive order. An index showing the sheets contained within and as a part of the On-Site Improvement Plans shall be shown on Sheet 1.
28. The developer shall cause Off-Site Improvement Plans to be prepared. The plans shall be prepared by a Licensed Civil Engineer or under his/her direction. The plans shall be prepared on 24” X 36” plan sheets and to a reasonable scale. The plans shall be in a format to be approved by the City Engineer and shall show all the proposed grading, drainage, surface improvements, utilities, street lighting, pavement markings, signage, and all other off-site improvements proposed to be offered for dedication to the City of Atwater. The title of the plan shall be shown at the top of Sheet No. 1. Sheets shall be numbered in consecutive order. An index showing the sheets contained within and as a part of the Off-Site Improvement Plans shall be shown on Sheet 1.
29. The Developer shall cause Joint Trench Utility Plans to be prepared. The plans shall be prepared by a Licensed Civil Engineer or under his/her direction. The plans shall be prepared on 24” X 36” plan sheets and to a reasonable scale.
30. Off-site public improvements shall be accepted by the City prior to scheduling final inspection for any certificate of occupancy.
31. All utilities shall be installed underground in conformance with existing City policy including without limitation the City of Atwater Subdivision and Zoning Ordinances.
32. Developer may be required to relocate any utilities that conflict with grade or cannot be installed below grade within a travel lane.
33. Developer shall underground all existing and proposed on-site and off-site utilities as specified in the Municipal Code or Public Works Director.
34. The developer shall provide and show on the final map and/or site development plan all necessary easements for access, streets, alleys, sewer and water facilities, utilities and drainage facilities, irrigation facilities and other facilities as requested by the City.
35. Meters, hydrants, poles, etc. shall be located clear of the sidewalk and driveways or as determined by the City Engineer. Final locations and the number of such facilities shall be determined at the time the improvement plans are reviewed.
36. An encroachment permit shall be required for any construction to be done in the public right of way, in easements, or on lands to be dedicated to the City of Atwater upon completion of the improvements. The encroachment permit shall be obtained prior to the
Ordinance No. CS 1060 Page 6
start of said work. The permit fees shall be determined per the current adopted fee schedule at the time of application.
37. Any portion of the drainage system that conveys runoff from public streets shall be installed within a dedicated drainage easement or public street.
38. The developer shall provide joint trenching for telephone, gas, electric, cable TV and fiber optic service for every parcel.
39. Detailed plans reflecting the design and construction of all public infrastructure improvements for street, sewer, water, and storm drain, both on- and off-site, shall be in conformance with the adopted Infrastructure Master Plans and as directed by the City Engineer. Developer shall have written approval from the City Engineer for any variations from the City’s Master Plans prior to any final map or improvement plans approval.
40. Street alignments and grades, including the change of any existing or proposed street alignment and grade, shall be as required by the Public Works Director.
41. Sight distance requirements at all street intersections and driveways shall conform to City Standards and Caltrans Standards.
42. If the improvement plans show a need to excavate in any public road right-of-way, the developer shall place a cash deposit with the Community Development Department to ensure that any damage to the existing roadway is repaired in a timely manner.
43. Portland cement concrete cross gutters or culverts shall be installed where water crosses the roadways. Cross gutters shall be used only where drain inlets cannot be constructed.
44. An adequate energy dissipater shall be constructed at the outlet of the storm drain, or verification shall be provided that such improvement is not needed.
45. Developer shall comply with Chapter 13.22 of the Atwater Municipal Code “Storm Water Management and Discharge Control” and with the City of Atwater Post Construction Standards Plan.
46. “Material and Storage Areas” shown on Site Plan shall be designed to discourage infiltration and to encourage containment. Preventative measures include enclosures, secondary containment structures, and impervious surfaces. Equipment and/or vehicles containing fuels, oils and/or other hydrocarbons shall be stored on impervious (paved) surfaces only. Source Controls BMPs and Site Design and Treatment Control Measures shall be implemented consistent with the MEP (Maximum Extent Practicable) Standard.
Ordinance No. CS 1060 Page 7
47. The developer shall process Post-Construction Stormwater BMP Operation and Maintenance Plans for review and approval to the satisfaction of the City Engineer.
48. The developer shall execute any agreements identified in the Post-Construction Standards Plan that pertain to the transfer of ownership and/or long-term maintenance of stormwater treatment or hydrograph modification BMPs to the satisfaction of the Public Works Director.
49. The developer shall install water services to the proposed development. Individual water services shall be provided for potable and landscape purposes, of adequate size for the proposed development. All services shall be metered.
50. A blowoff or fire hydrant shall be installed at the terminal end of water mains located in cul-de-sacs, as determined by the City Engineer.
51. Where required, the developer shall install a reduced pressure principal backflow device for potable water and an approved backflow device for irrigation water. Individual services are to be provided for potable water and landscaping purposes. The services shall be metered; a Sensus “Flex-Net” radio read meter shall be used. Service shall include a backflow prevention device enclosure, mounted on a concrete pad. Backflow devices shall include unions on both riser pipes for easier maintenance. All backflow devices shall be shown on the Site Improvement Plans, including types, brand names, and model numbers.
52. If required, fire hydrants shall be installed along property frontages and on-site in accordance with the California Fire Code and City of Atwater Standards and Specifications. Fire hydrants shall be placed on-site in accordance with the California Fire Code and City of Atwater Fire Department requirements; on-site placement of fire hydrants shall be reviewed and approved by the Fire Chief. All fire hydrants shall have a minimum flow of 1,500 gallons per minute. Water lines and services shall be installed in accordance with City of Atwater City Standards and specifications. Fire protection lines shall be separate from domestic service lines and shall utilize detector check meter installations.
53. All water trenches or excavations shall be excavated, backfilled and compacted in accordance with applicable City Standards.
54. Prior to occupancy, the developer shall supply the City with both hardcopy and electronic (Adobe PDF and AutoCAD file formats) showing plans that reflect the project as it was built (As-Builts or Record Drawings) to the satisfaction of the City Engineer. As-built hardcopy plans shall be 4-mil minimum matte Mylar film.
55. The installation (if required) of all gas, electric, telecommunications, sewer, and water lines and any other below-surface utilities is to take place before the installation of any concrete curbs, gutter, sidewalks, and the surfacing of streets.
Ordinance No. CS 1060 Page 8
56. All walls adjacent to public rights-of-way shall be provided with decorative treatment, subject to approval by the Community Development Director.
57. 6-inch (6”) high Portland Cement Concrete curbing shall be provided between all paved areas and landscaped areas.
58. Curb cuts shall be allowed for LID drainage designs.
59. During construction, water trucks or sprinkler systems are to be used in sufficient quantities to prevent dust from leaving the site during any earthmoving and/or construction activities.
60. Any water wells found during construction shall be destroyed in accordance with approved City Standards and requirements.
61. Any septic systems found during construction shall be destroyed in accordance with approved Merced County Environmental Health requirements.
62. Applicant shall abandon and remove from the site any existing irrigation lines and other structures found. Lines shall be plugged at the property line with concrete.
63. Developer shall properly abandon or relocate all utilities as necessary or required.
64. Developer shall construct sidewalks along all street frontages.
65. Each parcel shall be served by an individual sanitary sewer lateral.
66. All broken, cracked or otherwise damaged public improvements, such as curb, gutter, and sidewalk, shall be saw cut, removed and replaced in accordance with applicable city standards to the satisfaction of the City Engineer.
67. All broken or damaged fencing shall be repaired or removed and replaced in accordance with applicable City Standards to the satisfaction of the City Engineer.
68. Applicant is responsible for street name signs in accordance with City of Atwater Standards.
69. In conjunction with the recordation of the map (or by separate instrument), the developer shall provide all necessary easements for streets, alleys, sewer and water facilities, utilities and drainage facilities, irrigation district facilities, fiber optics and other facilities as required by the City or serving utility. Utility easements shall be a minimum of a clear fifteen feet (15’) for one utility and a clear twenty feet (20’) for two or more utilities or as specified by generally accepted engineering design guidelines. Easements shall not be split between property lines unless determined otherwise by the City Engineer. The
Ordinance No. CS 1060 Page 9
easement widths identified are minimums and in certain circumstances, additional easement widths may be required as determined by the City Engineer.
70. The developer shall irrevocably offer for dedication all required public rights-of-way and shall record grant deeds for all required utility easements prior to City’s approval of any on-site or off-site improvement plans.
71. The developer shall construct the public improvements shown on the improvement plans as approved by the City Engineer prior to City’s acceptance of any dedication of public rights-of-way.
72. The developer shall construct, to the satisfaction of the Public Works Director, a public street lighting system that complies with the following conditions:
a. All fixtures shall use an LED light source, Cree XSP Series as approved by the City Engineer.
b. All light standards, heads, and spacing shall be per City Standards or as approved by the City Engineer.
c. Proposed lights of an ornamental nature shall not exceed 16 feet in height designed to the satisfaction of the Community Development Director and shall be spaced and located to the satisfaction of the City Engineer.
d. Deposit with the City of Atwater, through the Department of Public Works, a cash deposit sufficient to:
Energize, maintain, and operate the street lighting system until tax revenues begin accruing from the subdivision/project for those purposes.
Pay the cost to process lighting district administration of this project. After recording of the Final Map, or on acceptance of the improvements, the subdivision/project shall be transferred without notice or hearing, to a Citydesignated lighting district to operate and maintain the system.
73. The applicant shall construct and improve the pedestrian circulation system to the following design standards to the satisfaction of the City Engineer and the Community Development Director:
a. Sidewalk surface shall consist of Portland Cement Concrete. b. Sidewalk gradients shall not exceed the gradient of the adjoining roadway. c. Sidewalks shall intersect roads at approximately 90-degree angles.
Ordinance No. CS 1060 Page 10
d. The sidewalk system shall be continuous through the subdivision/project. e. Where sidewalk exists, the subdivision/project shall be coordinated with existing or planned sidewalk locations on adjacent property.
74. If required, Covenants, Conditions and Restrictions (CC&R’s) for the project shall contain appropriate provisions for joint maintenance of any infrastructure, roadways, utilities, landscaping, drainage, and irrigation as determined necessary by the City Engineer. The CC&R’s will provide for a manager to be responsible for maintenance and repair, with each lot owner responsible for its pro rata share of the maintenance costs.
The manager may be an owner, a third-party manager designated by the owners, or a special purpose entity such as an owners’ association. The CC&R’s shall be subject to the review and approval of the City Engineer, City Attorney, and Community Development Director prior to recordation.
75. Provide the City with a certification from each public utility and each public entity owning easements within the proposed project stating that in case of a street dedication affected by their existing easement, they will sign a ‘subordination certificate" or "joint- use certificate" when required by the City. In addition, the developer shall furnish proof to the satisfaction of the City Engineer that no new encumbrances have been created that would subordinate the City's interest over areas to be dedicated for public road purposes since submittal of the development application.
76. On-street parking will be prohibited along Commerce Avenue and within the proposed cul-de-sac turnaround bulb. Developer shall be responsible for posting “no stopping or parking at any time” signs and providing curb markings as required to the satisfaction of the City Engineer.
77. Developer shall submit three (3) sets of landscaping and irrigation plans to be reviewed and approved by the City of Atwater Engineering Division and Public Works Department.
Said plans shall be prepared by a landscape architect licensed in the State of California.
All landscaped areas shall be equipped with seven-day automatic irrigation systems with battery back-up. All landscaping shall always be maintained and said maintenance shall be the responsibility of the developer. Specific landscaping for screening shall have an appearance of mature growth subject to a field check and approval by the Community Development Director prior to Certificate of Occupancy.
78. Trees shall be installed and thereafter maintained throughout all parking areas to meet CALGreen regulations.
79. Final inspection for occupancy permits will not be granted until all construction and landscaping is complete in accordance with approved plans.
80. The project shall be in compliance with the most recent Americans with Disabilities Act (ADA) and California Building Code (CBC) accessibility regulations.
Ordinance No. CS 1060 Page 11
81. Developer shall comply with all applicable mandatory non-residential requirements of the California Green Building Standards Code (CalGreen), including but not limited to grading and drainage, designated parking, short-term and long-term bicycle facilities, and provision of electric vehicle charging spaces (EVCS) capable of supporting electric vehicle supply equipment (EVSE).
82. Trash and recycling enclosure(s) shall be constructed for each parcel unless otherwise approved. All trash and recycling enclosures shall be constructed per City Standards of masonry material with solid, self-enclosing doors and a second access, and shall drain to a landscape area. Refuse containers must have integral lids/covers, or the enclosure shall be constructed with a sloped roof. Enclosures must be sized for at least one refuse bin and one recycling bin. Door hardware must meet accessible design criteria where required. The enclosure shall have materials and colors consistent with the primary building. If commercial or industrial trash compactors are to be utilized, then the location(s) and screening for all equipment and bins must be shown on the Site Plan and approved by the City Engineer, Community Development Director, and Public Works Director.
PLANNING
83. All on-site graffiti shall be the responsibility of the property owner. All graffiti shall be abated in accordance with City Graffiti Ordinances.
84. Applicant shall comply with the Atwater Municipal Code, Zoning, Chapter 17.39
85. Project shall comply with the most current California Code of Regulations Title 24, parts 1 through 12, the most current Health and Safety Codes and the most current Fire and Life Safety Codes, all along with the California State Amendments. All building permit applications received by the City of Atwater Building Division on or after January 1, 2020, shall comply with parts 1 through 10 and part 12 of the 2019 edition of the California Code of Regulations Title 24.
86. Applicant shall comply with all the conditions of approval prior to issuance of a business license.
87. Applicant shall comply with all Commercial and Industrial Design Guidelines.
88. Applicant shall submit for a Lot Line Adjustment for parcel three identified on the site plan resulting in the proposed storm basin being moved to the City of Atwater (Deed Inst. No. 2022-031920)
89. The Planning Commission shall retain the right to reconsider Site Plan No. 22-24- 0100, Architectural Review No. 22-24-0300, and Zone Change No. 22-24-0400.
90. This approval is dependent upon and limited to the proposals and plans contained, supporting documents submitted, presentations made to staff, and Planning
Ordinance No. CS 1060 Page 12
Commission as affirmed to by the applicant. Any variation from these plans, proposals, supporting documents, or presentations is subject to review and approval prior to implementation.
91. Applicant must pay the Annual Conditional Use Permit Monitoring Fee
92. Enter into an agreement for Deferment of Construction of Public Improvements as approved by the City Attorney.
93. The applicant or applicant’s successor in interest shall indemnify and defend and hold harmless the City of Atwater, its agents, officers, and employees from any and all claims, actions, or proceedings against the City of Atwater, its agents, officers, and employees to attack, set aside, void, or annul any approval by the City of Atwater and its advisory agency, appeal board, or legislative body concerning this application, which action is brought within applicable statutes of limitations. The City of Atwater shall promptly notify the applicant or applicant’s successor in interest of any claim or proceedings and shall cooperate fully in the defense. If the City fails to do so, the applicant or applicant’s successor in interest shall not thereafter be responsible to defend, indemnify or hold the City harmless. This condition may be placed on any plans or other documents pertaining to this application.
The foregoing Ordinance is hereby adopted this 27th day of March 2023.
INTROUDCED:
ADOPTED:
AYES:
NOES:
ABSENT:
Ordinance No. CS 1060 Page 13
APPROVED:
__________________________________
MIKE NELSON, MAYOR
ATTEST:
______________________________
KORY J. BILLINGS, CITY CLERK
CITY COUNCIL
AGENDA REPORT
MEETING
DATE:
March 27, 2023
TO: Mayor and City Council
FROM: Justin Vinson
PREPARED
BY:
Ana Jaramillo, Administrative Assistant II
SUBJECT: Adopting a Resolution Awarding a Collection Services Agreement and Franchise to Mid Valley Disposal of Kerman, California for Residential and Commercial Garbage, Recyclable Material, and Organic Waste Collection Services (Public Works Director Vinson)
RECOMMENDED COUNCIL ACTION
Motion to adopt Resolution No.3382-23 to award a Collection Services Agreement and Franchise to Mid Valley Disposal of Kerman, California for the provision of Residential and Commercial Garbage, Recyclable Material, and Organic Waste Collection Services; and authorizes the Mayor of City of Atwater to execute said agreement; or Motion to approve staff's recommendation as presented.
I. BACKGROUND/ANALYSIS:
The current Solid Waste Collection Agreement between the City of Atwater and Republic Services (Republic) will terminate on June 30, 2023.Due to a high volume in recent years of customer complaints regarding the residential and commercial hauling services, council requested city staff to release a Request for Proposals (RFP) for Residential and Commercial Garbage, Recyclable Materials and Organic Waste. The City contracted with HF&H Consultants, LLC (HF&H) to assist the City as technical advisors by evaluating the proposals received, providing their thoughts on the proposals and items for negotiation, requesting additional information to assist the evaluation, and ultimately evaluating the proposals.
On March 13, 2023, the City Council adopted Resolution No. 3374-23 directing staff to negotiate a new franchise agreement with Mid Valley Disposal (MVD) for the Residential and Commercial Garbage, Recyclable Material, and Organic Waste Services Contract.
As noted on March 13, 2023 staff report, a key issue facing the City and how the hauler would assist the City in complying with the state mandates and CalRecyclable regulations governing management of recyclable materials and organic waste. Senate
CITY COUNCIL
Mike Nelson, Mayor
Danny Ambriz Tyler Button
John Cale Brian Raymond
Agenda Report - Page 2
Bill 1383 (SB1383) mandates that all customers must actively participate in an organic waste diversion program to substantially reduce organic waste being sent to landfill.
Assembly Bill (AB341) mandates that all commercial customers participate in all recyclable diversion programs. CalRecycle has strongly indicated that non-participation in organic waste or recyclable materials diversion programs may result in fines for the City and/or residents and businesses. The new organic recycling program, included in the new franchise agreement, is a key aspect of meeting state regulatory compliance.
The service proposed by MVD will result in the City being compliant with CalRecycle's regulatory requirements while providing the City's rate payers with good value. The proposed Franchise Agreement includes full organics (food waste and green waste) and recyclables will be processed at the Highway 59 Landfill. Additionally, MVD will directly pay for disposal at the Highway 59 Landfill.
Also included in the Collection Services Agreement is a limited licensing for temporary roll offs, which allow MVD and one other hauler to provide customers temporary roll offs. The duration that defines temporary roll offs, is as follows; "limited period of time not to exceed thirty days except that Collection Service related to an on-going construction project may do so through completion of the construction project. All construction projects must have an active City building or demolition permit." A bulk item service is available for the residents at a $60.00 occurrence fee, and includes up to two (2) large items. The items must be called into MVD a week ahead of time and placed outside the day that the item(s) is scheduled for pickup. MVD is also required to offer jobs to all qualified Republic employees and follow the provisions of Labor Code section 1072. MVD will offer the employees competitive benefits, and based upon what the city received, higher pay. Also included in the agreement, the city will receive a fee of 10% of the contract for administration of the sanitation services.This will net the city an additional amount of approximately $60,000 per month or $720,000 a year. This is currently close to double the amount the city receives with its current hauler.
The rates that MVD will charge the city are included in Exhibit A of the Collection Services Agreement. At this time, the city will not be charging the residents these rates. The city must first conclude a sanitation study and Prop 218 before it can increase the rates for customers. The increase in prices on the sanitation rates are largely due to the mandates put upon the city due to Senate Bill 1383. MVD anticipates that with recycling and organics collection services provided to all customers as part of "bundled" services, commercial customers will "migrate" from higher levels of garbage services to less garbage and more recycling and organics services. This will allow some customers to reduce their total monthly bill, while others will be able to actively participate in recycling and organics programs at no additional cost. For example,customers which have a 1.5 cubic yards of garbage service could reduce could reduce garbage service to 1 cubic yard, and have 96 gallons of recyclables and 64 gallons of organic services. A similar "downsizing" could occur at all garbage service levels.
The rates that MVD will charge the city are included in Exhibit A of the Collection Services Agreement. At this time, the city will not be charging the residents these rates.
The city must first conclude a sanitation study and Prop 218 before it can increase the
Agenda Report - Page 3
rates for customers. The increase in prices on the sanitation rates are largely due to the mandates put upon the city due to Senate Bill 1383, if it were not for SB1383, the city may not have had to go out for a rate study at this time or see an increase in the cost of the service that MId-Valley will provide. Every year, the maximum service rate will be adjusted by the CPI increase (capped at 5%) and tipping fee increases at the Landfill.
MVD will provide all new collection vehicles and containers at the start of the Agreement, and will confirm the specific collection vehicles (i.e., Autocar/Amrep) and containers (Toter colors/labeling)to be used. MVD will purchase 15 new collection vehicles, 3 support vehicles, and approximately 39,000 carts and bins for a total initial capital cost of $7.1 million. The vehicles will be equipped with on-board scales, on-board GPS tracking, on-board tablets, multi-cameras for safety monitoring and contamination monitoring.
MVD has performed multiple transitions in the Central Valley over the past few years.
As a part of MVD's transition strategy, it includes:
• Newsletters
• Print Advertisement
• Visual Posters
• Social Media (Twitter, Facebook, Instagram)
• Informative websites pages
• Smart Phone / Tablet App
• Other Custom-Tailored Materials
MVD, city staff, and Republic, will meet and go over the timing of bin/ toter exchanges and pick-ups. This will more than likely take place the first two weeks in July. Prior to this, city staff and MVD will start the education and outreach to customers on the process of disposing of waste and which containers the waste belongs in. This outreach will be done in multiple languages.
II. FISCAL IMPACTS:
The projected 23/24 cost to the City for garbage collection and disposal, green waste processing and recycling processing is approximately $7.2M. Currently, staff are working on a sanitation rate study and Prop 218 that ensures the city will receive enough revenue to meet the expenses for this contract.
This item has been reviewed by the Finance Department.
III. LEGAL REVIEW:
This item has been reviewed by the City Attorney's office.
IV. EXISTING POLICY:
This item is consistent with goal numbers one (1) and two (2) of the City's Strategic
Agenda Report - Page 4
Plan: to ensure the City's continued financial stability and to improve public safety, respectively.
V. ALTERNATIVES:
VI. INTERDEPARTMENTAL COORDINATION:
N/A
VII. PUBLIC PARTICIPATION:
The public will have an opportunity to provide comments prior to City Council action.
VIII. ENVIRONMENTAL REVIEW:
This item is not a "project" under the California Environmental Quality Control Act (CEQA) as this activity does not cause either a direct physical change in the environment, or a reasonable foreseeable indirect physical change in the environment, pursuant to Public Resources Code Section 21065.
IX. STEPS FOLLOWING APPROVAL:
Upon City Council approval, the Collection Services Agreement and Franchise to MidValley Disposal of Kerman, California will be routed for signatures.
Submitted by:
Justin Vinson, Public Works Director
Approved by:
Lori Waterman, City Manager
Attachments:
1. FRANCHISE AGREEMENT DRAFT MVD (packet version 03.23.23)-c1
2. Resolution No. 3382-23 Approving Collection Services Agreement and Franchise to Mid Valley Disposal for the provision of Residential and Commercial Ga
COLLECTION SERVICES AGREEMENT
AND FRANCHISE FOR THE PROVISION OF
RESIDENTIAL AND COMMERCIAL GARBAGE,
RECYCLABLE MATERIALS AND ORGANIC WASTE
COLLECTION SERVICES
Executed By and Between the
City of Atwater and
Mid Valley Disposal (CONTRACTOR)
Approval Date: March 27, 2023
Effective Date: July 1, 2023
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TABLE OF CONTENTS
ARTICLE 1. RECITALS.............................................................................................................................9 ARTICLE 2. DEFINITIONS.......................................................................................................................9 ARTICLE 3. GRANT OF EXCLUSIVE FRANCHISE; CONSIDERATION......................................19 ARTICLE 4. ENFORCEMENT OF EXCLUSIVITY .............................................................................21 ARTICLE 5. ACCEPTANCE; WAIVER.................................................................................................21 ARTICLE 6. TERM OF AGREEMENT .................................................................................................22 ARTICLE 7. CONDITIONS TO AGREEMENT’S EFFECTIVENESS..............................................22 ARTICLE 8. SERVICES PROVIDED BY CONTRACTOR ................................................................23 ARTICLE 9. CUSTOMER SERVICE.....................................................................................................49 ARTICLE 10. CONTRACTOR SUPPORT SERVICES.......................................................................51 ARTICLE 11. EMERGENCY SERVICE................................................................................................53 ARTICLE 12. RECORD KEEPING AND REPORTING REQUIREMENTS ....................................54 ARTICLE 13. NONDISCRIMINATION ..................................................................................................58 ARTICLE 14. QUALITY OF PERFORMANCE OF CONTRACTOR................................................59 ARTICLE 15. PERFORMANCE BOND ................................................................................................63 ARTICLE 16. INSURANCE ....................................................................................................................63 ARTICLE 17. INDEMNIFICATION.........................................................................................................66 ARTICLE 18. CHARGES, FEES, AND CONTRACTOR COMPENSATION ...................................68 ARTICLE 19. DEFAULT OF AGREEMENT; TERMINATION............................................................72 ARTICLE 20. MODIFICATIONS TO THE AGREEMENT..................................................................75 ARTICLE 21. LEGAL REPRESENTATION..........................................................................................76 ARTICLE 22. FINANCIAL INTEREST........................................................................................76 ARTICLE 23. CONTRACTOR’S PERSONNEL...................................................................................76 ARTICLE 24. EXEMPT WASTE ............................................................................................................77 ARTICLE 25. INDEPENDENT CONTRACTOR ..................................................................................77 ARTICLE 26. LAWS TO GOVERN .......................................................................................................77 ARTICLE 27. CONSENT TO JURISDICTION .....................................................................................77
ARTICLE 28. ASSIGNMENT..................................................................................................................77 ARTICLE 29. COMPLIANCE WITH LAWS..........................................................................................78 ARTICLE 30. PERMITS AND LICENSES............................................................................................79 ARTICLE 31. OWNERSHIP OF WRITTEN MATERIALS...................................................................79 ARTICLE 32. WAIVER............................................................................................................................79 ARTICLE 33. RESTRICTIONS ON GIFTS TO PUBLIC OFFICIALS...............................................79 ARTICLE 34. POINT OF CONTACT.....................................................................................................79 ARTICLE 35. NOTICES..........................................................................................................................79 ARTICLE 36. TRANSITION TO NEXT CONTRACTOR.....................................................................80 ARTICLE 37. CONTRACTOR’S RECORDS........................................................................................80 ARTICLE 38. ENTIRE AGREEMENT...................................................................................................81 ARTICLE 39. SEVERABILITY................................................................................................................81 ARTICLE 40. RIGHT TO REQUIRE PERFORMANCE......................................................................82 ARTICLE 41. ALL PRIOR AGREEMENTS SUPERSEDED..............................................................82 ARTICLE 42. HEADINGS.......................................................................................................................82 ARTICLE 43. EXHIBITS..........................................................................................................................82 ARTICLE 44. ATTORNEY’S FEES .......................................................................................................82 ARTICLE 45. EFFECTIVE DATE...........................................................................................................82 ARTICLE 46. GUARANTEE OF CONTRACTOR’S PERFORMANCE............................................82 EXHIBIT 1 MAXIMUM SERVICE RATES...........................................................................................85 EXHIBIT 2 CITY SPONSORED EVENTS...........................................................................................86 EXHIBIT 3 LIST OF CITY PROPERTIES...........................................................................................87 EXHIBIT 4 CART AND BIN SPECIFICATIONS.................................................................................88 EXHIBIT 5 LIST OF APPROVED SUBCONTRACTORS .................................................................90 EXHIBIT 6 [RESERVED].......................................................................................................................91 EXHIBIT 7 [RESERVED]...........................................................................................................92 EXHIBIT 8 CORPORATE GUARANTY...............................................................................................93 EXHIBIT 9 DETAILED RATE REVIEW METHODOLOGY...............................................................94 EXHIBIT 10 RECYCLABLE MATERIALS SPECIFICATIONS.........................................................97
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This Collection Services Agreement and Franchise for the Provision of Residential and Commercial Solid Waste, Recyclable Materials and Organics Collection Services (“Agreement”) in entered into this 28th of March , 2023, by and between the City of Atwater a general law city and municipal corporation in the State of California, ("CITY") and Mid Valley Disposal, ("CONTRACTOR") on the terms and conditions set forth herein. CITY and CONTRACTOR may be referred to herein individually as a “Party” or collectively as the “Parties”. Capitalized terms not otherwise defined shall have those definitions as hereinafter set forth in Article 2, “Definitions”.
RECITALS
A. Article XI, § 7 of the California Constitution authorizes cities to protect public health and safety by taking measures in furtherance of their authority over police and sanitary matters; and B. The Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989, (“AB 939” or the “Act”) (codified at Public Resources Code §§ 4000 et seq.) established a solid waste management process which requires cities and other local jurisdictions to implement plans for source reduction, reuse, and recycling as integrated waste management practices for solid waste attributed to sources within their respective jurisdictions; and C. The Act provides that aspects of solid waste handling of local concern include, but are not limited to, frequency of collection, means of collection and transportation, level of services, charges and fees, and the nature, location, and extent of providing solid waste services; and D. The Act confers discretion on cities to provide for the delivery of refuse services to its residents by the CITY itself providing the services or by the CITY conferring the authority to do so on private profit-making entities; and when cities confer the authority to provide refuse services on private profitmaking entities cities are authorized to do so by means which include the award of a nonexclusive, partially exclusive or wholly exclusive franchise, contract, license or otherwise; and E. Pursuant to Public Resources Code section 40059(a)(1) and Atwater Municipal Code section 8.16.030, the City Council of the CITY has determined, in the exercise of its legislative discretion, that it is in the best interests of the CITY and its residents to award an exclusive franchise for comprehensive refuse services to a qualified Solid Waste private enterprise with the special skills, knowledge, facilities, and other capabilities to ensure a high level of service and compliance with the existing statutory and regulatory requirements; and
F. The City Council during its regular meeting of March 27, 2023, approved the award of an exclusive franchise agreement for comprehensive refuse services with CONTRACTOR because the City Council determined, in the exercise of its legislative discretion, that CONTRACTOR would provide high quality services to Service Recipients; and
G. CITY and CONTRACTOR are mindful of the provisions of the laws governing the safe collection, transport, recycling and disposal of residential and commercial Solid Waste, including AB 939, the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901 et seq., the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 et. seq.; the Electronic Waste Recycling Act of 2003 (SB 20, Sher, Chapter 526, Statutes of 2003; SB 50, Sher, Chapter
863, Statutes of 2004; AB 575, Wolke, Chapter 59, Statutes of 2011), laws governing Universal Waste, including, but not limited to, Universal Waste Electronics Devices (“UWED”), non-empty aerosol cans, fluorescent tubes, high intensity discharge lamps, sodium vapor lamps, and any other lamp exhibiting a characteristic of a hazardous waste, batteries (rechargeable nickel-cadmium batteries, silver button batteries, mercury batteries, small sealed lead acid batteries [burglar alarm and emergency light batteries], alkaline batteries, carbon-zinc batteries and any other batteries which exhibit the characteristic of a hazardous waste), mercury thermometers, mercury-containing switches; and H. CITY and CONTRACTOR desire to leave no doubts as to their respective roles and to make it clear that by entering into this Agreement, CITY is not thereby becoming a “generator” or an “arranger” as those terms are used in the context of CERCLA § 107(a)(3) and that it is CONTRACTOR, an independent entity, not CITY, which will arrange to collect Solid Waste from Single-Family Dwelling (SFD), Multi-Family Dwelling (MFD), CITY and Commercial Service Units in the City of Atwater, transport for recycling and disposal and dispose of Solid Wastes which may contain small amounts of household products with the characteristics of hazardous wastes, collect and compost Organic Waste and collect and recycle Recyclable Materials from SFD, MFD, CITY, and Commercial Service Units in the City of Atwater, and collect and recycle or dispose of Construction and Demolition Materials; and I. CONTRACTOR represents and warrants to CITY that CONTRACTOR has the experience and qualifications to conduct recycling and waste diversion programs; to provide CITY with information sufficient to meet the CITY’s reporting requirements to CalRecycle and other agencies under the Act; to meet CITY’s other requirements under the Act; to arrange with persons in charge of day-to-day activities of Service Units in the City of Atwater for the collection, safe transport and disposal of Solid Wastes, which may contain small amounts of household products with the characteristics of Hazardous Wastes, in a safe manner which shall minimize the adverse effects of collection vehicles on air quality and traffic; and that CONTRACTOR has the ability to indemnify CITY in accordance with this Agreement; and J. The City Council of the City of Atwater determines and finds pursuant to California Public Resources Code § 40059(a)(1) that the award of an exclusive franchise is in the public interest, health, safety, and well-being, including the minimization of adverse impacts on air quality and traffic from excessive numbers of collection vehicles; the implementation of measures consistent with the City’s Source Reduction and Recycling Component; and in an effort to reduce the CITY’s potential CERCLA liability, would be served if CONTRACTOR were to be awarded an exclusive Franchise for collection, recycling, diversion, and disposal of Solid Waste from Service Units in the City of Atwater; and K. The Parties agree that Solid Waste collection services shall be provided by CONTRACTOR beginning at 12:00 a.m. July 1, 2023 (the “Effective Date”) at which time the Parties agree that this Agreement shall be controlling.
OPERATIVE PROVISIONS
Now, therefore, in consideration of the mutual covenants, agreements, and other good and valuable consideration contained in this Agreement, the receipt and sufficiency of which are hereby acknowledged by each of the Parties, CITY and CONTRACTOR agree as follows:
ARTICLE 1. Recitals
The Parties acknowledge the above recitals are true and correct and incorporate them as though fully set forth herein.
ARTICLE 2. Definitions
For the purpose of this Agreement, the definitions contained in this Article apply unless otherwise specifically stated. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural. Use of the masculine gender includes the feminine gender. The meaning of terms or words not defined in this Article will be as commonly understood in the solid waste collection services industry when the common understanding is uncertain.
2.01. AB 341. State of California Assembly Bill No. 341 approved October 5, 2011. AB 341 requires businesses, defined to include commercial or public entities that generate more than 4 cubic yards of commercial solid waste per week, or multifamily residential dwellings of 5 units or more, to arrange for recycling services, on and after July 1, 2012. AB 341 further requires jurisdictions, on and after July 1, 2012, to implement a commercial solid waste recycling program.
2.02. AB 939. State of California Assembly Bill No. 939 approved September 29, 1989 enacting the California Integrated Waste Management Act of 1989, codified in part at Public Resources Code §§ 40000 and following, as it may be amended and as implemented by the regulations of the California Department of Resources Recycling and Recovery (CalRecycle), or its successor agency.
2.03. AB 1594. State of California Assembly Bill No. 1594 approved September 28, 2014.
AB 1594 provides that the use of green material as Alternative Daily Cover does not constitute diversion through recycling and would be considered disposal.
2.04. AB 1826. State of California Assembly Bill No. 1826 approved September 28, 2014.
AB 1826 requires each jurisdiction, on and after January 1, 2016, to implement an organic waste recycling program to divert organic waste from businesses. Each business meeting specific organic waste or solid waste generation thresholds phased in from April 1, 2016 to January 1, 2020 is required to arrange for organic waste recycling services.
2.05. Act. Act means the Integrated Waste Management Act of 1989, as amended (California Public Resources Code section 40000 et. seq.).
2.06. Affiliate. Affiliate means any person or legal entity that, directly or indirectly, controls, is controlled by, or is under common control with CONTRACTOR. For purposes of determining whether an
indirect ownership interest exists, the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided, however, that (i) “ten percent (10%)” shall be substituted for “fifty percent (50%)” in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof, and (ii) Section 318(a)(5)(C) shall be disregarded. For purposes of determining ownership under this paragraph and constructive or indirect ownership under Section 318(a), ownership interest of less than ten percent (10%) shall be disregarded, and percentage interests shall be determined on the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater.
2.07. Agreement. This written document and all amendments, between CITY and CONTRACTOR, governing the provision of Collection Services.
2.08. Agreement Administrator. The City Manager, or his or her designee, designated to administer and monitor the provisions of this Agreement.
2.09. Agreement Year. Agreement Year means each twelve (12) month period from July 1st to June 31st of the following calendar year during the term of this Agreement.
2.010. Annual Diversion Report. The annual report submitted by CONTRACTOR to the CITY describing the previous Calendar Year’s diversion activities, diversion percentages, and associated calculations and the description of the diversion activity planned for the upcoming year, if applicable.
2.10. Appendix. Appendix means an appendix to this Agreement, as the same may be amended or modified from time to time in accordance with the terms hereof.
2.11. Applicable Law. All federal, state, county, and local laws, regulations, rules, orders, judgments, decrees, rulings, permits, approvals, or other requirement of any governmental entity or regulatory or quasi-regulatory authority having jurisdiction over an aspect of the Collection Services, including judicial interpretations thereof, that are in force on the Effective Date including without limitation AB 341, AB 939, AB 1594, AB 1826 and SB 1383, and as may be enacted, issued, or amended thereafter, until termination or expiration of this Agreement.
2.12. Best Management Practice. Best Management Practice means the collection of written activities, practices, policies and procedures prepared and proposed by a responsible party, and then approved by the Agreement Administrator, to prevent or reduce, to the maximum extent that is technologically and economically feasible, the discharge of pollutants to the storm drain system which might be generated from any site in the CITY.
2.13. Bins. A metal or plastic container, with a capacity of approximately one (1) cubic yard up to and including six (6) cubic yards, designed or intended to be mechanically dumped into a loader packer type truck, that is approved for Collection Services by CITY. Bins may also include Compactors that are owned by Commercial Service Units by which the Commercial Collection Service occurs. The specifications for CONTRACTOR-provided Bins are set forth in Exhibit 4.
2.14. Biohazardous or Biomedical Waste. Any waste which may cause disease or reasonably be suspected of harboring pathogenic organisms; included are waste resulting from the operation of medical clinics, hospitals, and other facilities processing wastes which may consist of, but are not limited to, human
and animal parts, contaminated bandages, pathological specimens, hypodermic needles, sharps, contaminated clothing and surgical gloves.
2.15. Brown Goods. Electronic equipment such as stereos, televisions, computers, VCR’s and other similar items collected from SFD Service Units.
2.16. Business. All retail, professional, wholesale and industrial facilities, and other commercial enterprises offering goods or services to the public.
2.17. Business Days. Any Monday through Friday, excluding any holidays as defined in Section 8.01.6.
2.18. Calendar Year. Each twelve (12) month period from January 1st to December 31st.
2.19. Carts. A heavy plastic receptacle with a rated capacity of at least thirty-two (32) and not more than one-hundred (100) gallons, having a hinged tight-fitting lid and wheels, that is approved by the Agreement Administrator for use by Service Recipients for Collection Services under this Agreement.
The specifications for CONTRACTOR-provided Carts are set forth in Exhibit 4.
2.20. CEQA. CEQA means the California Environmental Quality Act, codified at Cal. Pub.
Res. Code sections 21000 et seq. as amended or superseded, and the regulations promulgated thereunder and as set forth in the California Code of Regulations.
2.21. CERCLA. The Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. sections 9601 and following, as may be amended and regulations promulgated thereunder.
2.22. Change in Laws. Change in Laws means any of the following events or conditions which has a material and adverse effects on the performance by the parties of their respective obligations under this Agreement (except for payment obligations), or on the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession, management operation or maintenance of the operating assets or providing the franchise service or other matters to which Applicable Law applies:
(1) the enactment, adoption, promulgation, issuance, modification, or written change of or in Applicable Law, including but not limited to new or increased fees and charges imposed by the State of California or the U.S. Federal government directly related to the collection, handling, processing, recycling or disposal of Solid Waste, or the enactment, adoption, promulgation, issuance, modification, or written change in administrative or judicial interpretation on or after Effective Date of any Applicable Law; (2) 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; or
(3) the denial of an application for, delay in the review, issuance or renewal of, suspension, termination, interruption, or imposition of a new or more stringent condition in connection with
the issuance, renewal or failure of issuance or renewal on or after the Effective Date of any Legal Entitlement to the extent that such denial, delay, suspension, termination, interruption, imposition, or failure materially and adversely interferes with the performance of this Agreement, of and to the extent that such denial, delay, suspension, termination, interruption, imposition, or failure is not the result of willful or negligent action, error or omission or a lack of reasonable diligence of the CITY or of the CONTRACTOR, whichever is asserting the occurrence of a Change of Law; provided, however, that the contesting in good faith or failure in good faith to contest any such denial, delay, suspension, termination, interruption, imposition, or failure shall not be construed as such a willful or negligent action, error, omission, or the lack of reasonable diligence.
2.23. CITY. The City of Atwater, California.
2.24. City Collection Service. City Solid Waste Collection Service, City Organic Waste Collection Service, and City Recycling Service.
2.25. City Facility. City Facility(ies) means any building or other site owned, leased or used regularly and significantly (i.e., more than seventy-five percent (75%)) by employees or contractors of the CITY, and excludes those portions of such facilities used by others.
2.26. City Manager. City Manager means the City Manager of the City of Atwater, or his or her designated representative, or any employee of the CITY who succeeds to the duties and responsibilities of the City Manager.
2.27. CITY’s Waste Stream. Solid Waste generated within the CITY and collected by the CONTRACTOR in accordance with the terms and conditions of this Agreement.
2.28. Code. Code means the City of Atwater Municipal Code.
2.29. Collection. The process whereby Residential, Commercial, and City Solid Waste are removed and transported to a Disposal Facility, Organic Waste Processing Facility or Materials Recycling Facility as appropriate.
2.30. Collection Services. SFD Collection Service, MFD Collection Service, Commercial Collection Service, City Collection Service, and Construction and Demolition Debris and Other Temporary Collection Service.
2.31. Commercial Collection Service. Commercial Solid Waste Collection Service, Commercial Organic Waste Collection Service, and Commercial Recycling Service. Commercial Collection Service shall also include Collection from MFD Service Units and City Service Units. Commercial Collection Service specifically includes the following:
A. Commercial Garbage Collection Service. The Collection of Commercial Garbage by CONTRACTOR, from Commercial Service Units in the Service Area and the delivery of that Commercial Solid Waste to a Disposal Facility.
B. Commercial Organic Waste Collection Service. The Collection of Organic Waste, by CONTRACTOR, from Commercial Service Units in the Service Area, the delivery of those Organic Waste materials to an Organic Waste Processing Facility
and the processing and marketing of those Organic Waste materials, and the disposal of all Commercial Organic Waste Processing Residue.
C. Commercial Recycling Collection Service. The Collection of Recyclable Materials, by CONTRACTOR, from Commercial Service Units in the Service Area, the delivery of those Recyclable Materials to a Materials Recycling Facility and the processing and marketing of those Recyclable Materials, and the disposal of all Commercial Recyclable Materials Processing Residue.
2.32. Compactor. Any Bin or Roll-Off Container which has a compaction mechanism, whether stationary or mobile.
2.33. CONTRACTOR. Mid Valley Diposal, the entity that has obtained from the CITY this Agreement to provide Collection Services.
2.34. CONTRACTOR Representative. The person, or designee, designated by the CONTRACTOR to manage the provisions of this Agreement.
2.35. Construction and Demolition Debris and Other Temporary Collection Service.
Temporary Collection and processing of Construction and Demolition Debris and other Solid Waste, and which is placed in a Bin or Roll-Off Container.
2.36. County. Merced County, California.
2.37. Consumer Price Index (CPI). The index published by the U.S. Department of Labor, Bureau of Labor Statistics, (San Francisco – Oakland – Hayward, All Urban Consumers, Not Seasonally Adjusted),” (or another mutually agreed-upon index if this one is no longer published).
2.38. Dispose or Disposal. The final disposition of Solid Waste collected.
2.39. Disposal Facility. The CITY approved facility(ies) utilized by CONTRACTOR for the disposal, or processing as appropriate, of Garbage and other materials as appropriate and acceptable.
2.40. Dwelling Unit. Any individual living unit in a single-family dwelling, condominium, or town home (SFD), or MFD Units, or building intended for, or capable of being utilized for, residential living.
2.41. Effective Date. Effective date shall mean July 1 2023.
2.42. Electronic Waste (E-Waste). Electronic Waste or E-Waste means discarded electronics equipment such as cell phones, computers, monitors, televisions, and other items containing cathode ray tubes.
2.43. Exempt Waste. Biohazardous or Biomedical Waste, Hazardous Waste, Sludge, automobiles, automobile parts, boats, boat parts, boat trailers, internal combustion engines, lead-acid batteries, dead animals, and those wastes under the control of the Nuclear Regulatory Commission.
2.44. Facility Fee. The tipping, processing or similar fee charged by the Disposal Facility, Organic Waste Processing Facility, or MRF to CONTRACTOR for the delivery and disposal of materials
Collected under this Agreement.
2.45. Food Waste. Food Waste means those discarded materials that will decompose and/or putrefy including: (i) all kitchen and table food waste; (ii) animal or vegetable waste that is generated during or results from the storage, preparation, cooking or handling of food stuffs; (iii) fruit waste, grain waste, dairy waste, meat, and fish waste; (iv) vegetable trimmings, houseplant trimmings and other compostable organic waste common to the occupancy of residential premises or commercial premises. Food Waste is a subset of Organic Waste.
2.46. Franchise Area. Franchise Area means all premises within CITY limits, including premises which may be annexed and thereby added to CITY limits following the Effective Date.
2.47. Franchised Diversion. Franchise Diversion means the rate of diversion for which CONTRACTOR is responsible to achieve as defined and calculated to achieve in Article 8.
2.48. Garbage. Garbage means those elements of the solid waste stream designated for the “garbage container,” and excludes hazardous waste, excluded waste, materials designated for the “compost container” or “recycling container,” or materials which have been separated for reuse.
2.49. Garbage Collection Service. The Collection and disposal of Garbage from City Service Units, Commercial Service Units, MFD Service Units, SFD Service Units.
2.50. Gross Billings. All billings as submitted by CONTRACTOR to CITY in accordance with Article 18 of this Agreement for the provision of Collection Services pursuant to this Agreement.
2.51. Household Hazardous Waste (HHW). Household products that can catch fire, react, or explode under certain circumstances, or that are corrosive or toxic as household hazardous waste.
Products, such as paints, cleaners, oils, batteries, and pesticides can contain hazardous ingredients and require special care in their disposal.
2.52. Hazardous Waste. Any material which is defined as a hazardous waste under California or United States laws or any regulations promulgated pursuant to such laws, as such laws or regulations may be amended from time to time.
2.53. Materials Recycling Facility (MRF). Any facility designed, operated, and legally permitted for the purpose of receiving, sorting, processing, storing, or preparing Recyclable Materials for sale.
2.54. Maximum Service Rate. The maximum amount that CONTRACTOR may charge Service Recipients for Collection Services, as listed in Exhibit 1, and as may be adjusted in accordance with the provisions of this Agreement.
2.55. Mixed Use Dwelling. A building or structure which contains at least one (1) Business Service Unit and at least one (1) Dwelling Unit and utilizes a common Garbage Bin or Garbage Cart for the accumulation and Collection of Commercial Solid Waste.
2.56. MFD Collection Service. MFD Solid Waste Collection Service, MFD Recycling Service,
MFD Organic Waste Collection Service, and MFD Large Item Collection Service. MFD Collection Service specifically includes the following:
A. MFD Garbage Collection Service. The Collection of Residential Garbage, by CONTRACTOR, from MFD Service Units in the Service Area and the delivery of that Residential Garbage to a Disposal Facility.
B. MFD Large Item Collection Service. The periodic on-call Collection of Large Items, by CONTRACTOR, from MFD Service Units in the Service Area and the delivery of those Large Items to a Disposal Facility, Materials Recycling Facility or such other facility as may be appropriate under the terms of this Agreement. MFD Large Item Collection Service may include the Collection of Large Items through the use of Roll-Off Containers. MFD Large Item Collection Service shall be provided at the rate set forth in Exhibit 1.
C. MFD Organic Waste Collection Service. The Collection of Organic Waste, by CONTRACTOR, from MFD Service Units in the Service Area, the delivery of those Organic Waste materials to an Organic Waste Processing Facility and the processing and marketing of those Organic Waste materials, and the disposal of all MFD Organic Waste Processing Residue.
D. MFD Recycling Service. The Collection of Recyclable Materials by the CONTRACTOR from MFD Service Units in the Service Area, the delivery of those Recyclable Materials to a Materials Recycling Facility and the processing and marketing of those Recyclable Materials, and the disposal of all MFD Recyclable Materials Processing Residue.
2.57. MFD Unit. A building, or a portion thereof, designed for occupancy by three (3) or more families living independently of each other, and containing three (3) or more dwelling units.
2.58. Non-Collection Notice. A form developed and used by CONTRACTOR, as approved by CITY, to notify Service Recipients of the reason for non-collection of materials set out by the Service Recipient for Collection by CONTRACTOR pursuant to this Agreement.
2.59. Organic Waste Collection Service. The collection, processing and marketing of Organic Waste from City Service Units, Commercial Service Units, MFD Service Units, SFD Service Units (in the Service Area and the disposal of all Organic Waste Processing Residual.
2.60. Organic Waste Processing Facility. The CITY designated facility designed, operated and legally permitted for the purpose of receiving, and processing Food Waste, Green Waste, Large Green Waste, and Other Organics. The CONTRACTOR must transport all of the collected Organic Waste to this CITY designated facility.
2.61. Organic Waste Processing Residual. Materials Collected pursuant to this Agreement, including both Organic Waste, and Contaminants, that are delivered to an Organic Waste Processing Facility but are Residual as defined in Section 2.66.
2.62. Overage. Overage means excess Garbage, Organic Waste and Recyclable Materials (i) placed inside a Container that prevents the lid on the Container from being completely closed (i.e., lid remains open greater 45-degrees) or (ii) that could potentially result in excess materials spilling/dislodging during collection activity by CONTRACTOR’s vehicles or require cleanup of the area around the Container.
2.63. Person. Person includes, but is not limited to, any individual, firm, association, organization, partnership, corporation, business trust, joint venture, the United States, the State of California, the County of Merced, towns, cities, and special purpose districts.
2.64. Rebuilt Vehicle. For purposes of this Agreement, “rebuilt” means, at a minimum, replacement of all of the following: worn parts and reconditioning or replacement of hydraulic systems, transmissions, differentials, electrical systems, engines, and brake systems. In addition, the rebuilt vehicle must be repainted, and its tires must have at least eighty-five percent (85%) of tread remaining.
2.65. Recyclable Materials Collection Service. The collection, processing and marketing of Recyclable Material from City Service Units, Commercial Service Units, MFD Service Units, SFD Service Units and the disposal of all Recyclable Materials Processing Residual.
2.66. Residual or Residuals. Residual or Residuals means Garbage that is not diverted from landfill disposal after it has been delivered to an Organic Waste Processing Facility or a Recyclables Processing Facility for processing for diversion from landfill disposal. For determining the amount of Residuals in Recyclable Materials, CONTRACTOR shall conduct a characterization study of inbound Recyclable Materials by service line by July 1st of each year to be used for the subsequent twelve (12) month period.
2.67. Roll-Off Collection Service. The collection of Roll-Off Containers containing Solid Waste from SFD Service Units, MFD service Units, City Service Units, or Commercial Service Units on a permanent or temporary basis.
2.68. Roll-Off Container. A metal container with a capacity of ten (10) or more cubic yards that is normally loaded onto a motor vehicle and transported to an appropriate facility.
2.69. SB 1016. State of California Senate Bill 1016, approved September 16, 2008, establishing a per capita disposal based accounting system for diversion reporting in meeting the mandated 50 percent diversion requirement as set by AB 939. SB 1016 also changed reporting and review process so that jurisdictions meeting the 50 percent diversion requirement would be subject to review by CalRecycle (formally referred to as the CIWMB), every four years, while those jurisdictions not meeting the 50 percent diversion requirement would continue to be reviewed by CalRecycle every two years.
2.70. SB 1383. State of California Senate Bill 1383, approved September 19, 2016 mandates a fifty percent (50%) reduction statewide in disposal of Organic Materials from the 2014 levels by 2020 and seventy-five percent (75%) by 2025. A seventy-five percent (75%) reduction from the 2014 level requires California to limit disposal to roughly five (5) million tons of organics annually on and after 2025. Further, SB 1383 requires CalRecycle’s regulations to include requirements designed to improve the recovery of edible food that is currently landfilled by twenty percent (20%) by 2025.
2.71. Service Area. That area within the city limits of the City of Atwater designated by CITY
as the Service Area as those limits may be adjusted from time to time by annexation or similar process as allowed under California law.
2.72. Service Recipient. An individual, Business, or the CITY, receiving SFD, MFD, Commercial, or CITY Collection Services.
2.73. Service Unit. SFD Service Units, MFD Service Units, City Service Units, or Commercial Service Units. Service Unit specifically includes the following:
A. City Service Unit. City Facility(ies) that utilize a Bin, Cart, or Roll-Off Container(s) for the accumulation and set-out of Solid Waste. City Service Units are listed in Exhibit 3, and as may be modified by written notice to CONTRACTOR by the CITY.
B. Commercial Service Unit. Business Service Units, City Service Units and MixedUse Dwellings that utilize a Garbage Bin, Cart, Compactor, Roll-Off Container for the accumulation and set-out of Commercial Solid Waste.
C. Multi-Family Dwelling Service Unit (MFD). Five (5) or greater Dwelling Units in the Service Area sharing a Cart or Bin for the accumulation and set out of Commercial Solid Waste.
D. SFD Service Unit. Any Single-Family Dwelling Unit (SFD) in the Service Area utilizing a Cart, or any combination of 1 – 4 Dwelling Units sharing Carts, for the accumulation and set out of Residential Solid Waste.
2.74. SFD Collection Service. SFD Garbage Collection Service, SFD Recycling Service, SFD Organic Waste Collection Service, SFD Large Item Collection Service, and SFD Used Oil Collection Service. SFD Collection Service specifically includes the following:
A. SFD Garbage Collection Service. The Collection of Residential Garbage, by CONTRACTOR, from SFD Service Units in the Service Area and the delivery of that Residential Garbage to a Disposal Facility.
B. SFD Large Item Collection Service. The periodic on-call Collection of Large Items, by CONTRACTOR, from SFD Service Units in the Service Area and the delivery of those Large Items to a Disposal Facility, Materials Recycling Facility or such other facility as may be appropriate under the terms of this Agreement. SFD Large Item Collection Service does not include the Collection of Large Items through the use of Roll-Off Containers. SFD Large Item Collection Service shall be provided at the rate set forth in Exhibit 1.
C. SFD Organic Waste Collection Service. The Collection of Organic Waste, by CONTRACTOR, from SFD Service Units in the Service Area, the delivery of those Organic Waste materials to an Organic Waste Processing Facility and the processing and marketing of those Organic Waste materials, and the disposal of all SFD Organic Waste Processing Residual.
D. SFD Recycling Service. The Collection of Recyclable Materials by the CONTRACTOR from SFD Service Units in the Service Area, the delivery of those Recyclable Materials to a Materials Recycling Facility and the processing and marketing of those Recyclable Materials, and the disposal of all SFD Recyclable Materials Processing Residual.
2.75. Sludge. The accumulated solids, residues, and precipitates generated as a result of waste treatment or processing in the Service Area, including wastewater treatment, water supply treatment, or operation of an air pollution control facility, and mixed liquids and solids pumped from septic tanks, grease traps, privies, or similar disposal appurtenances or any other such waste having similar characteristics or effects.
2.76. Solid Waste. The materials described in Public Resources Code section 40191, including Garbage, Recyclable Materials, Organic Waste, Construction and Demolition Debris, and Large Items. Solid Waste does not include Exempt Waste. Solid Waste specifically includes the following:
A. Construction and Demolition Debris. Used or discarded materials resulting from construction, remodeling, repair or demolition operations on any type of structure.
B. Food Waste. Food scraps and trimmings and other putrescible waste that results from food production, preparation, storage, consumption or handling. Food Waste includes but is not limited to meat, fish and dairy waste, fruit and vegetable waste, grain waste, and compostable food contaminated paper products. Food Waste does not include Exempt Waste.
C. Garbage. All putrescible and non-putrescible solid, semi-solid and associated liquid waste, as defined in California Public Resources Code section 40191.
Garbage does not include Recyclable Materials, Organic Waste, Large Items, Construction and Demolition Debris, or Exempt Waste. Garbage must be generated by and at the Service Unit wherein the Garbage is Collected. Garbage does not include those items defined as Exempt Waste. Garbage must be generated by and at the Service Unit wherein the Garbage is Collected. Garbage does not include those items defined as Exempt Waste.
D. Green Waste. Any vegetative matter resulting from normal yard and landscaping maintenance that is not more than five (5) feet in its longest dimension or six (6) inches in diameter or weighs more than fifty (50) pounds. Green Waste includes plant debris, such as grass clippings, leaves, pruning, weeds, branches, brush, Holiday trees, and other forms of organic waste and must be generated by and at the SFD Service Unit where the Green Waste is Collected. Green Waste does not include items defined as Exempt Waste.
E. Large Green Waste. Oversized Green Waste such as tree trunks and branches with a diameter of not less than six (6) inches and not more than two (2) feet and a length of not more than five (5) feet in its longest dimension, which are attributed to the normal activities of an SFD Service Unit. Large Green Waste must be generated by and at the SFD Service Unit where the Large Green Waste is
Collected, and is Collected by means of Large Item Collection.
F. Large Items. Those materials including furniture; carpets; mattresses; White Goods; Brown Goods; Large Green Waste which are attributed to the normal activities of an SFD Service Unit. Large Items must be generated by and at the SFD Service Unit wherein the Large Items are Collected. Large Items do not include items defined as Exempt Waste.
G. Organic Waste. Food Waste, Green Waste, Large Green Waste, and Other Organics, either separately or commingled with each other, that has been separated at the source of generation from Garbage and Recyclable Materials.
H. Other Organics. Other Organics includes compostable food-soiled paper and paper products, compostable food wares and compostable food packaging, stable materials, manure, and natural fiber textiles, and other compostable materials as may be required by the CITY or CalRecycle.
I. Recyclable Materials. Those materials which are capable of being recycled using available processes and markets and which would otherwise be processed or disposed of as Residential Garbage or Commercial Garbage. These materials will be as defined by CITY. Recyclable Materials currently being Collected are included in Exhibit 10. CITY and CONTRACTOR agree to meet from time to time as needed to discuss additions or deletions from the list of Recyclable Materials.
CONTRACTOR may request removal of Recyclable Materials due to market limitations, which request will be decided by the Agreement Administrator.
J. White Goods. Inoperative and discarded refrigerators, ranges, water heaters, freezers, and other similar household appliances.
2.77. Used Oil. Any oil that has been refined from crude oil or has been synthetically produced, and is no longer useful to the Service Recipient because of extended storage, spillage or contamination with non-hazardous impurities such as dirt or water; or has been used and as a result of such use has been contaminated with physical or chemical impurities. Used Oil must be generated by an SFD or MFD Service Recipient. Used Oils does not include diesel oil, cooking oils or grease, mineral oil, transmission fluid, gasoline, hydraulic fluid, brake fluid or antifreeze.
2.78. Temporary Roll-Off. Collection Service through the use of Roll-Off Containers to Service Recipients for a limited period of time not to exceed thirty days except that Collection Service related to an on-going construction project may do so through completion of the construction project. All construction projects must have an active City building or demolition permit.
2.79. Used Oil Filter. Any oil filter that is no longer useful to the Service Recipient because of extended storage, spillage or contamination with non-hazardous impurities such as dirt or water; or has been used and as a result of such use has been contaminated with physical or chemical impurities. Used Oil Filters must be generated by SFD or MFD Service Recipients.
2.80. Work Day. Any day, Monday through Saturday, that is not a holiday as set forth in this
Agreement.
ARTICLE 3. Grant of Exclusive Franchise; Consideration
3.01. Scope of Franchise. Except as hereinafter expressly set forth, CITY hereby grants to CONTRACTOR and CONTRACTOR hereby accepts from CITY, the exclusive franchise, right, and privilege to collect, remove, and dispose of, in a lawful manner, Solid Waste accumulating in the CITY’s Service Area, as may be adjusted from time to time by approved annexations, that are required to be accumulated and offered for collection to the CONTRACTOR in accordance with the CITY’s Municipal Code, for the Term of and within the scope set forth in this Agreement. The exclusive franchise, right, and privilege to provide Solid Waste Handling Services within CITY granted to CONTRACTOR by this Agreement shall be interpreted to be consistent with all applicable state and federal laws, now in effect and adopted during the Term of this Agreement, and the scope of this Agreement shall be limited by all applicable current and developing laws and regulations. In the event that future interpretations of current law or future enactments limit the ability of CITY to lawfully grant CONTRACTOR the scope of services as specifically set forth herein, CONTRACTOR agrees that the scope of this Agreement will be limited to those services and materials which may be lawfully provided, and that CITY shall not be responsible for any lost profits claimed by CONTRACTOR as a result thereof. The provisions of Title 8, Chapter 8.16 of the Atwater Municipal Code, as they now exist or as they may be amended, and the regulations adopted pursuant thereto, and any future amendments to said regulations, are specifically incorporated herein and made a part hereof as if fully set forth in this Agreement.
If the scope of this Agreement is limited or changed due to changes in the Atwater Municipal Code not required by applicable federal or state law and if the changes result in a material change in costs or loss of revenue to Contractor, City and Contractor shall negotiate in good faith, a change in Contractors compensation or a reduction of services equal to the value of the adjustment if a change Contractors compensation cannot be implemented. If City and Contractor are unable to reach agreement about such a change in Contractors compensation or a reduction in services, then Contractor may terminate this Agreement upon six (6) months’ written notice to City.
3.02. Consideration for Franchise. In consideration for CITY’s grant of the exclusive franchise, for negotiation of this Agreement, and for retention of the longstanding relationship with CITY, CONTRACTOR shall make when due to CITY all payments described in this Agreement. All of CONTRACTOR’s payments to CITY, whether described in this Article or otherwise in the Agreement, reflects reimbursement to CITY for CITY’s actual and reasonable costs and payment for the reasonable value of the exclusive franchise, and is subject to characterization, appropriation, and expenditure by the City Council and may be used for any lawful purpose as determined by CITY in its sole discretion.
3.03. Matters Excluded from Scope of Franchise. Notwithstanding any other provisions set forth in this Agreement to the contrary, the exclusive franchise granted herein shall exclude the Collection, transportation, processing, recycling, and/or disposal of:
A. Any Solid Waste otherwise within the scope of this Agreement which is transported by a Self-Hauler as that term is used in the Municipal Code, or any other CITY ordinance, resolution, regulation, or policy, as such may be adopted or amended from time to time;
B. The sale or donation of Recyclable Material sold or donated by the person or entity that generated such Recyclable Material (the “Generator”) to any Person or entity other than CONTRACTOR; provided, however, to the extent permitted by law, if the Generator is required to pay monetary or non-monetary consideration for the Collection, transportation, transfer, or processing of Recyclable Material to any Person or entity other than CONTRACTOR, the fact that the Generator receives a reduction or discount in price (or in other terms of the consideration the Generator is required to pay) shall not be considered a sale or donation; C. Any Solid Waste otherwise within the scope of this Agreement which is Collected or transported to a disposal or recycling facility by CITY employees in the course and scope of their employment with CITY;
D. The Collection, transportation, or disposal of Hazardous Waste; Universal Waste; E-Waste; biohazardous waste; untreated medical waste; infectious waste; Animal Waste; used cooking fats, oils, grease, and similar waste; or other materials which do not constitute Solid Waste;
E. The Collection, transportation, and processing of Construction and Demolition Debris by a contractor, handyman, repairman, or other similar service provider, using its own equipment, as an incidental part of the services provided to its customers, rather than as a hauling service, provided that such waste is not Collected or transported by a third party hired for the primary purpose of Collecting and transporting said materials;
F. Temporary Roll Off Service provided by one additional exclusive franchisee which shall be subject to substantially similar requirements as those set forth in this Agreement, provided that the City may require different insurance, performance bond, and similar requirements reflecting the size and risk of such franchisee.
G. The Collection, transportation, and processing of Green Waste and related Solid Waste by a gardener, or landscaper, as an incidental part of the gardening or landscaping services provided to its customers, rather than as a hauling service provided that such Solid Waste is not Collected or transported by a third party hired for the primary purpose of Collecting and transporting said materials; H. Nothing in this Agreement will be construed as requiring Service Recipients to set out Recyclable Materials, Organic Waste, or Large Items for Collection by CONTRACTOR. Service Recipients may dispose of Recyclable Materials, Organic Waste, and Large Items by other appropriate means, including but not limited to, taking Recyclable Materials, Organic Waste, or Large Items to drop-off facilities and donating or selling such items to private or public entities; I. Solid Waste Handling Services provided by any Person having a legal right to continue doing so, pursuant to Public Resources Code section 49520, et. seq., or
otherwise, as long as and to the extent such legal right continues to exist; except that to the degree any territory in which CONTRACTOR has a franchise granted by another governmental entity is annexed into CITY during the Term, CONTRACTOR agrees the provisions of this Agreement shall apply to such territory and further acknowledges that this Agreement constitutes any notice required by the Public Resources Code in connection therewith.
ARTICLE 4. Enforcement of Exclusivity
CONTRACTOR shall be responsible for enforcing the exclusivity of this Agreement. CITY may reasonably assist CONTRACTOR in its efforts to enforce the exclusivity hereof. In addition, CITY may adopt such ordinances or other regulations as it deems to be necessary or desirable to protect the exclusive rights granted herein and may enforce such regulations in its reasonable discretion. CONTRACTOR may enforce such exclusivity provisions when requested to do so and CITY may assign any claim to CONTRACTOR to assist in such enforcement. The CITY reserves to itself the right to make reasonable changes in the Atwater Municipal Code and the Regulations adopted pursuant thereto amended or changed in the future. The Parties understand and agree that CITY shall not be liable for damages resulting from failure to enforce its Municipal Code, nor shall such failure constitute a breach of this Agreement entitling CONTRACTOR to rescission or any other remedy.
ARTICLE 5. Acceptance; Waiver
CONTRACTOR agrees to be bound by and comply with all the requirements of this Agreement.
CONTRACTOR waives CONTRACTOR’s right to change the terms of this Agreement under federal, state, or local law, or administrative regulation. CONTRACTOR waives any right or claim to serve CITY or any part of CITY under any prior grant of franchise, contract, license, or permit issued or granted by any governmental entity, including but not limited to any right under section 49520 of the Public Resources Code.
ARTICLE 6. Term of Agreement
6.01. Initial Term. Subject to the provisions of this Agreement relating to termination, the initial term of this Agreement is a ten (10) year period beginning midnight July 1, 2023 (the “Effective Date”), and terminating on 11:59 pm June 30, 2033 (the “Initial Term”).
6.02. Extension of Term Option. Provided that CONTRACTOR (1) is not then in default of any material term or condition of the Agreement; (2) has not been designated as a “habitual violator” as provided in this Agreement; and (3) that the Extension Term Option has not been voided as otherwise provided in this Agreement, CONTRACTOR may request a five (5) year term extension to the Initial Term (the “Extended Term”) by providing CITY with written notice of the request at least eighteen (18) months prior to the expiration of the Initial Term. In that event, CITY shall meet and confer with CONTRACTOR at least two (2) times prior to expiration of the Initial Term, but under no circumstances will CITY be obligated to extend the term. Any extension shall be set forth in a written amendment to this Agreement.
6.03. Other Provisions. CITY may, at the end of the Initial Term or the Extended Term, renegotiate the terms and conditions of the Agreement with the CONTRACTOR, excluding the negotiation of a payment to CITY, for an Extended Term and / or may request proposals from qualified contractors to
provide Collection Services. CITY retains the right to both negotiate with CONTRACTOR while concurrently conducting a request for proposal process.
ARTICLE 7. Conditions to Agreement’s Effectiveness
The satisfaction of each and all of the conditions set out below, each of which may be waived in whole or in part by CITY in writing, is a condition precedent to the effectiveness of this Agreement, and a condition of CONTRACTOR’s continued right to the benefits conveyed herein:
7.01. Accuracy of Representations. All representations and warranties made by CONTRACTOR and set forth in this Agreement are accurate, true, and correct on and as of the Effective Date of this Agreement.
7.02. Absence of Litigation or Referendum Petition. There is no litigation pending in any court challenging the award of this exclusive franchise for Solid Waste Handling Services to CONTRACTOR or the execution of this Agreement or seeking to restrain or enjoin its performance.
7.03. Furnishing of Insurance, Bond, and Letter of Credit. CONTRACTOR shall have furnished evidence of any insurance and surety required by this Agreement, and shall comply with all ongoing requirements relating thereto.
7.04. Effectiveness of City Council Action. Except as set forth in Article 17, the City Council’s Resolution approving this Agreement shall have become effective pursuant to California law. If a referendum petition or legal challenge to the award of this Agreement is submitted or filed, CONTRACTOR shall defend, indemnify, and hold CITY harmless for all costs incurred to defend such challenge.
CONTRACTOR shall further reimburse CITY for any costs incurred in any election subject to this Section.
7.05. Payment of Fees and Costs. CONTRACTOR shall have made payment to CITY of all fees, costs, and other payments due, including but not limited to those fees, costs, and payments set forth in Article 18.
ARTICLE 8. Services Provided by Contractor
8.01. General.
8.01.1. Equipment. CONTRACTOR shall furnish all labor, supervision, materials, supplies, and equipment necessary to provide for all services required by the terms of this Agreement.
8.01.2. Service Standards. CONTRACTOR must perform all Collection Services under this Agreement in a thorough, workmanlike, and professional manner consistent with all relevant provisions of law.
8.01.3. Noise and Disruption. CONTRACTOR shall perform all Collection Services as required hereunder in such a manner as to minimize noise and other disruptive impacts including, without limitation, those upon traffic. CONTRACTOR shall use its best efforts to coordinate its Collection schedules
such that CONTRACTOR’s Collection of Solid Waste occurs on the business day immediately preceding street sweeping on any given street.
8.01.4. Collection Times. CONTRACTOR shall perform all Collection Services at the collection times set forth in this Agreement and according to the type of Service Recipient for whom Collection Services are performed.
8.01.5. Labor and Equipment. CONTRACTOR must provide and maintain all labor, equipment, tools, facilities, and personnel supervision required for the performance of CONTRACTOR’s obligations under this Agreement. CONTRACTOR must at all times have sufficient backup equipment and labor to fulfill CONTRACTOR’s obligations under this Agreement. No compensation for CONTRACTOR’s services or for CONTRACTOR’s supply of labor, equipment, tools, facilities or supervision will be provided or paid to CONTRACTOR by CITY or by any Service Recipient except as expressly provided by this Agreement.
8.01.6. Holiday Service. The CITY observes New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day as legal holidays. CONTRACTOR is not required to provide Collection Services or maintain office hours on the designated holidays. In any week in which one of these holidays falls on a Work Day, SFD Collection Services for the holiday and each Work Day thereafter will be delayed one Work Day for the remainder of the week with normally scheduled Friday SFD Collection Services being performed on Saturday. Commercial Collection Services will be adjusted as set forth in this Article 8 but must meet the minimum frequency requirements of one (1) time per week.
8.01.7. CONTRACTOR’s Bins, Carts, and other Containers. CONTRACTOR’s Bins, Carts, and other containers must be compliant with SB 1383 and shall meet the minimum standards set forth on the attached Exhibit 4, including but not limited to the following:
8.01.7.1. Each container must be newly painted in a color distinctive to each use and all bins for the same use shall be colored the same. The following colors shall be used for collection container lids: Garbage (black or grey); Recyclable Materials (blue); Organic Materials (green); Contractorowned Compactor Bins (color appropriate to content as previously designated); Food Waste (yellow).
8.01.7.2. Each container shall be marked with an adhesive label or imprinted with its intended usage in letters and pictures. The label shall specify what materials are allowed to be placed in each container. Labels must represent acceptable versus unacceptable items in written or graphic form.
8.01.7.3. CONTRACTOR must provide all-new Carts and Bins to each Service Recipient within ninety (90) days after the commencement of Collection Services under this Agreement. CONTRACTOR must provide all new Carts to each new Service Recipient within five (5) Work Days of a request for Collection Services under this Agreement.
8.02. Commingling of Routes, Materials.
8.02.1. Non-CITY Solid Waste. CONTRACTOR may not at any time commingle any materials Collected pursuant to this Agreement with any other material Collected by CONTRACTOR from
any non-CITY Solid Waste, whether inside or outside the CITY, without at least thirty (30) days prior to the proposed comingling providing the Agreement Administrator with written justification of need to comingle materials, to the reasonable satisfaction of the Agreement Administrator. If commingling is approved and takes place, CONTRACTOR agrees to indemnify, defend, and hold CITY harmless from any claims, demands, fines, or penalties arising from CONTRACTOR’s commingling.
8.02.2. Recyclable Materials. Subject to this Article, CONTRACTOR must not at any time commingle SFD or Commercial Recyclable Materials Collected pursuant to this Agreement with any other material type Collected by CONTRACTOR without the express prior written authorization of the Agreement Administrator.
8.02.3. Organic Waste. Subject to this Article, CONTRACTOR must not at any time commingle SFD or Commercial Organic Waste Collected pursuant to this Agreement with any other material type Collected by CONTRACTOR, without the express prior written authorization of the Agreement Administrator.
8.03. Recyclable Materials and Organic Waste Contamination. CONTRACTOR must offer the Service Recipients the correct combination of Cart, Bin, and Roll-Off Container sizes and Collection frequency that matches their unique service needs to reduce contamination of Recyclable Materials and Organic Waste. To support CITY’s diversion goals and CONTRACTOR’s Diversion Requirements as set forth in this Agreement, CONTRACTOR is only required to collect Recyclable Materials if they have been separated by the Service Recipient from Garbage and Organic Waste, and is only be required to collect Organic Waste if it has been separated by the Service Recipient from Garbage and Recyclable Materials.
As part of CONTRACTOR’s Public Education Services under this Agreement, CONTRACTOR agrees to provide outreach and support to SFD Service Recipients. Additionally, CONTRACTOR’s route collection personnel will report to CONTRACTOR’s supervisors if they observe potential contamination problems, and/or insufficient collection capacity. For purposes of determining if Recyclable Materials or Organic Waste are deemed to be contaminated, if, by visual or digital inspection, Recyclable Materials are commingled with ten percent (10%) by weight or volume of Garbage or Organic Waste, or if, by visual inspection, Organic Waste is commingled with three percent (3%) by volume of Garbage or Recyclable Materials, then Recyclable Materials and/or Organic Waste will be deemed to be contaminated and CONTRACTOR may take the following steps:
8.03.1. SFD Service Recipients.
8.03.1.1. First Occurrence. For the first occurrence of contamination for a particular container (i.e., Recyclable Materials or Organic Waste), CONTRACTOR must collect the contaminated container (as Solid Waste) and must affix a Contamination Violation Notice to the contaminated container which contains instructions on the proper procedures for sorting Recyclable Materials or Organic Waste, and must notify the Service Recipient by phone, U.S. mail, e-mail, or in person (which may be a container tag), that for the second and subsequent incidents of excess contamination, the Service Recipient may be charged a contamination fee for the contaminated container, and for the third or subsequent occurrence of contamination, CONTRACTOR may increase the Cart size, or require an additional Cart, if necessary to provide the Service Recipient with adequate capacity to timely dispose of Recyclable Materials and Organic Waste without commingling. Prior to requiring an additional Cart, CONTRACTOR’s representative must first attempt to contact the Service Recipient by phone, U.S. mail, ePage 327 of 405 mail, or in person (which may be a container tag) to ensure that they have the appropriate level of service for proper collection of Recyclable Materials and/or Organic Waste. CONTRACTOR must also provide digital/visual documentation to the Service Recipient that clearly documents the Service Recipient’s ongoing contamination problems.
8.03.1.2. Second Occurrence. For the second occurrence within any twelve-month period of contamination for a particular container (i.e., Recyclable Materials or Organic Waste), CONTACTOR will provide a Contamination Violation Notice that contains instructions on the proper procedures for setting out Recyclable Materials or Organic Waste, and CONTRACTOR must collect the contaminated Container (as Solid Waste) and will notify the CITY. For any contamination fee charge being assessed, CONTRACTOR must provide digital/visual documentation to the Service Recipient that clearly documents the Service Recipient’s on-going contamination problems. The CITY may charge the Service Recipient a contamination fee as set forth in Exhibit 1.
8.03.1.3. Third and Subsequent Occurrence. For the third or subsequent occurrence within any twelve-month period of contamination for a particular container (i.e., Recyclable Materials or Organic Waste), CONTRACTOR must collect the contaminated Container (as Solid Waste) and must charge the Service Recipient a contamination fee as set forth in Exhibit 1. CONTRACTOR must continue providing the Recyclable Materials or Organic Waste Collection Services. CONTRACTOR must provide (or have provided) digital documentation to the Service Recipient that clearly documents the Service Recipient’s on-going contamination problems and written Notices of contamination as described above. CONTRACTOR must either (i) notify CITY within five (5) Business Days to adjust the offending Service Recipient to the appropriate Service Rate as set forth in Exhibit 1 if CONTRACTOR increases in the Cart size or requires an additional Cart for excessive contamination, or (ii) notify the CITY to impose a contamination surcharge to the account for a period of six months or until the Service Recipient has demonstrated no contamination for a period of three consecutive months. CITY will consult with CONTRACTOR and consider, and pursue as applicable, appropriate legal remedies against offending Service Recipients in order to secure discontinuance of the contamination. All CITY costs of such action shall be recoverable from the offending Service Recipients.
8.03.2. Commercial and MFD Service Recipients. The following provisions will apply to all Commercial and MDF Service Recipients except those eligible for temporary treatment pursuant to Section 8.03.3.
8.03.2.1. First Occurrence. For the first occurrence within any twelvemonth period of contamination for a particular container (i.e., Recyclable Materials or Organic Waste), CONTRACTOR must collect the contaminated container (as Solid Waste) and must affix a Contamination Violation Notice to the contaminated container which contains instructions on the proper procedures for sorting Recyclable Materials or Organic Waste, and must notify the Service Recipient by phone, U.S. mail, e-mail, or in person (which may be a container tag), that for the second and subsequent incidents of contamination, the Service Recipient will be charged a contamination fee for the contaminated container, and for the third or subsequent occurrence of excess contamination, CONTRACTOR may increase the Cart or Bin size, if necessary to provide the Service Recipient with adequate capacity to timely dispose of Recyclable Materials and Organic Waste without commingling, or collection frequency or impose a contamination surcharge on the account for a period of six months or until the Service Recipient has demonstrated no contamination for a period of three consecutive months. Prior to increasing the Cart or
Bin size Cart CONTRACTOR’s representative must first attempt to contact the Service Recipient by phone, U.S. mail, e-mail, or in person (which may be a container tag) to ensure that they have the appropriate level of service for proper collection of Recyclable Materials and/or Organic Waste. CONTRACTOR must also provide digital/visual documentation to the Service Recipient that clearly documents the Service Recipient’s contamination problem.
8.03.2.2. Second Occurrence. For the second occurrence within any twelve-month period of contamination for a particular container (i.e., Recyclable Materials or Organic Waste), CONTACTOR will provide a Contamination Violation Notice that contains instructions on the proper procedures for setting out Recyclable Materials or Organic Waste, and CONTRACTOR must collect the contaminated Container (as Solid Waste) and will notify the CITY. For any contamination fee charge being assessed, CONTRACTOR must provide digital/visual documentation to the Service Recipient that clearly documents the Service Recipient’s on-going contamination problems. The CITY may charge the Service Recipient a contamination fee as set forth in Exhibit 1.
8.03.2.3. Third and Subsequent Occurrence. For the third and subsequent occurrence within any twelve-month period of contamination for a particular container (i.e., Recyclable Materials or Organic Waste), CONTRACTOR must collect the contaminated Container (as Solid Waste) and must charge the Service Recipient a contamination fee as set forth in Exhibit 1. CONTRACTOR must continue providing the Recyclable Materials or Organic Waste Collection Services. CONTRACTOR must provide (or have provided) digital documentation to the Service Recipient that clearly documents the Service Recipient’s on-going contamination problems and written Notices of contamination as described above. CONTRACTOR must either (i) notify CITY within five (5) Business Days to adjust the offending Service Recipient to the appropriate Service Rate as set forth in Exhibit 1 if CONTRACTOR increases in the Bin or Cart size or frequency of collection for excessive contamination, or (ii) notify the CITY to impose a contamination surcharge to the account for a period of six months or until the Service Recipient has demonstrated no contamination for a period of three consecutive months. CITY will consult with CONTRACTOR and consider, and pursue as applicable, appropriate legal remedies against offending Service Recipients in order to secure discontinuance of the contamination. All CITY costs of such action shall be recoverable from the offending Service Recipients.
8.03.3. Exception to Commercial or MFD Contamination Procedures. The following provisions will only apply to New Commercial and MFD Service Recipients on or after July 1, 2023, and to those Service Recipients as of July 1, 2023 who were not then receiving Recyclable Materials or Organic Waste Collection Service. For eligible Service Recipients the contamination procedures provided below will apply for the first year of their new service, or for existing service recipients will only apply for one year commencing July 1, 2023. After this grace period, the provisions of Section 8.03.2 will be applicable to the Service Recipient.
8.03.3.1. First Occurrence. For the first occurrence within any twelvemonth period of contamination for a particular container (i.e., Recyclable Materials or Organic Waste), CONTRACTOR must collect the contaminated container (as Solid Waste) and must affix a Contamination Violation Notice to the contaminated container which contains instructions on the proper procedures for sorting Recyclable Materials or Organic Waste, and must notify the Service Recipient by phone, U.S. mail, e-mail, or in person (which may be a container tag), that for the second and subsequent incidents of excess contamination, the Service Recipient may be charged a contamination fee for the contaminated container, and for the third or subsequent occurrence of excess contamination, CONTRACTOR may increase the Cart
or Bin size, if necessary to provide the Service Recipient with adequate capacity to timely dispose of Recyclable Materials and Organic Waste without commingling, or collection frequency or impose a contamination surcharge as provide in Section 8.03.2. Prior to requiring an additional Cart CONTRACTOR’s representative must first attempt to contact the Service Recipient by phone, U.S. mail, e-mail, or in person (which may be a container tag) to ensure that they have the appropriate level of service for proper collection of Recyclable Materials and/or Organic Waste. CONTRACTOR must also provide digital/visual documentation to the Service Recipient that clearly documents the Service Recipient’s on-going contamination problems.
8.03.3.2. Second Occurrence. For the second occurrence within any twelvemonth period of contamination for a particular container (i.e., Recyclable Materials or Organic Waste), CONTRACTOR will provide a Contamination Violation Notice that contains instructions on the proper procedures for setting out Recyclable Materials or Organic Waste, and CONTRACTOR must collect the contaminated Container (as Solid Waste) and will notify the CITY. For any contamination fee charge being assessed, CONTRACTOR must provide digital/visual documentation to the Service Recipient that clearly documents the Service Recipient’s on-going contamination problems. The CITY may charge the Service Recipient a contamination fee as set forth in Exhibit 1.
8.03.3.3. Third and Subsequent Occurrence. For the third or subsequent occurrence within any twelve-month period of contamination for a particular container (i.e., Recyclable Materials or Organic Waste), CONTRACTOR must collect the contaminated Container (as Solid Waste) and must charge the Service Recipient a contamination fee as set forth in Exhibit 1. CONTRACTOR must continue providing the Recyclable Materials or Organic Waste Collection Services. CONTRACTOR must provide (or have provided) digital documentation to the Service Recipient that clearly documents the Service Recipient’s on-going contamination problems and written Notices of contamination as described above.
CONTRACTOR must either (i) notify CITY within five (5) Business Days to adjust the offending Service Recipient to the appropriate Service Rate as set forth in Exhibit 1 if CONTRACTOR increases in the Bin or Cart size or frequency of collection for excessive contamination, or (ii) notify the CITY to impose a contamination surcharge to the account for a period of six months or until the Service Recipient has demonstrated no contamination for a period of three consecutive months. CITY will consult with CONTRACTOR and consider, and pursue as applicable, appropriate legal remedies against offending Service Recipients in order to secure discontinuance of the contamination. All CITY costs of such action shall be recoverable from the offending Service Recipients.
8.03.4. Tracking Occurrences of Contamination. In all instances, each Contamination occurrence is tracked annually per Calendar Year, and resets at the start of each Calendar Year.
8.03.5. Disputes Over Excess Contamination Charges. If Service Recipient disputes a contamination charge (which dispute must be received by CITY within 30 days of being assessed), CITY shall temporarily halt any contamination charge and/or increased Maximum Service Rate resulting from increasing the Cart or Bin size or collection frequency, and request a ruling by the City Manager to resolve the dispute. A rule by the City Manager on any such dispute must be filed within ten (10) Business Days of CITY’s halting of contamination charge, or increased Maximum Rate, and must include written documentation and digital/visual evidence of ongoing overall problems. The City Manager may request a meeting (in person or phone) with both the Service Recipient and CONTACTOR to resolve the dispute.
Following such a meeting, the City Manager will rule on the dispute within ten (10) Business Days, and the
City Manager’s decision on resolving the dispute between and Service Recipient will be final. If the City Manager rules in favor of the Service Recipient, the CITY will credit the disputed contamination charges or increased Maximum Service Rate. If the City Manager rules in favor of CONTRACTOR, CITY may charge Service Recipient the prior halted contamination charge and/or increased Maximum Service Rate resulting from increasing the Cart or Bin number, size, or collection frequency.
8.04. Container Overage and Correction Procedures.
8.04.1. Overage and Correction Procedures. CONTRACTOR shall offer the Service Recipients the correct combination of Cart, Bin and Roll-Off Container sizes and collection frequency that matches each Service Recipient’s unique service needs to enable clean, efficient, and cost-effective collection of Solid Waste. CITY and CONTRACTOR agree that overflow of Solid Waste that is not properly in the Service Recipient‘s Cart(s), Bin(s) or Roll-Off Container(s) may negatively impact public health and safety. CONTRACTOR has also agreed to conduct recycling audits and provide outreach and support to Service Recipient accounts receiving the correct service level. However, in the event that Service Recipients are found to habitually overflow their Solid Waste Cart(s), Bin(s) or Roll-Off Container(s), CONTRACTOR may take the steps as listed below to correct Service Recipient’s on-going overflow of Solid Waste.
8.04.1.1. Prior Arrangements for Collection. If the Service Recipient has made prior arrangements with CONTRACTOR for collection of Solid Waste Overages, CONTRACTOR must collect such overages as arranged, and must notify the City to charge the Service Recipient the Solid Waste Overage fee (prior arrangement) rate set forth in Exhibit 1.
8.04.1.2. No Prior Arrangements. If the Service Recipient has not made prior arrangements with CONTRACTOR for collection of Solid Waste Overage, (i) CONTRACTOR may collect such Solid Waste Overage without notifying the CITY to charge Service Recipient the Solid Waste Overage fee as a courtesy; (ii) CONTRACTOR may not collect the Solid Waste Overage and leave a NonCollection Notice explaining the reason for non-collection of the Solid Waste Overage; and (iii) CONTRACTOR may collect the Solid Waste Overage and notify the CITY to charge the Service Recipient the Solid Waste Overage fee (no prior arrangement) rate set forth in Exhibit 1 as provided below, or increase the capacity or frequency of collection of the existing Cart(s), Bin(s), and Roll-Off Container(s) to match documented service needs as provided below. In managing Solid Waste Overages, the following apply:
8.04.1.2.1. SFD Service Recipients – Each Occurrence. For each occurrence CONTRACTOR will not collect the Solid Waste Overage and CONTRACTOR must provide the following written notice (via e-mail, U.S. mail, or in person (which may be by Non-Collection Notice) to the Service Recipient: (i) the date, description and photograph of the Solid Waste Overage. CONTRACTOR’s Non-Collection Notice for SFD Service Recipients shall also contain instructions on (a) how to schedule a Large Item Collection or (b) request an additional Cart to eliminate future Overages.
8.04.1.2.2. Commercial and MFD Service Recipients – Each Occurrence. CONTRACTOR must provide a written notice on the Container, and may provide a copy of the notice via e-mail, U.S. mail, or in person (which may be by Non-Collection Notice) to the Service Recipient with the date, description and photograph of the Solid Waste Overage and notify the CITY of each occurrence. CITY may charge the Service Recipient a Solid Waste Overage fee as set forth in Exhibit 1, and increase the capacity or collection frequency of the Cart, Bin or Roll-Off Container to match documented service needs. At least ten (10) Business Days prior to increasing the Cart, Bin or Roll-Off Container size or frequency of Collection, CONTRACTOR’s representative must also contact the Service Recipient by phone, U.S. mail, e-mail or in person (which may be by Non-Collection Notice) to ensure that Service
Recipient has the appropriate level of service. CONTRACTOR must notify CITY within ten (10) Business Days of any changes in Service Recipient’s Cart, Bin or Roll-Off Container size or collection frequency. The increased capacity or collection frequency will remain in effect until CONTRACTOR determines that it is no longer needed to prevent overages, which may be longer than the one Calendar Year stated above. Such determination will be in CONTRACTOR’s sole but reasonable discretion and will be subject to the dispute resolution procedure set forth below. CITY will consider, and pursue as applicable, appropriate legal remedies against offending Service Recipients in order to secure discontinuance of the overages. All CITY costs of such action shall be recoverable from the offending Service Recipients.
8.04.2. Tracking Occurrences of Solid Waste Overage. In all instances, each Solid Waste Overage occurrence is tracked annually per Calendar Year, and resets at the start of each Calendar Year.
8.04.3. Disputes Over Container Overage Charges. If Service Recipient disputes Solid Waste Overage charge or size or collection frequency change (which dispute must be received by CITY within 30 days of the disputed action), CITY must temporarily halt Solid Waste Overage charge(s) and/or increased Maximum Service Rate(s) resulting from increasing the Solid Waste Cart, Bin, or Roll-Off Container size or collection frequency, and request a ruling by the City Manager to resolve the dispute. The City Manager to rule on any such dispute must be filed within ten (10) Business Days of CITY’s halting of Solid Waste Overage charge, or increased Maximum Rate, and must include written documentation and digital/visual evidence of ongoing overall problems. The City Manager may request a meeting (in person or phone) with both the Service Recipient and CONTACTOR to resolve the dispute. Following such a meeting, the City Manager will rule on the dispute within ten (10) Business Days, and the City Manager’s decision on resolving the dispute between and Service Recipient will be final. If the City Manager rules in favor of the Service Recipient, CITY must credit the disputed charge or increased Maximum Service Rate.
If the City Manager rules in favor of CONTRACTOR, CITY may charge Service Recipient the prior halted Solid Waste Overage charge and/or increased Maximum Service Rate resulting from increasing the Solid Waste Cart, Bin or Roll-Off Container number, size, or collection frequency.
8.05. Ownership of Materials. Except as provided otherwise under Applicable Law, title to Solid Waste will pass to CONTRACTOR at such time as said materials are placed in the appropriate collection container and set out for collection by CONTRACTOR.
8.06. Voluntary Use of Facilities. The CONTRACTOR, without constraint as a free-market business decision in accepting this Agreement, agrees to use the Disposal Site, Recyclable Materials Processing Site, and Organic Materials Processing Site as approved and directed by CITY for the purpose of Disposing of all Solid Waste, and Transferring and Processing of all Recyclable Materials and Organic Waste it collects in the CITY. Such decision by CONTRACTOR in no way constitutes a restraint of trade notwithstanding any change in law regarding flow control limitations or any definition thereof.
8.07. Spillage and Litter. CONTRACTOR shall not litter any street, right-of-way, or premises in the process of providing Collection Services or while its vehicles are on the road. CONTRACTOR must transport all materials Collected under the terms of this Agreement in such a manner as to minimize the spilling or blowing of such materials from CONTRACTOR's vehicles. CONTRACTOR must exercise all reasonable care and diligence in providing Collection Services so as to prevent spilling or dropping of Solid Waste and must immediately, at the time of occurrence, clean up such spilled or dropped Solid Waste.
8.07.1. Except as provided in this Agreement, CONTRACTOR is not responsible
for cleaning up sanitary conditions caused by the carelessness of the Service Recipient; however, CONTRACTOR must clean up any material or residue that is spilled or scattered by CONTRACTOR or its employees and report such instances in writing to the CITY by the close business within one (1) working day of the occurrence.
8.07.2. Equipment oil, hydraulic fluids, spilled paint, or any other liquid or debris resulting from CONTRACTOR’s operations or equipment repair must be covered immediately with an absorptive material and removed from the street surface. If such fluid leakage or spillage results in staining the street or sidewalk surface, CONTRACTOR must apply a suitable cleaning agent to the street surface to provide adequate cleaning.
8.07.3. The above paragraphs notwithstanding, CONTRACTOR must clean up any spillage or litter caused by CONTRACTOR within the same Work Day upon notice from the CITY.
8.07.4. To facilitate such cleanup, CONTRACTOR’s vehicles must at all times carry sufficient quantities of petroleum absorbent materials along with a broom and shovel.
8.08. Regulations and Record Keeping. CONTRACTOR must comply with emergency notification procedures required by applicable laws and regulatory requirements. All records required by regulations must be maintained at CONTRACTOR’s facility. These records must include waste manifests, waste inventories, waste characterization records, inspection records, incident reports, and training records.
8.09. Diversion Requirements. CONTRACTOR shall fully implement the Diversion Plan provided as set forth in Article 10, and shall assist CITY in reaching CalRecycle’s 75% goal by June 31, 2031.
8.10. Mutual Cooperation. CITY and CONTRACTOR will reasonably cooperate in good faith with all efforts by each other to meet CITY's diversion and other compliance requirements imposed by the Applicable Laws, including without limitation, AB 939, AB 341, AB 1826, AB 1594, SB 1016, and SB 1383, and to meet CONTRACTOR’s obligations under this Agreement. In this regard, CITY's obligations include, without limitation, making such petitions and applications as may be reasonably requested by CONTRACTOR for time extensions in meeting diversion goals, or other exceptions from the terms of Applicable Laws, and to agree to authorize such changes to CONTRACTOR’s Solid Waste Collection Services, or Collection Service programs as may be reasonably be requested by CONTRACTOR.
8.11. Guarantee. Except for programs currently required by Applicable Law but not set forth in this Agreement, or programs CONTRACTOR is expressly instructed by CITY not to implement, or services which a Service Recipient refuses to accept, CONTRACTOR guarantees that it will implement the diversion programs set forth in this Agreement such that CONTRACTOR and CITY will at all times be in compliance with the requirements of the Applicable Laws applicable to them including without limitation AB 939, AB 341, AB 1826, AB 1594, SB 1016, and SB 1383 to the extent applicable to the Collection Services as set forth in this Agreement. In this regard CONTRACTOR agrees that it will, in addition to any other Agreement requirement, at its sole cost and expense:
8.11.1. Assist CITY in responding to inquiries from CalRecycle or any other regulatory agency;
8.11.2. Assist CITY in preparing for, and participating in, CalRecycle’s biannual review of CITY's SRRE pursuant to Public Resources Code section 41825;
8.11.3. Assist CITY in applying for any extension, including under Public Resources Code section 41820.5, if so directed by CITY;
8.11.4. Assist CITY in any hearing conducted by CalRecycle, or any other regulatory agency, relating to CITY's compliance with the Applicable Laws including without limitation AB 939, AB 341, AB 1826, AB 1594, SB 1016, and SB 1383;
8.11.5. Assist CITY with the development of and implement a public awareness and education program that is consistent with CITY's SRRE and Household Hazardous Waste Element, as well as any related requirements of the Applicable Laws; and
8.11.6. Provide CITY with Recycling, source reduction, and other technical assistance as may be needed to comply with the Applicable Laws including without limitation AB 939, AB 341, AB 1826, AB 1594, SB 1016, and SB 1383.
8.12. Service Units. Service Units include all the following categories of premises which are in the Service Area as of July 1, 2023, and all such premises which may be added to the Service Area by means of annexation, new construction, or as otherwise set forth in this Agreement during the term of this Agreement:
8.12.1. SFD Service Units;
8.12.2. Commercial Service Units (includes MFD Service Units);
8.12.3. City Service Units;
8.12.4. Any question as to whether a premise falls within one of these categories will be determined by the Agreement Administrator and the determination of the Agreement Administrator will be final.
8.13. Service Unit Changes. CITY and CONTRACTOR acknowledge that during the term of this Agreement it may be necessary or desirable to add or delete Service Units for which CONTRACTOR will provide Service. Additions and Deletions. CONTRACTOR must provide services described in this Agreement to new Service Units in CONTRACTOR’s Service Area within five (5) Work Days of receipt of notice from CITY or the new Service Unit to begin such Service.
8.14. Annexation. If during the term of the Agreement, additional territory within or adjacent to the CONTRACTOR’s Service Area is acquired by CITY through annexation, subject to the requirements of Public Resources Code section 49520, CONTRACTOR agrees to provide Collection Services in such annexed area in accordance with the provisions and service rates set forth in this Agreement. Such Collection Services must begin within five (5) Work Days of receipt of written notice from CITY.
CONTRACTOR may not begin Collection Service without written authorization from CITY.
8.15. Route Map Update. CONTRACTOR must revise the Service Unit route maps to show the addition of Service Units added due to annexation and must provide such revised maps to the Agreement Administrator as requested.
8.16. SFD Collection Services. The SFD Collection Services are governed by the following terms and conditions:
8.16.1. Conditions of Service. CONTRACTOR must provide SFD Collection Service to all SFD Service Units in the Service Area whose SFD Garbage is properly containerized in Garbage Carts; Recyclable Materials are properly containerized in Recycling Carts; Organic Wastes are properly containerized in Organic Waste Carts; where the Solid Waste carts have been placed within three (3) feet of the curb, swale, paved surface of the public roadway, closest accessible roadway, or other such location agreed to by CONTRACTOR and Service Recipient, that will provide safe and efficient accessibility to CONTRACTOR's Collection crew and vehicle. The standard level for an SFD Service Unit shall be approximately one (1) 96- gallon Garbage Cart, one (1) 96-gallon Recycling Cart, and one (1) 96-gallon Organic Waste Cart. Optional 32- or 64-gallon Carts shall be provided at the Service Recipient’s request.
8.17. On-Premises Service. Notwithstanding any term or definition set forth in this Agreement, CONTRACTOR must provide on-premises Collection of SFD Solid Waste to an SFD Service Unit as follows:
8.17.1. At no additional cost to the SFD Service Unit. SFD Service Units where all adult Service Recipients residing therein have disabilities that prevent them from setting their Solid Waste Cart at the curb for Collection, and if a request for on-premises service has been made.
8.17.2. At an additional cost to the SFD Service Unit. CONTRACTOR must provide onpremises service to SFD Service Recipients on a subscription basis and may charge an additional Service Rate as specified in Exhibit 1.
8.17.3. Collection Day. CONTRACTOR must provide On-Premises Service Collection on the same Work Day that curbside Collection would otherwise be provided to the SFD Service Unit.
8.18. Frequency and Scheduling of Service. Except for the SFD Large Item Collection Service, SFD Collection Service must be provided one (1) time per week on a scheduled route basis. SFD Collection Service must be scheduled so that all SFD Service Units receive SFD Garbage Collection Service, SFD Recyclable Material Collection Service, and SFD Organic Waste Collection Service on the same Work Day.
8.19. Hour and Days of Collection. SFD Collection Service must be provided Monday through Friday, commencing no earlier than 5:00 a.m. and terminating no later than 6:00 p.m. The hours, day, or both of Collection may be extended due to extraordinary circumstances or conditions with the prior verbal or written consent of the Agreement Administrator.
8.20. Manner of Collection. The CONTRACTOR must provide SFD Collection Service with as little disturbance as possible and must leave any Solid Waste Cart(s) in an upright position at the same point it was collected without obstructing alleys, roadways, driveways, sidewalks, or mail boxes.
8.20.1. CONTRACTOR’s employees providing SFD Collection Service must follow the regular walk for pedestrians while on private property and may not trespass nor cross property to the adjoining premises unless the occupant or owner of both properties has given permission. Care should be taken to prevent damage to property, including flowers, shrubs, and other plantings.
8.20.2. Replacement of Carts. CONTRACTOR’s employees must take care to prevent damage to Carts by unnecessary rough treatment. However, any Cart damaged by the CONTRACTOR must be replaced by CONTRACTOR, at CONTRACTOR's expense, within five (5) Work Days at no cost or inconvenience to the Service Recipient.
8.20.2.1. Upon notification to CONTRACTOR by CITY or a Service Recipient that the Service Recipient’s Cart(s) has been stolen or damaged beyond repair through no fault of CONTRACTOR, CONTRACTOR must deliver a replacement Cart(s) to such Service Recipient within five (5) Work Days. CONTRACTOR must maintain records documenting all Cart replacements occurring on a monthly basis.
8.20.2.2. Each Service Recipient is entitled to the replacement of one (1) damaged by no fault of Service Recipient, lost, destroyed, or stolen Cart every ten (10) years during the life of this Agreement at no cost to the Service Recipient. Except in the case of a Cart that must be replaced because of damage caused by CONTRACTOR or in the case where CONTRACTOR elects to replace a Cart rather than repair it on-site, CONTRACTOR will be compensated for the cost of those replacements in excess of one (1) per type of Cart per Service Recipient every ten (10) years during the term of the Agreement, in accordance with the “Cart Exchange” Service Rate set forth in Exhibit 1, or as may be adjusted by the CITY from time to time as provided under this Agreement.
8.20.2.3. CONTRACTOR understands and agrees that this provision is intended to be applied on a per Cart type, individual Service Recipient basis and accordingly each Service Recipient could receive up to three (3) replacement Carts, one (1) of each type, every ten (10) years during the term of the Agreement.
8.20.2.4. CONTRACTOR must comply with CalRecycle container requirements as they may apply during the term of this Agreement. If any such changes are adopted after the Effective Date that results in CONTRACTOR being required to replace containers before they have been fully depreciated, CONTACTOR will be eligible for additional compensation in accordance with this Agreement.
8.20.3. Repair of Garbage, Recycling and Organic Waste Carts. CONTRACTOR is responsible for the repair of Carts, including but not be limited to, hinged lids, wheels, and axles. Within five (5) Work Days of notification by the CITY or a Service Recipient of the need for such repairs, CONTRACTOR must repair the Cart or if necessary, remove the Cart for repairs and deliver a replacement Cart to the Service Recipient.
8.20.4. Cart Exchange. Upon notification to CONTRACTOR by CITY or a Service Recipient that a change in the size of a Cart is requested, CONTRACTOR must deliver such Cart to such Service Recipient within five (5) Work Days. Each SFD Service Unit is eligible to receive one (1) free Cart exchange per Calendar Year during the term of this Agreement with a total of five (5) Carts being exchanged. Accordingly, CONTRACTOR will be compensated only for the cost of those exchanges in excess of one (1) occurrence per Calendar Year for those SFD Service Units receiving different Cart sizes, in accordance with the “Cart Exchange” service rate as set forth in Exhibit 1 or as may be adjusted this Agreement.
8.20.5. Additional Garbage Cart Request. Upon notification to the CONTRACTOR by CITY or a Service Recipient that additional Carts for Garbage are requested, CONTRACTOR must deliver such Carts to such Service Recipient within five (5) Work Days, at the rate set forth in Exhibit 1.
8.20.6. Additional Recyclable Materials or Organic Waste Carts. For those Service
Recipients utilizing 96 gallon Recyclable Materials Carts or 96 gallon Organic Waste Carts, CONTRACTOR must provide additional Recyclable Materials Carts and Organic Waste Carts to SFD Service Recipients within five (5) Work Days, at the rates set forth in Exhibit 1.
8.20.7. Ownership of Carts. Ownership of Carts is vested in the CONTRACTOR.
8.21. SFD Garbage Collection Service. This service is governed by the following terms and conditions:
8.21.1. Non-Collection. CONTRACTOR is not required to collect any Residential Garbage that is not placed in a Garbage Cart. In the event of non-collection, CONTRACTOR will follow the steps set forth in Section 8.04.
8.21.2. Disposal Facility. Except as set forth below, all Residential Garbage Collected as a result of performing SFD Garbage Collection Services must be transported to, and disposed of, at the Disposal Facility. In the event the Disposal Facility is closed on a Work Day, CONTRACTOR must transport and dispose of the Residential Garbage at another legally permitted disposal facility. Failure to comply with this provision will result in the levy of an administrative charge as specified in this Agreement and may result in the CONTRACTOR being in default under this Agreement.
8.22. SFD Recycling Service. This service is governed by the following terms and conditions:
8.22.1. Material Recycling Facility. Subject to Section 8.03, all Recyclable Materials Collected as a result of performing recycling services must be delivered to the Material Recycling Facility.
Failure to comply with this provision will result in the levy of an administrative charge as specified in this Agreement and may result in CONTRACTOR being in default under this Agreement.
8.22.2. Recycling - Changes to Services. Should changes in Applicable Law arise that necessitate any additions or deletions to the services described in this Agreement, including the type of items included as Recyclable Materials, the parties will negotiate any necessary cost changes and will enter into an Agreement amendment covering such modifications to the services to be performed and the compensation to be paid before undertaking any changes or revisions to such services.
8.23. SFD Organic Waste Collection Service. This service is governed by the following terms and conditions:
8.23.1. Starting July 1, 2023, CONTRACTOR’s SFD Organic Waste Collection Service is required to include only Green Waste to comply with AB 1594. However, CONTRACTOR must expand the SFD Organic Waste Collection Service to include Food Waste and Other Organics as part of the SFD Organic Waste Collection Services by July 1, 2024, or as may be required by CalRecycle to comply with SB 1383. Collected Organic Waste shall be delivered to the CITY designated Organic Waste Processing Facility.
8.23.2. CONTRACTOR must comply with CalRecycle collection frequency requirements as they may apply during the term of this Agreement. In the event such required changes to collection frequency that cause CONTRACTOR to incur additional collection costs, CONTRACTOR is entitled to receive additional compensation in accordance with Section 18.08.
8.23.3. [reserved]
8.23.4. Organic Waste Processing Facility. CONTRACTOR must deliver all Collected Organic Waste to a CITY approved fully permitted Organic Waste Processing Facility or a fully permitted Organic Waste transfer station. All expenses related to Organic Waste processing and marketing will be the sole responsibility of CONTRACTOR.
8.23.5. Holiday Tree Collection. CONTRACTOR must Collect Holiday Trees set out at the curb for Collection beginning December 26th each year through the second Friday in January during the term of this Agreement. CONTRACTOR must deliver the Collected Holiday Trees to an appropriate facility for processing. This annual service will be provided at no additional charge to the SFD Service Recipient. CONTRACTOR is not required to divert Holiday Trees with tinsel, flocking, or ornaments.
8.24. Construction and Demolition Debris and Other Temporary Collection Service. This service is governed by the following terms and conditions:
8.24.1. Conditions of Service. Upon request of an SFD Service Unit, CONTRACTOR must provide Construction and Demolition Debris and Other Temporary Collection Service on a temporary on-call basis.
8.24.2. Charges for Bins or Roll-off Containers will be in accordance with Exhibit 1.
8.24.3. Frequency of Service. Construction and Demolition Debris and Other Temporary Collection Service must be provided within seven (7) Work Days of receipt of the request.
8.24.4. CONTRACTOR must provide SFD Service Units with Construction and Demolition Debris and Other Temporary Collection Service with as little disturbance as possible and without obstructing alleys, roadways, driveways, sidewalks, or mail boxes. CONTRACTOR may only place Rolloff Containers in strict adherence with CITY’s right-of-way requirements and Municipal Code.
8.25 Commercial Collection Service. Except as set forth below, CONTRACTOR must provide Commercial Collection Services to all Commercial Service Units in the Service Area, including those City Service Units listed in Exhibit 3. All provisions of this Article 8 shall also apply to MFD Service Units and MFD Collection Service. This service is governed by the following terms and conditions:
8.25.1 Provision of Service. CONTRACTOR must provide Commercial Collection Service to all Commercial Service Units in the Service Area whose Solid Waste are properly containerized in Bins, Carts, or Roll-off Containers as appropriate where the Carts, Bins, or Roll-off Containers are accessible as set forth in Section 8.25.4, below. The size of the container and the frequency (above the minimum) of collection will be determined between the Service Recipient and CONTRACTOR. However, the size and frequency must be sufficient to provide that no Solid Waste need be placed outside the Cart, Bin, or Roll- off Container. The base Commercial Garbage Collection Service will include Commercial Recycling Service as described in Section 8.27 below, and Commercial Organic Waste Collection Service as described in Section 8.28 below, at no additional cost to the Service Recipient.
8.25.2 Required Capacity. CONTRACTOR must provide Commercial Recycling Service and Commercial Organic Waste Collection Service to all Commercial Service Units in the Service Area. For each Service Unit, CONTRACTOR must provide a minimum capacity of Commercial Recycling Service and Commercial Organic Waste Collection Service at no additional cost. For those Commercial Units which need more capacity than the minimum standard, CONTRACTOR may charge the Collection Service Rates as defined in Exhibit 1.
8.25.3 Hours of Collection. Commercial Collection Service must be provided, commencing no earlier than 4:00 a.m., and terminating no later than 6:00 p.m., Monday through Saturday.
The hours of Collection may be extended due to extraordinary circumstances or conditions with the prior written consent of the Agreement Administrator.
8.25.4 Accessibility. CONTRACTOR must collect all Carts, Bins or Roll-Off Containers that are readily accessible to CONTRACTOR's crew and vehicles and not blocked. However, CONTRACTOR must provide “push services” as necessary during the provision of Commercial Collection Services for the Service Rate set forth in Exhibit 1. Push services include, but are not limited to, dismounting from the Collection vehicle, moving the Bins or Carts from their storage location for Collection and returning the Bins or Carts to their storage location. CONTRACTOR may charge an extra pickup fee for the Service Rate set forth in Exhibit 1 where it is required to return to the Customer location to service the Cart, Bin or Roll-off Container because access was blocked.
8.25.5 Manner of Collection. CONTRACTOR must provide Commercial Collection Service with as little disturbance as possible and must leave any Bin, Cart, or Roll-Off Container at the same point it originally located without obstructing alleys, roadways, driveways, sidewalks or mail boxes.
8.25.5.1 Purchase and Distribution of Bins and Carts for New Commercial Service Units. CONTRACTOR must also distribute Bins, Carts or Roll-off Containers to new Commercial Service Units that are added to CONTRACTOR’s Service Area during the term of this Agreement. The size of the Bins, Carts or Roll-Off Containers and the combination of Bins, Carts or Roll-Off Containers to be distributed as requested by the Service Recipient and the distribution must be completed within five (5) Work Days of receipt of the request for service.
8.25.6 Replacement of Bins and Carts. CONTRACTOR’s employees must avoid damage to Bins or Carts by unnecessary rough treatment. Any Bin or Cart damaged by the CONTRACTOR, or damaged through ordinary wear and tear, must be replaced by CONTRACTOR, at CONTRACTOR’s expense, within five (5) Work Days at no cost or inconvenience to the Service Recipient.
8.25.6.1 Each Commercial Service Unit is entitled to the replacement of one (1) lost, destroyed, or stolen Bin or Cart once each ten (10) years of the term of this Agreement at no cost to the Service Unit, except where loss or damage is caused by the Service Recipient. Accordingly, CONTRACTOR will be compensated for the cost of those replacements in excess of one (1) Bin or Cart per Commercial Service Unit during each ten (10) years of the term Agreement, in accordance with the “Cart or Bin Exchange” Service Rate, as appropriate, set forth in Exhibit 1. CONTRACTOR must deliver a replacement Bin or Cart to such Service Unit within five (5) Work Days.
8.25.6.2 CONTRACTOR must comply with CalRecycle container
requirements as they may apply during the term of this Agreement. If any such changes are adopted after the Effective Date that results in CONTRACTOR being required to replace containers before they have been fully depreciated, CONTRACTOR will be eligible for additional compensation in accordance with Section 18.08.
8.25.7 Repair of Bins and Carts. CONTRACTOR is responsible for repair of Bins and Carts. Within five (5) Work Days of notification by CITY or a Service Recipient of the need for such repairs, CONTRACTOR must repair the Bin or Cart or if necessary, remove the Bin or Cart for repairs and deliver a replacement Bin or Cart to the Service Recipient. Bin or Cart repair also includes the removal of graffiti from the Bin or Cart.
8.25.8 Bin and Cart Exchange. Upon notification to CONTRACTOR by CITY or a Service Recipient that a change in the size, or number of the Bins or Carts is required, CONTRACTOR must deliver such Bins or Carts to such Service Recipient within five (5) Work Days. Each Commercial Service Unit is eligible to receive one (1) free Bin or Cart exchange per Calendar Year during the term of this Agreement. CONTRACTOR is allowed to charge the Commercial Service Unit for the cost of those exchanges in excess of one (1) Bin or Cart exchange per Calendar Year, in accordance with the appropriate “Bin or Cart Exchange” service rate set forth in Exhibit 1 as may be adjusted by CITY under this Agreement.
Additional Carts or Bins or different size Carts and Bins are subject to the applicable Service Rate set forth in Exhibit 1.
8.25.9 Ownership of Bins. Ownership of Carts, Bins, and Roll-off Containers distributed by CONTRACTOR is vested in CONTRACTOR.
8.25.10 Ownership of Carts. Ownership of Carts distributed by the CONTRACTOR is vested in CONTRACTOR.
8.25.11 Cleaning of Bins and Carts. Once each Calendar Year, if requested by the Commercial Service Unit or if CITY requests to have a Bin or Cart cleaned or repaired, CONTRACTOR must clean all Bins and Carts at the Commercial Service Unit’s premises, or must replace the dirty Bins and Carts with clean Bins and Carts. This service must be provided at no charge to the Commercial Service Unit, so long as the Service Recipient does not request the service more than once per Calendar Year. In addition, regardless of whether or not this cleaning is requested by the Service Unit, CONTRACTOR will ensure that all Carts and Bins are cleaned on an as-needed basis so as to maintain a clean appearance and proper function. Any Bin or Cart cleanings cannot be done in a manner that results in water entering the CITY’s storm drain system. Additional cleanings beyond once each Calendar Year will be subject to the Service Rate set forth in Exhibit 1.
8.26 Commercial and MFD Garbage Collection Service.
8.26.1 Conditions of Service. CONTRACTOR must provide Commercial and MFD Garbage Collection Service to all Commercial and MFD Service Units in the Service Area whose Commercial or MFD Garbage is properly containerized in Garbage Carts, Bins, or Roll-off Containers, where the Garbage Carts, Bins, or Roll-off Containers are accessible.
8.26.2 Size and Frequency of Service. This service must be provided as deemed necessary and determined between CONTRACTOR and the Commercial or the MFD Service Unit, but such service must be received no less than one (1) time per week with no exception for holiday(s) as set
forth herein, except that Collection service scheduled to fall on a holiday may be rescheduled as determined between the Commercial or the MFD Service Unit and CONTRACTOR as long as the minimum frequency requirement is met. Service may be provided by Garbage Bin, Cart, or Roll-off Container at the option of the Commercial or MFD Service Unit. The size of the container and the frequency of Collection will be determined between the Commercial or the MFD Service Unit and CONTRACTOR. However, size and frequency must be sufficient to provide that no Commercial or MFD Garbage need be placed outside the Bin, Cart or Roll-Off Container. CONTRACTOR must provide containers as part of the Commercial or MFD Collection Service Rates set forth in Exhibit 1, however, Commercial or MFD Service Units may own their Garbage Bin or Roll-Off Containers provided that the Commercial or the MFD Service Unit is completely responsible for its proper maintenance and that such Bin or Roll-Off Container must be of a type that can be serviced by the CONTRACTOR's equipment.
8.26.3 Non-Collection. CONTRACTOR is not required to Collect any Commercial or MFD Solid Waste that is not placed in a Cart, Bin, or Roll-off. In the event of non-collection due to Overage, CONTRACTOR must follow the steps as set forth in Section 8.04.
8.26.4 Disposal Facility. All Commercial and MFD Garbage collected as a result of performing Commercial and MFD Garbage Collection Services must be transported to, and disposed of, at the Disposal Facility. In the event the Disposal Facility is closed on a Work Day, CONTRACTOR must transport and dispose of Commercial and MFD Garbage at another legally permitted disposal facility.
Failure to comply with this provision will result in the levy of an administrative charge as specified in this Agreement and may result in CONTRACTOR being in default under this Agreement.
8.27 Commercial and MFD Recycling Service. This service is governed by the following terms and conditions:
8.27.1 Conditions of Service. CONTRACTOR must provide Commercial Recycling Service to all Commercial Service Units in the Service Area whose Recyclable Materials are properly containerized in Recycling Bins, Recycling Carts, or Recycling Roll-off Containers except as set forth below, where the Recycling Bins or Carts are accessible. CONTRACTOR will charge for collection of Recyclable Materials collected in Carts, Bins, or Roll-off Containers at the rates set forth in Exhibit 1. Commercial Recycling Collection will occur Monday through Friday, and on Saturdays upon request and as necessary.
8.27.2 Base Commercial Recycling Service. All Commercial Service Recipients subscribing to Commercial Garbage Collection Service must receive weekly collection of the equivalent volume of one (1) 96-gallon Recycling Cart per Service Recipient at no additional cost. This equivalent volume may be provided in the form of up to two (2) smaller Cart sizes, if requested by the Service Recipient and/or to help meet space constraints. In situations where shared service is provided, the equivalent volume of one (1) 96-gallon Recycling Cart per individual Commercial entity that is sharing service must be provided at no additional cost, except that Contractor may charge for services that exceed 50% of the volume of Garbage services provided at the Contractor’s Maximum Service Rates. The actual configuration of Recycling Cart and/or Bin sizes to be provided will be based on the total equivalent volume and configured in a manner determined by the Service Recipient in consultation with CONTRACTOR.
8.27.3 Base MFD Recycling Service. All MFD Service Recipients subscribing to MFD Garbage Collection Service must receive weekly collection of the equivalent volume of one (1) 32-gallon Recycling Cart per Service Recipient at no additional cost. In situations where shared service is provided,
the equivalent volume of one (1) 32-gallon Recycling Cart per individual MFD entity that is sharing service must be provided at no additional cost, except that Contractor may charge for services that exceed 50% of the volume of Garbage services provided at the Contractor’s Maximum Service Rates. The actual configuration of Recycling Cart and/or Bin sizes to be provided will be based on the total equivalent volume and configured in a manner determined by the Service Recipient in consultation with CONTRACTOR.
8.27.4 Size and Frequency of Service. This service will be provided as deemed necessary and determined between CONTRACTOR and the Service Recipient, but such service must be received no less than one (1) time per week with no exception for holiday(s) as set forth herein, except that Collection service scheduled to fall on a holiday may be rescheduled as determined between the Service Recipient and CONTRACTOR as long as the minimum frequency requirement is met. Service may be provided by Bin, Cart, or Roll-off Container at the option of the Service Recipient. The size of the container and the frequency (above the minimum) of Collection will be determined between the Service Recipient and CONTRACTOR. However, size and frequency must be sufficient to provide that no Recyclable Materials need be placed outside the Bin, Cart, or Roll-off Container. CONTRACTOR may charge for Commercial or MFD Recycling Services (above the minimum 96 or 32 gallon, respectively, Recyclable Materials Cart requirement as established in Sections 8.27.2 and 8.27.3 above) and must provide containers as a bundled service as part of the Commercial or MFD Collection Service rates set forth in Exhibit 1, however, Service Recipients may own their Bin or Roll-Off Container provided that the Service Recipient is completely responsible for its proper maintenance and such Bin or Roll-Off Container must be of a type that can be serviced by CONTRACTOR's equipment.
8.27.5 Material Recovery Facility. Recyclable Materials Collected as a result of performing Recycling Services must be delivered to the Material Recovery Facility. Failure to comply with this provision will result in the levy of an administrative charge as specified in this Agreement and may result in CONTRACTOR being in default under this Agreement.
8.27.6 Recycling - Changes to Work. Should changes in law arise that necessitate any additions or deletions to the work described herein including the type of items included as Recyclable Materials, the parties will negotiate any necessary cost changes and will enter into an Agreement amendment covering such modifications to the work to be performed and the compensation to be paid before undertaking any changes or revisions to such work.
8.27.7 Compliance with AB 341. CONTRACTOR will provide Commercial Recycling Service in a manner to exceed compliance with AB 341, as it may be amended from time to time. Starting January 1, 2023, and each January 1st thereafter, CONTRACTOR will notify all Commercial Service Units of the requirements to comply with the law. CONTRACTOR must provide the volume of collection service that all Commercial Service Units in order to be in full compliance with the law. CONTRACTOR will conduct in-person outreach to all non-participating commercial covered generators a minimum of once per calendar year.
8.27.8 Additional Recycling Bins, Carts or Roll-Off Containers. CONTRACTOR must provide additional Commercial or MFD Recycling Bins and Carts to Commercial or MFD Service Recipients above the minimum requirements within five (5) days of request and may charge for such additional capacity set forth in Exhibit 1 provided that additional Bins, Carts or Roll-Off Containers are used by Commercial or MFD Service Recipients for the purposes of setting out additional Recyclable Materials for regular weekly Recycling Service.
8.28 Commercial Organic Waste Collection Service. This service is governed by the following terms and conditions:
8.28.1 Conditions of Service. CONTRACTOR must provide Commercial and MFD Organic Waste Collection Service to all Commercial and MFD Service Units in the Service Area whose Organic Waste is properly containerized in Organic Waste Bins or Organic Waste Carts, except as set forth below, where the Organic Waste Bins or Carts are accessible. CONTRACTOR will charge for collection of Organic Waste collected in Carts or Bins at the rate set forth in Exhibit 1. Commercial and MFD Organic Waste Collection will occur Monday through Friday, and on Saturdays upon request and as necessary.
CONTRACTOR must comply with CalRecycle collection frequency requirements as they may apply during the term of this Agreement. If any such changes to collection frequency are adopted after July 1, 2023, that result in CONTRACTOR being allowed to reduce the frequency of Garbage or Organic Waste Collection, or otherwise cause CONTRACTOR to reduce its collection costs as a result in a change in Garbage or Organic Waste collection frequency, CONTRACTOR must provide CITY with its estimate of reduced its costs and shall make adjustments to the Maximum Service Rates.
8.28.2 Base Commercial Organic Waste Service. All Commercial Service Recipients subscribing to Commercial Garbage Collection Service must receive weekly collection of the equivalent volume of one (1) 64-gallon Organic Waste Cart per Service Recipient at no additional cost. In situations where shared service is provided, the equivalent volume of one (1) 64-gallon Organic Waste Cart per individual Commercial entity that is sharing service must be provided at no additional cost, except that Contractor may charge for services that exceed 25% of the volume of Garbage services provided at the Contractor’s Maximum Service Rates. The actual configuration of Organic Waste Cart and/or Bin sizes to be provided will be based on the total equivalent volume and configured in a manner determined by the Service Recipient in consultation with CONTRACTOR. CONTRACTOR may charge for Commercial Organic Waste Collection Services (above the minimum 64 gallon Organic Waste Cart) and must provide containers as a bundled service as part of the Commercial Collection Service rates set forth in Exhibit 1, however, Service Recipients may own their Bin provided that the Service Recipient is completely responsible for its proper maintenance and such Bin must be of a type that can be serviced by CONTRACTOR's equipment.
8.28.3 Base MFD Organic Waste Service. All MFD Service Recipients subscribing to MFD Garbage Collection Service must receive weekly collection of the equivalent volume of one (1) 32- gallon Organic Waste Cart per Service Recipient at no additional cost. In situations where shared service is provided, the equivalent volume of one (1) 32-gallon Organic Waste Cart per individual MFD entity that is sharing service must be provided at no additional cost, except that Contractor may charge for services that exceed 25% of the volume of Garbage services provided at the Contractor’s Maximum Service Rates. The actual configuration of Organic Waste Cart and/or Bin sizes to be provided will be based on the total equivalent volume and configured in a manner determined by the Service Recipient in consultation with CONTRACTOR.
CONTRACTOR may charge for MFD Organic Waste Collection Services (above the minimum 32 gallon Organic Waste Cart) and must provide containers as a bundled service as part of the MFD Collection Service rates set forth in Exhibit 1, however, Service Recipients may own their Bin provided that the Service Recipient is completely responsible for its proper maintenance and such Bin must be of a type that can be serviced by CONTRACTOR's equipment
8.28.4 Size and Frequency of Service. This service will be provided as deemed
necessary and determined between CONTRACTOR and the Service Recipient, but such service must be received no less than one (1) time per week with no exception for holiday(s) as set forth herein, except that Collection service scheduled to fall on a holiday may be rescheduled as determined between the Service Recipient and CONTRACTOR as long as the minimum frequency requirement is met. Service may be provided by Bin or Cart at the option of the Service Recipient. The size of the container and the frequency (above the minimum) of Collection will be determined between the Service Recipient and CONTRACTOR However, size and frequency must be sufficient to provide that no Organic Waste needs be placed outside the Bin or Cart. A Service Recipient may own their Bin provided that the Service Recipient is completely responsible for its proper maintenance and such Bin must be of a type that can be serviced by the CONTRACTOR's equipment.
8.28.5 Organic Waste Processing Facility. All Organic Waste Collected as a result of performing Commercial and MFD Organic Waste Collection Services must be delivered to the Organic Waste Processing Facility. Failure to comply with this provision will result in the levy of an administrative charge as specified in this Agreement and may result in CONTRACTOR being in default under this Agreement.
8.28.6 MFD Holiday Tree Collection. CONTRACTOR must Collect Holiday Trees set out for Collection at one centralized location within an MFD complex no less than one time per week beginning December 26th each year through the second Friday in January during the term of this Agreement. As an alternative, CITY and CONTRACTOR may mutually agree upon a centralized location within the CITY to collect Holiday Trees from MFD Service Recipients. CONTRACTOR must deliver the Collected Holiday Trees to an appropriate facility for processing. This annual service will be provided at no additional charge to the MFD Service Recipient. CONTRACTOR is not required to divert Holiday Trees with tinsel, flocking or ornaments.
8.28.7 Organic Waste - Changes to Services. Should changes in law arise that necessitate any additions or deletions to the services described in this Section 8.28 including the type of items included as Organic Waste, the parties will negotiate any necessary cost changes and will enter into an Agreement amendment covering such modifications to the services to be performed and the compensation to be paid before undertaking any changes or revisions to such services.
8.28.8 Compliance with AB 1826 and SB 1383. The CONTRACTOR will provide Commercial and MFD Recycling and Organic Service in a manner to exceed compliance with AB 1826 and SB 1383, as they may be amended from time to time. Starting January 1, 2021 and each January 1st thereafter, CONTRACTOR will notify all Commercial and MFD Service Units of the requirements to comply with the law. CONTRACTOR must provide the volume of collection service that all Commercial and MFD Service Units in order to be in full compliance with the law. In conjunction with the CITY’s ordinance supporting full compliance with AB 341 by Commercial Service Units (i.e., “generators”), CONTRACTOR will conduct in-person outreach to all non-participating commercial covered generators a minimum of once per calendar year.
8.28.9 Additional Organic Waste Bins or Carts. CONTRACTOR must provide additional Commercial or MFD Organic Waste Bins and Carts to Commercial or MFD Service Recipients above the minimum requirements within five (5) Work Days of request and may charge for such additional capacity set forth in Exhibit 1 provided that additional Bins and Carts are used by Commercial or MFD Service Recipients for the proposes of setting out additional Organic Waste materials for regular weekly
Organic Waste Collection Service.
8.29 Construction and Demolition Debris and Other Temporary Collection Service. This service is governed by the following terms and conditions:
8.29.1 Conditions of Service. Upon request of a Commercial Service Unit, CONTRACTOR must provide Construction and Demolition Debris and Other Temporary Collection Service on a temporary on-call basis.
8.29.2 Charges for Bin or Roll-off Containers must be in accordance with Exhibit 1 of this Agreement.
8.29.3 Frequency of Service. Construction and Demolition Debris and Other Temporary Collection Service must be provided within seven (7) Work Days of receipt of the request.
8.29.4 CONTRACTOR must provide Commercial Service Units with Construction and Demolition Debris and Other Temporary Collection Service with as little disturbance as possible and without obstructing alleys, roadways, driveways, sidewalks, or mail boxes. CONTRACTOR may only place Roll-off Containers in strict adherence with CITY’s right-of-way requirements and Municipal Code.
8.30 Services Provided by Contractor to CITY. CITY Collection Services shall be provided at no cost to the CITY and shall be governed by the following terms and conditions:
8.30.1. Conditions of Service. CONTRACTOR shall provide Solid Waste Collection Services to all CITY Service Units as set forth in Exhibit 3, and as may be modified by written notice by the CITY as a CITY-directed change under Section 20.01, where the Containers are not blocked and are accessible by CONTRACTOR’s collection vehicles. CONTRACTOR must provide CITY Collection Services in the same manner as service provided to Commercial Service Units in Article 8. Construction and Demolition Debris and Other Temporary Collection Service related to CITY construction or public works projects undertaken on force account solely by CITY employees, shall be provided by CONTRACTOR at no cost to the CITY.
8.30.2. CONTRACTOR shall receive written permission from the CITY before placing any containers on CITY owned property for service, except that no such permission shall be needed to place Containers at locations specified in Exhibit 3.
8.30.3. CONTRACTOR shall limit the number of trips and the path of travel for collection vehicles in CITY parking lots.
8.31. CITY-Sponsored Events Service. Upon request by the CITY, CONTRACTOR shall provide delivery and pick-up of Containers, and Collection Services at up to fifteen (15) events that are sponsored, organized, or substantially supported by the CITY including, but not limited to, those specified in Exhibit 2, and as may be modified by written notice by the CITY at no cost to the CITY, but subject to the limitation in the last sentence of this Section 8.31. The Solid Waste collection and disposal plan for each event shall be developed by CONTRACTOR and submitted to the Agreement Administrator in writing for approval prior to each event. Current events are set forth on Exhibit 2, and as may be modified by written notice by the CITY. CITY may change or increase the number of the City-Sponsored Event receiving
services, and the service levels provided at any City-Sponsored Events, by written notice to CONTRACTOR, as a CITY-directed change under Section 20.01.
8.32. Non-City Large Venue Event Collection Service. Upon request by a Non-City Large Venue Event, CONTRACTOR shall provide delivery and pick-up of Containers and Collection Services.
The Solid Waste collection and disposal plan for each event shall be developed by CONTRACTOR in coordination with the event planner and submitted to the Agreement Administrator in writing for approval prior to each event. The CONTRACTOR shall receive compensation from the Non-City Large Venue Event at the rate for such service as set in Exhibit 1.
8.33. Clean-Up Days Events. CONTRACTOR shall provide Collection Services at Clean-Up Days Events at a maximum of two (2) per year upon request by CITY. Each event shall occur on a Saturday between the hours of 8:00 a.m. and 12:00 p.m. at a location selected by the CITY and shall be limited to SFD and MFD Service Recipients within the CITY. The Agreement Administrator shall notify CONTRACTOR in writing or e-mail not less than eight (8) weeks prior to the date of the Clean-Up Days Event. The services shall be provided in a manner that meets all needs of the Clean-Up Days Event. The events shall be conducted by CONTRACTOR at no cost of any kind to the CITY. CONTRACTOR shall provide staffing to support CITY management at all times during the Clean Up Days Events.
8.33.1. CONTRACTOR shall prepare and distribute to SFD and MFD Service Recipients Clean-Up Days Event notices no later than six (6) weeks prior to each event. At a minimum, the dates and hours of operation, locations of the collection sites, and acceptable materials for collection shall be included in the notices. CONTRACTOR may separately mail electronically transmit the notices, or provide the notices as billing inserts to each SFD and MFD Service Recipient. CONTRACTOR shall provide Spanish-translated notices upon request by the CITY. The costs of production, printing, mailing and all associated costs for the notices shall be borne by CONTRACTOR. CONTRACTOR shall also provide their information in digital format to the CITY.
8.33.2. CONTRACTOR shall require that each SFD and MFD Service Recipient turn in the notice to CONTRACTOR’s staff at the collection site as proof of CITY residency as a condition to collection.
8.33.3. On the first (1) Working Day following each Clean-Up Days Event, CONTRACTOR shall remove and clean up any remaining materials left for collection.
8.34. Free Paper Shredding Events. Two (2) times per year, use for HHW concurrent with a Clean-Up Days Event, at no additional cost to CITY or its residents, CONTRACTOR will conduct a free paper shredding event at the same location as the Clean-Up Days Event. At each event, all CITY residents will be permitted to deliver an unlimited amount of paper for shredding free of charge by CONTRACTOR.
CONTRACTOR must arrange for all shredded paper generated by each event to be processed in such a manner so as to ensure the diversion of this material from landfilling.
8.35. SB1383 Procurement requirements. Contractor agrees to provide City with any renewable fuels credits related to services performed under this Agreement to help City satisfy SB1383 procurement targets.
8.36. Service Routes. CONTRACTOR must provide CITY with maps precisely defining
Collection routes, together with the days and the times at which Collection will regularly commence.
8.37. Service Route Changes. CONTRACTOR must submit to CITY, in writing, any proposed route change (including maps thereof) not less than forty-five (45) calendar days prior to the proposed date of implementation. CONTRACTOR may not implement any route changes without the prior review of the Agreement Administrator. If the change will change the Collection day for a Service Recipient, CONTRACTOR must notify those Service Recipients in writing of route changes not less than fifteen (15) days before the proposed date of implementation.
8.38. Collection Route Audits. CITY reserves the right to conduct audits of CONTRACTOR’s Collection routes. CONTRACTOR must cooperate with CITY in connection therewith, including permitting CITY employees or agents, designated by the Agreement Administrator, to ride in the Collection vehicles in order to conduct the audits. CONTRACTOR has no responsibility or liability for the salary, wages, benefits, or worker compensation claims of any person designated by the Agreement Administrator to conduct such audits.
8.39 Minimum Performance and Diversion Standards.
8.39.1. Agreement Term Extension. In order to receive the Agreement term extension offer set forth in Article 6 of this Agreement, CONTRACTOR must meet or exceed the following annual minimum performance and diversion standards in each Agreement Year beginning July 1, 2023.
8.39.1.1. Performance Standards. CONTRACTOR must not have received assessment of Administrative Charges, as set forth in this Agreement more than $50,000 in any one (1) Agreement Year.
8.39.1.2. Minimum Diversion Standards. CONTRACTOR must meet the requirements set forth in this Agreement.
8.39.1.3. No Current Default. CONTRACTOR is not currently in default of the Agreement.
8.40 Collection Equipment.
8.40.1. Equipment Specifications.
8.40.1.1. General Provisions. All equipment used by CONTRACTOR in the performance of services under this Agreement must be of a high quality and comply with all Applicable Laws and meet or exceed all applicable air quality standards, including all applicable provisions of Merced Air Pollution Control District. The vehicles must be designed and operated so as to prevent Collected materials from escaping from the vehicles. Hoppers must be closed on top and on all sides with screening material to minimize Collected materials from leaking, blowing or falling from the vehicles. All trucks and containers must be leak resistant and must be operated to minimize spillage of liquids during Collection or in transit.
8.40.1.2. Large Items. Vehicles used for Collection of Large Items may not use compactor mechanisms or mechanical handling equipment that may damage reusable goods or
release Freon or other gases from pressurized appliances.
8.40.1.3. New Collection Vehicles. CONTRACTOR must use new collection vehicles at the start of this Agreement.
8.40.1.4. Collection Vehicle Size Limitations / Overweight Vehicle Charge.
CONTRACTOR may not use any Collection vehicle for in violation of weight limitations set forth in Applicable Law. CONTRACTOR must report all instances of overweight vehicles to CITY on a monthly basis as part of its monthly CITY Reports submittal described in this Agreement. CONTRACTOR may be assessed administrative charges as set forth in this Agreement as a result of exceeding an overweight vehicle rate of ten percent (10%) in any month during the term of the Agreement. The overweight vehicle rate will be calculated as the total number of overweight collection vehicle instances during each month, divided by the total number of collection vehicle loads transported during the same corresponding month.
Prior to collecting administrative charges for overweight vehicles, the CITY shall afford CONTRACTOR a reasonable opportunity to provide the Agreement Administrator documentation of the extraordinary circumstance that caused the overweight vehicles. Extraordinary circumstances in this particular case include, but may be limited to, heavy rains or high winds that caused excess Green Waste to be generated, rain to accumulate in open Collection Containers, or normal Collection routes to be delayed or shortened to extreme weather conditions. The Agreement Administrator shall have authority to consider CONTRACTOR’s documentation and uphold and collect the assessed charge, to reduce the charge, or waive and dismiss the charge. The Agreement Administrator shall also have the authority to waive charges in advance of an anticipated, or in response to and actual, emergency event.
8.40.1.5. Registration; Inspection. All vehicles used by CONTRACTOR in providing Collection Services under this Agreement, except those vehicles used solely on CONTRACTOR’s premises, are to be registered with the California Department of Motor Vehicles. In addition, each such vehicle must be inspected by the California Highway Patrol in accordance with Applicable Law. Within two (2) Work Days of a request from the Agreement Administrator, CONTRACTOR must provide CITY a copy of its vehicle maintenance log and any safety compliance report, including, but not limited to, any report issued under California Vehicle Code sections 34500 and following, as well as the biennial “BIT” inspections conducted by the California Highway Patrol.
8.40.1.6. Safety Markings All Collection equipment used by CONTRACTOR must have appropriate safety markings including, but not limited to, highway lighting, flashing and warning lights, clearance lights, and effective reflective markings. All such safety markings must be in accordance with the requirements of the California Vehicle Code, as may be amended from time to time.
8.40.1.7. Vehicle Signage and Painting. Collection vehicles must be painted and numbered without repetition and must have CONTRACTOR's name, CONTRACTOR’s customer service telephone number, and the number of the vehicle painted in letters of contrasting color, at least four (4) inches high, on each side and the rear of each vehicle. No advertising is permitted other than the name of CONTRACTOR, its logo and registered service marks except promotional advertisement of the Recyclable Materials and Organic Waste programs. CONTRACTOR must repaint all vehicles (including a vehicle’s striping) during the term of this Agreement on a frequency not less often than every five (5) years, as necessary to maintain a positive public image, or as reasonably determined by the Agreement Administrator, beginning January 1, 2023.
8.40.1.8. Bin Signage, Painting, and Cleaning. All metal or plastic Bins of any service type furnished by CONTRACTOR must be either painted or galvanized. All metal or plastic Bins must display CONTRACTOR’s name, CONTRACTOR’s customer service telephone number, and the
number of the Bin and must be kept in a clean and sanitary condition. The Bins provided by CONTRACTOR must be steam cleaned by CONTRACTOR as frequently as necessary so as to maintain them in a sanitary condition. Bins may be subject to periodic, unscheduled inspections by CITY and determination as to sanitary condition will be made by CITY. Bin cleanings beyond once each Calendar Year will be subject to the Service Rate set forth in Exhibit 1. Any and all steam cleaning or sanitizing of Bins, Carts, Compactors, or Roll-Off Containers by CONTRACTOR is not allowed within the CITY limits, unless approved by the Agreement Administrator.
8.40.1.9. Bins and Carts. CONTRACTOR must have new Garbage, Recycling and Organics Bins and Carts for all Service Recipients within ninety (90) days after start of this Agreement.
8.40.2. Vehicle Certification. For each Collection vehicle used in the performance of services under this Agreement, CONTRACTOR must obtain a certificate of compliance (smog check) issued pursuant to Part 5 of Division 26 of the California Health and Safety Code (section 43000 and following) and regulations promulgated thereunder and/or a safety compliance report issued pursuant to Division 14.8 of the California Vehicle Code (section 34500 and following) and the regulations promulgated thereunder, as applicable to the vehicle. CONTRACTOR must maintain copies of such certificates and reports and must make such certificates and reports available for inspection upon request by the Agreement Administrator.
8.40.3. No later than January 1, 2023, CONTRACTOR must submit to the Agreement Administrator verification that each of the CONTRACTOR’s Collection vehicles has passed the California Heavy Duty Vehicle Inspection. Thereafter, CONTRACTOR must cause each vehicle in CONTRACTOR’s Collection fleet to be tested annually in the California Heavy Duty Inspection Program and must submit written verification to CITY upon request by the Agreement Administrator. CONTRACTOR may not use any vehicle that does not pass such inspection.
8.40.4. Equipment Maintenance. CONTRACTOR must maintain Collection equipment in a clean condition and in good repair at all times. All parts and systems of the Collection equipment must operate properly and be maintained in a condition satisfactory to CITY. CONTRACTOR must wash all Collection vehicles at least once a week.
8.40.5. Maintenance Log. CONTRACTOR must maintain a maintenance log for all Collection vehicles. The log must at all times be accessible to CITY by physical inspection upon request of the Agreement Administrator, and must show, at a minimum, each vehicle’s CONTRACTOR assigned identification number, date purchased or initial lease, dates of performance of routine maintenance, dates of performance of any additional maintenance, and description of additional maintenance performed.
8.40.6. Equipment Inventory. On or before January 1, 2023, and each January 1st through the Term of this Agreement, CONTRACTOR must provide to CITY an inventory of Collection vehicles and major equipment used by CONTRACTOR for Collection or transportation and performance of services under this Agreement. The inventory must indicate each Collection vehicle by CONTRACTOR assigned identification number, DMV license number, the age of the chassis and body, type of fuel used, the type and capacity of each vehicle, the number of vehicles by type, the date of acquisition, the decibel rating and the maintenance and rebuild status. CONTRACTOR must submit to the Agreement Administrator, either by fax or e-mail, an updated inventory each Calendar Year to the CITY or more often at the request of the Agreement Administrator. Each inventory must also include the tare weight of each vehicle. Each vehicle inventory must be accompanied by a certification signed by CONTRACTOR that all Collection vehicles meet the requirements of this Agreement.
8.40.7. Reserve Equipment. CONTRACTOR must have available to it, at all times, reserve Collection equipment which can be put into service and operation within one (1) hour of any breakdown. Such reserve equipment must correspond in size and capacity to the equipment used by the CONTRACTOR to perform the contractual duties.
8.41. Privacy. CONTRACTOR shall strictly observe and protect the privacy rights of Service Recipients. Information identifying individual Service Recipients or the composition or contents of a Service Recipient's Solid Waste stream, or any of the Billing information pertaining to any Service Recipient, shall not be revealed to any Person, governmental unit, private agency, or company, unless upon the authority of a court of law, by statute, ordinance, or regulation of a governmental agency having jurisdiction, or upon valid authorization of the Service Recipient. This provision shall not be construed to preclude CONTRACTOR from preparing, participating in, or assisting in the preparation of waste characterization studies or waste audits which may be required by AB 939 or this Agreement. CONTRACTOR shall not market or distribute, outside the normal course of its business, mailing lists with the names and addresses of Service Recipients. The rights afforded Service Recipients pursuant to this Section shall be in addition to any other privacy right afforded Service Recipients pursuant to federal or state law.
ARTICLE 9. Customer Service
9.01. CONTRACTOR’s Customer Service. All service inquiries and complaints from Service Recipients will be directed to CONTRACTOR. A representative of CONTRACTOR must be available to receive the complaints during normal business hours. All service complaints will be handled by CONTRACTOR in a prompt and efficient manner. In the case of a dispute between CONTRACTOR and a Service Recipient, the matter will be reviewed, and a decision made by the Agreement Administrator.
9.01.1. CONTRACTOR will utilize the Customer Service Log to maintain a record of all inquiries and complaints in a manner prescribed by CITY. CONTRACTOR must maintain a record of all inquiries and complaints for a minimum of three (3) years, available upon CITY request.
9.01.2. For those complaints related to missed Collections, where Containers are properly and timely set out, that are received by 12:00 noon on a Work Day, CONTRACTOR will return to the Service Unit address and Collect the missed materials before leaving the Service Area for the day. For those complaints related to missed Collections that are received after 12:00 noon on a Work Day, CONTRACTOR will have until the end of the following Work Day to resolve the complaint. For those complaints related to repair or replacement of Carts or Bins, the appropriate Sections of this Agreement will apply.
9.01.3. CONTRACTOR agrees that it is in the best interest of CITY that all Solid Waste be Collected on the scheduled Collection day. Accordingly, missed Collections will normally be Collected as set forth above regardless of the reason that the Collection was missed. However, in the event a Service Recipient requests missed Collection service more than two (2) times in any consecutive two (2) month period the Agreement Administrator will work with CONTRACTOR to determine an appropriate resolution to that situation. In the event CONTRACTOR believes any complaint to be without merit, CONTRACTOR will notify the Agreement Administrator, either by fax or e-mail. The Agreement Administrator will investigate all disputed complaints and render a decision.
9.01.4. CONTRACTOR’s service and emergency telephone numbers must be accessible by a local (CITY) phone number. The telephone number(s) must be listed in the area’s telephone directories under CONTRACTOR’s name in the White Pages and Yellow Pages.
9.02. CONTRACTOR’s Office. CONTRACTOR must maintain a Customer Service office within the City’s Service Limits where complaints can be received. Such office must be equipped with sufficient telephones that all Collection Service related calls received during normal business hours are answered by an employee within five (5) rings, and must have responsible persons in charge during Collection hours and must be open during such normal business hours, 8:00 a.m. to 5:00 p.m. on Monday through Friday. CONTRACTOR must provide a local telephone number, and a telephone answering service or mechanical device to receive Service Recipient inquiries during those times when the office is closed.
Calls received after normal business hours must be addressed the next Work Day morning.
CONTRACTOR shall keep records of all Service Recipient’s calls for at least three (3) years, collected on a Calendar Year cycle. The CONTRACTOR must include the type of call (Complaint, compliment, Other), a summary of the call the time and date of the call, and if a complaint was made, the resolution to the complaint. CONTRACTOR must report a record of each month’s calls as part of the quarterly report. CONTRACTOR must report a record of each year’s calls as part of the Annual Report.
These records will also be made available to the CITY upon request.
9.02.1. Emergency Contact. CONTRACTOR must provide the Agreement Administrator with an emergency phone number where the CONTRACTOR can be reached outside of the required office hours.
9.02.2. Multilingual/TDD Service. CONTRACTOR must at all times maintain the capability of responding to telephone calls in English and such other languages as CITY may direct.
CONTRACTOR must at all times maintain the capability or responding to telephone calls through Telecommunications Device for the Deaf (TDD) Services.
9.02.3. Service Recipient Calls. During office hours, CONTRACTOR must maintain a telephone answering system capable of accepting at least fifteen (15) incoming calls at one time.
CONTRACTOR must record all calls including any inquiries, service requests and complaints into a customer service log.
9.02.4. All incoming calls will be answered within five (5) rings. Any call “on-hold” in excess of one and one-half (1.5) minutes must have the option to remain “on-hold” or request a “call-back” from a customer service Agreement Administrator. CONTRACTOR’s customer service representatives must return Service Recipient calls. For all messages left before 3:00 p.m., all “call backs” must be attempted a minimum of one time prior to 6:00 p.m. on the day of the call. For messages left after 3:00 p.m., all “call backs” must be attempted a minimum of one time prior to noon the next Work Day.
CONTRACTOR must make minimum of three (3) attempts within one (1) Work Day of the receipt of the call. If CONTRACTOR is unable to reach the Service Recipient on the next Work Day, CONTRACTOR must send a postcard to the Service Recipient on the second Work Day after the call was received, indicating that the CONTRACTOR has attempted to return the call.
ARTICLE 10. CONTRACTOR Support Services
10.01. Public Outreach and Education Services. CONTRACTOR, at its own expense, must prepare, submit, and implement an annual (Calendar Year) Public Education and Outreach Program beyond CITY’s Public Education and Outreach Program. The proposed action plan must be submitted annually for CITY approval no later than August 1st for the next Calendar Year.
10.01.1. Sustainability Representative. The CONTRACTOR will collaborate with CITY staff to make available reasonable use of one or more CONTRACTOR representatives to assist CITY in meeting requirements of the California Integrated Waste Management Act (IWMA) of 1989. On an annual basis, CONTRACTOR will make an individual available as needed to implement, in cooperation with the CITY, Recycling programs in the Service Area on an average of approximately two days a week.
10.01.2. Diversion and Sustainability Work Plan. Collaboratively, CONTRACTOR and CITY staff will develop an annual Waste Diversion and Sustainability Work Plan to help guide CONTRACTOR’s staff’s work efforts. This program must be designed to increase diversion and Service Recipients participation and should target certain Recyclable Materials or “problem” areas of CONTRACTOR’s Service Area where improvements can be maximized. Targets of outreach should be based on local trends and recycling patterns based on information obtained by both the Agreement Administrator and CONTRACTOR staff. To the extent possible, CONTRACTOR will work to modernize its public outreach and education services throughout the term of this Agreement by providing outreach materials to Service Recipient electronically (e.g., via email). The parties will make good faith efforts to complete each annual Work Plan by August 1st.
10.01.3. Website. CONTRACTOR will maintain a website that describes and promotes the use of the available Recycling services. The CONTRACTOR will consult, collaborate, and coordinate its activities with the CITY regarding Recycling programs so that the CITY is fully informed and provided as opportunity for input to the CONTRACTOR’s Recycling programs.
10.01.4. Annual Recycling Awards. CONTRACTOR will recognize outstanding participation in Recycling and/or Organic Waste programs by identifying “recycling all-stars” for recognition at a City Council meeting during each November, beginning November 2024.
10.01.5. Outreach Activities. On an annual basis the CONTRACTOR will coordinate Recycling and Organics education and outreach programs for Residential and Commercial Service Recipients, in conformance with Applicable Laws including without limitation SB 1383, AB 1826, AB 939, AB 341, in coordination with the CITY. This program will consist of the following:
10.01.5.1. CONTRACTOR will attend public events and host booths to promote recycling education and awareness. CONTRACTOR will work with CITY to identify which special events will be attended.
10.01.5.2. CONTRACTOR to distribute educational material to Service Recipients on an annual basis. Examples include recycling tips, battery and bulb education, proper Cart placement, resource information, and HHW education. This material will be mailed or electronically transmitted to Service Recipients.
10.01.5.3. Service Recipients will have access to CONTRACTOR’s local website to find information specific to the CITY’s programs. The CONTRACTOR will ensure that information
provided on the website is maintained and up-to-date. This content will include proper container set out, educational materials, newsletters and program descriptions. Service Recipients will also have the ability to use CONTRACTOR’s web-based service request system.
10.01.5.4. CONTRACTOR with CITY and will work with local media to ensure information is communicated to the community (new programs, events, recycling information, etc.).
10.01.5.5. CONTRACTOR to use options, such as; local newspaper, broadcast news, websites, home owners associations (HOA), and civic groups.
10.01.5.6. CONTRACTOR will assist the CITY in supporting Food Waste and Green Waste diversion surveys and programs.
10.01.5.7. CONTRACTOR will complete Garbage, Organic Waste, and Recycling audits for Commercial Service Recipients and provide recommendations to Commercial Service Recipients on how to improve overall resource efficiency.
10.01.6. News Media Requests. CONTRACTOR will notify the Agreement Administrator by fax, e-mail or phone of all requests for news media interviews related to the services covered under this Agreement within one (1) Work Day of CONTRACTOR’s receipt of the request. When practicable, before responding to any inquiries involving controversial issues or any issues likely to affect participation or Service Recipient’s perception of services, CONTRACTOR will discuss CONTRACTOR’s proposed response with the Agreement Administrator.
10.01.6.1. Copies of draft news releases or proposed trade journal articles that use the name of CITY or relate to the services provided hereunder must be submitted to the Agreement Administrator for prior review and approval at least five (5) working days in advance of release, except where CONTRACTOR is required by any law or regulation to submit materials to any regulatory agency in a shorter period of time, in which case CONTRACTOR must submit such materials to CITY simultaneously with CONTRACTOR’s submittal to such regulatory agency.
10.01.6.2. Copies of articles resulting from media interviews or news releases that use the name of CITY or relate to the services provided hereunder must be provided to the CITY within five (5) days after publication.
10.02. Annual Collection Service Notice. Each year during the term of this Agreement, CONTRACTOR must publish and distribute (by mail or electronically) a notice to all Service Units regarding the Collection Service programs. The notice must contain at a minimum; definitions of the materials to be Collected; procedures for setting out the materials; the days when Garbage Collection Services, Recycling Services, and Organic Waste Collection Services will be provided; CITY customer service phone number; instructions on the proper filling of Containers; instructions as to what materials may or may not be placed in Recyclable Materials or Organic Waste Containers; and the amount of overage and contamination fees in the event of non-compliance. The notice must also advertise the availability of on-premises Collection Services, SFD Large Items Collection Services and Temporary Construction and Demolition Debris Collection Services, and specifically the availability of no-charge on-premises Collection Services for specific qualified Service Recipients as described in Section 8.17. The notice must also advertise the date
and location of upcoming free paper shredding events as described in Section 8.34. The notice must be provided in English, and other languages as directed by the CITY and must be distributed by CONTRACTOR no later than March 31 of each year.
10.03. Edible Food Recovery Support. At no cost to the CITY, CONTRACTOR must provide support to the CITY’s Edible Food Recovery program as required under SB 1383. CONTRACTOR support may include educating commercial edible food generators, and providing records of site visits, conducting education efforts, and listing food recovery organizations.
10.04. Additional Outreach Programs and Services. CONTRACTOR will provide additional public outreach services and programs as requested by CITY at a price to be mutually agreed upon by written agreement between the CONTRACTOR and the Agreement Administrator. This agreement will ultimately take the form of a standard CONTRACTOR personal services agreement. In the event the CONTRACTOR and Agreement Administrator cannot reach a mutually agreed upon price for the requested service or program, CITY shall have the right to procure the service of other vendors or contractors to provide the requested public outreach services, and CONTRACTOR shall reimburse CITY for the reasonable costs incurred to obtain the public outreach services.
ARTICLE 11. Emergency Service
11.01. Revised Services During an Emergency. In the event of a natural disaster or Act of God, the Agreement Administrator may grant the CONTRACTOR a variance from regular routes and schedules, which will not be withheld unreasonably. As soon as practicable after such event, CONTRACTOR must advise the Agreement Administrator when it is anticipated that normal routes and schedules can be resumed. The Agreement Administrator will make an effort through the local news media and in coordination with the CITY to inform the public when regular services may be resumed. The clean-up from a natural disaster or Act of God may require that CONTRACTOR hire additional equipment, employ additional personnel, or work existing personnel on overtime hours to clean debris resulting from the natural disaster or Act of God. CONTRACTOR will receive additional compensation for extraordinary clean-up directly in response to a natural disaster or Act of God above the normal compensation contained in this Agreement, to cover the costs of rental equipment, additional personnel, overtime hours and other documented expenses based on the rates set forth in Exhibit 1 provided CONTRACTOR has first secured written authorization and approval from CITY through the Agreement Administrator. CITY will be given equal priority and access to resources as with other franchise jurisdictions held by CONTRACTOR or its affiliates.
11.02. CITY Provision of Service. Notwithstanding the foregoing, should CONTRACTOR, for any reason whatsoever, refuse or be unable to provide Solid Waste Handling Services for a period of more than seventy-two (72) hours, and if as a result thereof, Solid Waste should accumulate in CITY to such an extent or in such a manner that the City Manager finds that such accumulation endangers or menaces the public health, safety, or welfare, CITY shall have the right, upon twenty-four (24) hours prior written notice to CONTRACTOR, during the period of such emergency, to temporarily take possession of any or all equipment and facilities of CONTRACTOR previously used in providing Collection, transportation, and disposal of Solid Waste and provide, through its own forces or otherwise, Solid Waste Handling Services which CONTRACTOR otherwise would be obligated to provide pursuant to this Agreement.
CONTRACTOR agrees that in such event it shall fully cooperate with CITY to affect such a transfer of possession for CITY's use.
11.03. Possession of Equipment. CONTRACTOR agrees, that in the event of circumstances described in Section 11.01 above, CITY may take temporary possession of and use all of said equipment and facilities without paying CONTRACTOR any rental or other charge. Upon CONTRACTOR giving CITY notice that it is able to resume its normal responsibilities under this Agreement, CITY shall relinquish possession of all of the above-mentioned property to Contractor.
ARTICLE 12. Record Keeping and Reporting Requirements
12.01. Record Keeping.
12.01.1. Accounting Records. CONTRACTOR must maintain full, complete, and separate financial, statistical, and accounting records, pertaining to cash, billing, and provisions of all Collection Services, prepared on an accrual basis in accordance with generally accepted accounting principles. Such records will be subject to audit and inspection upon thirty (30) days’ notice. Gross receipts derived from provision of the Collection Services, whether such services are performed by CONTRACTOR or by a subcontractor or subcontractors, will be recorded as revenues in the accounts of CONTRACTOR.
CONTRACTOR must maintain and preserve all cash, billing, and disposal records for a period of not less than three (3) years following the close of each of CONTRACTOR's fiscal years.
12.01.2. Agreement Materials Records. CONTRACTOR must maintain records of the quantities of Solid Waste collected, processed, and disposed under the terms of this Agreement, by type, Collected, purchased, processed, sold, donated or given for no compensation, and Residual disposed.
12.01.3. Other Records. CONTRACTOR must maintain all other records reasonably related to provision of Collection Services, whether or not specified in this the Agreement.
12.02. Monthly Reporting.
12.02.1. General. Monthly reports must be submitted no later than 5 p.m. PT on the fifteenth (15th) day of the month following the close of the reporting period. If the fifteenth (15th) day falls on a day that CITY is closed or a holiday, then the payment will be due on the next business day.
12.02.2.1. Overweight Vehicle Reporting. The monthly report must include a summary total of all instances of overweight collection vehicles. This summary must include the number of overweight vehicle instances expressed as a percentage of the total number of collection vehicle loads transported during the reported month.
12.02.2.2. Contamination Reporting. To the extent required by Applicable Law, the monthly report must include a summary of all instances of qualifying contamination under the procedures in Section 8.03. This summary must include the total number of accounts where contamination occurred, the total number of Contamination Violation Notices issued by CONTRACTOR to Service Recipients, and the total number of instances where Collection Cart or Bins size or Collection frequency was increased specifically due to contamination. Within twenty (20) work days of request by CITY, CONTRACTOR will provide copies of the Contamination Violation Notices and the digital documentation of
contamination.
12.02.2.3. CONTRACTOR Billing Account Information. The monthly report must include a complete customer billing account and service level data for all Collection services provided by CONTRACTOR under this Agreement during the prior month.
12.03. Quarterly Reporting.
12.03.1. General. Quarterly reports must be submitted no later than 5 p.m. PT on the twenty-fifth (25th) day following the last month of the quarter. If the twenty-fifth (25th) day falls on a day that CITY is closed or a holiday, then the report will be due on the next business day.
12.03.2. CITY Reports. Quarterly reports to CITY must include:
12.03.2.1. CONTRACTOR Billing Account Information. CONTRACTOR must include a complete customer billing account and service level data for all Collection services provided during the preceding quarter.
12.03.2.2. Franchised Tonnage Data. CONTRACTOR must report the tonnage of Garbage, Recyclable Materials and Organic Waste collected, processed for diversion, Residual amounts and landfilled for broken down by SFD, MFD, Commercial, and City Service Collection Services.
12.03.2.3. Non-Collection. The quarterly report must include a summary of each Service Unit receiving a Non-Collection Notice in the previous quarter along with a description for the Non-Collection Notice.
12.03.2.4. Collection Overage Charges. The quarterly report must include each Service Unit incurring a charge for a Solid Waste Overage in the previous quarter.
12.03.2.5. Service Recipient Complaint Log. The quarterly report must include the Service Recipient call log collected from the previous quarter as required in Section 9.01 of this Agreement.
12.03.2.6. Account Verification. CONTRACTOR shall notify the CITY of service starts, holds, or terminations.
12.04. Annual Reporting.
12.04.1. General. An annual report must be submitted no later than 5:00 p.m. PT on February 15, 2022 and each February 15th thereafter for the previous Calendar Year. If February 15th falls on a day that CITY is closed, then the report will be due on the next business day. Annual reports must be provided electronically in software acceptable to the CITY.
12.04.2. CITY Reports. Annual reports to CITY must include:
12.04.2.1. Financial Reports. CONTRACTOR must prepare an annual Financial Report for submittal to the CITY. At a minimum, the Financial Report must include the number of SFD Service Units and Commercial Service Units provided with Collection Services, including any additional services, the CONTRACTOR’s gross billing and amount collected for each type of Service Unit.
12.04.2.2. Public Education Summary. Public education and information activities undertaken during the year, including distribution of bill inserts, collection notification tags, community information and events, tours and other activities related to the provision of Collection Services.
This report will discuss the impact of these activities on Recycling program participation and include amounts Collected from SFD and Commercial Service Units.
12.04.2.3. Summary of Programs. An analysis of any Recycling and Organic Waste Collection, processing and marketing issues or conditions (such as participation, setouts, contamination, etc.) and possible solutions, discussed separately for SFD and Commercial programs.
12.04.2.4. Garbage Data. The number of SFD and Commercial Service Units and the number of Bins, Carts and Roll-Off Containers distributed by size and Service Unit type.
12.04.2.5. Recycling Data. Gross tons Collected daily on average by material type by route for SFD and Commercial Recycling service. The average participation rates by quarter relative to the total number of Service Units by Service Unit type.
12.04.2.6. Organic Waste Data. Include average daily gross tons Collected by route. Include the total number of generators that receive each type of Organic Waste Collection Service provided by the CONTRACTOR. Indicate average daily number of set-outs by route. Indicate average participation rates relative to the total number of Service Units in terms of weekly set-out counts. Indicate number of Bins and Carts distributed by size and Service Unit type. Include the number of route reviews conducted for prohibited contaminants and the number of Non-Collection Notices issued to Service Recipients.
12.04.2.7. Commercial Outreach Report. A complete list of all Commercial accounts, which includes each account’s status as a “covered generator” under AB 341 and AB 1826, the date and status of CONTRACTOR’s outreach efforts at each account, and the current level of Recycling and Organics program participation at each account.
12.04.2.8. Customer Service Log. A summary of the type and number of complaints and their resolution, including calls related to missed pickups and responses to such calls. (with three-year retention).
12.04.2.9. Green Pages. A copy of CONTRACTOR’s most recent “Green Pages” (i.e., customer call center “cheat sheet”) for the City of Atwater, or the equivalent information used by customer service representatives in the event that the “Green Pages” are renamed or otherwise reworked during the term of this Agreement.
12.04.2.10. Overweight Vehicle Data. A summary of all instances of overweight collection vehicles. This summary must also include the number of overweight vehicle instances as a percentage of the total number of collection vehicle loads transported during the Calendar Year.
12.04.2.11. Summary Narrative. A summary narrative of problems encountered with Collection and processing activities and actions taken. Indicate type and number of NonCollection Notices left at Service Recipient locations. Indicate instances or numbers of property damage or injury, significant changes in operation, market factors, publicity conducted, or needs for publicity. Include description of processed material loads rejected for sale, reason for rejection and disposition of load after rejection.
12.04.2.12. Bin, Cart, and Vehicle Inventory. An updated complete inventory of Bins and Carts by type and size, and an updated complete inventory of Collection vehicles including for each vehicle: truck number, date purchased, vehicle type, tare weight, license plate number, and vehicle make and model.
12.04.2.13. AB 341, AB 1826, and SB 1383 Compliance Data.
CONTRACTOR must report the total number of Commercial Service Units serviced and the number of containers, container sizes and frequency of Collection for Garbage, Recyclable Materials and Organic Waste for each Commercial and MFD Service Unit. CONTRACTOR must also provide the following information separately for both AB 341, AB 1826 and SB 1383.
12.04.2.14. The total number of Commercial and MFD Service Units that fall under the AB 341 or AB 1826 thresholds, and the total number of those Commercial Service Units that are not receiving CONTRACTOR’s required services to Commercial and MFD Recycling Collection Service or Commercial and MFD Organics Collection Service.
12.04.2.15. A summary of the type of follow-up outreach that was provided to those Commercial Service Units that are not subscribed to Commercial and MFD Recycling Collection Service or Commercial ad MFD Organics Collection Service.
12.05. Diversion Data. By 5:00 p.m. PT on February 15, 2024, and annually thereafter during the term of this Agreement, CONTRACTOR must deliver to CITY diversion data for the franchised services performed under this Agreement in the format specified by CITY.
12.06. CalRecycle Reports. CONTRACTOR will provide reasonable assistance to CITY in preparing annual reports to CalRecycle, including but not limited to supplying required data for preparation of the reports.
12.06.1. In the event that CalRecycle requires CITY to submit an Implementation Schedule to comply with AB 341, AB 1826, SB 1383 and other Applicable Laws, CONTRACTOR will provide reasonable assistance to CITY in preparing a report, including CONTRACTOR’s policies and procedures related to compliance with AB 341, AB 1826, SB 1383, and other Applicable Laws and how recycling or organics are collected, a description of the geographic area, routes, list of addresses served and a method for tracking contamination, copies of route audits, copies of notice of contamination, copies of notices, violations, education and enforcement actions issued, and copies of educational materials, flyers, brochures, newsletters, website, and social media.
12.07. Additional Reporting. CONTRACTOR must furnish CITY with any additional reports as may reasonably be required, such reports to be prepared within a reasonable time following the reporting period.
12.08. Adverse Information. CONTRACTOR shall provide CITY two copies of all reports and other material adversely affecting this Agreement submitted by CONTRACTOR to the United States Environmental Protection Agency, CalRecycle, the California Regional Water Quality Control Board, and any other federal, state, regional, or local regulatory agency. Copies shall be submitted to CITY simultaneously with CONTRACTOR's filing of such matters with said agencies. CONTRACTOR's routine correspondence to said agencies need not be automatically submitted to CITY, but shall be made available to CITY upon written request. CONTRACTOR shall submit to CITY copies of all pleadings, applications,
notifications, communications, and documents of any kind submitted by CONTRACTOR to, as well as copies of all decisions, correspondence, and actions by, any federal, state, and local courts, regulatory agencies, and other government bodies relating in any manner to CONTRACTOR's performance of services pursuant to this Agreement. To the degree authorized by law, any confidential data exempt from public disclosure shall be retained in confidence by CITY and its authorized agents and shall not be made available for public inspection. CONTRACTOR shall submit to CITY such other information or reports in such forms and at such times as CITY may reasonably request or require. All reports and records required under this or any other Section hereof shall be furnished at the sole expense of CONTRACTOR.
12.09. Disaster Plan. Within 60 days from a request by CITY, CONTRACTOR shall prepare a draft disaster plan that sets forth procedures for maintaining regular Collection service and Collection of debris following a major natural disaster such as an earthquake, fire or other similar emergency event (not including labor disputes). The disaster plan shall address arrangements to provide needed vehicles and personnel, priorities for cleanup at critical facilities, and procedures for reimbursement for costs, describe communication plans, list key contact persons, and provide maps showing proposed sites for stockpiling of disaster debris that cannot be transported to the landfill. CONTRACTOR shall coordinate the plan with CITY's emergency service teams. The draft plan shall be presented to the City Manager for consideration and approval. The final plan shall be distributed to those employees of CONTRACTOR and CITY who would have a role in implementing it in the event of a disaster. In addition, at CITY’s request, CONTRACTOR shall assist the CITY with such emergency Collection service and Collection of debris following a major natural disaster such as an earthquake, fire, or other similar emergency event. In the event of such a request, CONTRACTOR and CITY shall meet and confer in good faith to determine a fair and reasonable rate to compensate CONTRACTOR for providing such assistance.
12.010. Failure to Report. The refusal or failure of CONTRACTOR to timely file any of the reports required under this Agreement, or the inclusion of any materially false or misleading statement or representation made knowingly by CONTRACTOR in such report, shall be deemed a material breach of this Agreement and shall subject CONTRACTOR to all remedies, legal or equitable, which are available to CITY under this Agreement or otherwise.
ARTICLE 13. Nondiscrimination
13.01. Nondiscrimination. In the performance of all work and services under this Agreement, CONTRACTOR may not discriminate against any person on the basis of such person’s race, color, sex (including pregnancy, childbirth, and related medical conditions), age, ancestry, national origin, religion, marital status, or sexual orientation, gender identify and gender expression, disability (physical and mental), medical conditions, AIDS/HIV, citizenship status and genetic information, military or veteran status, political affiliations or activities, and status as a victim of domestic violence, assault or stalking. CONTRACTOR must comply with all applicable local, state and federal laws and regulations regarding nondiscrimination, including those prohibiting discrimination in employment.
ARTICLE 14. Quality of Performance of Contractor
14.01. Intent. CONTRACTOR acknowledges and agrees that one of CITY’s primary goals in entering into this Agreement is to ensure that the Collection Services are of the highest caliber, that Service Recipient satisfaction remains at the highest level, that maximum diversion levels are achieved, and that materials Collected are put to the highest and best use to the extent possible.
14.02. Service Supervisor. CONTRACTOR must assign a qualified supervisor to be in charge of the Collection Service within the Service Area and must provide the contact name of that person in writing to the Agreement Administrator within thirty (30) days of the execution of this Agreement, and annually by January 1st of each subsequent Calendar Year of the term of this Agreement, and any other time the person in that position changes. The supervisor must be physically located in the Service Area and available to the Agreement Administrator through the use of telecommunication equipment at all times that CONTRACTOR is providing Collection Services. In the event the supervisor is unavailable due to illness or vacation, CONTRACTOR must designate an acceptable substitute who will be available and who has the authority to act in the same capacity as the supervisor.
14.03. CONTRACTOR Representative. CONTRACTOR must designate a Representative (CONTRACTOR’s Representative) and must provide the name of that person in writing to CITY within thirty (30) days of the execution of this Agreement and annually by January 1st of each subsequent Calendar Year of this Agreement and any other time the person in that position changes. The CONTRACTOR’s Representative must be available to the CITY through the use of telecommunications equipment at all times that CONTRACTOR is providing Collection Services in the Service Area. The CONTRACTOR’s Representative must provide CITY with an emergency phone number where the CONTRACTOR’s Representative can be reached outside of normal business hours.
14.04. Administrative Charges. Should CONTRACTOR be in material breach of the requirements set forth in this Agreement, it is mutually understood and agreed that the public will necessarily suffer damages and that such damages, from the nature of the default in performance will be extremely difficult to value and impractical to fix. CITY finds, and the CONTRACTOR agrees, that as of the time of the execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages or the costs related thereto which will be incurred by CITY as a result of a material 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 breaches cause inconvenience, anxiety, frustration and deprivation of the benefits of this 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) 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 past breaches. Accordingly, the CONTRACTOR and CITY agree that the following table of Administrative charges are acceptable as liquidated damages, and not a penalty or forfeiture, in the amounts set forth opposite the breach described.
ADMINISTRATIVE Charges
Item Amount if Not Cured
in 30 Days
If Cured in 15
Days
a. Failure to respond to each complaint within three (3) Work Days of receipt of complaint.
$100 per day per incident per Service
Recipient.