b. Failure to maintain call center hours as required by this Agreement. $100 per day. -0-
c. Failure to submit to CITY all reports by the deadlines required under the provisions of this Agreement.
$100 per day. -0-
d. Failure to submit to CITY all payments by the deadlines required under the provisions of this Agreement.
$500 per day. -0-
ADMINISTRATIVE Charges
Item Amount if Not Cured
in 30 Days
If Cured in 15
Days
e. Failure to display CONTRACTOR’s name and customer
service phone number on collection vehicles.
$100 per incident per
day.
-0-
f. Failure to collect a missed collection by close of the next Work Day upon notice to CONTRACTOR that exceeds
twenty (20) in any Calendar Year.
$1,000 per Calendar
year, plus $10 per
incident per day.
-0-
g. Failure to repair or replace damaged Containers to deliver or exchange Containers within the time required by this Agreement, that exceeds twenty (20) in any Calendar
year.
$1,000 per Calendar year, plus $10 per
incident per day.
h. Failure to maintain collection hours as required by this Agreement. $100 per day. -0-
i. Failure to have CONTRACTOR personnel in
CONTRACTOR-provided uniforms.
$25 per day per
employee.
-0-
j. Failure of CONTRACTOR to follow Recyclable Materials and Organic Waste Contamination procedures as set forth under Section 8.03.
Submit plan of
correction to CITY
-0-
k. Failure of CONTRACTOR to meet the Customer Service
Requirements. $1,000 per day -0-
The following items Can Not Be Cured
Item Amount (cannot be cured)
l. Failure to clean up spillage or litter on public streets located within CITY caused by CONTRACTOR’s
collection vehicles within two (2) hours after notice by CITY to CONTRACTOR.
$500 per incident per location and
reimbursement to CITY for cleanup.
m. Disposal of separately collected Recyclable Materials or separately collected Organic Waste in the Disposal
Facility without first obtaining the required permission of the CITY.
$500 per load.
n. Failure to deliver Garbage collected under this Agreement to the Disposal Facility, except as otherwise expressly provided in this Agreement.
$5,000 each failure.
ADMINISTRATIVE Charges
Item Amount if Not Cured
in 30 Days
If Cured in 15
Days
o. Failure to submit a corrective action plan as set forth in Section 12.06.1.
The current disposal cost/ton for each
ton under the diversion requirement.
p. Overweight Collection Vehicles, as set forth by Section
8.40.01.4. $500 per day per load after CITY has
considered CONTRACTOR’s reason for
excessive overweight vehicles.
14.05. Procedure for Review of Administrative Charges. The Agreement Administrator may assess administrative charges pursuant to this Agreement on a monthly basis. At the end of each month during the term of this Agreement, the Agreement Administrator will issue a written notice to CONTRACTOR (“Notice of Assessment”) of the administrative charges assessed and the basis for each assessment.
14.06.18. The assessment will become final unless, within ten (10) business days of the date of the notice of assessment, CONTRACTOR provides a written request for a meeting with the City Manager to present evidence that the assessment should not be made, or the alleged deficiency has been cured.
14.06.19. The Agreement Administrator will schedule a meeting between CONTRACTOR and the City Manager as soon as reasonably possible after timely receipt of CONTRACTOR’s request.
14.06.20. The City Manager will review CONTRACTOR’s evidence and render a decision sustaining or reversing the administrative charges within ten (10) business days after the meeting.
Written notice of the decision will be provided to CONTRACTOR.
14.06.21. In the event CONTRACTOR does not submit a written request for a meeting within ten (10) calendar days of the date of the Notice of Assessment and the alleged deficiency is not cured, the Agreement Administrator’s determination will be final.
14.06.22. CITY’s assessment or collection of administrative charges are in addition to and not in lieu of any other remedy available to it and will not prevent CITY from exercising any other right or remedy, including the right to terminate this Agreement, for CONTRACTOR’s failure to perform the work and services in the manner set forth in this Agreement.
14.06. Acts of God and Natural Disasters.
14.06.1. If either party is prevented from or delayed in performing its duties under this Agreement by circumstances beyond its control, whether or not foreseeable, including, without limitation, acts of the State of California or the U.S. Federal government, acts of God or natural disasters, whether of the kind enumerated or otherwise, that are not reasonably within the control of the affected party, then the affected party will be excused from performance hereunder during the period of such disability.
14.06.2. The party claiming excuse from performance must promptly notify the other party when it learns of the existence of such cause, including the facts constituting such cause, and when such cause has terminated.
14.06.3. The interruption or discontinuance of services by a party caused by circumstances outside of its control will not constitute a default under this Agreement.
ARTICLE 15. Performance Bond
15.01. Performance Bond. The Agreement must be executed, and a performance bond furnished by CONTRACTOR within thirty (30) calendar days of City Council approval of the Agreement; otherwise, the bid bond shall be forfeited to the CITY.
15.01.1. CONTRACTOR shall furnish to the CITY, and keep current, a performance bond in a form acceptable to the CITY, for the faithful performance of this Agreement and all obligations arising hereunder in an amount of Five-Hundred Thousand Dollars ($500,000) during the term of the Agreement.
15.01.2. The performance bond shall be executed by a surety company that is acceptable to the CITY; an admitted surety company licensed to do business in the State of California; that has an “A:VII” or better rating by A.M. Best or Standard and Poors; and is included on the list of surety companies approved by the Treasurer of the United States.
15.02. Letter of Credit. As an alternative to the performance bond required by this Article, at CITY’s option, within thirty (30) calendar days from the date the City Council approves this Agreement, CONTRACTOR must furnish to CITY, an irrevocable letter of credit, for the faithful performance of this Agreement and all obligations arising hereunder in an amount as follows:
15.02.1. From July 1, 2023, and so long as this Agreement or any extension thereof remains in force, CONTRACTOR must maintain a letter of credit in the amount of Five- Hundred Thousand Dollars ($500,000). The letter of credit must be issued by an FDIC insured banking institution chartered to do business in the state of California, in CITY’s name, and be callable at the discretion of the CITY.
15.03. Adjustments. The amount of the performance bond and letter of credit required under this Article shall be adjusted equal to the percentage change in the Maximum Service Rates from the commencement of this Agreement if this Agreement is extended past its initial Term.
ARTICLE 16. Insurance
16.01. Insurance Policies. CONTRACTOR shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work described herein and the results of that work by the CONTRACTOR, its agents, representatives, employees, or subcontractors. With respect to General Liability and Contractors Pollution Liability, coverage should be maintained for a minimum of five (5) years after contract completion.
16.02. Minimum Scope and Limit of Insurance. If the CONTRACTOR maintains broader coverage and/or higher limits than the minimums shown below in Sections 16.02.1 through 16.02.4, the CITY requires and shall be entitled to the broader coverage and/or the higher limits maintained by the CONTRACTOR. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY. Insurance coverage must be at least this broad:
16.02.1. Commercial General Liability (CGL). Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $5,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
16.02.2. Automobile Liability. Insurance Services Office Form Number CA 0001 covering any auto (Code 1), or if CONTRACTOR has no owned autos, hired (Code 8) and non-owned (Code 9) autos, with limit no less than $5,000,000 per accident for bodily injury and property damage.
16.02.3. Workers’ Compensation. Insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $3,000,000 per accident for bodily injury or disease.
16.02.4. Contractor’s Pollution Liability. Applicable to the work being performed, with a limit no less than $3,000,000 per claim or occurrence and $10,000,000 aggregate per policy period of one year.
16.03. Self-Insured Retentions. Any self-insured retentions must be declared to the Agreement Administrator. Should CITY form a reasonable belief that CONTRACTOR may be unable to pay any selfinsured retentions, CONTRACTOR must procure a letter of credit issued by a state of federal guaranteeing payment of losses and related investigations, claim administration and defense expenses in an amount specified by CITY’s risk manager.
16.04. Other Insurance Provisions.
16.04.1. The General Liability, Automobile Liability, and Contractors Pollution Liability, policies are to contain, or be endorsed to contain, the following provisions:
16.04.1.1. The CITY, its officers, officials, employees, and volunteers are to be covered as additional insureds with respect to liability arising out of work or operations performed by or
on behalf of the CONTRACTOR including materials, parts or equipment furnished in connection with such work or operations, but excepting workers’ compensation liability. General liability coverage can be provided in the form of an endorsement to the CONTRACTOR’s insurance (at least as broad as ISO Form CG 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
16.04.1.2. For any claims related to this project, the CONTRACTOR’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the CITY, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees, agents, or volunteers shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.
16.04.1.3. Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the CITY.
16.04.2. The Automobile Liability policy shall be endorsed to include Transportation Pollution Liability insurance, covering materials to be transported by CONTRACTOR pursuant to the Agreement. This coverage may also be provided on the Contractors Pollution Liability policy.
16.04.3. If General Liability and Contractors Pollution Liability coverages are written on a claims-made form:
16.04.3.1. The retroactive date must be shown and must be before the date of the Agreement or the beginning of work under this Agreement.
16.04.3.2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
16.04.3.3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective date, the CONTRACTOR must purchase an extended period coverage for a minimum of five (5) years after completion of contract work.
16.04.3.4. A copy of the claims reporting requirements must be submitted to the CITY for review.
16.05. Acceptability of Insurers. Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best rating of no less than A-: VII if admitted in the State of California.
16.06. Verification of Coverage. CONTRACTOR shall furnish the CITY with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to CITY before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the CONTRACTOR’s obligation to provide them. The CITY reserves the right to review complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time, at CONTRACTOR’s address indicated for receipt of notices in this Agreement.
16.07. Waiver of Subrogation. CONTRACTOR hereby grants to CITY a waiver of subrogation which any insurer may acquire against CITY, its officers, officials, employees, and volunteers, from CONTRACTOR by virtue of the payment of any loss arising from CONTRACTOR’s performance.
CONTRACTOR agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the CITY has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the CITY for all work performed by the CONTRACTOR, its employees, agents, and subcontractors under this Agreement.
16.08. Subcontractors. CONTRACTOR shall require and verify that all subcontractors performing work in the CITY maintain insurance meeting all the requirements stated herein, and CONTRACTOR shall ensure that CITY is an additional insured on insurance required from subcontractors.
For CGL coverage subcontractors shall provide coverage with a format least as broad as CG 20 38 04 13.
16.09. Special Risks or Circumstances. CITY reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
ARTICLE 17. Indemnification
17.01. General Indemnification. CONTRACTOR must indemnify, defend (with attorneys acceptable to CITY), and hold harmless CITY, CITY’s contractors, and its elected and appointed public officials, officers, directors, employees, agents, volunteers, and other contractors of each of them (collectively, “CITY Indemnitees”), from and against any and all claims, costs, losses and damages (including, but not limited to, all fees and charges of engineers, architects, attorneys, and other professionals as well as all court or other dispute resolution costs), liabilities, expenditures, or causes of action of any kind (including negligent, reckless, willful, or intentional acts or omissions of the CONTRACTOR, any subcontractor, any supplier, any person or organization directly or indirectly employed by any of them to perform or furnish any services or anyone for whose acts any of them may be liable), arising from, relative to or caused by the performance of the services (collectively, “Claims”). This indemnity includes but is not limited to Claims attributable to bodily injury, sickness, disease, or death, and to injury or destruction of tangible property. CONTRACTOR agrees, at CONTRACTOR's expense, after written notice from the CITY, to defend any action against the CITY Indemnitees that falls within the scope of this indemnity using counsel selected by CONTRACTOR and approved by CITY in its reasonable judgment. Additionally, if CONTRACTOR, after receipt of written notice from the CITY, fails to make any payment due under this Agreement to CITY, CONTRACTOR must pay any reasonable attorneys’ fees or costs incurred by CITY in securing any such payment from CONTRACTOR. Payment of any amount due pursuant to the foregoing indemnity must, after receipt of written notice by CONTRACTOR from CITY that such amount is due, be made by CONTRACTOR prior to CITY being required to pay same, or in the alternative, CITY, at CITY's option, may make payment of an amount so due and CONTRACTOR must promptly reimburse CITY for the same, together with interest thereon at the rate of 12% per annum simple interest from the date of receipt by CONTRACTOR of written notice from CITY that such payment is due. The foregoing indemnity and hold harmless provisions shall apply regardless of whether such loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death, or damage is also caused in part by any of CITY Indemnities' negligence, but shall not extend to matters resulting from CITY Indemnities' sole negligence or willful misconduct.
17.02. Diversion Indemnification. Subject to the requirements of Public Resources Code section 40059.1, which will control in the event of any conflict with the provisions of this Section, CONTRACTOR agrees to protect and defend CITY Indemnitees with counsel selected by CONTRACTOR and approved by CITY, to pay all attorneys’ fees, and to indemnify and hold CITY Indemnitees harmless from and against all fines or penalties imposed by the CalRecycle if the diversion goals specified in California Public Resources Code section 41780, as it may be amended, are not met by CITY with respect to the materials Collected by CONTRACTOR and if the lack in meeting such goals are attributable to the failure of CONTRACTOR to implement and operate the recycling or diversion programs or undertake the related activities required by this Agreement. In the event CalRecycle provides an administrative process to challenge the imposition of a compliance order or a fine or fines, CONTRACTOR will be responsible for engaging any consultants or attorneys necessary to represent CITY in any challenge. CONTRACTOR will be responsible for the retention of and payment to any consultants engaged to perform waste generation studies (diversion and disposal). All consultants and attorneys engaged hereunder are subject to the mutual agreement of CITY and CONTRACTOR.
17.03. Hazardous Substances Indemnification. CONTRACTOR agrees to indemnify, defend (with counsel reasonably approved by CITY), protect and hold harmless the CITY Indemnitees from and against any and all Claims of any kind whatsoever paid, suffered or incurred by or against the CITY Indemnitees resulting from any repair, cleanup, removal action or response action undertaken pursuant to CERCLA, the Health & Safety Code or other similar federal, state or local law or regulation, with respect to CONTRACTOR’s activities or omissions under this Agreement. The foregoing indemnity is intended to operate as an agreement pursuant to section 107(e) of CERCLA and section 25364 of the Health & Safety Code to defend, protect, hold harmless and indemnify the CITY Indemnitees from all forms of liability under CERCLA, the Health & Safety Code or other similar federal, state or local law or regulation.
17.04. Proposition 218. CONTRACTOR understands and agrees that CITY may elect to or be required to comply with California Constitution Article XIII D (Proposition 218) or other Applicable Law before approving any new maximum service rate or any maximum service rate increase. CITY shall not be in breach of this Agreement if its residents lawfully delay or prevent CITY from raising or imposing the rates.
In such event, CITY and CONTRACTOR shall meet in good faith to consider alternatives and options, which may include permitting CONTRACTOR to terminate the Agreement. CITY and CONTRACTOR agree that such meeting shall take place within six (6) months of any failure or delay to impose rates. All costs incurred in providing notices required under California Constitution Article XIII D or other applicable law in connection with a rate adjustment shall be paid by CONTRACTOR subject to an annual cap of Ten Thousand Dollars ($10,000) which shall be adjusted annually in the same manner as the Maximum Service Rates.
17.05. Consideration. It is specifically understood and agreed that the consideration inuring to CONTRACTOR for the execution of this Agreement consists of the promises, payments, covenants, rights, and responsibilities contained in this Agreement.
17.06. Obligation. This Agreement obligates CONTRACTOR to comply with the foregoing indemnification and release provisions; however, the collateral obligation of providing insurance must also be complied with as set forth in this Agreement.
17.07. Subcontractors. CONTRACTOR must require all subcontractors performing work in the CITY to enter into an Agreement containing the provisions set forth in this Article in which the subcontractor(s) fully indemnifies CITY in accordance with this Agreement.
17.08. Exception. Notwithstanding other provisions of this Agreement, CONTRACTOR’s obligation to indemnify, hold harmless, and defend CITY, its officers, and employees will not extend to any loss, liability, penalty, damage, action, or suit arising or resulting from acts or omissions constituting sole or active negligence, willful misconduct, material breach of this Agreement, or violation of law on the part of CITY, its officers, or employees.
17.09. Damage by CONTRACTOR. If CONTRACTOR’s employees or subcontractors cause any injury, damage, or loss to CITY property, including but not limited to CITY streets or curbs, excluding normal wear and tear, CONTRACTOR must reimburse CITY for CITY’s cost of repairing such injury, damage, or loss. Such reimbursement is not in derogation of any right of CITY to be indemnified by CONTRACTOR for any such injury, damage, or loss. With the prior written approval of CITY, CONTRACTOR may repair the damage at CONTRACTOR’s sole cost and expense. Any injury, damage, or loss to private property caused by the negligent or willful acts or omissions of CONTRACTOR to private property must be repaired or replaced by CONTRACTOR at CONTRACTOR’s sole expense. Disputes between CONTRACTOR and its Service Recipients or private property owners as to damage to private property are civil matters and complaints of damage will be referred to CONTRACTOR as a matter within its sole responsibility and as a matter within the scope of Section 17.01 (Indemnification).
ARTICLE 18. Charges, Fees, and Contractor Compensation
18.01. Responsibility for Service Billing and Collection. The CITY, and not the CONTRACTOR, shall be responsible for the billing and collection of payments from SFD Service Recipients. CONTRACTOR will work directly with the CITY Representative to develop a protocol for answering all Customer billing questions. CITY shall, strictly as a billing agent for CONTRACTOR, bill all SFD Service Units for Collection Service (with the exception of SFD Service Units that do not receive waste and sewer services from CITY which shall be billed by CONTRACTOR) at the rate set forth in EXHIBIT 1. Billings may be made monthly or bimonthly for Service Recipients, as determined by CITY. CITY shall include in its bills to Service Recipients any applicable fees imposed by action of the City Council, including, but not limited to those as set forth in this Article.
Contractor shall be responsible for the billing and collection of payments from Commercial and MFD Service Recipients and for Roll Off Collection Services. Customer billing and service inquiries for Commercial and MFD Service Units shall be received directly by Contractor. For accounts that are aggregated on a single bill or other unique circumstance, City and Contractor shall meet and agree on procedures for billing. Contractor shall provide City an invoicing report for all customers directly billed each month. The report shall include total services provided, gross billings, and calculated City fees due to City.
City may deduct any City fees from payment to Contractor for Residential Service Recipients under section
18.03. 18.02. CONTRACTOR Billing Account Information. The CONTRACTOR shall be responsible for providing the CITY with complete customer billing account and service level data for all Collection services provided by CONTRACTOR under this Agreement during the prior month, in an electronic format that is acceptable to the CITY. Each invoice shall be accompanied by an accounting, which sets forth CONTRACTOR’S Gross Billings for all services provided during the preceding month in sufficient detail to allow for an independent recalculation of monies due to CONTRACTOR. This information will be provided
on a monthly basis by the 15th day of the month for services provided by CONTRACTOR during the prior month. Any changes to the electronic format or submission date shall be expressly approved in writing by the CITY.
18.03. CITY Payments for CONTRACTOR’s Compensation. CITY shall pay CONTRACTOR on the last day of each month for services provided by CONTRACTOR and billed by CITY during the prior invoice period. The CITY shall deduct franchise fees from the payments due to CONTRACTOR by CITY the amounts as set forth in Sections 18.09.1 – 18.09.3 below.
18.04. CPI Adjustments to CONTRACTOR’S Compensation. CONTRACTOR’S sole compensation is derived from the application of the Maximum Service Rates to actual services provided to SFD, MFD, and Commercial Service Recipients. The Maximum Service Rates are as specified in Exhibit 1 of this Agreement, and are firm and fixed through June 30, 2024. CONTRACTOR shall not be entitled to any compensation that is not listed in Exhibit 1, as adjusted from time to time in accordance with this Agreement. On or after July 1, 2024, and each subsequent July 1st, CONTRACTOR’s Maximum Service Rates shall be adjusted as follows:
18.04.1. Adjustments to Maximum Service Rates on July 1, 2024. Beginning on July 1, 2024, and annually thereafter, the Maximum Service Rates will be adjusted to the calculated percentage in this section, but capped at maximum increase of five percent (5.0%). In any year that the calculation of the CPI is negative (below 0.00%), the adjustment to Maximum Service Rates will be set to 0.00% (no adjustment). In the event the calculation above is greater than 5.0%, the adjustment to Fees shall be 5.0% for that year and any amount above 5.0% shall be carried forward and added to any subsequent years’ adjustment until such time there is no carryover. The annual CPI adjustment applied to the Fees shall not exceed 5.0% in any one year. The calculations are as follows:
Each Maximum Service Rate adjustment shall be calculated by multiplying the prior year’s rate by 80% of the percentage change in the “Consumer Price Index ( San Francisco – Oakland – Hayward, All Urban Consumers, Not Seasonally Adjusted),” (or another mutually agreed-upon index if this one is no longer published) between the most recently published February index and the corresponding index published twelve months earlier, or 5.0% whichever is less.
Service Rate = Prior Years’ Service Rate x (0.80 ((February 2023 CPI – February 2022 CPU)/February 2022 CPI)) + Prior Year’s Service Rate
For Example,
Prior Year’s Service Rate = $25.00
February 2023 CPI = 180.2
February 2022 CPI = 172.8
Calculated CPI = (180.2 – 172.8)/172.8 = 0.0428
Eighty percent of Calculated CPI = 0.0428 x 80% = 0.0342 Amount of increase = $25.00 x 0.0342 = $0.86
Adjusted Monthly Service Rate = $25.00 + $0.86 = $25.86
18.04.2. Rounding. Adjustments to the overall Maximum Service Rates shall be made only in units of one cent ($0.01). Fractions of less than one cent ($0.01) shall not be considered in making
adjustments.
18.04.3. CITY Approval of Maximum Service Rates. On or before June 1, 2024, and annually thereafter during the term of this Agreement, the CITY Representative shall notify CONTRACTOR of the Maximum Service Rate adjustments to take place on the subsequent July 1st. CITY shall take action on any changes in the Maximum Service Rates in accordance with the CITY’S Municipal Code.
18.05. Facility Fee Adjustments. The facility fee adjustment shall be a 100% pass-through of any increase in tipping fees paid by Contractor at the Designated Disposal Facility, Organic Waste Processing Facility, or Materials Recycling Facility for materials delivered under this Agreement. Contractor shall be entitled on the effective date of any increase. City may request Contractor submit a calculation of the facility fee adjustment as part of the annual adjustment under Section 18.04 so that Maximum Service Rates can be adjusted to compensate Contractor for the increase in tipping fees. The facility fee adjustment shall be in addition to the CPI calculation and not be subject to the 5.0% cap.
The Facility Fee Adjustment shall be applied to 20% of the Maximum Service Rates in the following manner:
Solid Waste Tipping Fee: 13.0%
Mixed Organics Tipping Fee: 5.0%
Recyclable Material: 2.0%
The % increase in any tipping fee shall factored by the % above and applied to the Maximum service rates.
For example,
Prior tipping fee Solid Waste = $50.00
New tipping fee Solid Waste = $55.00
Increase in tipping fee = $5.00
% increase in tipping fee = 10.0% ($5.00 ÷ $50.00)
Solid Waste factor = 13.0%
Adjustment applied to Maximum Service Rates = 1.30% (10% x 13.0%) For purposes of calculating the Facility Fee Adjustment, the tipping fees at the Designated Disposal Facility at the beginning of this agreement are as follows:
Solid Waste Tipping Fee: $43.05/ton
Mixed Organics Tipping Fee: $55.00/ton
Recyclable Materials: $ 8.26/ton
18.06. Adjustments Due to Material Change In Law.
18.06.1. If a Material Change in Law occurs after the date hereof, then CITY and CONTRACTOR shall negotiate in good faith a reasonable and appropriate adjustment to Maximum Service Rates sufficient to offset CONTRACTOR’s increased allowable costs of operation or reduced Gross Billings resulting from the Material Change in Law. As an exception to the preceding sentence, CONTRACTOR shall not be entitled to an adjustment in Maximum Service Rates with respect to the first Thirty Thousand Dollars ($30,000) in increased costs or decreased revenues incurred by CONTRACTOR resulting from the Material Change in Law.
18.06.2. The Parties may negotiate and agree on the amount of any Maximum Service Rate adjustment pursuant to this Section 18.06 without a Detailed Rate Review. CONTRACTOR shall bear the burden of justifying to CITY any adjustment due to a Material Change in Law and shall bear its own costs of preparing its request for an adjustment and supporting documentation. CITY may request from CONTRACTOR such further information as it reasonably deems necessary to fully evaluate CONTRACTOR’S request and make its determination whether CONTRACTOR has satisfied its burden, which determination shall not be unreasonably withheld. CITY shall notify CONTRACTOR of its determination within ninety (90) calendar days of receipt of the written request and all other additional information reasonably requested by CITY. Any such change will be implemented on the following July 1st, or within any other time frame agreed upon between CITY and CONTRACTOR. The adjustment in Maximum Service Rates shall be approved by the City Council and memorialized in a written amendment to this Agreement.
18.07. Detailed Rate Review. Only if requested by the CITY a Detailed Rate Review may be conducted provided that a pre-established methodology, found in Exhibit 9, is agreed to by both the CITY and the CONTRACTOR. The CONTRACTOR is responsible for paying for the Detailed Rate Review.
18.08. Adjustments Due to Changes in Fees, Payments, or CITY Services. In the event that CITY elects to increase the amount of fees or payments beyond those increases provided for in Section
18.09 below, or in the event the CITY requests CONTRACTOR to perform additional CITY Collection Services beyond those services listed in this Agreement, the CONTRACTOR shall be eligible for an additional adjustment as part of their regularly scheduled July 1st Maximum Service Rate adjustment to cover the cost of those new fees, payments and/or services. This additional adjustment shall be calculated using the following methodology, and such calculation must be included in the CONTRACTOR’S regular rate adjustment request submitted to the CITY by February 1st in order for the CONTRACTOR to be eligible to receive the additional rate adjustment:
18.08.1. The CONTACTOR shall calculate this additional rate adjustment percentage using the following steps:
(A) Determine Percent of CONTRACTOR’s Gross Billings: The total dollar value of the new/increased fees, payments and/or services Divided by the total reported CONTRACTOR’s prior year annual Gross Billings.
Example: $200,000 value of new fees or services /
$5,000,000 CONTRACTOR’s Gross Billings = 4.0%
(B) Determine Additional Percentage Rate: The total dollar value of the new/increased fees, payments and/or services Multiplied by the total dollar value of the new/increased fees, payments and/or services.
Example: $200,000 value of new fees or services X
4.0% from (A) above = $6,000
(C) Determine Percentage Rate: CONTRACTOR’s prior year annual Gross Billings + dollar value of new fees or services + the dollar value of increased Administrative Fee Divided by CONTRACTOR’s prior year annual Gross Billings.
Example $5,000,000 + $200,000+$6,000 = $5,206,000 /
$5,000,000 = 4.12% Rate Increase
“The total estimated CONTRACTOR Gross Billings for the current Agreement Year” (B) shall be calculated as: the CONTACTOR’S total Gross Billings as reported to the CITY for the previous Agreement Year, multiplied by one (1) plus the approved rate adjustment percentage which became effective on the most recent July 1st. If approved, the calculated additional rate adjustment percentage shall be added to the CONTRACTOR’S regularly scheduled CPI rate adjustment percentage effective the upcoming July 1st in accordance with this Agreement.
18.09. CONTRACTOR’s Payments to CITY. CONTRACTOR shall make payment to the CITY of an Administrative Fee, AB 939 Support Fee, Vehicle Impact Fee, and Other Fees as may be specified in this Section. Contractor Payments to CITY will be done on a monthly basis in the manner as specified in Section 18.03. The amount for each payment is specified in this Section 18.09. All Fees as listed in this Section 18.09 shall be paid on a monthly basis in a manner specified in Section 18.03 above.
18.09.1. Administrative Fee. The CONTRACTOR shall pay an Administrative Fee to the CITY. The Administrative Fee will be a percentage of CONTRACTOR’S Gross Billings each month, whether billed to customers by the CITY or billed directly by CONTRACTOR, under the terms of this Agreement. The Administrative Fee percentage shall be Seven Percent (7.00%) of Gross Billings unless otherwise adjusted by the CITY. In the event that the CITY adjusts the Administrative Fee percentage, the Maximum Service Rates will also be adjusted simultaneously and commensurately, to incorporate any such changes in the Administrative Fee percentage.
18.09.2. AB 939 Support Fee. The CONTRACTOR shall pay an AB 939 Support Fee to the CITY for the CITY’S costs to provide AB 939 Support Services. The AB 939 Support Fee will be a percentage of CONTRACTOR’S Gross Billings each month under the terms of this Agreement. The AB 939 Support Fee percentage shall be Three Percent (3.00%) of Gross Billings unless otherwise adjusted by the CITY. In the event that the CITY adjusts the AB 939 Support Fee percentage, the Maximum Service Rates will also be adjusted simultaneously and commensurately, to incorporate any such changes in the AB 939 Support Fee percentage.
18.09.3. Other Fees. The CONTRACTOR shall pay any other fees the City establishes. The City may set other fees, as it deems necessary. Such other fees may include, but shall not be limited to, franchise fees, landfill closure funding, and street sweeping operations. The amount, time, and method of payment and adjustment process shall be set in a manner similar to that for other fees described in this Section. In the event that the CITY establishes or modifies a new or different fee, the Maximum Service Rates will also be adjusted simultaneously and commensurately, to incorporate any such changes.
18.09.4. Resolution of Disputes Regarding Rate Adjustments. Any dispute regarding an adjustment to the maximum rates CONTRACTOR may charge, or the computation thereof, shall be decided by the City Manager. The rates in effect at the time such dispute is submitted to the City Manager shall remain in effect pending resolution of such dispute. The effective date of the adjusted maximum rate following the resolution of any such dispute, whether retroactive or prospective, shall be determined by the City Manager.
18.010. Annual Billing and Account Reconciliation.
18.09.1. CONTRACTOR Field Billing Audit. CONTRACTOR must, on a quarterly basis, physically verify all Service Recipients service levels against the service billing information provided by CONTRACTOR to the CITY. CONTRACTOR shall send a summary report to the CITY on the 15th day following the close of the prior quarter.
18.09.2. CITY Billing Audit. The CITY, on a quarterly basis, shall conduct an internal Billing Audit to verify that their customer billing information matches the results from Section 18.09.1.
18.09.3. Billing Account Information Reconciliation. Should a discrepancy be found between the CONTRACTOR’s and the CITY’s customer billing information in Sections 18.09.2 and 18.09.2, the customer billing data will be updated in both party’s customer data bases, and discrepancies shall be credited to the CITY or credited to the CONTRACTOR on the next month’s CONTRACTOR’s payments to the CITY, as set forth in this Agreement.
18.10. Open Code Violation Cases. Service Recipients (SFD, MFD, or Commercial) which have open code violation cases with the CITY relating to their Service Unit related to the performance of this Agreement are ineligible to enter service of construction contracts with the CITY. This restriction applies whether the open code violation case applies to the work proposed to be performed under contract with the CITY or other violations of CITY Code or regulations. If a code violation case is open after the Agreement is signed, the CITY will withhold ten percent (10%) of the CONTRACTOR’s compensation pursuant to this Agreement until compliance is achieved. If compliance is not achieved by the termination or expiration date of this Agreement, or within one hundred and eighty (180) days of the opening date of the case (whichever is longer) the withheld amount shall be permanently retained by the CITY. If monies are withheld from the CONTRACTOR, CONTRACTOR shall be ineligible to bid on future CITY work until the City Manager verifies that compliance has been achieved. This remedy is non-exclusive, and in addition to any other remedies in law or equity available to the CITY.
ARTICLE 19. Default of Agreement; Termination
19.01. Termination. CITY may terminate this Agreement, except as otherwise provided below in this Section, by giving CONTRACTOR thirty (30) calendar days advance written notice, to be served as provided in this Agreement, upon the happening of any one of the below-listed events. CONTRACTOR may only terminate this Agreement for cause.
19.01.1. CONTRACTOR takes the benefit of any present or future insolvency statute, or makes a general assignment for the benefit of creditors, or files a voluntary petition in bankruptcy (court) or a petition or answer seeking an arrangement for its reorganization or the readjustment of its indebtedness under the Federal bankruptcy laws or under any other law or statute of the United States or any state thereof, or consent to the appointment of a receiver, trustee or liquidator of all or substantially all of its property; or
19.01.2. By order or decree of a court, CONTRACTOR is adjudged bankrupt or an order is made approving a petition filed by any of its creditors or by any of the stockholders of CONTRACTOR, seeking its reorganization or the readjustment of its indebtedness under the Federal
bankruptcy laws or under any law or statute of the United States or of any state thereof, provided that if any such judgment or order is stayed or vacated within sixty (60) calendar days after the entry thereof, any notice of default will be and become null, void and of no effect; unless such stayed judgment or order is reinstated in which case, such default will be deemed immediate; or
19.01.2.1. By, or pursuant to, or under the authority of any legislative act, resolution or rule or any order or decree of any court or governmental board, agency or officer having jurisdiction, a receiver, trustee or liquidator takes possession or control of all or substantially all of the property of CONTRACTOR, and such possession or control continues in effect for a period of sixty (60) calendar days; or
19.01.3. CONTRACTOR has defaulted, by failing or refusing to pay in a timely manner the administrative charges or other monies due CITY and such default is not cured within thirty (30) calendar days of receipt of written notice by CITY to do so; or
19.01.4. CONTRACTOR has defaulted by allowing any final judgment for the payment of money owed to CITY to stand against it unsatisfied and such default is not cured within thirty (30) calendar days of receipt of written notice by CITY to do so; or
19.01.5. In the event that the monies due CITY or an unsatisfied final judgment is the subject of a judicial proceeding, CONTRACTOR will not be in default if the sum of money is bonded. All bonds must be in the form acceptable to the CITY Attorney; or
19.01.6. CONTRACTOR has defaulted, by failing or refusing to perform or observe the terms, conditions or covenants in this Agreement or any of the rules and regulations promulgated by CITY pursuant thereto or has wrongfully failed or refused to comply with the instructions of the Agreement Administrator relative thereto and such default is not cured within thirty (30) calendar days of receipt of written notice by CITY to do so, or if by reason of the nature of such default, the same cannot reasonably be remedied within thirty (30) calendar days following receipt by CONTRACTOR of written demand from CITY to do so, CONTRACTOR fails to commence the remedy of such default within such thirty (30) calendar days following such written notice or having so commenced fails thereafter to continue with diligence the curing thereof (with CONTRACTOR having the burden of proof to demonstrate (a) that the default cannot be cured within thirty (30) calendar days, and (b) that it is proceeding with diligence to cure such default, and such default will be cured within a reasonable period of time).
19.02. Violations. Notwithstanding the foregoing and as supplemental and additional means of termination of this Agreement under this Article, in the event that CONTRACTOR's record of performance shows that CONTRACTOR has defaulted in the performance of any of the covenants and conditions required herein excepting those for which CITY’s remedy is to levy and collect a penalty as Administrative Charges under Article 14, to be kept and performed by CONTRACTOR three (3) or more times in any twenty-four (24) month period, and regardless of whether the CONTRACTOR has corrected each individual condition of default, CONTRACTOR will be deemed a "habitual violator," will be deemed to have waived the right to any further notice or grace period to correct, and all such defaults will be considered cumulative and collectively will constitute a condition of irredeemable default. CITY will thereupon issue CONTRACTOR a final warning citing the circumstances therefore, and any single default by CONTRACTOR of whatever nature, subsequent to the occurrence of the last of such cumulative defaults, will be grounds for immediate termination of the Agreement. In the event of any such subsequent default,
CITY may terminate this Agreement upon giving of written final notice to CONTRACTOR, such cancellation to be effective upon the date specified in CITY's written notice to CONTRACTOR, and all contractual fees due hereunder plus any and all charges and interest will be payable to such date, and CONTRACTOR will have no further rights hereunder. Immediately upon the specified date in such final notice CONTRACTOR must cease any further performance under this Agreement.
19.03. Effective Date of Termination. In the event of any the events specified above, and except as otherwise provided in such subsections, termination will be effective upon the date specified in CITY's written notice to CONTRACTOR and upon such date this Agreement will be deemed immediately terminated and upon such termination all liability of CITY under this Agreement to CONTRACTOR will cease, and CITY will have the draw down on the Letter of Credit and will be free to negotiate with other contractors for the operation of interim and long-term Collection Services. CONTRACTOR must reimburse CITY for all direct and indirect costs of providing any interim Collection Services as a result of CONTRACTOR’s default in this Agreement.
19.04. Immediate Termination. CITY may terminate this Agreement immediately upon written notice to CONTRACTOR in the event CONTRACTOR: (a) fails to provide and maintain Letter of Credit as required by this Agreement; (b) fails to obtain or maintain insurance policies endorsements as required by this Agreement; (c) fails to provide the proof of insurance as required by this Agreement; or (d) offers or gives any gift to a CITY official or employee prohibited by CITY’s Municipal Code.
19.05. Termination Cumulative. CITY’s right to terminate this Agreement is cumulative to any other rights and remedies provided by law or by this Agreement.
19.06. Alternative Service. Should CONTRACTOR, for any reason, except the occurrence or existence of any of the events or conditions set forth in Section 14.06, refuse or be unable for a period of more than forty-eight (48) hours, to Collect a material portion or all of the Solid Waste which it is obligated under this Agreement to Collect, and as a result, Solid Waste should accumulate in CITY to such an extent, in such a manner, or for such a time that the City Manager, in the reasonable exercise of the City Manager's discretion, should find that such accumulation endangers or menaces the public health, safety or welfare, then CITY will have the right to contract with another Solid Waste enterprise to Collect any or all Solid Waste which CONTRACTOR is obligated to Collect pursuant to this AGREEMENT. CITY must provide twenty-four (24) hours prior written notice to CONTRACTOR during the period of such emergency, before contracting with another Solid Waste enterprise to Collect any or all Solid Waste which CONTRACTOR would otherwise collect pursuant to this Agreement for the duration of period during which CONTRACTOR is unable to provide such services. In such event, CONTRACTOR must undertake commercially reasonable efforts to identify sources from which such substitute Solid Waste services are immediately available, and must reimburse CITY for all of its expenses for such substitute services during the period in which CONTRACTOR is unable to provide Collection services required by this Agreement.
19.07. Survival of Certain Contractor Obligation. Notwithstanding the termination of this Agreement by CONTRACTOR or CITY, CONTRACTOR’s obligation to indemnify, defend, and hold CITY and CITY Indemnitees harmless as provided in ARTICLE 17 shall survive termination for five (5) years from the date of termination. Notwithstanding the termination of this Agreement by CONTRACTOR or CITY, such act shall not automatically invalidate or cancel any insurance policy, letter of credit, performance bond or similar instruments provided by CONTRACTOR under this Agreement and such policies, letters of credit, performance bonds and other instruments shall remain in full force and effect for one full year after
termination.
19.08. CONTRACTOR’s Remedies; Claims. CONTRACTOR shall be entitled to all available remedies in law or equity for CITY's breach of this Agreement; provided, however, CONTRACTOR shall not file or otherwise commence any action against CITY, in law or equity.
19.09. Actions for Damages. As a prerequisite to the filing and maintenance of any action for damages by CONTRACTOR against CITY arising out of this Agreement, CONTRACTOR shall present a claim to CITY, as required by Government Code Section 910 et seq., within 30 days of the date of the occurrence giving rise to the claim for damages. CONTRACTOR shall have no right to assert a claim for damages related to CITY’s failure to approve or delay in considering a rate adjustment. In such cases, CONTRACTOR may file a petition for writ of mandate. CITY retains full rights to seek damages and/or injunctive relief.
ARTICLE 20. Modifications to the Agreement
20.01. City-Directed Change. CITY has the power to make changes in this Agreement as the result of changes in law, changes in the City of Atwater Municipal Code, or both, to impose new rules and regulations on CONTRACTOR under this Agreement relative to the scope and methods of providing Collection Services as may from time-to-time be necessary and desirable for the public welfare. CITY will give the CONTRACTOR notice of any proposed change and an opportunity to be heard concerning those matters. The scope and method of providing Collection Services as referenced herein will be liberally construed to include procedures, operations and obligations, financial or otherwise, of CONTRACTOR.
When such modifications are made to this Agreement, CITY and CONTRACTOR will negotiate in good faith, a reasonable and appropriate compensation adjustment for any increase or decrease in the services or other obligations required of CONTRACTOR due to any modification in the Agreement under this Article.
CITY and CONTRACTOR will not unreasonably withhold agreement to such compensation adjustment.
20.01.1. Change in Law. CITY and CONTRACTOR understand and agree that the California Legislature has the authority to make comprehensive changes in Solid Waste Collection legislation and that these and other changes in law in the future which mandate certain actions or programs for counties or municipalities may require changes or modifications in some of the terms, conditions or obligations under this Agreement. CONTRACTOR agrees that the terms and provisions of the City of Atwater Municipal Code, as it now exists or as it may be amended in the future, will apply to all of the provisions of this Agreement and the Service Recipients of CONTRACTOR located within the Service Area.
In the event any future change in federal law or regulations, state or local law of regulation, or the City Code materially alters the obligations of CONTRACTOR, then the affected service rates, as established in Exhibit 1 of this Agreement will be adjusted in accordance with Section 18.06. Nothing contained in this Agreement will require any party to perform any act or function contrary to law. CITY and CONTRACTOR agree to enter into good faith negotiations regarding modifications to this Agreement which may be required in order to implement changes in the interest of the public welfare or due to change in law. When such modifications are made to this Agreement, CITY and CONTRACTOR will negotiate in good faith, a reasonable and appropriate compensation adjustment for any increase or decrease in the services or other obligations required of CONTRACTOR due to any change in law or modification in the Agreement under this Article.
CITY and CONTRACTOR will not unreasonably withhold agreement to such compensation adjustment.
Article 21 Legal Representation
21.01. Acknowledgement. It is acknowledged that each Party was, or had the opportunity to be, represented by counsel in the preparation of and contributed equally to the terms and conditions of this Agreement and, accordingly, the rule that an Agreement will be interpreted strictly against the party preparing the same will not apply due to the joint contributions of both Parties.
ARTICLE 22. Financial Interest
22.01. Representation. CONTRACTOR warrants and represents that no elected official, officer, agent, or employee of CITY has a financial interest, directly or indirectly, in this Agreement or the compensation to be paid under it and, further, that no CITY employee who acts in the CITY as a “purchasing agent” as defined in the CITY’s Municipal Code, nor any elected or appointed officer of CITY, nor any spouse or child of such purchasing agent, employee or elected or appointed officer, is a partner, officer, director or proprietor of the CONTRACTOR and, further, that no such CITY employee, purchasing agent, CITY elected or appointed officer, or the spouse or child of any of them, alone or in combination, has a material financial interest in CONTRACTOR or this Agreement under Applicable Law.
ARTICLE 23. Contractor's Personnel
23.01. Personnel Requirements. CONTRACTOR must employ and assign qualified personnel to perform all services required under this Agreement. CONTRACTOR is responsible for ensuring that its employees comply with all Applicable Laws related to their employment and position.
23.01.1. CITY may request the transfer of any employee of CONTRACTOR who materially violates any provision of this Agreement, or who is wanton, negligent, or discourteous in the performance of his or her duties under this Agreement.
23.01.2. CONTRACTOR’s field operations personnel are required to wear a clean uniform shirt bearing CONTRACTOR’s name. CONTRACTOR’s employees, who normally come into direct contact with the public, including drivers, must bear some means of individual photographic identification such as a name tag or identification card.
23.01.3. Each driver of a Collection vehicle must at all times carry a valid California driver's license and all other required licenses for the type of vehicle that is being operated.
23.01.4. Each driver of a Collection vehicle must at all times comply with all applicable state and federal laws, regulations and requirements.
23.01.5. CONTRACTOR’s employees, officers, and agents may not identify themselves or in any way represent themselves as being employees or officials of CITY.
23.01.6. CONTRACTOR's name and the Customer Service telephone number must be properly displayed on all Collection vehicles.
23.01.7. CONTRACTOR warrants that it has complied and shall continue to comply with the provisions of Labor Code section 1072 as a “bidder” defined in that section. CONTRACTOR
acknowledges that it received all information from CITY and its prior service provider necessary to comply with such section.
ARTICLE 24. Exempt Waste
24.01. CONTRACTOR is not required to Collect or dispose of Exempt Waste, but may offer such services. All such Collection and disposal of Exempt Waste is not regulated under this Agreement, but if provided by CONTRACTOR must be in strict compliance with all Applicable Laws.
ARTICLE 25. Independent Contractor
25.01. In the performance of services pursuant to this Agreement, CONTRACTOR is an independent contractor and not an officer, agent, servant or employee of CITY. CONTRACTOR will have exclusive control of the details of the services and work performed and over all persons performing such services and work. CONTRACTOR is solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors, if any. Neither CONTRACTOR nor its officers, employees, agents, contractors or subcontractors will obtain any right to retirement benefits, Workers Compensation benefits, or any other benefits which accrued to CITY employees and CONTRACTOR expressly waives any claim to such benefits.
25.02. Subcontractors. CONTRACTOR will require all subcontractors performing work in the CITY to enter into an agreement containing the provisions set forth in Section 25.01, in which agreement the subcontractor agrees that CONTRACTOR and subcontractor are independent contractors and have no other agency relationship with CITY.
ARTICLE 26. Laws to Govern
26.01. The law of the State of California governs the rights, obligations, duties, and liabilities of CITY and CONTRACTOR under this Agreement and govern the interpretation of this Agreement.
ARTICLE 27. Consent to Jurisdiction
27.01. The Parties agree that any litigation between CITY and CONTRACTOR concerning or arising out of this Agreement must be filed and maintained exclusively in the Superior Courts of Merced County, State of California, or in the United States District Court for the Eastern District of California to the fullest extent permissible by law. CONTRACTOR hereby waives any right to remove any such action from Merced County as is otherwise allowed by California Code of Civil Procedure section 394. Each Party consents to service of process in any manner authorized by California law.
ARTICLE 28. Assignment
28.01. No assignment of this Agreement or any right occurring under this Agreement may be made in whole or in part by CONTRACTOR without the express prior written consent of CITY. CITY will have full discretion to approve or deny, with or without cause, any proposed or actual assignment by CONTRACTOR. Any assignment of this Agreement made by CONTRACTOR without the express written consent of CITY will be null and void and will be grounds for CITY to declare a default of this Agreement and immediately terminate this Agreement by giving written notice to CONTRACTOR, and upon the date set forth in such notice this Agreement will be deemed terminated, and upon such termination all liability of
CITY under this Agreement to CONTRACTOR will cease, and CITY will have the right to call the Performance Bond provided pursuant to Article 15 and will be free to negotiate with other contractors, for the services that are the subject of this Agreement. In the event of any assignment approved by CITY, the assignee must fully assume all the liabilities of CONTRACTOR by way of an assignment and assumption agreement. Notwithstanding the above, an assignment to an Affiliate of CONTRACTOR may be undertaken upon notice to CITY, but without the requirement for its approval.
28.02. In the event that the CITY agrees to assignment of this Agreement to a qualified service provider, CONTRACTOR must pay the City its costs incurred for staff time, consultant fees, and attorneys’ fees incurred to evaluate the suitability of any proposed assignee, and to review, draft, and finalize any documentation required to approve and implement any assignment. To be considered, assignment applications must include an assignment fee in the amount of five hundred thousand dollars ($500,000) to pay for any and all costs incurred, including the cost of staff time and consultant fees, related to the assignment application and CITY’s analysis of the assignment application. Any amount remaining in the assignment fee upon completion of CITY’s assignment analysis, after deduction of all costs incurred by the CITY related to the assignment, will be credited to the CONTRACTOR. CONTRACTOR payments for assignment costs are in addition to and not in lieu of any other fees, charges, or amounts CONTRACTOR is required to pay the CITY pursuant to the Agreement.
28.03. CONTRACTOR shall furnish the CITY with audited financial statements of the proposed assignee’s operations for the immediately preceding five (5) operating years.
28.04. CONTRACTOR must furnish the CITY with satisfactory proof that the proposed assignee has the demonstrated technical capability to perform all franchised services and any other information required by CITY to ensure the proposed assignee can fulfill the terms of the Agreement in a timely, safe, and effective manner.
28.05. The use of a subcontractor to perform services under this Agreement will not constitute delegation of CONTRACTOR’s duties provided that CONTRACTOR has received prior written authorization from the Agreement Administrator to subcontract such services and the Agreement Administrator has approved a subcontractor who will perform such services. CONTRACTOR will be responsible for directing the work of CONTRACTOR’s subcontractors and any compensation due or payable to CONTRACTOR’s subcontractor will be the sole responsibility of CONTRACTOR. The Agreement Administrator will have the right to require the removal of any approved subcontractor for reasonable cause. The subcontractors listed in Exhibit 5, if any, are hereby approved by CITY.
ARTICLE 29. Compliance with Laws
29.01. In the performance of this Agreement, CITY and CONTRACTOR must comply with all Applicable Laws, including without limitation the Atwater Municipal Code.
29.02. CITY must provide written notice to CONTRACTOR of any planned amendment of the Atwater Municipal Code that would substantially affect the performance of CONTRACTOR’s services pursuant to this Agreement. Such notice must be provided at least thirty (30) calendar days prior to the City Council’s approval of such an amendment.
ARTICLE 30. Permits and Licenses
30.01. CONTRACTOR must obtain, at its own expense, all permits and licenses required by law or ordinance and maintain same in full force and effect throughout the term of this Agreement.
CONTRACTOR must provide proof of such permits, licenses or approvals and must demonstrate compliance with the terms and conditions of such permits, licenses and approvals upon the request of the Agreement Administrator.
ARTICLE 31. Ownership of Written Materials
31.01. CONTRACTOR hereby grants CITY a non-exclusive license as to all reports, documents, brochures, public education materials, and other written, printed, electronic or photographic materials developed by CONTRACTOR at the request of CITY or as required under this Agreement, without limitation or restrictions on the use of such materials by CITY. CONTRACTOR may not use such materials that specifically reference CITY for other purposes without the prior written consent of the Agreement Administrator. This Article 31 does not apply to ideas or concepts described in such materials and does not apply to the format of such materials.
ARTICLE 32. Waiver
32.01. Waiver by CITY or CONTRACTOR of any breach for violation of any term covenant or condition of this Agreement will not be deemed to be a waiver of any other term, covenant or condition or any subsequent breach or violation of the same or of any other term, covenant or condition. The subsequent acceptance by CITY of any fee, tax, or any other monies which may become due from CONTRACTOR to CITY will not be deemed to be a waiver by CITY of any breach for violation of any term, covenant or condition of this Agreement.
ARTICLE 33. Restrictions on Gifts to Public Officials
33.01. CONTRACTOR represents that CONTRACTOR is familiar with CITY’s which guides CITY’s elected officials in limiting the acceptance of gifts or favors where it might reasonably be inferred that the gifts or favors were intended or expected to influence an official’s objectivity as an advisor or decision maker, and agrees that it will not offer any CITY officer or designated employee any gifts prohibited by the CITY.
ARTICLE 34. Point of Contact
34.01. The day-to-day dealings between CONTRACTOR and CITY will be between CONTRACTOR Representative and the Agreement Administrator.
ARTICLE 35. Notices
35.01. Except as provided in this Agreement, whenever either Party desires to give notice to the other, it must be given by written notice addressed to the party for whom it is intended, at the place last specified and to the place for giving of notice in compliance with the provisions of this Section. For the present, the Parties designate the following as the respective persons and places for giving of notice:
As to the CITY:
City of Atwater Public Works
Attn: Justin Vinson
470 Aviator Dr
Atwater, CA 95301
209-357-6370
As to the CONTRACTOR:
Mid Valley Disposal LLC
Attn: Joseph Kalpakoff
15300 W Jensen Ave
Kerman, CA 93630
559-237-9425
35.02. Notices will be effective when received at the address as specified above. Changes in the respective address to which such notice is to be directed may be made by written notice. Facsimile or e-mail transmission is acceptable notice, effective when received, however, facsimile transmissions received (i.e. printed) or mail transmissions received after 4:30 p.m. or on weekends or holidays, will be deemed received on the next business day. The original of items that are transmitted by facsimile equipment or by email must also be mailed as required herein.
35.03. Notice by CITY to CONTRACTOR of a Collection or other Service Recipient problem or complaint may be given to CONTRACTOR orally by telephone at CONTRACTOR’s local office with confirmation sent to CONTRACTOR through the Customer Service System by the end of the Work Day.
ARTICLE 36. Transition to Next Contractor
36.01. In the event CONTRACTOR is not awarded a new Agreement to continue to provide Collection Services following the expiration or early termination of this Agreement, CONTRACTOR will cooperate fully with CITY and any subsequent contractors to assure a smooth transition of services described in this Agreement. Such cooperation will include but not be limited to transfer of computer data, files and tapes; providing routing information, route maps, vehicle fleet information, and a current list of Service Recipients (complete with addresses for Collection Services and billing); providing a complete inventory of all Carts, Bins and Roll-Off Containers; providing adequate labor and equipment to complete performance of all Collection Services required under this Agreement; taking reasonable actions necessary to transfer ownership of Carts, Bins, and Roll-Off Containers, as appropriate, to CITY; including transporting such containers to a location designated by the Agreement Administrator; coordinating Collection of materials set out in new containers if new containers are provided for a subsequent Agreement; and providing other reports and data required by this Agreement.
ARTICLE 37. Contractor’s Records
37.01. CONTRACTOR must maintain any and all letters, books of account, invoices, vouchers, canceled checks, and other records or documents described in Article 12 for a minimum period of three (3) years, or for any longer period required by law, from the date of termination or completion of this Agreement.
37.02. CONTRACTOR must maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years, or for any longer period required by law, from the date of termination or completion of this Agreement.
37.03. Any records or documents required to be maintained pursuant to this Agreement must be made available for inspection or audit, at any time during regular business hours, upon written request by the Agreement Administrator, the City Attorney, City Auditor, City Manager, or a designated representative of any of these officers. Unless an alternative site is mutually agreed upon, the records will be available at CONTRACTOR’s address indicated for receipt of notices in this Agreement.
37.03.1. CONTRACTOR acknowledges that CITY is legally obligated to comply with the California Public Records Act (“CPRA”). CITY acknowledges that CONTRACTOR may consider certain records, reports, or information contained therein, (“Records”) which CONTRACTOR is required to provide to CITY under this AGREEMENT, to be of a proprietary or confidential nature. In such instances, CONTRACTOR will inform CITY in writing of which records are considered propriety or confidential and shall identify the statutory exceptions to disclosure provided under the CPRA that legally permit nondisclosure of the Records. At such time as CITY receives a request for records under the CPRA or the Federal Freedom of Information Act (“FOIA”) or a subpoena or other court order requesting disclosure of the Records, CITY will notify CONTRACTOR of the request, subpoena or order and of CITY’s obligation and intent to provide a response within ten (10) calendar days. CONTRACTOR shall within five (5) calendar days either: (i) consent in writing to the disclosure of the Records; (ii) demand that CITY assert the CONTRACTOR identified exceptions to disclosure under the CPRA and agree in writing to indemnify, defend and hold CITY harmless from any litigation, orders or judgments arising from the non-disclosure; or (iii) seek and obtain, at CONTRACTOR’s sole cost and expense, the order of a court of competent jurisdiction staying or enjoining the disclosure of the Records. If CONTRACTOR fails to timely respond, then CITY may proceed to disclose the Records in which event CONTRACTOR agrees that it waives and releases CITY of any liability for the disclosure of the Records.
37.04. Where CITY has reason to believe that such Records or documents may be lost or discarded due to the dissolution, disbandment or termination of CONTRACTOR’s business, CITY may, by written request or demand of any of the above named officers, require that custody of the Records be given to CITY and that the Records and documents be maintained in City Hall. Access to such Records and documents will be granted to any party authorized by CONTRACTOR, CONTRACTOR’s representatives, or CONTRACTOR’s successor-in-interest.
ARTICLE 38. Entire Agreement
38.01. This Agreement and the attached Exhibits constitute the entire Agreement and understanding between the Parties, and the Agreement will not be considered modified, altered, changed, or amended in any respect unless in writing and signed by the Parties.
ARTICLE 39. Severability
39.01. If any provision of this Agreement or the application of it to any person or situation is to any extent held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement and the application of such provisions to persons or situations other than those as to which it is
held invalid or unenforceable, will not be affected, will continue in full force and effect, and will be enforced to the fullest extent permitted by law.
ARTICLE 40. Right to Require Performance
40.01. The failure of CITY at any time to require performance by CONTRACTOR of any provision of this Agreement will in no way affect the right of CITY thereafter to enforce same. Nor will waiver by CITY of any breach of any provision of this Agreement be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of any provision itself.
ARTICLE 41. All Prior Agreements Superseded
41.01. This Agreement incorporates and includes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained in this Agreement and the Parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly, it is agreed that no deviation from the terms of this Agreement will be predicated upon any prior representations or agreements, whether oral or written.
ARTICLE 42. Headings
42.01. Headings in this document are for convenience of reference only and are not to be considered in any interpretation of this Agreement.
ARTICLE 43. Exhibits
43.01. Each Exhibit referred to in this Agreement forms an essential part of this Agreement.
Each such Exhibit is a part of this Agreement and each is incorporated by this reference.
ARTICLE 44. Attorney’s Fees
44.01. In the event that litigation is brought by a party in connection with this Agreement, the prevailing party will be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in the exercise of any of its rights or remedies under this Agreement or the enforcement of any of the terms, conditions, or provisions of this Agreement.
ARTICLE 45. Effective Date
45.01. This Agreement will become effective at such time as it is properly executed by CITY and CONTRACTOR and CONTRACTOR will begin Services under this Agreement as of July 1, 2023.
ARTICLE 46. Guarantee of CONTRACTOR’s Performance
46.01. , a corporation, shall guaranty
CONTRACTOR’s performance of this Agreement, including any insurance obligation required under the Agreement that CONTRACTOR fulfills by means of self-insured retention. The guaranty, in substantially the form attached as Exhibit 8, will be provided within ten (10) business days of the effective date of this Agreement.
IN WITNESS WHEREOF, CITY and CONTRACTOR have executed this Agreement on the respective date(s) below each signature.
CITY OF ATWATER
A General Law City
Mid Valley Disposal LLC
By: Mike Nelson
City Mayor
By: Joseph Kalpakoff
President
ATTEST: Kory J. Billings
City Clerk
By: Jonathan Kalpakoff
Vice President
By: Joe Heisdorf
APPROVED AS TO FORM CFO
By: Frank Splendorio
City Attorney
EXHIBIT 1
Maximum Service Rates
EXHIBIT 2
City Sponsored Events
1. Spring Clean Up
2. Fall Clean Up
3. Fourth of July Festival
4. [NAME]
5. [NAME]
6. [NAME]
7. [NAME]
8. [NAME]
9. [NAME]
10. [NAME]
11. [NAME]
12. [NAME]
13. [NAME]
14. [NAME]
15. [NAME]
EXHIBIT 3
List of City Properties
Building Name Address
PD 750 Bellevue Rd
Corp Yard 470 Aviator Dr
Community Center 760 E Bellevue Rd
City Administration Office 1160 5th Street
Fire Station 41 699 Broadway Ave
Fire Station 42 2006 Avenue Two
Wastewater Treatment Plant 6235 S Bert Crane
City Hall (Future) 1350 Broadway Ave
Youth Center In Veterans Park
Chamber of Commerce 1120 Third St
Bloss Mansion Second Street and Broadway Ave
Industry Sewer Lift Station Industry
Prison Sewer Lift Station Federal Way
Heller Park Herman Street and Heller Ave
Orchard Park Nonpareil Dr and Mission
Manuel Barios Park Lakeview Dr and Shoreline Dr
E.L Walters Park Linden St and Oak Ave
Ralston Park Third St and Grove Ave
Old Water Tower Park Elm St and Winton Way
Memorial Park Packers St and Cedar Ave
Osborn Park E Bellevue Rd
Veterans Park Buhach Rd and E Bellevue Rd
Joan Faul Park Bridgewater St and Arrowwood Lane
Albani Park E Grove Ave
Neves Park Miramonte Dr and Faxon Dr
Bloss Park Second St and Cedar Ave
EXHIBIT 4
Cart and Bin Specifications
1. Cart Specifications.
1.1. Carts must be new at the start of this Agreement.
1.2. Carts must be designed and manufactured with heavy plastic in accordance with standard industry specifications approved by CITY. Samples must be approved by Agreement Administrator prior to purchase and distribution.
1.3. Carts must be constructed with material that resists deterioration from ultraviolet radiation, and be incapable of penetration by household pets or small wildlife when lids are fully closed.
1.4. Carts must include wheels and handles that accommodate ease of movement by able-bodied persons.
1.5. Carts must include lids that continuously overlap the Cart body so as to prevent the intrusion of rainwater and minimize odors. The lids would be of a design and weight so as to prevent the Cart body from tilting backward when flipping the lid open fully and not stop when vertical.
1.6. Carts must be capable of being lifted into the collection vehicle without damage or distortion under normal usage.
1.7. Carts must be labeled using hot stamp or labels, and at a minimum will include CONTRACTOR’s name and graphics indicating what materials may and may not be placed in each Cart type.
2. Bin Specifications.
2.1. Bins must be new at the start of this Agreement
2.2. Bins must be constructed of heavy metal or heavy plastic, and must be watertight and well painted.
2.3. Wheels, forklift slots, and other appurtenances, which are designed for movement, loading, or unloading of the container, must be maintained in good repair.
2.4. Locking bins can be provided to customers at an additional charge.
2.5. Bins must have the name and phone number of CONTRACTOR on the exterior so as to be visible when the Bin is placed for use.
2.6. Each Bin must be labeled with a listing of materials that may and may not be placed in a particular Bin type, and each Bin must include a conspicuous warning: “Not to be used for the disposal of hazardous, electronic, or universal waste.”
2.7. Bid lids must be constructed of metal or heavy plastic, so as to minimize the intrusion of rainwater and minimize odors.
2.8. Bins must be capable of being lifted into the collection vehicle without damage under normal usage.
EXHIBIT 5
List of Approved Subcontractors
EXHIBIT 6
Sustainability Plan
EXHIBIT 7
Diversion Plan
EXHIBIT 8
Corporate Guaranty
EXHIBIT 9
Detailed Rate Review Methodology
1. Detailed Rate Review Methodology
In the event that a Detailed Rate Review is requested by CITY, CITY shall notify CONTRACTOR of such request on or before the September 1 preceding the July 1 for which Service Recipient Rates are to be adjusted. CONTRACTOR shall submit its rate application on or before November 1. CITY shall complete its review (including any required CITY Council approval) and Service Recipient Rates shall be finalized by May 31.
The Detailed Rate Review will be based on CONTRACTOR’s rate application, which shall contain financial statements (together with a management representation letter as to such statements) for services provided under this Agreement for the most recently completed fiscal year preceding the given November 1 rate application due date.
As part of its rate application, CONTRACTOR shall assemble and submit its forecasts of: Service Recipient Rates, revenue given such rates, annual cost of operations, pass-through costs, and profit, for the year for which Service Recipient Rates are being adjusted, together with the method used to produce such forecasts, and such information as is necessary to support the assumptions made with regard to such forecasts (such as projected population growth or migration, service or operational changes, projected changes in tonnages, known or reasonably expected cost increases, etc.).
CONTRACTOR shall provide all financial information and supporting documentation required by this review in a format acceptable to CITY (or CITY’s designated consultant) in a timely manner.
CONTRACTOR shall not require CITY (or CITY’s designated consultant) to review any such documents at CONTRACTOR’s worksite, but shall instead allow for all required information and supporting documentation to be provided to CITY (or its designated consultant) via physical mail, email, or any other delivery method approved by CITY.
Service Recipient Rates shall be adjusted as part of this Detailed Rate Review so as to generate sufficient Gross Revenues to CONTRACTOR to cover the sum of the forecasted annual cost of operations, profit on such forecasted annual cost of operations, and forecasted Pass-Through Costs, reviewed or calculated as set forth below.
a. Forecasted annual cost of operations. The forecasted annual cost of operations shall consist of the sum of:
■ Forecasted labor-related costs
■ Forecasted vehicle-related costs
■ Forecasted other costs
■ Forecasted lease expense
Each of these sums shall be reviewed based on the following:
i. Determination of actual costs. CONTRACTOR’s financial statements will be reviewed to determine CONTRACTOR’s costs for each of the foregoing categories during the
EXHIBIT 9
Detailed Rate Review Methodology
fiscal year involved. CITY will use the financial statements to determine that costs have actually been incurred and have been assigned to the appropriate category. ii. Adjustment of actual costs. CITY may adjust the actual costs in two ways: (1) to exclude any non-allowable costs, set out below, and (2) to exclude and/or reduce any costs that were not reasonably and necessarily incurred in the performance of the services or other obligations of CONTRACTOR under this Agreement. All costs incurred by CONTRACTOR in the performance of this Agreement not excluded under the preceding sentence shall be deemed allowable costs. The “other” cost category includes all allowable costs besides labor-related, vehicle-related and lease costs, including without limitation processing and tip fees.
Costs that are deemed non-allowable consist of the following:
i. Corporate and technical services costs in excess of four percent (4%) of Gross Revenues. Corporate and technical services costs consist of the following corporate headquarters costs allocated to CONTRACTOR by CONTRACTOR’s parent: corporate administration, environmental compliance, sustainability, corporate finance, human resources, and information technology. ii. Promotional, entertainment, and travel expenses in excess of $5,000 per year, unless authorized in advance by CITY.
iii. Fines or penalties of any nature.
iv. Administrative Charges assessed under Section 14.04 of this Agreement. v. Federal or state income taxes.
vi. Charitable or political donations.
vii. Attorneys’ fees and other expenses incurred by CONTRACTOR in any court proceeding in which CITY and CONTRACTOR are adverse parties, unless CONTRACTOR is the prevailing party in said proceedings. viii. Attorneys’ fees and other expenses incurred by CONTRACTOR in any court proceeding in which CONTRACTOR’s own negligence, violation of law or regulation, or other wrongdoing, is in issue and occasions part of the attorneys’ fees and expenses claimed, provided, however, such attorneys’ fees will be allowed to the extent CONTRACTOR can demonstrate they were reasonable and necessary and a cost of doing business, and were not the result of any intentional or willful misconduct by CONTRACTOR or its employees; and attorneys’ fees and expenses incurred by CONTRACTOR in a court proceeding in which the legal theory or statute providing a basis of liability against CONTRACTOR also provides for separate strict liability for CITY arising from the action of its citizens or ratepayers (such as in a CERCLA lawsuit). ix. Payments to related party entities for products or services (other than lease expense, calculated as provided below), in excess of the fair market value for those products or services. For purposes of this Agreement, related party expenses are those resulting from transactions between CONTRACTOR and another company (companies) that has (have) common ownership or management control.
EXHIBIT 9
Detailed Rate Review Methodology
b. Forecasted Costs. Allowed costs of operations for CONTRACTOR’s prior fiscal year will be used as the starting point to evaluate the forecasted cost for the year for which Service Recipient Rates are being adjusted. The review will evaluate forecasted laborrelated costs, vehicle-related costs, other costs, and lease expense (described in additional detail below).
c. Labor-Related Costs. Labor-related costs will be forecasted based on projected head count and the increases provided for in CONTRACTOR’s collective bargaining agreements.
d. Lease Expense. Lease expense will be calculated using the actual purchase price of the asset, the number of years in the useful life of the asset, and the prime interest rate on the date of acquisition, assuming full amortization over the useful life of the asset. The result is the forecasted lease expense for the asset for the rate year. Useful lives are:
office equipment 5 years; vehicles 10 years; Carts/Bins/Roll-off Containers 10 years; buildings and leasehold improvements 20 years.
e. Corporate Costs. The following corporate headquarters costs allocated to CONTRACTOR by CONTRACTOR’s parent shall be allowable costs: insurance, workers’ compensation, pension costs, health and welfare, and regional charges. Such costs are not included in the corporate and technical services category referred to in paragraph (i) of non-allowable costs above.
f. Pass-Through Costs. Pass-through costs will be included as allowable costs, but will not be subject to the calculation of profit as set forth below. Pass-through costs comprise:
i. All costs for disposal (i.e., landfill), recycling and organic and processing tipping fees; and
ii. All payments to CITY described in Article 18 of this Agreement.
Forecasted pass-through costs shall reflect scheduled increases in amounts payable to CITY.
g. Profit. Profit or return to CONTRACTOR shall be determined by CITY applying an operating ratio so as to provide for an adequate rate of return to CONTRACTOR. For purposes of this Agreement, the CITY-determined operating ratio shall be ninety percent (90%). For purposes of determining the amount of profit, this operating ratio shall be applied to CONTRACTOR’s total forecasted allowable expenses, which shall not include expenses that are identified as non-allowable expenses or as pass-through expenses (as described above). The formula for applying the operating ratio is as follows:
operating ratio = (allowable expenses) / (allowable expenses + profit).
Additional Diversion Expense. Without limiting the foregoing, if CONTRACTOR undertakes activities to increase its overall diversion level that are not specifically required to be performed by CONTRACTOR under the strict terms of this Agreement, and such activities are reasonably necessary in order to achieve the diversion requirement set forth in Article 8, then for purposes of the Detailed Rate Review such activities shall be deemed to be undertaken in the performance of the Agreement, and the costs of such activities shall be deemed to be allowable expenses.
EXHIBIT 10
Recyclable Materials Specifications
Recyclable Materials must be dry, loose (not bagged), unshredded, empty, and include ONLY the following:
Aluminum cans
PET bottles with the symbol # 1 (with screw tops
only)
HDPE plastic bottles with the symbol #2 (milk,
water bottles detergent, and shampoo bottles,
etc.)
PP plastic bottles and tubs with symbol # 5 –
empty
Steel and tin cans
Glass food and beverage containers – brown,
clear, or green – empty*
Newspaper
Mail
Uncoated paperboard (ex. cereal boxes; food
and snack boxes)
Uncoated printing, writing and office paper
Old corrugated containers/cardboard
(uncoated)
Magazines, glossy inserts and pamphlets
Non-Recyclable Materials include, but are not limited to the following:
Plastic bags and bagged materials (even if
containing Recyclables)
Porcelain and ceramics
Light bulbs
Soiled paper, including paper plates, cups and
pizza boxes
Expanded polystyrene
Glass and metal cookware/bakeware
Microwavable trays
Mirrors, window or auto glass
Coated cardboard
Plastics not listed above including but not
limited to those with symbols #3*, #4*, #6*, #7*
and unnumbered plastics, including utensils
Coat hangers
Household appliances and electronics
EXHIBIT 10
Recyclable Materials Specifications
Recyclable Materials must be dry, loose (not bagged), unshredded, empty, and include ONLY the following:
Hoses, cords, wires
Flexible plastic or film packaging and multilaminated materials Food waste and liquids, containers containing
such items
Exempt Waste or containers which contain
Exempt Waste
Any paper Recyclable materials or pieces of
paper Recyclables less than 4” in size in any
dimension
Cartons*
Yard waste, construction debris, and wood
Needles, syringes, IV bags or other medical
supplies
Textiles, cloth, or any fabric (bedding, pillows,
sheets, etc.)
Napkins, paper towels, tissue, paper plates,
and paper cups
Propane tanks, batteries
Aseptic Containers*
*These materials may be deemed Recyclable Materials upon written consent of CONTRACTOR, which may be withdrawn upon notice to CITY if there is no commercially viable market.
RESOLUTION NO. 3382-23
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF ATWATER APPROVING COLLECTION
SERVICES AGREEMENT AND FRANCHISE TO
MID VALLEY DISPOSAL FOR THE PROVISION
OF RESIDENTIAL AND COMMERCIAL GARBAGE,
RECYCLABLE MATERIAL AND ORGANIC WASTE
COLLECTION SERVICES
WHEREAS, the current Solid Waste Collection Agreement between the City of Atwater and the current contractor will terminate on June 30, 2023; and WHEREAS, the City of Atwater released a Request for Proposals (RFP) for Residential and Commercial Garbage, Recyclable Material and Organic Waste Collection Services on September 7, 2022; and
WHEREAS, the City of Atwater received proposals from four companies of which all four were considered responsive to the RFP; and
WHEREAS, the four companies were invited to interviews that took place on December 6, 2022 and December 8, 2022; and
WHEREAS, the four companies were given follow up questions and responses were received January 6, 2023; and
WHEREAS, the City of Atwater Interview Panel unanimously ranked Mid Valley Disposal the top-ranked company based on their proposal, interview, and follow up responses; and WHEREAS, on March 13, 2023 the City Council of the City of Atwater considered the recommendation of Staff and adopted Resolution No. 3374-23 directing City of Atwater Staff to begin negotiations with Mid Valley Disposal to finalize a Franchise Agreement for the Residential and Commercial Garbage, Recyclable Material and Organic Waste Collection Service Contract; and
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Atwater as follows:
CITY COUNCIL
OF THE
CITY OF ATWATER
Resolution No. 3382-23 Page 2
1. The above recitals are true and correct.
2. An exclusive Collection Service Agreement and Franchise is proposed to be established within the City pursuant to the Atwater Municipal Code.
3. The City Council hereby awards a Franchise to Mid Valley Disposal and approves the proposed Collection Services Agreement and Franchise for the provisions of Residential and Commercial Garbage, Recyclable Material, and Organic Waste Collection Services in the form presented herein.
4. They City hereby authorizes the Mayor to execute the Agreement on behalf of the City, substantially in the form presented herein.
The foregoing resolution is hereby adopted the 27th day of March 2023.
AYES:
NOES:
ABSENT:
APPROVED:
MIKE NELSON, MAYOR
ATTEST:
KORY J. BILLINGS, CITY CLERK
OFFICE OF THE CITY COUNCIL
1160 FIFTH STREET
ATWATER, CA 95301
(209) 357-6300
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March 27, 2023
The Honorable Reginald Jones-Sawyer
Chair, Assembly Public Safety Committee
Legislative Office Building
1020 N Street, Room 111
Sacramento, CA 95814
RE: AB 1708 (Muratsuchi) Theft.
Notice of SUPPORT (As Amended 3/9/23)
Dear Assembly Member Jones-Sawyer,
The City of Atwater is pleased to support AB 1708 (Muratsuchi). This measure would increase accountability for repeat theft offenders and offer pathways for pre-plea diversion programming.
If passed, the bill would send the issue to the voters for approval at the next statewide general election.
This strategy is one of many supported by cities to address crime and its underlying causes. We remain committed to improving California’s carceral systems, interrupting and ending cycles of recidivism, and building a community-based system of care that appropriately meets the needs of all community members.
Proposition 47 of 2014 made promises of safe neighborhoods, but the unintended consequences that followed have provided anything but. According to a February 2023 study conducted by the Public Policy Institute of California, a strong majority of Californians worry they or a family member will be a victim of a crime (21% very, 44% somewhat). This is the sentiment being felt by residents of cities throughout the state.
AB 1708 will provide the City of Atwater a tool to protect our major retailers from the detrimental effects of both organized retail theft and retail theft repeat offenders.
Our communities deserve better, and cities are more than ready to find solutions that fix Proposition 47.
The City of Atwater is keenly interested in exploring additional strategies to address the impacts of crime in our communities. This includes resources to improve community safety through prevention and early intervention programming, as well as improved re-entry service provision for our formerly incarcerated community members. While these provisions have historically been the responsibility of state and county departments, cities are interested in increased collaboration to meet these urgent needs.
For these reasons, the City of Atwater requests your support on AB 1708.
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Sincerely,
Mike Nelson
Mayor
MN/sd
cc: The Honorable Al Muratsuchi (via email:
[email protected])
Assemblywoman Soria (via email: [email protected]) Senator Caballero (via e-mail: [email protected]) Cal Cities Regional Public Affairs Manager (via email: [email protected]) League of California Cities (via email: [email protected])
GOVERNING BOARD MEETING SUMMARY
March 16, 2023
Directors Present: Chair Matt Serratto, Vice Chair-Director Josh Pedrozo, Director Rodrigo Espinoza, Director April Hogue, Director Paul Llanez, Director Daron McDaniel, Director Jose Moran, Director Lloyd Pareira, Director Scott Silveira, Director Pat Nagy, Director Mike Nelson
Directors Absent: None
ACTION ITEMS
The MCAG Governing Board:
• Adopted the 2023 One Voice policy platform to include priorities in the following categories:
transportation, community facilities, public safety, water and homelessness. The One Voice trip to Washington D.C. is scheduled for May 9-12, 2023.
• Adopted an amendment to the 2022 Regional Transportation Plan and the 2023 Federal Transportation Improvement Program which added several new projects in order to be eligible for federal funding.
• Adopted the Regional Early Action Planning Grant Program (REAP) 2.0 scoring criteria which will be used to determine how REAP 2.0 grant program funds will be spent. 75% ($2.7m) will be made available for a Regional Competitive Grant program, and 25% ($905k) will be made available for a local suballocation grant program. The criteria prioritizes the following:
o Accelerate infill development
o Affirmatively further fair housing
o Reduce vehicle miles traveled (VMT)
The Local Suballocation Grant Program formula utilizes a base allocation of $100,000 and an additional allocation based on the share of each jurisdiction’s Sixth Cycle RHNA.
Jurisdiction Sixth Cycle
RHNA
Allocation
Share of
RHNA
Base Allocation Allocation
based off share
of RHNA
Total Formula
City of Dos Palos 261 1% $100,000 $2,370 $102,370
City of Gustine 346 2% $100,000 $3,142 $103,142
City of Livingston 1,097 5% $100,000 $9,961 $109,961
City of Atwater 3,017 13% $100,000 $27,394 $127,394
City of Los Banos 3,132 14% $100,000 $28,438 $128,438
City of Merced 10,517 46% $100,000 $95,493 $195,493
County of Merced 4,250 19% $100,000 $38,589 $138,589
Total 22,620 100% $700,000 $205,386 $905,386
The RWA Governing Board:
• The board participated in a second workshop (March 16 at 2pm) to discuss the proposed tipping fee increase and structure options and continued the discussion during the regular meeting. By majority vote, staff was directed to bring an action item in April to adopt a fee increase schedule that normalizes rates across all jurisdictions over a nine-year period beginning July 1, 2024.
DISCUSSION ITEMS
The MCAG Governing Board:
• Discussed the draft Overall Work Program summary for Fiscal Year 2023-24 which is the annual budget for transportation planning, and the administration of Measure V and the Transportation Development Act (TDA). The total OWP budget for FY 23-24 as submitted to Caltrans is $4,579,297 and includes funding for the following specific studies:
o Transit consolidation study with UC Merced
o Countywide Electric Vehicle Readiness Plan
o Countywide Regional Active Transportation Plan
o Multijurisdictional Local Road Safety Plan
o Multijurisdictional Housing Element
OTHER NOTABLE REPORTS
• Congressman John Duarte attended as a guest speaker. He expressed his commitment to serving Merced County and eagerness to meet with the One Voice delegation in Washington DC. • Caltrans District 10 provided updates for areas impacted by recent flooding, specifically the closure of Hwy 59 south of the City of Merced. They are working on and will provide future updates regarding both short and long-term solutions. Other Caltrans announcements included:
o Clean California Community Days run from March 17th through March 27th. Information is available on the Caltrans website.
o For real time road conditions, the QuickMaps app is available. • A community clean-up in Planada is scheduled for March 25, 2023. Contact Chair Matt Serratto or Director Espinoza for details to participate.