FIRST AMENDMENT TO AMENDED AND RESTATED
FRANCHISE AGREEMENT
This First Amendment to Amended and Restated Franchise Agreemen t (the “Amendment”) is entered into [______________], 2021, by and between the City of Cathedral City (“City”) and Burrtec Waste and Recycling Services, LLC (“Company”) (collectively “Parties,” or individually “Party”).]
RECITALS
WHEREAS, the City and Company previously entered into that cert ain Amended and Restated Franchise Agreement for Integrated Solid Waste Managem ent Services dated July 1. 2020 (the “Agreement”); and,
WHEREAS, SB 1383 regulations requi re the City to implement coll ection programs, meet processing facility requi rements, conduct contamination mo nitoring, provide education, maintain records, submit reports , monitor compliance, conduct e n f o r c e m e n t , a n d f u l f i l l o t h e r requirements; and, the City has chosen to delegate some of its responsibilities to the Company, acting as the City’s designee, and Company desires to take on these responsibilities; and WHEREAS, the City and Company desire to amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the promises above stated a nd the terms, conditions, covenants, and agreements contained herein, the Parties do hereby agree as follows:
1. AMENDMENT TO ARTCLE 1.
The following definitions are added to, and/or shall amend the definitions in, Article 1 of the Agreement, as set forth herein, as applicable. Definitions otherwise contained in the Agreement and/or any previous a mendment(s), but which are not a ddressed below, shall remain the same.
“Back-Haul” means generating and transporting Organic Waste to a destinati on owned and operated by the Generator using the Generator’s own employees a nd equipment, or as otherwise defined in 14 CCR Section 18982(a)(66)(A).
“Blue Container” has the same meaning as in 14 CCR Section 18982.2(a)(5) and sh all be used for the purpose of storage and Collection of Source Separated Recyclable Materials (SSBCOW). “Commercial Edible Food Generators” includes Tier One Commercial Edible Food Generators and Tier Two Commercial Edible Food Generators, or a s otherwise defined in 14 CCR Section 18982(a)(7). For the purposes of this definition, F ood Recovery Organizations and Food Recovery Services are not C ommercial Edible Food Generator s, or as otherwise specified by 14 CCR Section 18982(a)(7).
“Compostable Plastics” o r “Compostable Plastic” means plastic materials that meet the ASTM D6400 standard for compostab ility, or as otherwise describ ed in 14 CCR Section 18984.1(a)(1)(A) or 18984.2(a)(1)(C).
“Compost” has the same meaning as in 14 CCR Section 17896.2(a)(4), as ma y be amended from time to time.
“Edible Food” means food intended for human c onsumption. For t he purposes of t h i s Agreement, Edible Food is not Solid Waste if it is recovered an d not discarded. Nothing in this Agreement requires or authorizes the recovery of Edible Food th at does not meet the food safety requirements of the California Retail Food Code. If the definit ion in 14 CCR Section 18982(a)(18) for Edible Food diffe rs from this definition, the definition in 14 CCR Section 18982(a)(18) shall apply to this Agreement.
“Environmental Fee” means the fee paid by Company to the City to fund the City’s c osts of Solid Waste management and implementation of SB 1383, including education and outreach as well as monitoring, reporting and administration requirements. “Excluded Waste” means Hazardous Substance, Hazardous Waste, Infectious Waste, Designated Waste, volatile, corrosive, Medical Waste, infectiou s, regulated radioactive waste, and toxic substances or material that Facility operator(s) reas onably believe(s) would, as a result of or upon acceptance, transfer, processing, or Disposal, be a violation of local, State, or Federal law, regulation, or ordinance, i ncluding: land use restrictions or conditions, waste that cannot be Disposed of in Class III Landfills or accepted at the Facility by permit conditions, waste that in Company’s reasonable opinion woul d present a significant risk t o human health or the environment, cause a nuisance or otherwise create or expose Com pany or City to potential liability; but not including de minimis volumes or concentratio ns of waste of a type and amount normally found in Single-Family or Multi-Family Solid Waste after implementation of programs for the safe Collection, proces sing, Recycling, treatment, and Disposal of batteries and paint in compliance with Sections 41500 and 41802 of the California Public Resources Code. “Food Recovery” means actions to collect and distribute food for human consump tion which otherwise would be disposed, or as otherwise defined in 14 CCR Section 18982(a)(24). “Food Recovery Organization” means an entity that primarily engages in the collection or receipt of Edible Food from Comm ercial Edible Food Generators a nd distributes that Edible Food to the public for Food Recovery either directly or through other entities, including, but not limited to:
A. A food bank as defined in Sec tion 113783 of the Health and Safety Code; B. A nonprofit charitable organization as defined in Section 11 3841 of the Health and Safety code; and,
C. A nonprofit charitable tempor ary food facility as defined in Section 113842 of the Health and Safety Code.
If the definition in 14 CCR Section 18982(a)(25) for Food Recov ery Organization differs from this definition, the definition in 14 CCR Section 18982(a)(25) shall apply to this Agreement. “Food Recovery Service” means a Person or entity that collects and transports Edible F ood from a Commercial Edible Food Generator to a Food Recovery Orga nization or other entities for Food Recovery; or as otherwise defined in 14 CCR Section 18982(a)(26). “Food Scraps” means all food such as, but not limited to, fruits, vegetables , meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese, and eggshells. “Food-Soiled Paper” means compostable paper material that has come in contact with food or liquid, such as, but not limited to, compostable paper plates, paper coffee cups, napkins, pizza boxes, and milk cartons.
“Food Waste” means Source Separated Food Scraps, Food-Soiled Paper, and Com postable Plastics. Food Waste is a subset of SSGCOW. Edible Food separa ted for Food Recovery shall not be considered Food Waste.
“Gray Container” has the same meaning as in 14 CCR Section 18982(a)(28) and sha ll be used for the purpose of storage and Collection of Gray Container Waste.
“Gray Container Waste” means Solid Waste that is collected in a Gray Container as spe cified in 14 CCR Sections 18984.1(a) and (b), or as otherwise defined in 14 CCR Section 17402(a)(6.5). Gray Container Waste may specifically include ca rpet, Non-Compostable Paper and textiles.
“Green Container” has the same meaning as in 14 CCR Section 18982.2(a)(29) and s hall be used for the purpose of storage and collection of Source Separa ted Green Container Organic Waste (SSGCOW).
“Hauler Route(s)” means the designated itinerary or sequence of stops for each segment of the City’s collection service area, or as otherwise defined in 14 CCR Section 18982(a)(31.5). “Large Event” means an event, including, but not limited to, a sporting even t or a flea market, that charges an admission price, or is operated by a local agen cy, and serves an average of more than 2,000 individuals per day of operation of the event, at a location that includes, but is not limited to, a public, nonprofit, or privately owned park, parking lot, golf course, street system, or other open space when being used for an event. If the definitio n in 14 CCR Section 18982(a)(38) differs from this definition, th e definition in 14 CCR Section 18982(a)(38) shall apply to this Agreement.
“Large Venue” means a permanent venue facility that annually seats or serves an average of more than 2,000 individuals within the grounds of the facility per day of operation of the venue facility. For purposes of 14 CCR, Division 7, Chapter 12 and th is Agreement, a venue facility includes, but is not limited to, a public, nonprofit, or privat ely owned or operated stadium, amphitheater, arena, hall, amuse ment park, conference or civic center, zoo, aquarium, airport, racetrack, horse track, performi ng arts center, fairground, mus eum, theater, or other public attraction facility. For purposes of 14 CCR, Division 7, Chapte r 12 and this Agreement, a site under common ownership or control that includes more than one L arge Venue that is contiguous with other Large Venues in the site, is a single Large Venue. I f the definition in 14 CCR Section 18982(a)(39) differs from this definition, the definition in 14 CCR Section 18982(a)(39) shall apply to this Agreement.
“Non-Compostable Paper” includes, but is not limited t o, paper that is coated in a pla stic material that will not breakdown in the composting process, or as otherwise defined in 14 CCR Section 18982(a)(41).
“Non-Organic Recyclables” means non-putrescible and non- hazardous recyclable wastes including, but not limited to, bot tles, cans, metals, plastics, and glass, or as otherwise defined in 14 CCR Section 18982(a)(43). Non-Or ganic Recyclables are a subs et of Source Separated Recyclable Materials.
“Organic Waste” means Solid Wastes containing material originated from living organisms and their metabolic waste products including, but not limited to, f ood, yard trimmings, organic textiles and carpets, lumber, wood, paper products, printing and writing paper, manure, biosolids, digestate, and sludges, or as otherwise defined in 14 CCR Secti on 18982(a)(46). Biosolids and digestate are as defined in 14 CCR Section 18982(a)(4) and 14 C CR Section 18982(a)(16.5), respectively.
“Performance-based Compliance Approach ” means the method of complying with the SB 1383 Regulations through implementat ion of a collection system, programs, and policies in accordance with 14 CCR, Division 7, Chapter 12, Article 17, or as otherwise defined by 18982(a)(52.5), and all associated requirements.
“Prohibited Container Contaminants” means the following: (i) Discarded Materials placed in the Blue Container that are not identified as acceptable Source Separated Recyclable Materials for the Blue Container; (ii) Disc arded Materials placed in the Green Container that are not identified as acceptable SSGCOW fo r the Green Container; (iii) Discarded Materials placed in the Gray Container that are acceptable Source Separated Recycla ble Materials and/or SSGCOW to be placed in the Green Contai ner and/or Blue Container; and (iv) Excluded Waste placed in any Container.
“SB 1383 Regulations” or “SB 1383 Regulatory” refers to the Short-Lived Climate Pollutants (SLCP): Organic Waste Reductions regulations developed by CalRe cycle and adopted in 2020 that created Chapter 12 of 14 CCR, Division 7 and amended porti ons of regulations of 14 CCR and 27 CCR.
“Source Separated” m e a n s m a t e r i a l s , i n c l u d i n g c o mmingled Recyclable materials, th at have been separated or kept separate from the Solid Waste stream, at the point of generation, for the purpose of additional sorting or p r o c e s s i n g t h o s e m a t e r i a l s f o r Recycling or reuse in order to return them to the economic mainstream in the form of raw mater ial for new, reused, or reconstituted products which meet the quality standards necessa ry to be used in the marketplace, or as otherwise defined in 14 CCR Section 17402.5(b)(4).
“Source Separated Blue Container Organic Waste” or “SSBCOW” means Source Separated Organic Wastes that can be placed in a Blue Container that is limited t o the collection of those Organic Wastes and Non-Organic Recyclables as defined in Section 18982(a)(43), or as otherwise defined by Section 17402(a)(18.7).
“Source Separated Green Container Organic Waste” o r “SSGCOW” means Source Separated Organic Waste that can be placed in a Green Container that is specifically intended for the separate collection of Organ ic Waste by the generator, excl uding Source Separated Blue Container Organic Waste, carpets, Non-Compostable Paper, and textiles. “Source Separated Recyclable Materials” means Source Separated Non-Organic Recyclables and SSBCOW.
“Standard Compliance Approach ” means the method for complying with the SB 1383 Regulations through implementation of a collection system pursu ant to 14 CCR, Division 7, Chapter 12, Article 3, and all associated program and policy requirements. “Tier One Commercial Edible Food Generator” means a Commercial Edible Food Generator that is one of the following, each as defined in 14 CCR Section 18982:
A. Supermarket.
B. Grocery Store with a total fac ility size equal to or greater than 10,000 square feet.
C. Food Service Provider.
D. Food Distributor.
E. Wholesale Food Vendor.
If the definition in 14 CCR Section 18982(a)(73) of Tier One Co mmercial Edible Food Generator differs from this definition, the definition in 14 CC R Section 18982(a)(73) shall apply to this Agreement.
“Tier Two Commercial Edible Food Generator” means a Commercial Edible Food Generator that is one of the following, each as defined in 14 CCR Section 18982:
A. Restaurant with 250 or more se ats, or a total facility size equal to or greater than 5,000 square feet.
B. Hotel with an on-site food f acility and 200 or more rooms.
C. Health facility with an on- site food facility and 100 or more beds.
D. Large Venue.
E. Large Event.
F. A State agency with a cafeter ia with 250 or more seats or total cafeteria facility size equal to or greater than 5,000 square feet.
G. A local education agency with an on-site food facility.
If the definition in 14 CCR Section 18982(a)(74) of Tier Two Co mmercial Edible Food Generator differs from this definition, the definition in 14 CC R Section 18982(a)(74) shall apply to this Agreement.
2. GENERATOR WAIVER PROGRAM COORDINATION.
Section 2.14 “Generator Waiver Program” is added to the Agreement as follows:
In accordance with SB 1383 regula tions and the City’s Municipal C o d e , t h e C i t y m a y grant waivers (de minimis, physical space or Collection frequen cy) to Generators that impact the scope of Company’s provision of service for those Customers. Waivers issued shall be subject to compliance with SB 1383 regulatory requirements, pursuant to 14 CCR Section 18984.11, and the City’s Municipal Code. If u sing a Performance-based Compliance Approach, the City agrees it will only grant waivers if at least ninety percent (90%) of Single-Family Generators and ninety percent (90%) of Commercial Generators (including Multi-Family Generators) participate in the three-Container Collection program . Company agrees to coordinat e and cooperate with the City to meet in connection with its waiver program, as required by SB 1383 regulations.
3. AMENDMENT TO SECTIONS 4.5.5 AND 4.6.6. Sections 4.5.5 and 4.6.6 of the Agreement is deleted in its entirety and the following is substituted in its stead:
THREE-CONTAINER SYSTEM.
General . Company shall provide a three -Container Collection program fo r the separate Collection of Source Sepa rated Recyclable Materials, S SGCOW, and Gray Container Waste as specified in this Agreement, using Containers that comply with the requirements of this Agreement and SB 1383 regulations. Company shall not knowingly Collect Blue, Green, or Gray Containers that include Prohibited Container Contaminants.
Source Separated Recyclable Materials Collection (Blue Container). Company shall provide Blue Containers to Custom ers for Collection of Source S eparated Recyclable Materials and shall provide Source Separat ed Recyclable Materials Collect ion service, Company shall Transport the Source Separated Recyclable Materials to Facility that recovers the materials designated for Collection in the Blue Containers, in accordance with SB 1383 regulations.
Source Separated Recyclable Materials that are to be accepted f or Collection in the Source Separated Recyclable Mater ials Collection program includ e the following: (i) Non- Organic Recyclables such as: aluminum, glass bottles and jars, rigid plastics (marked # 1 through # 7), and tin and bi-metal cans; and (ii) SSBCOW such as: paper products, printing and writing paper.
SSGCOW Collection (Green Container). Company shall provide Green Containers to Customers for Collection of SSGCO W and shall provide SSGCOW Col lection service.
Company shall Transport the SSGCOW to a Facility in accordance with SB 1383 regulations.
SSGCOW that are to be accepted for Collection in the SSGCOW Col lection program include the following: Food Scraps ; Food-Soiled Paper; yard tri mmings, which are defined below; and wood and dry lumber. Carpets, non-Compostable Paper, textiles, and Prohibited Container Contaminants shall not be Collected in the Green Cont ainers. Yard trimmings that are to be accepted for Collection in the SSGCOW Collection program include the following: green trimmings, grass, weeds, flowers, leaves, prunings, branches, dead plants, brush, tree trimmings, dead trees weighing no more than 50 lbs., and other types of SS GCOW resulting from normal yard and landscaping installation, maintenance, or removal, provided all SSGCOW fits inside the Green Container with the lid closed and does not exceed 150 pounds.
Company may Collect compliant C ompostable Plastics, as defined, in the Green Containers for processing. Company shall provide written notifi cation to the City that the Facility can or cannot Process and recover these Compostable Pl astics in accordance with SB 1383 regulations. If the Facility can process and recover Compo stable Plastics, and Company elects to Collect Compostable Pl astics in the Green Container, then Company shall provide written notification to the City that the Facility has and will continue to have the capabilities to Process and recover the Composta ble Plastics. If the Facility c annot process and recover Compostable Plastics, then Comp any will notify City and not Col lect Compostable Plastics in the Green Container.
Gray Container Waste Collection. Company shall provide Gray Containers to Customers for Collection of Gray Container Waste, and shall pro vide Gray Container Waste Collection service. Company shall Transport the Gray Container Waste to a Facility that processes waste, in accordance with the SB 1383 regulations. Co mpany may allow carpets, Non- Compostable Paper, and textiles to be placed in the Gray Contai ners. Prohibited Container Contaminants shall not be Collected in the Gray Containers.
USE OF PLASTIC BAGS FOR SSGCOW COLLECTION.
Company may require Customers and Generators to place Food Wast e in plastic bags or other paper wrappings and put the bagged or wrapped Food Waste in the Green Container.
Company shall provide written not ification to the City that all owing the use of bags does not inhibit the ability of the City to comply with SB 1383 regulati ons, and that the Facility can Process and remove plastic bags when it recovers SSGCOW. Compan y shall provide written notification to the City should the Facility no longer have the capabilities to Process and remove plastic bags when it recovers SSGCOW.
CONTAMINATION MONITORING.
Upon finding Prohibited Container Contaminants in a Container, Company shall follow the protocols set forth in this Section.
A. Actions upon Identification of Prohibited Container Contaminants.
1. Record Keeping. The driver or other Company representative shall record each event of identification of P rohibited Container Contaminan ts in a written log or in the on-board computer system inc luding date, time, Customer’s a ddress, type of Container (Blue, Green, or Gray Container); and maintain photog raphic evidence, if required.
2. Courtesy Pick-Up Notices. Upon identification of Prohibited Container Contaminants in a Customer’s C ontainer, Company shall provide t he Customer a courtesy pick-up notice either b y putting a tag on the Customer s containers or a documented phone conversation. The courtesy pick-up notificatio n (tag or documented conversation) shall: (i) inform the Customer of the observed pr esence of Prohibited Container Contaminants; (ii) inc lude the date and time the Proh ibited Container Contaminants were observed; (ii i) include information on the Cu stomer’s requirement to properly separate materials int o the appropriate Containers, an d the accepted and prohibited materials for Collectio n in the Blue Container, Gree n Container, and/or Gray Container; (iv) inform the Customer of the courtesy pick-up of the contaminated materials on this occasion with information that following thre e instances of Prohibited Container Contaminants within a six-month time period, Company may assess contamination processing fees; and, (v) may include photographi c evidence. Company shall either leave the courtesy pick-up notice attached to or a dhered to the Generators’ contaminated Containers or docum ent a conversation Contractor h ad with the Customer regarding Prohibited Containers Contaminants found as required above. Contractor may also leave the tag at the Premises’ door or gate; or may delive r the notice by mail, e-mail, text message, or other electronic message.
3. Notice of Assessment of Contamination Processing Fees . If the Company observes Prohibited Contai ner Contaminants in a Generat or’s Container on more than three consecutive occasions within a six-month time p eriod, and issued courtesy pick-up notices on each of those occasions, the Compan y may impose a contamination processing fee of $15 for residential customers a nd $75 for commercial customers. Company shall notify the City in its quarterly repor t of Customers for which contamination processing fees were assessed. The contamination processing fee notice shall describe the specific mate rial(s) of issue, explain how t o correct future set outs, and indicate that the Customer will be charged a contamination processing fee on its next bill.
B. Disposal of Contaminated Materials. If the Company observes Prohibited Container Contaminants in a Generator’s Container(s), Company may Dispose of the Container’s contents, provided Company complies with the noticing requirements in subsection A above.
ROUTE REVIEWS AND WASTE EVALUATIONS.
Company shall meet its SB 1383 Regulations contamination monito ring requirements using either Route Reviews or Was te Evaluations; provided however, that if Company complies with SB 1383 Regulations using a Performance-based Compliance A pproach, it shall monitor containers using waste evaluations, as outlined herein:
A. Route Reviews
1. If Company elects to perform Route Reviews, Company shall, at i ts sole expense, conduct Hauler Route re views for Prohibited Container Contaminants in Collection Containers in a manner that is deemed safe by the Co mpany; is approved by the City; is conducted in a manne r that results in all Hauler R outes being reviewed annually, and is consistent and in accordance with SB 1383 Regu lations. Containers may be randomly selected along the Ha uler Route. This Section shoul d not be construed to require that every container on a Hauler Route must be sampled annually.
2. Upon finding Prohibited Container Contaminants in the Container , Company shall follow the contamination monitoring noticing procedures herein.
B. Waste Evaluations
Alternatively, if Company elects to perform Waste Evaluations, Company shall, at its sole expense, conduct waste eval uations that comply with and me et the requirements of 14 CCR Section 18984.5(c). The City maint ains the right to observe, or hire a third party to observe, the waste evaluations.
1. Sampling Method, Study Protocols. The Company shall conduct waste evaluations for Prohibited Contai ner Contaminants by sampling t he contents of Containers on Hauler Routes in the following manner:
a. If using a Standard Compliance Approach, Company shall conduct waste evaluations at least twice per year and in two distinct seasons of the year in a manner that complies with the requirements of 14 CCR section 18984.5(c). If using a Performance- based Compliance Approach, Company shall conduct waste evaluations at least twice per year for the Blue and Green Containers and at least once per qu arter for the Gray Containers.
b. The Company’s waste evaluations shall include samples of Source Separated Recyclable Materials, SSGCOW, and Gray Container Waste. c. The waste evaluations shall i nclude samples from each Contai ner type served by the Company and shall include samples taken from diff erent areas in the City that are representative of the City’s waste stream.
d. The waste evaluations shall i nclude at least the minimum num ber of samples specified in SB 1383 Regulations.
e. The Company shall Transport all of the material Collected fo r sampling to a sorting area at a permitted solid waste Facility where the pr esence of Prohibited Container Contaminants for each Container type shall be measure d to determine the ratio of Prohibited Container Contamin ants present in each material s tream by weight. To determine the ratio of Prohibited Container Contaminants, the C ompany shall use the following protocol:
i. The Company shall take one sample of at least a 200 pounds from the material Collected from each material stream for sampling. ii. The 200-pound sample shall be randomly selected from diff erent areas of the pile of Collected material for that material stream. iii. For each 200-pound sample, the Company shall remove any Prohibited Container Contaminants and determine the weight of P rohibited Container Contaminants.
iv. The Company shall determine the ratio of Prohibited Conta iner Contaminants in the sample by dividing the total weight of Proh ibited Container Contaminants by the total weight of the sample.
2. Contamination Response . If the sampled weight of Prohibited Container Contaminants exceeds twenty-five percent (25%) of the measured sample for any material stream, the Company shall:
a. If using a Performance-based Compliance Approach, notify t he City within [fifteen (15)] working days of the waste evaluation. b. Within fifteen (15)] working days of the waste evaluation, notify all Generators on the sampled Hauler Route of their requirement to properly separate materials into the appropriate C ontainers. The Company may prov ide this information by placing a written notice on the Generators’ Containers or th e gate or door of the Premises; and/or by mail, email, or electronic message to the Generators. c. If using a Performance-based Compliance Approach, Company shall allow a representative of the City and/or CalRecycle to oversee its next scheduled quarterly sampling of the Gray Containers, upon request.
3. Material Exceptions. Organic Waste that is textiles, carpet, hazardous wood waste, human waste, pet waste, or material subject to a quarant ine on movement issued by a County agricultural commissioner is not required to be measured as Organic Waste when calculating the amount of Organic Waste present in the Gray Container Waste.
C. Recordkeeping Requirements . Company shall maintain all applicable records required under SB 1383 Regulations, and report to the City on a monthly basis on contamination monitoring activities, route reviews and/or waste evaluations, and actions taken.
D. Alternative Methods . Nothing in this section shall prohibit Company from meeting its compliance requireme nts by any alternative methods or procedures, provided it complies with SB 1383, the SB 1383 Regulations, and/or any othe r applicable law, as may be amended from time to time.
4. INSPECTION AND ENFORCEMENT.
Section 4.7.14 “Inspection and Enforcement” is added to the Agreement as follows:
No later than November 1, 2022, Company shall assist the City w ith and/or conduct applicable inspections and enforcement, to the extent delegable , as required by SB 1383 Regulations.
Company shall maintain all applicable records from inspection i n accordance with SB 1383 regulations.
5. PROVISION FOR RECOVERED ORGANIC WASTE PRODUCT.
Section 4.7.15 “Inspection and Enforcement” is added to the Agreement as follows:
Company agrees to coordinate a nd cooperate with the City to mee t its Organic Waste produce procurement target, as required by SB 1383 regulations.
6. CONTAINER REQUIREMENTS.
Section 4.8.3.1.6 “Container Requirements” is added to the Agreement as follows:
Company shall use the Company-pr ovided Collection Containers th a t a r e c u r r e n t l y l o c a t e d a t C u s t o m e r s ’ P r e m i s e s o r p r o v i d e C u s t o m e r s w i t h C o l l e ction Containers from Company’s current inventory.
No later than January 1, 2036, Co mpany shall provide all Custom ers with Collection Containers that comply with the C ontainer color requirements sp ecified in this Agreement or as otherwise specified in the SB 1383 regulations. Notwithstanding this Section, the Company is not required to replace functional Containers, including Containers purchased prior to January 1, 2022, that do not comply with the color requirements of this Ag reement prior to the end of the useful life of those Containers, or prior to January 1, 2036, whichever comes first.
7. LABELING REQUIREMENTS
Section 4.8.3.1.7 “Container Requirements” is added to the Agreement as follows:
Beginning January 1, 2022 (or if using the Performance-based Compliance Approach), then until color compliant conta iners are provided, Company sha ll place a label on the body or lid of each new Container that has been provided to a Customer that includes language or graphic images, or both, that indicate th e primary materials accepted a nd the primary materials prohibited in that Container. Lab els shall clearly indicate ite ms that are Prohibited Container Contaminants for each Container.
8. COMPLAINTS.
The following provision is added to Section 5.2.2:
Investigation of SB 1383 Regulator y Non-Compliance Complaints. Company shall commence an investiga tion, within thirty (30) days of receiving a Complaint in the following circumstances: (i) upon Contractor receipt of a Complaint that a Customer may not be compliant with SB 1383 Regulations and if City determines that the allega tions against the Customer, if true, would constitute a viola tion of SB 1383 Regulations; and, (ii) upon City request to investigate a Complaint received by the City, in which the City determines that the allegations against the Customer, if true, would constitute a violation of SB 1383 Regulations. Company is required to investigate Complaints against Customers and Custom e r s , b u t n o t a g a i n s t F o o d Recovery Organizations, or Food Recovery Services.
Company shall investigate the Complaint using one or more of the methods:
1. Reviewing the Service Level of the Customer that may not be com pliant with SB 1383 Regulations.
2. Reviewing the waiver list to determine if the Customer has a va lid de minimis or physical space constraint.
3. Reviewing the Self-Haul registration list to determine if the C ustomer has registered and reviewing the Customer’s reported Self-Haul information;
4. Inspecting Premises of the Customer identified by the complaina nt, if warranted; and/or,
5. Contacting the Customer to gather more information, if warranted.
Within ten (10) working/calendar days of completing an investig ation of an SB 1383 Regulatory non-compliance Complain t, Company shall submit an in vestigation Complaint report that documents the investigation performed and recommends to the City on whether or not the Customer investigated is in violatio n of SB 1383 Regulations based on the Contractor’s invest igation. The City Manager or hi s or her delegate shall make a final determination of the allegations against the Customer.
9. EDUCATION AND OUTREACH.
Section 5.3.5 “SB 1383 Education and Outreach” is added to the Agreement as follows:
A. Company shall create all appl icable education materials and conduct all education programs and activities as provi ded by and in accordance with t he SB 1383 regulations.
Company shall cooperate and coordinate with the City on public education activities.
B. On or before October 1, 2022, the Company shall develop a li st of Food Recovery Organizations and Food Recovery S e r v i c e s o p e r a t i n g w i t h i n t h e City, maintain the list on the Company’s City-specific website, share the list with the City i f the City wants to post the list on additional City websites, and update the list annually. The lis t shall include, at a minimum, the following information about each Food Recovery Organization and each Food Recovery Service:
1. Name and physical address;
2. Contact information;
3. Collection service area; and,
4. An indication of types of Edible Food the Food Recovery Ser vice or Food Recovery Organization can accept for Food Recovery.
C. At least annually, the Compa ny shall provide Commercial Edib le Food Generators with the following information:
1. Information about the City’ s Edible Food Recovery program;
2. Information about the Commercial Edible Food Generator requi rements under 14 CCR, Division 7, Chapter 12, Article 10;
3. Information about Food Recovery Organizations and Food Recov ery Services operating within the City, and where a list of those F ood Recovery Organizations and Food Recovery Services can be found; and,
4. Information about actions tha t Commercial Edible Food Genera tors can take to prevent the creation of Food Waste.
D. The Company may provide the information required above by in cluding it with regularly scheduled notices, education materials, billing inser ts, or other information disseminated to Commercial Businesses.
E. Company shall comply with all applicable public education and o utreach record keeping and reporting requirements as provided by SB 1383.
10. DISPOSAL AND RECYCLING PROCESSING CHARGES.
The following provision is added to Section 6.4 of the Agreement:
In April of each year, the Company shall submit to City the fol lowing: (1) the amount of the Gate Rate charged for the immediately preceding fiscal year ; and (2) a statement of the Gate Rate actually paid in the immediately preceding fiscal year for refuse disposal and Organic processing. Contractor shall subm it any additional documentatio n, financial records, accounts payable and receivable records, weight tickets and other inform ation requested by City, its agents, auditor, or financial consultants for the purpose of ve rifying the charged and actual Gate Rate paid by Contractor for the prior fiscal year. The differen ce (whether positive or negative) between the amount in Gate Rates charged in the prior fiscal ye ar, and the amount actually paid during that same fiscal year shall be taken into account as a s eparate cost or revenue line by City in setting Collection rates for the following fiscal year.
11. RECORDKEEPING AND REPORTING.
The following provision is added to Section 8.2.1 of the Agreement:
Company shall maintain all applicable records and assist the Ci ty in meeting all applicable reporting as required by the SB 1383 Regulations. Contractor shall allow City to audit and inspect such records and reports upon reasonable request.
12. EXHIBIT 1.
Exhibit 1 is hereby amended as attached hereto to reflect rates for the new SB 1383 services and programs.
13. OTHER TERMS AND CONDITIONS UNCHANGED.
Except as expressly amended by the Amendment, all other terms a nd conditions of the Agreement shall remain unchanged. In the event of any conflict b e t w e e n t h e t e r m s a n d conditions of this Amendment and the terms and conditions of th e Agreement and/or any previous amendment thereto, the terms and conditions of this Am endment shall prevail and control.
14. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, eac h of which shall be deemed an original. All counterpa rts shall be construed togethe r and shall constitute one agreement.
IN WITNESS WHEREOF, the City and Company have executed this Agreement as of the day and year first above written.
CITY OF CATHEDRAL CITY
ATTEST: By: __________________________________
CITY CLERK MAYOR, CITY OF CATHEDRAL
CITY
APPROVED AS TO FORM:
CITY ATTORNEY
BURRTECT WASTE AND RECYCLING SERVICES, LLC
By:
Name: Cole Burr, President