o EBS retrained all staff on proper pre- and post-trip inspections, and has continued to place an emphasis on safety. They also utilize a safety consultant to deliver monthly safety meetings, including full walk-around vehicle inspections and spill prevention measures.
4. Beginning with 2018 data, calculate and report annual OSHA Total Reportable Incident Rate (TRIR) (= injury frequency rate) and Days Away from Work, Job Restriction or Transfer (DART) Rates (+ injury severity rate) for EBS.
o EBS has the equations and periodically checks the status, but consistent review is unnecessary at this point in time. They have had two (2) vehicle accidents in the past year, and one (1) injury in the past four years.
5. Adopt the industry standard MPU minimum standard of one (1) MPU per 1,250 accounts.
Track and report MPUs daily.
Review daily any MPUs that occurred the day prior and root cause the issue via discussions with drivers and/or customers. The purpose is to prevent future misses by determining the root cause and adjusting accordingly.
o EBS incorporated the “1 per 1250” measure. Current figures are estimated at 1 MPU per 2000 accounts, which is well above expectations. EBS has not been as stringent on this as they could be and will conduct monthly reviews of going forward.
6. Create a system of e-filing for all maintenance work and scheduling that is accessible by other staff members. Under the current model, if the Fleet Manager is out of work for an extended period of time, it could be potentially damaging for the fleet operations of EBS. o EBS conducted a thorough review of available fleet management software over the past year and a half and selected the one that best suits their operation. They committed to purchasing and implementing the software program by the end of the year (2020).
7. Going forward we recommend that EBS provide an updated reconciliation of actual franchise fee and IWM Fee payments to the calculated amounts due through the remaining term of the agreement to the City each year along with the January franchise fee payment.
8. Additionally, EBS has not conducted a customer survey, as required by the contract, since 2016.
This item is still outstanding, but EBS has committed to addressing this issue through the distribution of billing inserts for the September 1, 2020 billings to customers.
Summary of Performance Review
Overall, EBS is a reputable and responsive operator with every incentive to provide excellent service in El Cerrito. Collections are conducted in a safe, courteous, and efficient manner; routing is sufficient in relation to customer needs; vehicle maintenance is regularly scheduled and performed; and the past three years of operating has resulted in only one recordable injury. EBS has offices in the City, a small span of control, and deep roots in the El Cerrito community spanning many decades. Though at its size EBS cannot achieve economies of scale that would be expected from large solid waste operators, the level of local and responsive customer service received is superior to that provided by those larger companies.
EBS is in compliance with most of the requirements of the Agreement, although there are a few items where EBS’ performance requires improvement, and in response to which EBS is currently devising Agenda Packet Page 188 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
corrective actions. We recommend that the City review EBS’ implementation of these corrective actions early in 2019. These areas are not considered vital to the safety, customer service, and daily operation of EBS; while improvements in areas can and should be made, they do not represent material concerns about EBS’ operations.
In review of special services, such as annual clean-ups, bulky pick-ups, and backyard collections, we discovered that EBS was not necessarily out of compliance, but rather compliance was not fully determinable due to limitations of EBS’s customer data software. A recommendation was provided to EBS to incorporate subcategories into their customer database software in order to query such information and be able to provide more in-depth and accurate data in the future.
R3 understands that EBS intends to request consideration of an extension to the Agreement, and R3 is engaged by the City to provide support to the City in reviewing such a request. Based on the results of this performance review, we have no reservations about EBS’ ability to continue to provide quality services to the City.
EBS Extension Request – Important City Considerations
With the EBS Franchise Agreement set to expire at the end of 2025, there are only a few years remaining during which the City will need to make decisions about whether to continue the Agreement with EBS or make other arrangements for its garbage and green waste collection services. At the very minimum, the City should make a determination about whether to extend the Agreement with EBS prior to the end of 2022, thereby allowing three full years to make other arrangements for service if the City so desires.
However, there are a number of important reasons that the City and/or EBS may wish to seek an earlier decision regarding potential extension of the Agreement.
First, EBS currently amortizes the cost of new trucks over 10 years as a means of reducing the magnitude of annual rate increases. Since there are fewer than 10 years remaining on the Agreement, and if the Agreement is not extended, EBS and the City will need to determine how EBS should amortize the costs of new trucks that will be necessary in coming years. If EBS decreases the amortization timeframe to align with the 2025 expiration of the Agreement, then rates will need to increase more than they otherwise would. Alternatively, if EBS keeps the 10-year amortization period, it raises the question about how EBS would be compensated for any remaining capital value at the end of the Agreement. Finally, if EBS is not incentivized to purchase trucks necessary for replacement and growth, services could decline in the final years of the Agreement.
Second, the City will soon have the responsibility to implement SB 1383 (Short-Term Climate Pollutants) which requires new programs for organic waste services by 2020 and with ambitious goals through 2025.
Though the EBS currently provides organics waste programs, there are many requirements of SB 1383 that will likely require amendments to the Agreement, and new responsibilities for both EBS and the City.
Given the short time for implementation of this new law, it may behoove the City to secure terms and conditions with EBS that would ensure complete coverage of SB 1383 requirements prior to the 2020 implementation date.
Third, there are a number of current happenings in the solid waste and recycling marketplace that have bearing on the services the City and EBS provide to El Cerrito residents and businesses, and for which the City may wish to seek near-term solutions. Among these are:
§ The declining value of the recyclables marketplace, revenues from which have been used to offset the costs of the City’s recycling collection programs in the past; Agenda Packet Page 189 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
§ Opportunities to increase the cost-effectiveness of EBS garbage and green waste operations and City recycling operations by maximizing the economies of scale of the two operations; § Opportunities to restructure rates to ensure that rates are set to cover the cost of providing services, which is especially important in light of increasing State regulations on commercial and multi-family waste generators;
§ Opportunities to adopt new and emerging solid waste collection vehicle technologies, including electric/hybrid trucks;
§ Opportunities to reduce rates by addressing EBS’s outstanding pension liability, a portion of which is paid by the rates; and
§ Opportunities to reduce rates overall and the rate-payer impacts for new programs necessary to implement State laws by extending the Agreement over a longer period of time.
For the reasons stated above, we believe that the City would be justified in considering an extension request from EBS in the near term. R3 looks forward to supporting the City in reviewing and negotiating the terms and conditions of an extension request from the company and has already prepared a draft “restated” agreement for the purposes of streamlining that process. * * * * * * *
We appreciate the opportunity to submit our final report to the City. Should you have any questions regarding our proposal, or need any additional information please contact me by phone at (510) 292-0853 or by email at [email protected].
Sincerely,
R3 CONSULTING GROUP
Garth Schultz | Principal
Agenda Packet Page 190 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
Section 1: Executive Summary
Project Objective
To complete a performance review:
§ Evaluate the general reasonableness of EBS’ solid waste operations for the City; § Ensure contractual obligations are being met;
§ Identify opportunities for improvement; and
§ Make recommendations for specific changes to operational processes.
The City’s goals include:
§ Ensuring that EBS is operating in a safe and efficient manner; § Ensuring that EBS is meeting or exceeding expectations of the Agreement; and § Identifying areas of opportunity in which EBS can improve operational processes.
Summary of Approach
As part of our review, R3 conducted a wide range of tasks, including but not limited to:
§ Franchise Agreement Compliance Review;
§ Collection Operations Review;
§ Management and Administration Review;
§ Vehicle and Equipment Maintenance Review; and
§ Customer Service Review.
Background
The City has an exclusive Agreement with EBS for the collection of residential and commercial garbage and green waste, as well as debris box/roll off container collection services. Residential and commercial recycling services are provided by the City. EBS bills City residents and businesses for garbage and green waste collection services based on maximum rates established by resolution of the City Council. EBS is a family-owned business that only serves the City of El Cerrito and has done so for nearly seventy years. EBS provides the following services to the City:
§ Residential garbage and green waste collection;
§ Commercial garbage and green waste collection; and
§ Industrial (roll-off) garbage, green waste, recycling and construction and demolition debris collection.
Agenda Packet Page 191 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
The Agreement expires December 31, 2025. Subscription to garbage collection service within the City is mandatory and is billed every four months.
Findings and Recommendations
Compliance Assessment of East Bay Sanitary
EBS is doing many things well. Management and staff are qualified and experienced, and EBS appears to place a priority on customer service, which was evidenced during route observations (e.g. carts were returned upright, litter generated by collection activities was promptly cleaned up). While EBS is doing many things well, there are opportunities for improvement, including in each of the following areas:
1) Graffiti – Commercial bins were covered in graffiti, however EBS has begun to replace the old containers with freshly painted green colored bins. Condition of the commercial bins should be monitored periodically going forward to ensure graffiti is painted over as soon as possible. 2) Uniform Pre-Trip Inspections – EBS drivers conduct pre-trip inspections to varying degrees. One driver left the yard without walking around his vehicle, while the others did conduct a brief walkaround. No driver conducted a brake test. A five (5) minute brake test is recommended because it tests every aspect of braking, from the air brakes to the service brake, and ensures the vehicle is operating in the safest manner possible, which becomes crucial when the vehicle is fully loaded and on an incline.
3) Electronic Maintenance Filing – EBS does not utilize maintenance software to track work orders, which is understandable considering the size of the fleet versus the typical cost of the software.
The concern, however, is regarding the fact that the Fleet Manager maintains all files and work orders manually. The filing system is effective and complete but could be problematic if the Fleet Manager is out for an extended period of time. Having electronic files in addition to (or in place of) the manual filing system would allow for anyone to access said files. 4) Customer Satisfaction Survey – EBS is obligated to conduct a customer satisfaction survey every three (3) years, starting in 2013. The 2016 survey has not yet been completed. EBS needs to be sure to provide the survey to for City review prior to finalizing the survey, and to be mindful of its obligations to include an improvement plan and report the results of the assessment and the improvement plan to the City once finalized.
5) Sub-Categories in Customer Data Management AS/400 System – EBS maintains all customerrelated notes within each individual customer account. By creating categories and subcategories they will be able to query information, such as all customer complaints during a given period, and provide better overall customer service.
Key Findings and Recommendations
Contractual Compliance
Contractual Compliance of EBS was documented and tracked using a Microsoft Excel checklist (Attachment 1). The few areas of concern in which compliance was either questionable or non-existent can be easily remedied. The non-compliant areas are:
Agenda Packet Page 192 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
§ Complaint Resolution;
§ Unresolved Complaints; and
§ Dissatisfied Customers.
Each of the items listed above require a log or other method of record keeping. EBS does record complaint calls and records the data; however, the information is stored within the customer’s account notes.
Recommendation:
§ Create subcategories within AS/400 that allow for easy querying of information. By doing so, it will alleviate the need to manually track a log of information while simultaneously allowing for the quick filtering of information for any given date range.
On-Site and Field Observations
EBS drivers are dedicated to customer service efforts. During a two-day onsite observation, there were no instances of post-collection litter on the ground in front of any customer residences, and the one time that debris fell from the cart during servicing, the driver got out and collected the material. Carts were returned upright and orderly after service.
Commercial containers were covered in graffiti; however, EBS is in the process of exchanging customer bins as they convert from yellow to green commercial containers.
Recommendation:
§ There is no field recommendation at this time, as the graffiti issue is being corrected by EBS. City should review field conditions by March 2019 to confirm that graffiti is being adequately managed.
Operations Review
The consideration of “safety first” is the industry standard, and the foundation of effective solid waste management operations. It impacts customer service, employee morale, operational costs, and other factors. Solid waste collectors have one of the most dangerous jobs in the country, consistently ranking in the top ten jobs with respect to the number of fatal injuries per 100,000 full-time employees; higher than both police and firefighters. Waste Management, Inc. and Republic Services, the two largest private solid waste management companies in the country, have dedicated considerable attention to safety, which has been reflected in significant improvements in their safety records over time.
As part of our review, R3 met with EBS management and reviewed various documents that were provided, including historical incidents of EBS property damage and workers’ compensation claims. Driver training methods were evaluated and determined to be adequate. Drivers conduct routes in a safe and efficient manner, as evidenced by low accident and injury records.
A good safety program is proactive, takes into account the specific causes of driving accidents and worker injuries, and focuses training on addressing those underlying root causes. Our findings related to the lack of effective vehicle pre-trips, which are discussed below, highlight safety issues that should be City and EBS priorities.
Agenda Packet Page 193 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
1. Pre-Trips Are Not Being Done Consistently
Pre-trip inspections are required for the operation of commercial vehicles pursuant to federal law. During a pre-trip inspection, a driver completes a Driver Vehicle Inspection Report (DVIR) to record all findings positive and negative regarding the operation of a commercial vehicle. DVIRs no longer need to be kept in the vehicle itself, but are required to be completed daily, filed, and kept for no less than 3 months. The importance of a pre-trip Inspection is to identify potential vehicle failures prior to the vehicle entering public roadways to reduce the risk of accidents as well as to avoid service interruptions.
As part of our review, R3 observed morning routines and dispatch operations over two days. The quality of pre-trip routines varied among drivers. One driver exited the yard without conducting a walk around to verify serviceability of the vehicle, while the other drivers conducted some standard pre-trip activities, including testing their hydraulics to ensure they were working, but not one driver conducted a brake test.
Recommendations:
§ Develop a specific policy and protocol for pre- and post-trip inspections and implement a refresher training program for all employees to ensure that they understand the policy and protocol, and that all drivers are conducting the same standardized practice. § While pre-trip inspections are required for all commercial vehicles, full 5-minute brake tests are not. However, they are considered industry standard to meet heightened safety awareness.
Drivers are inherently familiar with their vehicles and often assume that their refuse trucks are in working order, but verification of working order is paramount. The purpose of the brake test is to verify that the air brake, working brake, and emergency brake are all working effectively, which cannot be confirmed unless utilized.
2. EBS Specific OSHA Form 300 and Other Safety Data
Tracking OSHA frequency rates, severity rates, and vehicle accidents is the industry standard. EBS vehicle accident and worker injury data allows for identifying and evaluating the root causes; such information was provided by EBS and was reviewed by R3. EBS has a great record of safety dating back to 2015. In the three-year period reviewed, there was only one instance of a driver missing time away from work. EBS’ TRIR (Total Reportable Incident Rate) for the past three years is 2.09 (a score of zero is a perfect safety record).
Recommendations:
§ Starting with 2018 data:
§ Calculate and report annual OSHA Total Reportable Incident Rate (TRIR) (= injury frequency rate) and Days Away from Work, Job Restriction or Transfer (DART) Rates (+ injury severity rate) for EBS.
o Conduct root cause assessment of all accidents and injuries and track and report that data in support of specific actions to address primary causes of accidents and injuries. o Track and monitor vehicle accident related benchmarks:
§ Vehicle Accident Recordable Rate (VARR) – The number of operational hours between vehicle accidents – the higher the VARR, the better.
Agenda Packet Page 194 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
§ Property Accident Recordable Rate (PARR) – The number of operational hours between property accidents – the higher the PARR, the better. § Number of vehicle accidents and number of property accidents per 100,000 miles driven.1
3. EBS Has a Scheduled Monthly Safety Training Program
EBS has a dedicated solid waste collection specific training program. A dedicated safety program is a best management practice, and a fundamental component of an effective solid waste management operation.
An annual calendar of safety training and topics per session were reviewed by R3. All operations personnel are required to attend scheduled safety meetings and signatures proving attendance are documented on a sign-in sheet.
Recommendations:
§ None. EBS has minimal accident and/or injury occurrences and scheduled monthly training program was determined to be sufficient.
4. EBS Records Missed Pick-ups (MPUs) but Does Not Track Them EBS has a missed pick-up policy where drivers return to the customer location if the request is received prior to the cut-off time for same day, or by noon the following day at the latest. The number of MPUs are tracked in terms of volume, but there is not a procedure to track them at a more detailed level. It is impossible to manage without being able to measure and installing a program for MPUs can not only aid EBS in managing misses, but assist in reducing unnecessary misses all together.
Recommendations:
§ Adopt the industry standard MPU minimum standard of one (1) MPU per 1,250 accounts. § Track and report MPUs daily.
§ Review daily any MPUs that occurred the day prior and root cause the issue via discussions with drivers and/or customers. The purpose is to prevent future misses by determining the root cause and adjusting accordingly.
Management and Administration
EBS is a small family-owned Company employing workers with sufficient industry knowledge. Due to the fact that the Company operates only within the City limits of El Cerrito, the number of staff including drivers, customer service representatives, supervisors and managements compared to the number of accounts issufficient. The Company has very low turnover which provides stability, reliability, and meeting customer expectations.
1 Track all vehicle accidents in detail including date, time, weather, location, type of accident, cause of accident, party at fault, etc. Review prior existing vehicle accident data, categorize, and evaluate as to type and cause to determine the most common types of accidents (e.g., backing, intersections, etc.) and establish associated training.
Agenda Packet Page 195 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
The Company conducts a customer service survey which have yielded positive responses; however, as noted previously, the Company has not conducted the customer service survey that was due in 2016.
Vehicle and Equipment Maintenance
Having collection vehicles that are safe, cost-effective to operate, and well-maintained is critical to EBS’ ability to maintain a productive collection system. Ensuring that equipment replacement is funded to a level that provides for the optimal replacement collection vehicles should be a priority.
The Fleet Manager manually tracks all repair work (both scheduled and driver identified) within a filing cabinet in his office. Due to the size of the Company, this approach works; however, it is not ideal especially when the Fleet Manager is on vacation. If the Fleet Manager were not to be employed by the Company, re-establishing the maintenance record would be challenging.
Recommendation:
§ Create a system of e-filing for all maintenance work and scheduling that is accessible by other staff members. Under the current model, if the Fleet Manager is out of work for an extended period of time, it could be potentially damaging for the fleet operations of EBS.
Customer Service
EBS provides a level of service that is rare in the industry today. EBS is a family owned business with a staff of personnel that were born and raised within the limits of the City of El Cerrito, which has resulted in a wealth of intimate knowledge for the City itself and the customers that inhabit it. Technology and software utilized by EBS are sufficient to meet the needs of their customers and staff is trained appropriately. All calls were promptly answered (no more than three rings) during R3’s customer service observation.
During the review EBS noted that Customers with service interruptions are often still serviced for recycling which not only creates an unnecessary customer service call and complaint, but often leads to customers continuing to avoid paying for services by contaminating the recycling cart with trash. It was also noted by both EBS and the City that coordination of in-the-field diversion audits and customer service around increasing diversion from landfill is challenging due to the fact that the City operates the separate recycling program. Both parties acknowledge that improved levels of communication and coordination would be ideal, and that current systems, roles and responsibilities lead to sometimes frustrating inefficiencies.
Recommendation:
§ Increase efforts by the City and EBS to formulate, implement, and maintain a system of communication and data exchange to ensure that both parties are working collaboratively.
Financial Compliance Assessment
R3 reviewed EBS’ financial requirements including payment of franchise fees and Integrated Waste Management Fees (IWM Fee) to the City. Our review found minor discrepancies which should be corrected going forward.
Agenda Packet Page 196 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
Recommendation:
Going forward we recommend that EBS provide an updated reconciliation of actual franchise fee and IWM Fee payments to the calculated amounts due through the remaining term of the agreement to the City each year along with the January franchise fee payment.
Preparedness for SB 1383
R3 has prepared a summary of the actions that will likely be needed for the City and/or RecycleMore to take in order to be compliant with SB 1383. Some of the requirements of the regulations are more suited for EBS to complete, and R3 generally recommends that cities negotiate all of the SB 1383-related additional services as a part of a distinct contract negotiations process.
The SB 1383 regulations are not yet final; generally we expect that some of the requirements that are in the current draft of the regulations will be removed by the time the regulations are final. The City should be aware that:
§ CalRecycle expects some amount of financial and rate impacts for agencies to enact compliance; § The City will eventually be required to issue penalties for generators that are non-compliant with the regulations; and
§ CalRecycle is required by the regulations to find jurisdictions out of compliance regardless of good-faith effort if they do not comply with the requirements, with associated violations and penalties.
The City should note that nearly all the required programs need to be in place by January 1, 2022; the City should collect and prepare documentation that demonstrates compliance for a report due to CalRecycle early in 2022. This report will likely be completed by RecycleMore, as the reporting entity to CalRecycle.
Requirements that are best suited to EBS to complete include:
§ Offering organics service that includes food scraps to all commercial generators and ensure that organics are diverted as required by the law;
§ Completing quarterly route audits for contamination and preparing written notice in alignment with requirements;
§ Applying labels with a list of accepted materials to all containers; § Complying with container color requirements (black/gray for garbage, blue for recycling, green for organics) by 2032; and
§ Assisting in required annual customer education requirements by distributing newsletters.
Requirements that are best suited to the City or RecycleMore to complete include:
§ Perform monitoring, customer outreach, and site visits for generators required to subscribe to service (2 cubic yards of garbage service or higher), grant/track waivers granted in alignment with requirements, and issue notices of violation and assess penalties for generators not in compliance;
§ Procure minimum levels of compost, renewable natural gas, or both; § Meet minimum recycled content and recyclability standards for paper products; Agenda Packet Page 197 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
§ Adopt enforceable ordinance in alignment with requirements; § Perform outreach to edible food generators and provide a list of edible food recovery organizations to these generators. Collect reports of donations received by food recovery organizations and compile information for CalRecycle; and § Register and educate self-haulers (other than residential) on requirement to source-separate organics, and collect annual reports of organics diverted by facility used.
Recommendations:
The City should be prepared to negotiate with EBS to ensure that services provided are in alignment with SB 1383 requirements. The City should be prepared to implement the requirements of the law, which may require additional revenue sources and staffing. The City should engage proactively with RecycleMore by identifying requirements that the City may request that RecycleMore assist and/or complete on behalf of the City and ensure that reports by the City are prepared in the format needed by RecycleMore to complete reporting to CalRecycle. Additionally, the City and EBS should be aware that the City’s current anticipated growth in its commercial/multi-family dwelling sector (EBS estimates that one new additional commercial route will be necessary soon) will doubly impact the level of effort needed to comply with SB 1383 in that solid waste operations will simultaneously need to adapt to growth in accounts and overall waste collected while also responding the requirements of this new law.
Agenda Packet Page 198 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
Section 2: Performance Review
Franchise Agreement Compliance Review
Objective
Determine the extent to which EBS has complied with the applicable terms and conditions of its Agreement with the City.
Background
The Agreement specifies the various terms and conditions under which EBS is to operate its franchise.
Those terms and conditions include:
§ Services to be provided
§ Insurance and bond requirements
§ Record keeping and audit/report requirements
§ Uniformity of collection vehicles
§ Customer service and complaint requirements
§ Various other operational and/or administrative requirements Methodology
To assess the contractual compliance of EBS with the terms and conditions of the Agreement, R3 identified various items in the Agreement that require EBS to meet specific standards of performance, submit information and/or reports, and maintain active licenses and insurance, among other items. The listed requirements were tracked and documented via a Contract Compliance Checklist. We identified objective standards within the compliance checklist and classified each item according to the level of compliance, provided the information was reviewed. In cases where the compliance could not be positively or negatively classified, a designation of “compliance unknown” was prescribed.
Limitations
Our review covered the items identified in our proposal, but our approach and resources were focused on the issues determined to be most relevant to the City and its ratepayers.
Findings
EBS was found to be in compliance on each item in which reviewable data was provided. Services are performed in accordance with the contractual requirements of the Agreement. We discovered a few items where EBS was not necessarily out of compliance, but rather compliance was not fully determinable due to limitations of EBS’s customer data software.
§ Section 12.E: Annual Clean-Up
§ Section 19.E: Complaint Resolution
§ Section 19.F: Unresolved Complaints
§ Section 19.G: Dissatisfied Customers
Agenda Packet Page 199 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
The items listed above are technically non-compliant as the contract defines the requirement as maintaining a log of events for each category. However, EBS does document each customer conversation, transaction, and complaint/compliment within the individual customer account which R3 reviewed during a sample of 25 customer accounts chosen at random, during an interview with EBS’ customer service manager. The issue lies in the current structure of the software and the inability to query specific information which can be remedied by creating sub-categories to identify wanted information in bulk. The querying upgrade to the customer data software would also alleviate the need for running logs of information because the data could be gathered at that moment for a given time period.
Additionally, EBS is non-compliant with Section 11: Customer Service Survey, as the survey due in 2016 has not yet been conducted.
Collection Operations Review
Objective
To ensure that EBS conducts proper driver and safety training, that they are staffed appropriately to run an effective and efficient collections operation, and to ensure that drivers are applying the learned training in the field and providing a level of service that meets customer expectations in a safe and effective manner while adhering to the requirements of the Agreement.
Background
EBS operates five residential collection routes 5 days per week. Three automated side-loaders are assigned to garbage and two vehicles are assigned to green waste collection (one automated side-loader and one semi-automated rear end loader).
EBS has one and a half commercial routes 5 days per week. The commercial collection vehicles are both rear end loaders and collect garbage. EBS runs one roll-off route but will run a second vehicle if needed.
The operation is so small that a designated route supervisor is not utilized. The morning launch is overseen by a lead driver and any non-maintenance related route and/or customer issues are handled by office personnel. All drivers are cross-trained on all equipment and routes.
Methodology
Our review of EBS’s collection operations included field observations and staff interviews. The field observations included:
§ Witnessing pre-trips and morning launch routines;
§ Assessing the safety, methods, and practices of collection routes; § Observing the condition of carts and bins in the field; § Inspecting residential routes pre and post collection to evaluate the placement of carts, the condition of the carts, the cleanliness of the streets, and the physical condition streets, sidewalks, and trees;
§ Reviewing data, including routes and schedules, driver training manuals and records, organization titles and responsibilities, record of missed collections and provided customer notices, vehicle weight limits and tonnage reports;
§ Touring EBS’s maintenance yard and shop, and the administrative office; and Agenda Packet Page 200 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
§ Observing and reviewing customer data software and information recording process(es).
Limitations
Many commercial customers utilize carts rather than bins and store them indoors, which reduced the amount of commercial accounts reviewed for the purpose of subscription level verification to only bin services. The reason for the limitation is that commercial accounts are reviewed prior to a business opening, and/or after the business has closed for the day.
Findings
Our performance review found that EBS is not in line with the industry standard for collection services for manager to driver ratio. EBS is however effective in their operation and is safe in doing so, as referenced by their favorable OSHA 300 and 300A Report(s) where one incident was recorded over the last three years. Other findings include:
§ Although a route supervisor is typically desirable, EBS does not employ enough drivers to need one and collection operations are effective;
§ No occurrences of overweight vehicles were found for the prior 12 months; § The only instances of post-service litter on the ground were caused by City employed recycle collection drivers;
§ Standard holiday schedules are utilized with collection services being moved to the next day, including Saturday collection for Friday customers;
§ EBS has a great safety record and conducts regular safety meetings. Safety meetings occur monthly and all staff, including office personnel attend. One injury/incident was reported to OSHA during the past three years;
§ The condition of residential carts was superb with only two containers being identified for replacement due to damage. Commercial bins were an issue in regard to graffiti, but the containers themselves were in good working order. EBS is in the process of swapping out graffitied containers as they transition from yellow painted bins to green painted bins; § Cart lids were closed, and carts were upright after service was provided; § Vehicles were clean and in good working order. Signage is easy to read and includes the Company name, contact information, and vehicle number;
§ Subscription records are very accurate based on comparing printed customer service level route sheets to actual carts placed out for collection. The few instances in which a discrepancy was found, office personnel were quick to update the records in the customer data software; and § Roll-off driver(s) receive on average 4 hours of overtime per week due to an increase in demand from services provided to the City, which is roughly three times the number originally agreed to. § The City occasionally has issues coordinating with EBS to get roll-offs picked up. This is especially an issue with the tipping wall, which needs to be serviced every 48 hours and operates under a permit with regular inspections.
§ The City has noted inconsistent record keeping and logging at the tipping wall.
Agenda Packet Page 201 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
§ Roll-off carts that rust or develop holes should be fixed or removed more promptly to ensure the City stays in compliance with various stormwater permits.
Management and Administrative Review
Objective
To review EBS management and administrative structure to identify potential opportunities for improvement or recommendations for changing identified practices.
Background
EBS being a small family owned and operated collections Company, maintains an old school approach to many practices and procedures. Having vast routing software or maintenance tracking software is unnecessary for a small facility that would end up paying more for the programs than the return on investment would provide. The owner has overall responsibility for managing the operation and ensuring operations are conducted under the provisions of the Agreement. Office personnel share the responsibilities of maintaining customer accounts, billing, service requests, and everything else related to the business. EBS has a separate facility where all maintenance related activities are conducted, and the vehicles are stored.
Methodology
Our review of EBS’s management and administration included:
§ Organizational structure, roles, and responsibilities; § Data tracking and reporting procedures;
§ Employee management policies and procedures; and
§ Staffing practices.
Findings
EBS’s management and administrative structure was found to be reasonable and effective relative to their size. Specific findings include:
§ There appeared to be an acceptable number of management and staff to provide adequate customer service, maintenance, and education and outreach functions; § There is very low turnover and all employees have been on staff for at least five years; § Employees receive initial training when hired along with regular refresher training, including safety related training;
§ Employee feedback programs are very informal, and employees are comfortable approaching management with ideas and/or concerns;
§ Route observations are conducted mainly in a reactionary approach, as management can not necessary take a proactive stance due to time constraints; and § Pre-trips are conducted to varying degrees. R3 recommends installing an organized, or at least uniformed, practice so all drivers are aligned in their approach to pre-trip inspections.
Agenda Packet Page 202 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
Vehicle and Equipment Maintenance, Repair, and Replacement Review
Objective
To determine if EBS is maintaining vehicles and equipment in a safe operating condition.
Background
Fleet maintenance is a critical function of any collection operation. Having safe, operable vehicles consistently available is essential for conducting a safe and cost-effective operation as well as being able to provide quality customer service.
Methodology
Our review of EBS’s maintenance operation included:
§ Observing the utilization, safety, and suitability of facilities and equipment; § Ensuring that routine maintenance procedures and scheduling for collection vehicles were appropriate;
§ Looking at pre-trip and post-trip practices;
§ Gauging the effectiveness of communication between drivers, maintenance staff, and front office staff; and
§ Inspection of historical Biennial Inspection of Terminus (BIT) results.
Findings
It appears that EBS keeps their vehicles in a safe operating condition and conducts driver-identified and routine maintenance and repairs regularly. Specific findings include:
§ EBS received a “Satisfactory” rating on the reviewed BIT inspections; § A typical 90-day preventative maintenance schedule is followed; § There is one spare truck for each line of business;
§ The maintenance tracking system utilized by EBS is in the form of manual notebooks and files maintained and managed by the Fleet Manager. The preventative maintenance schedule is tracked on a manual calendar as well. Although the system appears to be effective for the fleet operations of EBS, it is recommended that some form of digital record keeping dedicated to maintenance be implemented and utilized, as well as converting existing data into an electronic format. If there were a fire or the Fleet Manager were out for an extended period of time, it would be extremely problematic for the fleet operations of EBS; § Route drivers are legally required to complete a Driver’s Vehicle Inspection Report (DVIR) each day that the vehicle is operated. The DVIR is an itemized checklist of truck parts that could pose a safety failure of the vehicle if it is operated. Part of the DVIR process includes pre and post trip inspections to ensure that all of the listed items are inspected and verified as functional and safe to operate. If a driver identifies any discrepancy during a pre-trip inspection s/he notes the issue on the DVIR; if the issue affects the safe operation of the vehicle, it is taken out of operation and Agenda Packet Page 203 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
assessed by maintenance staff to be cleared prior to re-entering the fleet. Whenever a repair is conducted, the mechanic that completed the work signs off on the condition of the vehicle; and § EBS’s vehicle replacement schedule consists of acquiring a new vehicle every two (2) years, while phasing out the oldest one of the same type. For example, if they purchase a new residential sideloader, it would replace the oldest residential side-loader and not a commercial front-end loader, in order to maintain the necessary vehicle ratio for adequate collection services in all lines of business.
Customer Service Review
Objective
To assess the adequacy of the current customer service functions and structure utilized by EBS, including:
§ Effectiveness of the customer service practices, including responsiveness and courteousness of EBS staff;
§ Appropriateness of installed policies, practices, and procedures (including staff training); § Methodologies for recording and addressing missed pick-ups; § Protocols for addressing customer complaints, including recurring missed pick-ups, broken containers, etc.;
§ Responding to calls from residential and commercial customers regarding inquiries for new service(s), including proactively signing customers up for recycling and organics services; § Establishing new customer accounts in the billing system; § Coordinating delivery of garbage, recycling, and organics carts and/or bins and confirming delivery;
§ Establishing appropriate service level and collection frequency for new accounts; § Establishing start-dates and service initiation for new accounts; § Establishing end-dates and service termination for closed accounts; § Receiving requests for bulky pick-up, scheduling collection, and completing collection on time; § How special billing arrangements for non-standard services are completed; § Resolving delinquent payment accounts;
§ Resolving billing inquires, including billing complaints; § Generating and maintaining routing sheets and backyard/disabled lists; and § Customer account management.
Background
EBS’s customer service functions are all operated out of their corporate office located at 1432 Kearney St in El Cerrito, California. The customer service operations of EBS consist of over-the-counter assistance for walk-in customers, a local phone number for call-ins, and an email ([email protected]) posted on their Company website (www.ebsan.com) for those that wish to seek help electronically.
Agenda Packet Page 204 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
The customer service operation for EBS is aligned much like the rest of the Company operation(s), very linear, which allows for more flexibility of staff. Personnel at all levels of the Company engage in customer service efforts, which is a rare asset in today’s industry. All personnel that assist customers have access to customer account data through EBSs customer service database (AS/400). Service requests and/or inquiries, container tracking, billing, routing, and all other account information is maintained through AS/400. Every time a customer makes contact with EBS, a note is added to the customer account with the nature of the discussion as well as the resolution, if applicable.
Customers of El Cerrito have a luxury in being able to call and speak with local representatives, as many hauling companies are trending towards the utilization of distant call centersthat field incoming calls from multiple jurisdictions. EBS does not utilize an automated call tree during business hours but does utilize one via answering machine during non-business hours.
Methodology
R3 conducted interviews with EBS staff and observed day-to-day customer service activities and interactions. R3 reviewed the internal organization and processes for a wide range of customer service and billing functions, including:
§ Communication and information exchange between customer service, customers, and drivers; § EBS staff fielding customer calls and inquiries regarding services; § How new customer accounts are established in the billing system; § How customer accounts are routed or rerouted;
§ Coordination and confirmation of cart and/or bin delivery or recovery; § Addressing, resolving, and notating customer complaints; and § Establishing future service dates, including account start-dates and end-dates, bulky collection, etc.
Findings
R3 finds that EBS provides a level of service that is rare in the industry today. EBS is a family owned business with a staff of personnel that were born and raised within the limits of the City of El Cerrito, which has resulted in a wealth of intimate knowledge for the City itself and the customers that inhabit it.
Technology and software utilized by EBS are sufficient to meet the needs of their customers and staff is trained appropriately. All calls were promptly answered (no more than three rings) during R3’s customer service observation.
EBS sends a welcome letter with a brochure of services via email to every new account upon initiation of services. Additional information provided in the email includes cart set-out guidelines, recycling center hours and info, and “Pay Bill Online” instructions.
Customer calls are answered directly, and all inquires and/or complaints are handled immediately. All contact with customers is documented in the customer service database under the specific customer account. R3 noted that EBS could benefit by adding categories to delineate call types which would allow them to query information to monitor data such as the most common complaint, frequency of complaints, etc. Customers call EBS requesting a container size upgrade when the problem can often be solved by an increase in frequency. City personnel should refer commercial customers to EBS customer service for assistance with collection services whenever possible.
Agenda Packet Page 205 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
Missed Pick-Ups (MPUs) refer to any service that is not collected on the scheduled day of service. EBS collects MPUs the same day that the call is received as long as there is a driver available to service the container. If an MPU cannot be serviced the same day that the call is received, it is collected no later than noon the following day.
Service interruptions are made when a customer fails to remit payment by a specified deadline. EBS sends a letter of notice and attempts to call the customer twice before services are interrupted. Internally, an interrupted is flagged in AS/400 with flashing red text at the top of the page that reads “STOPPED”.
Customers with service interruptions are often still serviced for recycling which not only creates an unnecessary customer service call and complaint, but often leads to customers continuing to avoid paying for services by contaminating the recycling cart with trash.
Due to the fact that EBS is local and only operates within the City limits, it allows for greater flexibility.
Most hauling companies have a backlog for services such as cart delivery/collection or bulky waste collection and only provide such services on the same day that residential carts are collected in that area.
EBS however has no self-imposed limitations on special services and will provide such services regardless of residential cart collection.
The Company reporting that it may need to transition to a new customer service management system in the near future as a result of its current AS/400 system no longer being support. We recommend that EBS and the City discuss the possibilities with moving to such a system, including better integration of routing, customer data management, and customer service between both parties.
Section 3: Financial Compliance Assessment
Test of Subscribers
Objective
The purpose of this test is to allow R3 to determine the extent to which residential and commercial subscribers are billed correctly for the level of service provided, and if billings are consistent with the appropriate rate schedule.
Methodology
R3 conducted interviews with EBS management and staff to review and observe billing functions and processes. R3 also conducted:
§ A review of service levels and charges from a recent billing cycle to determine if the rates charged for the various service levels are consistent with the approved rate schedule; § A review of a recent billing cycle to determine if all rates charged were approved (e.g., were there any charges that were billed but were not listed on the approved rate schedule, such as finance charges, push/pull charges, etc.); and
§ Field audits of selected routes to compare the rates charged to various residential and commercial accounts to the level of service provided in the field. Limited identified discrepancies were documented. R3 also reviewed billing and route audit procedures practiced by EBS to verify service levels and correct billing errors.
Agenda Packet Page 206 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
Findings
EBS has a high level of accuracy in regard to service level billing. Commercial accounts observed during the week of route audits yielded zero discrepancies and residential accounts observed contained less than one percent of customers with incorrect container sizes. Customer accounts found to be incorrect were reported to EBS management at the end of each day and were immediately corrected. Work orders for container swaps were created for the next business day (each occurrence involved a customer with a larger container than they were being billed for, which did not require a billing credit).
Review of Rates Charged vs. Approved Rate Schedule
R3 obtained and reviewed a recent complete billing cycle provided by the Company covering all accounts, and compared the reported rates billed to the approved rate schedule. We reviewed more than 3,600 invoice entries and identified those for which the invoice amount did not directly tie to the associated rate for the listed service level. We then requested and reviewed a sample of those invoices. In reviewing the 2017 data, the only substantive issue identified was the incorrect billing of the IWM Fee to compactor accounts. The amount billed was $76.00 per load versus the approved rate of $78.25. In a number of cases we found that the amount billed was slightly less (e.g., $0.01) than the approved rate.
Review of Rate Categories vs. Approved Rate Schedule
Attachment 2 provides a list of transaction codes. The Company reported that not all of these codes are in current use, however, we confirmed the use of a number of those codes that are not on the City’s approved rate schedule, including:
§ Container Rent (included in the approved rate but not specifically identified); § Credit Card Fee;
§ Demurrage Charge;
§ Distance Charge (151-200 feet);
§ Fee-Website; and
§ Late Payment.
While such fees are not necessarily inappropriate, they are not listed on the approved rate schedule. We suggest the City review all such fees with EBS and determine which are to be approved, and list those as part of its approved rate schedule so that it is clear to all parties, which rates and fees EBS can charge.
Test of Franchise Fee Transactions
Objective
The purpose of this test is to determine if franchise fees were properly calculated in accordance with the terms of the franchise agreement. A statistically significant sample of franchise fee payments will be selected for the test period. Each selected transaction will be tested to verify that the calculation is based on the appropriate gross revenue and franchise fee percentage. The process will also include a verification of the number of residential and commercial subscribers for the months tested, by service level, to ensure that gross revenues were calculated correctly by EBS. Finally, we will compare the calculated franchise fee payment to the payment received by the City.
Agenda Packet Page 207 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
Background
Franchise Fee
EBS is required to pay the City a franchise fee of 15% on all gross revenues, with the exception of the approximately 50 accounts that it services in the City of Richmond and the revenue associated with the rental charges for debris boxes and commercial containers. When it comes to franchise fee payments the timing of the payments comes into play, as EBS is continually paying estimates and attempting to true-up the expense based on collected revenues a few times a year.
Integrated Waste Management Fee
In 1990 the City established the IWM Fee to cover Integrated Waste Services, including the City-run operations of the El Cerrito Recycling Center, curbside collection of recyclable materials, and other waste collection, reduction, recycling and environmental programs operated by the Operations + Environmental Services Division (OESD). The IWM fee is based on the size of residential and commercial carts (20, 35, 64- gallon), the size of commercial containers (1 or 2 yards), compactor cubic yardage, and the number of rolloff loads.
Methodology
Franchise Fee
For purpose of assessing the accuracy of EBS’s franchise fee payments, R3 compared the actual franchise fee payments made to the City to the calculated required payments based on the revenues reported in EBS’s financial statements for 2015, 2016 and 2017, adjusted for current year and prior year receivables to account for the timing of payments (e.g., franchise fee payments may not be collected in the year they are due).
Integrated Waste Management Fee
We reviewed EBS’s Rate Code Fee Structure to verify the proper IWM fees had been entered. We then requested and reviewed EBS’s Revenue Summary by Rate Code reports for each year of the three-year review period (2015-2017) and compared the reported IWM Surcharge Revenues collected for each of those three years to the reported City IWM payments. That analysis found that the reported City IWM payments tied to the reported IWM Surcharge Revenues for 2017 without exception and exceeded the reported IWM Surcharge Revenues by $147 and $242 for 2016 and 2015 respectively. We also discussed the testing and reconciliation of IWM fee revenues and payments conducted as part of EBS’s annual audit and financial statement preparation with EBS’s accounting firm (Armanino), and reviewed various related analyses conducted by Armanino.
Findings
Franchise Fee
That analysis found that EBS’s franchise fee payments for 2015 through 2017 were $6,713 less than they should have been. EBS’s January 25, 2018 franchise fee payment however was for $143,197 versus the year end accrual of $133,467, resulting in a net overpayment of the 2017 franchise fee payment of $9,730 in January 2018, for a net overpayment of $3,017 for the three-year period as of January 2018.
Going forward we recommend that EBS provide an updated reconciliation of actual franchise fee payments to the calculated amounts due through the remaining term of the agreement to the City each year along with the January franchise fee payment.
Agenda Packet Page 208 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
Integrated Waste Management Fee
The City raised a concern that its annual projection of IWM Fees consistently exceeded the actual amounts remitted. In projecting IWM Fees the City uses the most recent data on residential cart subscription levels and commercial cubic yards. Projection of roll-off fees is based on annualizing year-to-date revenues.
Table 1 below provides a comparison of the City’s projected IWM Fees to EBS remitted IWM Fees. As shown, over the three-year period, EBS’s remitted fees have averaged about 2% less than the City’s projections.
Table 1
EBS Actual IWM Fee Payments Compared to City Projections While the City’s projections are not unreasonable as a starting point, they do not account for any migration to lower residential or commercial service levels, which may occur, or scheduled stops and starts, both of which would result in lower revenues and associated fees than provided for by the City’s projections(all other factors the same). Additionally, bad debt, and stopped service for accounts that have not paid their bills would also result in lower actual versus projected IWM Fees. Table 1 also includes the reported 120 day past due amounts at the end of 2016 and 2017. While some of this revenue may get collected, bad debt represents a potential significant contributing factor to the variances the City has experienced between its projected IWM fees and EBS’s IWM fee remittances.
While our review of the 2016 and 2017 data found that EBS appears to be accurately reporting the IWM fees it collects, we discovered that EBS:
§ Is currently charging an incorrect IWM fee of $76.00 per debris box load rather than the correct rate of $78.75; and
§ Is not charging IWM fees on extra services. In discussing this issue with EBS, it reported that many of the items that fall into the “extra service” category like cart cleaning, locking systems for carts or containers, large furniture items or appliances or mattresses are either not applicable to disposal or would require a discussion during the rate setting process to determine appropriate amounts. We recommend the City review if and how IWM fees should be applied to extra services.
Revenue
Requirement $ %
2015 $ 1,949,699 $ 1,949,688 $ 1,899,302 $ (50,397) -2.6% 2016 $ 2,126,596 $ 2,125,160 $ 2,071,502 $ (55,095) -2.6% $ 28,057 2017 $ 2,214,657 $ 2,216,805 $ 2,201,764 $ (12,893) -0.6% $ 34,995 Totals $ 6,290,952 $ 6,291,653 $ 6,172,568 $ (118,384) -1.9% Over 120
Days Past
Due
Variance
EBS vs. City Total
City EBS
Payment Year
Total
Agenda Packet Page 209 of 360
Ms. Yvetteh Ortiz
Performance Review of EBS of Solid Waste Operation – Final Report August 5, 2020
This page intentionally left blank.
Agenda Packet Page 210 of 360
pg.# Section
1 Franchise Fees 5 4.A
paid bi‐monthly, based on
estimates of monthly
gross revenue
record(s) of Franchise Fees paid between 2015‐2017 Compliant 2 Integrated
Waste
Management
(IWM) Fee
10 7.E Collected by Company
and paid to City monthly record(s) of IWM Fees paid between 2015‐2017 Compliant 3 Christmas Tree
Collection 11 8.B
collection of trees
following holiday(s);
terms TBD
record(s) of collected trees and terms of program Compliant 4 Compliance with
all local, State,
and Federal Laws
11 9.B Compliance with all local,
State, and Federal Laws
any reported law violations occurring between 2015‐
2017 Compliant
5 Hours of
Operation 12 12.B
No collection in
residential areas prior to
6am
record(s) of any reported violations of service hours
occurring between 2015‐2017
R3 observations
of morning
launches
Compliant
6 Annual Clean‐Up 12 12.E
each residence (of 4 units
or less) is provided an
annual clean‐up
record(s) of annual clean‐ups provided to residents
between 2015‐2017
Company tracks
pick ups within
customer
software, but
can't filter out
specific services
Compliant
7 Surety/Cash
Bond 15 13.A Surety Bond in amount of $25,000
copy of current Surety Bond or other relevant bonds
required Compliant
8 HHW
Notification 17 15.B
notification of missed
collection due to
contaminated garbage or
green waste
copy of notification tag(s) left for customers for missed collection of contaminated materials Compliant
9 HHW
Occurrences 17‐18 15.C
must notify jurisdiction
and other noted
organizations in the event
that hazardous or special
waste(s) are deposited
with general collection
materials
report(s) of all occurrences in which other agencies
were notified of contamination issues between 2015‐
2017
Company had
zero instances in
which HHW
contamination
occurred
Compliant
10 HHW Training 18 15.E
shall train all employees
in all matters relating to
hazardous and special
wastes and must provide
records to City
record(s) of all hazardous/special waste training to staff between 2015‐2017 Compliant
Ref # Item Compliance Assessment
Franchise Agreement Citation Information Request /
Required Documentation Requirement Notes
COMPLIANCE REVIEW
SECTION 4 ‐ Franchise Fees
FRANCHISE AGREEMENT
SECTION 7 ‐ Collection & Processing of Reusable and Recyclable Materials SECTION 8 ‐ Collection & Transportation of Green Waste
SECTION 15 ‐ Hazardous Waste and Special Waste
SECTION 9 ‐ Compliance with Laws and Regulations
SECTION 11 ‐ Company Provided Services
SECTION 13 ‐ Surety and/or Cash Bond
SECTION 16 ‐ Records, Reports & Audit
R:\+Projects\El Cerrito ‐ SW Operations Evaluation ‐ 118024\+ Report\Attachment 1 ‐ El Cerrito Compliance 070518 Sheet1 ATTACHMENT 1
Agenda Packet Page 211 of 360
pg.# Section
Ref # Item Compliance Assessment
Franchise Agreement Citation Information Request /
Required Documentation Requirement Notes
COMPLIANCE REVIEW
FRANCHISE AGREEMENT
11 Annual Audit 18 16.B
shall furnish City with an
annual audit (within 120
days of the end of each
year) prepared and
certified by an
independent certified
public accounting firm
chosen and approved by
City
copies of annual audits provided to the City between
2015‐2017 Compliant
12 19 18.A
all vehicles uniformly
painted and contain
Company name, phone
number, and vehicle
number all visibly
displayed on each vehicle
will review visible components on‐site reviewed during
onsite visit Compliant
13 19 18.B
annual list of all vehicles
operating within city
limits submitted to City
copy of list of vehicles between 2015‐2017 list provided by company Compliant
14 Business Office 20 19.A
company must maintain a
business office within the
city limits
address of company's business office Compliant
15 Business Office ‐
After Hours 20 19.B
must provide customers
the ability to leave a
message during non‐
business hours
will verify via after hours phone call Compliant
16 Employee
Identification 21 19.C
All employees outside of
the business office shall
carry suitable
identification establishing
employment with the
Company
copy of an employee's form of identification that
satisfies the condition Compliant
17 Complaint
Resolution 21 19.E
responsible for resolving
all customer complaints
within 48 hours (except
weekends and holidays)
record(s) of customer complaints, type of complaint,
date of complaint, resolution, and date of resolution
between 2015‐2017
company does
not maintain a
complaint log; has
no way to filter by
type
Compliance Unknown
18 Unresolved
Complaints 21 19.F shall keep a log of all unresolved complaints complaint logs between 2015‐2017 that include name
and address of complainant, date and time of
complaint, nature of complaint, and summary of
complaint
company does
not maintain a
complaint log; has
no way to filter by
type
Non‐Compliant
19 Dissatisfied
Customers 21 19.G
customer prompted City
review of complaints, in
which cost of resolving is
due to City from
Company
record(s), if any, of complaints that were escalated to the City and/or resulted in fees paid to City between
2015‐2017
company does
not maintain a
complaint log; has
no way to filter by
type
Compliance Unknown
20 Indemnification 24 21.A proof of indemnification copy of proof of indemnification Compliant 21a 25 22.C.1
General Liability:
$2,000,000 per
occurrence
Compliant
21b 25 22.C.2 Automobile Liability:
$2,000,000 per accident Compliant
SECTION 18 ‐ Collection Equipment
Insurance copies of current certificates of insurance
Vehicles
SECTION 19 ‐ Local Business Office, Employee Identification, and the Resolution of Service Complaints SECTION 21 ‐ Indemnification
SECTION 22 ‐ Insurance
R:\+Projects\El Cerrito ‐ SW Operations Evaluation ‐ 118024\+ Report\Attachment 1 ‐ El Cerrito Compliance 070518 Sheet1 ATTACHMENT 1
Agenda Packet Page 212 of 360
pg.# Section
Ref # Item Compliance Assessment
Franchise Agreement Citation Information Request /
Required Documentation Requirement Notes
COMPLIANCE REVIEW
FRANCHISE AGREEMENT
21c 25 22.C.3 Employer's Liability:
$1,000,000 per accident Compliant
22 Street Damage 27 27.B
shall be responsible for
any extraordinary
damage to City's driving
surfaces resulting from
weight of Company
vehicles
record(s) of reported damage to city streets and/or
costs of repair between 2015‐2017 Compliant
23 Property
Damage 27 27.C
physical damage caused
by Company to private or
public property
repaired/replaced by
Company
record(s) of reported property damage and/or costs of
repair between 2015‐2017 Compliant
SECTION 23 ‐ General Provisions
R:\+Projects\El Cerrito ‐ SW Operations Evaluation ‐ 118024\+ Report\Attachment 1 ‐ El Cerrito Compliance 070518 Sheet1 ATTACHMENT 1
Agenda Packet Page 213 of 360
SYSTEM CONTROL PAGE 1 AR708
A/R TRANSACTION DESCRIPTIONS
AS OF: 8:29:15 09/07/18
PRT
TRANS CD DESCRIPTION ABBREVIATED REVENUE ACCOUNT# DEPT REVERSE N/C F/C JRNL R-4 DES I/CO *00 CONVERTED $BAL: CURRENT CNV: CURR SJ
*30 CONVERTED $BAL: OVER 30 CNV: OVR30 SJ
*60 CONVERTED $BAL: OVER 60 CNV: OVR60 SJ
*90 CONVERTED $BAL: OVER 90 CNV: OVR90 SJ
BCR BANKRUPTCY CREDIT BANKRUPT CREDIT SJ
BDB BANKRUPTCY DEBIT BANKRUPT DEBIT SJ
BFW BALANCE FORWARD BALANCE FORWARD SJ
B01 DROP BOX PER DUMP CHARGE BOX DUMP CHARGE SJ
B02 DROP BOX MONTHLY MINIMUM BOX MINIMUM SJ
B03 BOX DEMURRAGE DEMUARRAGE SJ
B04 COMPACTOR PER YARD CHARGE COMP PER YARD SJ
B05 3-DAY WEIGHT MAX(TONS) WGT MAX(TONS) SJ
B55 BOX RENT BOX RENT SJ
CCC CREDIT CARD Fee Credit Card Fee SJ
C02 LSC CREDIT/MACHINE USE LSC CREDIT SJ
ECR CREDIT CREDIT SJ
EDR CHARGE CHARGE SJ
EL SPECIAL PICKUP SPCL PCKUP SJ
EMC MISCELANEOUS CHARGE MISC CHG SJ
ENF EXTRA SERVICE EXTRA SERVICE 607.000 SJ
ENS ON LINE BANK CHK CHG BNK CHK CHG SJ
EP EXTRA PICKUP EXTRA PCKUP SJ
ERC CART REPLACEMENT CHARGE CART REPLACE 746.000 11 SJ
EWF FEE - WEB SITE PAID FEE WEB SITE SJ
EWO WRITE OFF/BANKRUPTCY WRITE OFF SJ
F01 LATE PAYMENT CHARGE LATE CHG SJ
F02 LIEN PROCESS CHARGE 20% PENALTY SJ
H2B BALANCE FORWARD CORRECTIO BAL FWD CORRECT SJ
I01 EAST BAY SERVICE FEE SERVICE FEE SJ
I02 IWM SURCHARGE IWM S/C SJ
I03 DISPOSAL FEE DISPOSAL FEE SJ
I04 CONTAINER RENT CONTAINER RENT SJ
I05 DEMURRAGE DEMURRAGE 607.000 14 SJ
I52 DUMP CHARGE DUMP CHARGE SJ 1
I53 DUMP, NO RETURN DUMP, NO RETURN SJ 1
I54 TRIP/DISTANCE CHARGE TRIP/DISTANCE SJ
I55 BOX RENT CHARGE BOX RENT SJ
I56 MISC BOX CHARGE MISC BOX CHG SJ
I57 CLEANING CHARGE CLEANING CHARGE SJ
I58 MINIMUM CHARGE ADJUSTMENT MIN CHG ADJ SJ
I59 CREDIT: DROP BOX CREDIT: D/BOX SJ
PAD ACH DEPOSIT ACH DEPOSIT CR
PCC CREDIT CARD PAYMENT CREDIT CARD PAY CR
PIE POSTED IN ERROR POSTED IN ERROR CR
PMT PAYMENT - THANK YOU PAYMENT CR
PNS ON LINE BANK CHECK ONLINE BANK CHK CR
PRA RETURNED ACH CREDIT RETURNED ACH CR 730.000 CR
PRC RETURNED CHECK RET'D CHK 730.000 CR
PRF CASH REFUND CASH REFUND CR
PWS PAYMENT AT WEB SITE WEB SITE PAID CR
RCK RETURNED CHECK CHARGE RET CK CHG SJ
RPD REFUND PAID REFND PAID SJ
SC SERVICE CREDIT SERVICE CR SJ
ATTACHMENT 2
Agenda Packet Page 214 of 360
SYSTEM CONTROL PAGE 2 AR708
A/R TRANSACTION DESCRIPTIONS
AS OF: 8:29:15 09/07/18
PRT
TRANS CD DESCRIPTION ABBREVIATED REVENUE ACCOUNT# DEPT REVERSE N/C F/C JRNL R-4 DES I/CO SPF Late Payment Fee Late Pymnt Fee SJ
UCR PAID ON ACCOUNT PD ON ACCT SJ
ATTACHMENT 2
Agenda Packet Page 215 of 360
Agenda Item No. 8.A.
Attachment 3
July 28. 2021
Will Provost
OE D Manager
10890 an Pablo A \'e.
El Cerrito. CA 94530
Dear Mr. Provost.
PO. BOX 1316
CITY
EL CERRITO CA 94530 PHONE (51 0) 237-4321
COUNTY GOVERNMENT CONTRACTORS
It ha been a pleasure to work with you and the City of El CeITito over the past few weeks to reach a mutual understanding for the ex ten ion of the East Bay Sanitaf) Franchise agreement.
During our last meeting. a list of ervice enhancements to be pro\'ided by East Bay Sanitary to the City and all customers was discussed as neces ary items needed to ensure our continued working relationship. As requested. we have re, iewed this list and have determined that nearly all can be provided without additional compensation to the Com pan}. But rather than requesting an increase in revenue to cover the additional costs we are requesting a different term extension than has been offered. Following is a detailed list of all new sen ice enhancements and reasoning for additional consideration of contract length.
New Initiatives
East Bay Sanitary (EB ) is fully committed to the City of El Cerrito and all of its residents. To demonstrate our commitment. we ha\'e compiled a list of initiatives that will enhance the partnership between EBS and El Cerrito and take us into the future as a green leader in California. East Bay anitaf)' is committed to supporting El Cerrito. its businesse . and residents by providing a leadership role in promoting environmental quality and innovation while minimizing the environmental impact of our customers and City activities as outlined in the in the City·s mission. EBS is anxious to build on our partnership v,ith El Cerrito in recycling and environmental issues. This will assist the cit) of El Cerrito in continuing to be on the forefront of the recycling/diversion movement and a leader in responsible waste management.
East Bay Sanitary will work with the city of El Cerrito and its commercial customers to increase the food waste diversion program.
EBS will work with residents to expand the current food waste programs and increase diversion in an effort to reach the 75% diversion threshold State goal of 2022.
EBS will increase awareness through outreach and education.
Provide updated containers and labeling to all customers in line with SB1383 guidance.
Monitor waste streams for contamination and assist with enforcement of city codes.
Provide reporting under the Recyclist system.
Agenda Packet Page 216 of 360
• In addition to providing customers with twice a year eWaste pickup, the company will increase this program to 3 t imes per year and include Universal Waste (uWaste) as well at no additional charge further enhancing our excellent customer service. • We will market this service enhancement through our new website and with announcements in our regular bills.
• uWaste includes items like fluorescent lamps, CRT's, instruments that contain mercury, batteries.
• To assist in dealing with illegal dumping in the city of El Cerrito, EBS will expand twice annual free cleanups to include bulky items, mattresses, and appliances to all individually billed multi-family accounts.
• EBS will also assist the city with Fire Prevention cleanups by providing additional containers as needed for green waste cleanup in areas deemed to be a fire hazard. • We will market this service enhancement through our new website and with announcements in out regular bills.
• EBS will assist the city in keeping El Cerrito clean by working with the city to identify, update and improve monitoring of city cans located in El Cerrito. • EBS will provide RERC/TS with drop box service at current levels. • EBS will work with the city to enhance illegal dumping cleanups on an on-call basis. • EBS will make available back-up vehicles and drivers for collection routes. If drivers are available, they will be provided to the city at specific hourly rate. As this is an important partnership with the city, EBS requests that this provision is mutual so that recycling drivers can be provided to EBS when needed as well.
• Procure compost for city giveaway.
• To ensure compliance with organic diversion requirements under SB1383, EBS pledges to work with the city to inspect and document violations, this includes but is not limited to the following: adjusting the number of site visits as necessary in a given time frame, opening of bin/can lids, documenting through photo evidence, providing said evidence to the city enforcement officer.
• EBS will work with the city to provide a new "customer service platform" which will include a city portal with access to specific needs.
• EBS will also work to make available real time customer service day routing information including stopped accounts.
• To reduce carbon emissions that exceed California's clean fleet requirements, EBS will work with El Cerrito to replace the current fleet of waste service vehicles with ZEV's as technology becomes available. Until infrastructure is in place renewable diesel, when available, will be procured.
• EBS will coordinate with the city in finding or constructing a suitable Electric Recharging location for all the vehicles currently operated in the city. • In order to offset the increased depreciation cost of ZEV's, EBS is requesting an annual renewable contract to minimize customer rate impact.
• EBS will provide the first organic 64-gallon cart to all commercial customers inclusive in one monthly rate.
• Currently 207 commercial accounts do not have organic service and under the current rate structure, collection of these carts represents $150k in service revenue. EBS will forgo this additional income in consideration of obtaining an annual renewable contract. *Items - Additional consideration for contract lengt h expansion below.
Contract Extension Terms
In an effort to manage costs and provide rate salability for El Cerrito rate payers, East Bay Sanitary is working with city staff and council to reach a mutually desirable extension of the franchise agreement for the collection of garbage and green waste in the city of El Cerrito by providing the city with the following:
Agenda Packet Page 217 of 360
1. Universal Commercial Collection Rate
Under the current EBS contract, Commercial & Multi-family green waste 64-gallon cans serviced once a week represent - $73,000 of the company's total operating revenue. EBS is suggesting lowering the cost for existing commercial green waste customers to $19 a month (will be added to monthly Solid Waste Collection rate) and adding the same to the 217 non subscribing commercial customers under universal green waste commercial service. By doing so, EBS is ensuring current operating revenue to cover organic disposal costs and forgoing additional revenue which could be allowed under the current contract. Under the current contract rate structure, the addition of 217 new organic collection accounts would represent an additional $150,000 in company revenue (-5% increase in revenue) that EBS would forgo for consideration of a 10-year annual renewable franchise extension.
Another alternative would be to spread the organic fee to multi-family units as well. Currently there are 325 multifamily customers in El Cerrito, of which 282 receive organic collection free of charge and 42 that do not subscribe. If EBS combined the Multifamily customers (325) and the Commercial customers (309), for a total of 634 the monthly cost for organic collection would be $10 a month (to be added to monthly Solid Waste Collection rate) for universal service. Like the previous alternative, this would not generate any new revenue for EBS and only maintain status quo.
2. Electric Vehicle Replacement & Vehicle Depreciation Cost In the coming years vehicles costs are going to increase significantly due to current California EV legislation and regulations under the California Air Resources Board (CARB). EBS has analyzed and prepared the CARB ZEV vehicle replacement schedule below. EBS believes that a 10-year annual renewable contract is the best option for minimizing the upcoming substantial depreciation expenses for the rate payers by depreciating all new equipment purchases over 10 years rather than over the remaining contract terms as offered. Please note that this schedule does not include infrastructure costs such as transformers/substations and battery backups, with costs needed to support Electric Vehicles under CAR B's new regulations estimated at between $200k to $500k per vehicle. Current technology does not al low for a full route to be serviced with EV's. If technology doesn't improve, additional trucks that may be needed are not included in this analysis either.
Equ,pment Rep acement Sch Cost
Renewab•e D esel Collection· Org S 330,000.00
EV Box Truck and charg ng stat,on S 900,000.00
EV Co eel on Vehic e and cha•ging station S 950,000.00
Annual Depreoauoo Scheudle 2022 2023 2024 i "'Jt. I 2026 iv, ' 1018 1019 'OlO 70'1 Current Contract s !65,000.00 s 165,000.00 I
Proposed 8 year extension s 33,000.00 s 33.ooooo I S33.ooo.oo s 161.m 43 I s 161.51143 5351,57143 S 351,57143 5351,571.43 5816,571.43 $816,571.43 Proposed annual renewable 10 year s 33,000.00 s 33,ooo.oo I s 33,ooo.oo I s m.000.00 I s m.000.00 5218,000.00 S 118,000.00 $118,000.00 5313,000.00 S3!3,000.00 EBS Fleet
2 box trucks
8 Collection vehicles
Percentage of fleet tha Must be ZE\ 10% 25% SO% 75% 100% Box trucks, vans, two-ade buses, yard trucks 1015 1018 1031 1033 1035 W0<k trucks (e.g. refuse), day cab tractor,, 1017 1030 1033 1036 1039 three-axle buses Sleeper cab tractors and spec,alty ,el>,des 1030 1033 1036 1039 1041 Agenda Packet Page 218 of 360
We look forward to partnering with the city in order to meet 1383 compliance goals and continuing to provide the customers of El Cerrito the same level of excellent service, as we have done fo r nearly 80 years. In order to keep meeting the expectations of the city, enact 1383 provisions, comply with CARB ZEV rules and obtain capital financing for the expansion necessary to meet these goals we are requesting a 10-year annual renewable contract extension in order to amortize these foreseen costs and minimize the expense to our customer base. Please do not hesitate to contact East Bay Sanitary and or the company's consultant (Armanino LLP) if you need further information.
Sincerely,
Mark Figone
President
East Bay Sanitary Company
Agenda Packet Page 219 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 1 of 82 1 AGREEMENT
2 FOR THE PROVISION OF
3 SOLID WASTE COLLECTION SERVICES
4 5 Executed Between the
6 City of El Cerrito and East Bay Sanitary, Inc.
7 8 June 1, 2022
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
29 30
31 32
33 Agenda Item No. 8.A.
Attachment 4
Agenda Packet Page 220 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 2 of 82 34 TABLE OF CONTENTS
35 Collection Services Agreement
36 37 Article 1. Definitions ......................................................................................................................4 38 Article 2. Term of Agreement.....................................................................................................13 39 Article 3. General Conditions.....................................................................................................13 40 Article 4. Contractor’s Compensation and Billing ...................................................................20 41 Article 5. Diversion ......................................................................................................................23 42 Article 6. Residential Services...................................................................................................24 43 Article 7. Commercial Services .................................................................................................28 44 Article 8. Roll-off Services ..........................................................................................................32 45 Article 9. City Services................................................................................................................32 46 Article 10. Back-up Recycling Collection Services...................................................................34 47 Article 11. Collection Routes........................................................................................................35 48 Article 12. Minimum Performance Standards............................................................................35 49 Article 13. Collection Equipment .................................................................................................37 50 Article 14. Contractor’s Office......................................................................................................40 51 Article 15. Support Services.........................................................................................................42 52 Article 16. Emergency Service.....................................................................................................46 53 Article 17. Record Keeping and Reporting Requirements ......................................................46 54 Article 18. Nondiscrimination .......................................................................................................47 55 Article 19. Quality of Performance of Contractor......................................................................48 56 Article 20. Performance Bond......................................................................................................49 57 Article 21. Insurance......................................................................................................................50 58 Article 22. Hold Harmless and Indemnification .........................................................................52 59 Article 23. Default of Agreement .................................................................................................55 60 Article 24. Modifications to the Agreement ................................................................................57 61 Article 25. Legal Representation .................................................................................................58 62 Article 26. Conflict of Interest.......................................................................................................58 63 Article 27. Contractor's Personnel...............................................................................................58 64 Article 28. Exempt Waste .............................................................................................................59 65 Article 29. Independent Contractor .............................................................................................59 66 Article 30. Laws to Govern ...........................................................................................................59 67 Article 31. Consent to Jurisdiction...............................................................................................59 68 Article 32. Assignment ..................................................................................................................59 Agenda Packet Page 221 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 3 of 82 69 Article 33. Compliance with Laws ...............................................................................................62 70 Article 34. Permits and Licenses.................................................................................................62 71 Article 35. Waiver...........................................................................................................................62 72 Article 36. Prohibition Against Gifts.............................................................................................62 73 Article 37. Point of Contact...........................................................................................................62 74 Article 38. Notices..........................................................................................................................63 75 Article 39. Transition to Next Contractor....................................................................................63 76 Article 40. Contractor’s Records..................................................................................................64 77 Article 41. Entire Agreement........................................................................................................64 78 Article 42. Severability ..................................................................................................................65 79 Article 43. Right to Require Performance ..................................................................................65 80 Article 44. Headings ......................................................................................................................65 81 Article 45. Exhibits .........................................................................................................................65 82 Article 46. Attorney’s Fees ...........................................................................................................65 83 Article 47. Effective Date ..............................................................................................................65 84 Exhibit 1 City Service Recipients ..........................................................................................67 85 Exhibit 2 Administrative Charges and Penalties ...................................................................68 86 Exhibit 3 Service Charges ...................................................................................................71 87 Exhibit 4 Annual Indexed Adjustment to Contractor’s Compensation...................................73 88 Exhibit 5 Detailed Compensation Review ............................................................................76 89 Exhibit 6 Public Area Garbage and Organic Waste Collection Locations.............................78 90 Exhibit 7 City Roll-off Service Facilities, Locations and Service Levels................................79 91 Exhibit 8 Reporting ..............................................................................................................80 92 93
Agenda Packet Page 222 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 4 of 82 94 This Agreement is effective as of June 1, 2022 (“Effective Date”), and is between the City of El Cerrito, a 95 charter city of the State of California, referred to as "City" and East Bay Sanitary Co., Inc. referred to as 96 "Contractor". This Agreement supersedes all prior Agreements between the City and Contractor, with the 97 exception of the Street Sweeping Agreement, dated November 25, 2014. 98 99 Now, therefore, in consideration of the mutual covenants, agreements and consideration contained in this 100 Agreement, City and Contractor agree as follows:
101 Article 1. Definitions
102 For the purpose of this Collection Services Agreement, referred to as "Agreement", the definitions contained 103 in this Article apply unless otherwise specifically stated. When not inconsistent with the context, words used 104 in the present tense include the future, words in the plural include the singular, and words in the singular 105 include the plural.
106 1.01 AB 341. “AB 341” means State of California Assembly Bill No. 341 approved October 5, 107 2011. AB 341 requires businesses, defined to include commercial or public entities that generate more 108 than 4 cubic yards of commercial Solid Waste per week or residential dwellings of five (5) units or more, 109 to arrange for Recycling services.
110 1.02 AB 827. “AB 827” means State of California Assembly Bill No. 827 approved October 02, 111 2019. AB 827 requires businesses that are mandated to recycle under AB 341 (“MCR”) and/or mandated 112 to recycle Organic Waste under AB 1826 (“MOR”) or SB 1383 and that provide customers access to the 113 business, to provide customers with a Recycling bin and/or Organic Waste collection bin for those waste 114 streams that is visible, easily accessible, and adjacent to each Garbage Container. 115 1.03 AB 939. “AB 939” or “The Act” means “The California Integrated Waste Management Act 116 of 1989” codified in part in Public Resources Collection §§ 40000 et seq, as it may be amended and as 117 implemented by the regulations of the California Department of Resources Recycling and Recovery 118 (CalRecycle), or its successor agency.
119 1.04 AB 1594. “AB 1594” means State of California Assembly Bill No. 1594 approved 120 September 28, 2014. AB 1594 provides that as of January 1, 2020, the use of Green Waste as Alternative 121 Daily Cover does not constitute diversion.
122 1.05 AB 1826. “AB 1826” means State of California Assembly Bill No. 1826 approved 123 September 28, 2014. AB 1826 requires each jurisdiction, on and after January 1, 2016, to implement an 124 Organic Waste recycling program to divert from the landfill Organic Waste from businesses. Each business 125 meeting specific Organic Waste or Solid Waste generation thresholds phased in from April 1, 2016, to 126 January 1, 2020, is required to arrange for Organic Waste recycling services. 127 1.06 AB 3036. “AB 3036” means State of California Assembly Bill No. 3036 approved 128 September 27, 2018. AB 3036 prohibits a County, City, District, or local government agency from 129 subjecting the hauling of certain byproducts from the processing of food or beverages to an exclusive 130 agreement, contract, license, or permit.
Agenda Packet Page 223 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 5 of 82 131 1.07 Agreement. “Agreement” means this written agreement between the City and the 132 Contractor covering the work to be performed and all contract documents attached to the agreement and 133 made a part thereof.
134 1.08 Agreement Administrator. “Agreement Administrator” means the Public Works Director, or 135 designee, designated to administer and monitor the provisions of the Agreement. 136 1.09 Agreement Year. “Agreement Year” means each twelve (12) month period from May 1 to 137 April 30 during the term of this Agreement.
138 1.10 Applicable Law. “Applicable Law” means all laws, regulations, rules, orders, judgments, 139 decrees, permits, approvals, or other requirement of any federal, state, county, city, and local 140 governmental agency having jurisdiction over the collection and disposition of Garbage, Organic Waste, 141 and Construction and Demolition Waste.
142 1.11 Assignee. “Assignee” means any person, company or corporation to whom the rights and 143 obligations of this Agreement are transferred pursuant to Article 32 144 1.12 Bin. “Bin” means a container designed or intended to be mechanically serviced by a 145 commercial Collection Vehicle. It shall be designed to hold from one (1) to two (2) cubic yards of material 146 with the lid properly closed.
147 1.13 Biohazardous or Biomedical Waste. “Biohazardous or Biomedical Waste” means any 148 waste which may cause disease or reasonably be suspected of harboring pathogenic organisms; included 149 is waste resulting from the operation of medical clinics, hospitals, and other facilities processing wastes 150 which may consist of, but are not limited to, human and animal parts, contaminated bandages, pathological 151 specimens, hypodermic needles, sharps, contaminated clothing and surgical gloves. 152 1.14 Business Day. “Business Day” means any Monday through Friday, excluding any Holidays. 153 1.15 Calendar Year. “Calendar Year” means each twelve (12) month period from January 1 to 154 December 31.
155 1.16 California Code of Regulations. “California Code of Regulations” or “CCR” means the 156 State of California Code of Regulations. CCR references in this Agreement are preceded with a number 157 that refers to the relevant Title of the CCR (e.g., “14 CCR” refers to Title 14 of CCR). 158 1.17 Cart. “Cart” means a receptacle with a rated capacity of at least twenty (20) and not more 159 than sixty-four (64) gallons, having a hinged tight-fitting lid and wheels, that is provided by the Contractor, 160 approved by the City, and used by Service Recipients for collection, accumulation, and removal of Solid 161 Waste from commercial, industrial, or residential premises in connection with Collection Services. 162 1.18 CERCLA. “CERCLA” means the Comprehensive Environmental Response, Compensation 163 and Liability Act of 1980, 42 U.S.C. Sections 9601 and following, as may be amended and regulations 164 promulgated thereunder.
165 1.19 Change in Control. “Change in Control” means when Mark Figone and/or Cara Figone 166 and/or their lineal descendants shall cease to have the power, directly or indirectly, to control the 167 management, operation and policies of the Contractor, whether through the ownership of a majority of 168 voting securities, as trustee, by contract or otherwise.
Agenda Packet Page 224 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 6 of 82 169 1.20 Change in Law. “Change in Law” means any of the following events or conditions which 170 has a material and adverse effect on the performance by either party of its obligations under this 171 Agreement (except for payment obligations), or on the siting, design, permitting, acquisition, construction, 172 equipping, financing, ownership, possession, management operation or maintenance of the operating 173 assets or providing the Collection Services or other matters to which Applicable Law applies:
174 A. the enactment, adoption, promulgation, issuance, modification, or written change 175 of or in Applicable Law, including but not limited to new or adjusted fees and charges imposed by the State 176 of California or the U.S. Federal government, directly related to the collection, handling, processing, 177 Recycling or disposal of Garbage, Organic Waste, or C&D, or the enactment, adoption, promulgation, 178 issuance, modification, or written change in administrative or judicial interpretation on or after Effective Date 179 of any Applicable Law;
180 B. the order or judgment of any Governmental Body, on or after the Effective Date, to 181 the extent such order or judgment is not the result of willful or negligent action, error or omission or lack of 182 reasonable diligence of the City or of the Contractor, whichever is asserting the occurrence of a Change in 183 Law; provided, however, that the contesting in good faith or the failure in good faith to contest any such 184 order or judgment shall not constitute or be construed as such a willful or negligent action, error or omission 185 or lack of reasonable diligence; or
186 C. the denial of an application for, delay in the review, issuance or renewal of, 187 suspension, termination, interruption or imposition of a new or more stringent condition in connection with 188 the issuance, renewal or failure of issuance or renewal on or after the Effective Date of any Legal 189 Entitlement to the extent that such denial, delay, suspension, termination, interruption, imposition or failure 190 materially and adversely interferes with the performance of this Agreement, of and to the extent that such 191 denial, delay, suspension, termination, interruption, imposition or failure is not the result of willful or 192 negligent action, error or omission or a lack of reasonable diligence of the City or of the Contractor, 193 whichever is asserting the occurrence of a Change of Law; provided, however, that the contesting in good 194 faith or failure in good faith to contest any such denial, delay, suspension, termination, interruption, 195 imposition or failure shall not be construed as such a willful or negligent action, error or omission or lack of 196 reasonable diligence.
197 1.21 City. “City” means the City of El Cerrito, California. 198 1.22 City Facility(ies). “City Facility(ies)” means any building or other site owned or leased by 199 the City.
200 1.23 City Manager. “City Manager” means the City Manager of the City of El Cerrito, or his or 201 her designated representative, or any employee of the City who succeeds to the duties and responsibilities 202 of the City Manager. All references in this Agreement to City Manager mean “City Manager or designee”. 203 1.24 City Service Recipient. “City Service Recipient” means any City Facilities that utilize Bins, 204 Carts, or Roll-Off Containers for the accumulation and set-out of Solid Waste. City Service Recipients 205 are the properties set forth in Exhibit 1 and may be modified by written notice to Contractor by the City. 206 1.25 Collection. “Collection” means the process whereby Residential, Commercial, Roll-off, and 207 City Garbage, Organic Waste, and Construction & Demolition Waste are removed and delivered to a Agenda Packet Page 225 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 7 of 82 208 Disposal Facility, Organic Waste Processing Facility, C&D Processing Facility, or other Solid Waste facility 209 as appropriate.
210 1.26 Container. “Container” means a Bin, Cart, or Roll-Off Container that is approved by the 211 Agreement Administrator for use by Service Recipients for Collection Services under this Agreement. 212 1.27 Collection Services. “Collection Services” means all services provided by this Agreement. 213 1.28 Commercial Collection Service. “Commercial Collection Service” means ongoing regularly 214 scheduled collection of Commercial Garbage and Commercial Organic Waste by Contractor from 215 Commercial Service Recipients and the delivery of that Garbage to a Disposal Facility and/or Organic 216 Waste to an Organic Waste Processing Facility.
217 1.29 Commercial Garbage. “Commercial Garbage” means Garbage originating from 218 Commercial Service Recipients.
219 1.30 Commercial Organic Waste. “Commercial Organic Waste” means Organic Waste 220 originating from Commercial Service Recipients.
221 1.31 Commercial Service Recipient. “Commercial Service Recipient” means a firm, partnership, 222 proprietorship, joint-stock company, corporation, or association, whether for-profit or nonprofit, strip mall, 223 industrial facility, or a Multi-Family Residential Dwelling, or as otherwise defined in 14 (CCR) Section 224 18982(a)(6). A Multi-Family Residential Dwelling that consists of five (5) or more units is a Commercial 225 Business for purposes of this Agreement.
226 1.32 Collection Vehicle. “Collection Vehicle” means a licensed vehicle that is approved by the 227 Agreement Administrator for use by Contractor for the collection and hauling of Garbage or Organic Waste. 228 1.33 Compactor. “Compactor” means any Container which has a compaction mechanism, 229 whether stationary or mobile. Compactors are most typically Roll-off Containers but may also be Bins. 230 1.34 Compost. “Compost” means the product resulting from the managed and controlled 231 biological decomposition of Organic Waste that is Source Separated from Garbage, or which is 232 separated at a centralized facility.
233 1.35 Composting. “Composting” means the controlled and monitored process of converting 234 Organic Waste into Compost.
235 1.36 Construction and Demolition Waste or C&D. “Construction and Demolition Waste” or “C&D” 236 means Solid Waste consisting of waste building materials, packaging, and rubble resulting from 237 construction, remodeling, repair and demolition operations on pavements, houses, Commercial buildings, 238 and other structures.
239 1.37 Construction and Demolition Waste (or C&D) Processing Facility. “Construction and 240 Demolition Waste Processing Facility” or “C&D Processing Facility” means a State permitted Solid Waste 241 facility which accepts and processes C&D and designated by the City as the destination for C&D Collected 242 pursuant to the terms of this Agreement.
243 1.38 Contamination. “Contamination” means all of the following: (i) materials placed in the 244 Recycling Container that are not identified as acceptable Source Separated Recyclable Materials for the 245 Recycling Container; (ii) materials placed in the Organic Waste Container that are not identified as 246 acceptable Source Separated Organic Waste; (iii) materials placed in the Landfill Container that are Agenda Packet Page 226 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 8 of 82 247 acceptable Source Separated Recyclable Materials or Organic Waste that can be placed in the Recycling 248 Container and/or acceptable Source Separated Organic Waste; and (iv) Excluded Wastes placed in any 249 Container, Bin, Cart or Compactor.
250 1.39 Contractor. “Contractor” means the entity that has obtained from the City this Agreement 251 to provide Collection Services.
252 1.40 Contractor’s Compensation. “Contractor’s Compensation” means the compensation to 253 Contractor via payment of Service Rates by Service Recipients as set forth in Section 4.01 and 254 compensation for Service Charges as set forth in Exhibit 3. 255 1.41 CPI All Other. “CPI All Other” means the Consumer Price Index for All Urban Consumers:
256 All Items in San Francisco-Oakland-Hayward, CA (CBSA), 1982-1984=100, Not Seasonally 257 Adjusted (CUURA422SA0) published by the U.S. Bureau of Labor Statistics (“BLS”). If the index described 258 in the preceding sentence is discontinued, the successor index with which it is replaced shall be used for 259 subsequent calculations. If no successor index is identified by the BLS, the index published by BLS that 260 is most comparable to the discontinued index shall be used. 261 1.42 Dispose or Disposal. “Dispose” or “Disposal” means the final disposition of Garbage at a 262 permitted Landfill or other permitted Solid Waste Disposal Facility, as defined in California Public 263 Resources Code 40192.
264 1.43 Disposal Facility. “Disposal Facility” means a State permitted Solid Waste facility which 265 accepts Garbage for landfill Disposal and designated by the City as the destination for Garbage collected 266 by Contractor pursuant to the terms of this Agreement. 267 1.44 Edible Food. “Edible Food” means food intended for human consumption, or as otherwise 268 defined in 14 CCR Section 18982(a)(18). For the purposes of this Agreement or as otherwise defined in 269 14 CCR Section 18982(a)(18), Edible Food is not Solid Waste if it is recovered and not discarded. 270 Nothing in this Agreement or in 14 CCR, Division 7, Chapter 12 requires or authorizes the recovery of 271 Edible Food that does not meet the food safety requirements of the California Retail Food Code. 272 1.45 Edible Food Recovery. “Edible Food Recovery” means actions to collect and distribute food 273 for human consumption that otherwise would be disposed, or as otherwise defined in 14 CCR Section 274 18982(a)(24).
275 1.46 Effective Date. “Effective Date” means the date designated in the Agreement as the 276 effective date. If no such date is indicated, it shall mean the date on which the Agreement is signed and 277 delivered by the last of the parties to sign and deliver. 278 1.47 Electronic Waste or E-Waste. “Electronic Waste” or “E-Waste” means electronic equipment 279 such as stereos, televisions, computers, VCR’s and other similar items. 280 1.48 Excluded Waste. “Excluded Waste” means hazardous substances, Hazardous Waste, 281 infectious waste, designated waste, waste that is volatile, corrosive or infectious, medical waste, regulated 282 radioactive waste, and toxic substances or material that facility operator(s), which receive materials from 283 the City, reasonably believe(s) would, as a result of or upon acceptance, transfer, processing, or disposal, 284 be a violation of local, State, or Federal law, regulation, or ordinance, including: land use restrictions or 285 conditions, waste that cannot be disposed of in Class III landfills or accepted at the facility by permit Agenda Packet Page 227 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 9 of 82 286 conditions, waste that in the City’s reasonable opinion would present a significant risk to human health or 287 the environment, cause a nuisance or otherwise create or expose the City to potential liability; but not 288 including de minimis volumes or concentrations of waste of a type and amount normally found in Solid 289 Waste after implementation of programs for the safe collection, processing, recycling, treatment, and 290 disposal of batteries and paint in compliance with Sections 41500 and 41802 of the Public Resources 291 Code. Excluded Wastes do not include used motor oil and filters, household batteries, Universal Wastes, 292 and/or latex paint when such materials are defined as allowable materials for collection through the City’s 293 collection programs and the Service Recipient has properly placed the materials for collection pursuant to 294 instructions provided by the Contractor.
295 1.49 Exempt Waste. “Exempt Waste” means Biohazardous or Biomedical Waste, Hazardous 296 Waste, sludge, automobiles, automobile parts, boats, boat parts, boat trailers, internal combustion 297 engines, lead-acid batteries, dead animals, and those wastes under the control of the Nuclear Regulatory 298 Commission.
299 1.50 Food Waste. “Food Waste” means all edible or inedible food such as, but not limited to, 300 fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, dairy, coffee grounds, 301 and eggshells. Food Waste excludes fats, oils, and grease when such materials are Source Separated 302 from other Food Waste. Food Waste includes food soiled paper, including paper plates, paper cups, 303 napkins, paper bags, and any other items as determined by the City. 304 1.51 Franchise Fee. “Franchise Fee” means a payment that Contractor has voluntarily agreed 305 to pay to City in consideration of the exclusive rights granted by the City under this Agreement. City and 306 Contractor acknowledge and agree that the amount of the Franchise Fee is the result of bona fide, arms307 length negotiations between City and Contractor. Contractor further acknowledges and agrees that the 308 amount of the Franchise Fee represents Contractor’s independent determination of the market value of 309 the exclusive rights granted by City under this Agreement based upon its knowledge of the amount of fees 310 paid by comparable businesses in the relevant geographic area for comparable exclusive rights. 311 Contractor is not required by this Agreement or any City ordinance, resolution, or regulation to charge the 312 Franchise Fee to Service Recipients. Because the Franchise Fee represents a cost to Contractor in 313 performing services pursuant to this Agreement, Contractor may, in its sole discretion, include an amount 314 equal to the Franchise Fee in Contractor’s Compensation. 315 1.52 Garbage. “Garbage” means those elements of the Solid Waste stream designated for 316 Disposal, and excludes Hazardous Waste, Universal Waste, Excluded Wastes, materials designated as 317 Organic Waste or for Recycling or materials which have been separated for Reuse. 318 1.53 Garbage Collection Service. “Garbage Collection Service” means the Collection of 319 Garbage from Service Recipients for delivery to a permitted Disposal facility. 320 1.54 Green Waste. “Green Waste” means Solid Waste consisting of any vegetative waste 321 generated from the maintenance or alteration of residential, commercial, or industrial premises including, 322 but not limited to, grass clippings, leaves, tree trimmings, prunings, brush, weeds, flowers, herbs, and 323 Holiday Trees.
324 1.55 Gross Revenue. “Gross Revenue” means all monetary amounts actually collected or 325 received by Contractor for the provision of Collection Services pursuant to this Agreement, excepting Agenda Packet Page 228 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 10 of 82 326 revenues derived from Bin rentals as listed in the Contractor’s audited financial statements. Gross 327 Revenue shall include all receipts from Service Recipients including Service Rates, late charges, 328 Contamination charges, Overage charges, and all charges listed in Exhibit 3, including an amount equal 329 to the Franchise Fee, in the event that Contractor elects to include an amount equal to the Franchise Fee 330 in Contractor’s Compensation.
331 1.56 Hazardous Waste. “Hazardous Waste” means a waste, or combination of wastes as 332 defined by Code of Federal Regulations, Title 40.
333 1.57 Holiday. “Holiday” means Christmas Day and New Year’s Day. 334 1.58 Household Hazardous Waste. “Household Hazardous Waste” means that waste resulting 335 from products purchased by the general public for household use which, because of its quantity, 336 concentration or physical, chemical or infectious characteristics, may pose a substantial known or potential 337 hazard to human health or the environment when improperly treated, disposed or otherwise managed, or, 338 in combination with other Solid Waste, may be infectious, explosive, poisonous, caustic, toxic, or exhibit 339 any of the characteristics of ignitability, corrosivity, reactivity, or toxicity as per California Code of 340 Regulations Title 22, Division 4.5, Chapter 11, Section 66261.3 341 1.59 Integrated Waste Management or IWM Fee. “Integrated Waste Management Fee” or “IWM 342 Fee” means the fee set by resolution of the City Council and paid by Service Recipients for the City’s 343 provision of its integrated waste management services. 344 1.60 Large Items. “Large Items” means Solid Waste consisting of discarded White Goods, 345 furniture, tires, carpets, mattresses, and similar large items which do not fit in a regular Container and 346 require special handling due to their size but can be collected and transported without the assistance of 347 special loading equipment (such as forklifts or cranes) and without violating Collection Vehicle load limits. 348 It does not include abandoned automobiles and other vehicles, nor does it include items defined as Exempt 349 Waste.
350 1.61 Non-Collection Notice. “Non-Collection Notice” means a form developed and used by 351 Contractor, as approved by City, to notify Service Recipients of the reason for non-collection of materials 352 set out by the Service Recipient for Collection by Contractor pursuant to this Agreement. 353 1.62 Organic Waste. “Organic Waste” means Solid Waste containing material originated from 354 living organisms and their metabolic waste products, including, but not limited to Food Waste, Green 355 Waste, nonhazardous wood waste, and food-soiled paper waste that is mixed in with Food Waste, organic 356 textiles and organic carpets, lumber, wood, paper products, printing and writing paper, manure, biosolids, 357 digestate, and sludges or as otherwise defined in 14 CCR Section 18982(a)(46). 358 1.63 Organic Waste Collection Service. “Organic Waste Collection Service” means the 359 Collection of Organic Waste from Service Recipients for delivery to an Organic Waste Processing Facility. 360 1.64 Organic Waste Processing Facility. “Organic Waste Processing Facility” means a State 361 permitted Solid Waste facility which accepts and processes Organic Waste and designated by the City as 362 the destination for Organic Waste Collected pursuant to the terms of this Agreement. 363 1.65 Overage. “Overage” means excess Garbage and Organic Waste (i) placed inside a 364 Container that prevents the lid on the Container from being completely closed (i.e., lid remains open Agenda Packet Page 229 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 11 of 82 365 greater than 45-degrees) or excess materials placed on top of or around a Container and (ii) could 366 potentially result in excess materials spilling/dislodging during collection activity by Contractor’s Collection 367 Vehicles.
368 1.66 Premises. “Premises” means any land or building in the City where Garbage or Organic 369 Waste is generated or accumulated.
370 1.67 Recyclable Materials. “Recyclable Materials” means Solid Waste consisting of any material 371 which retains useful properties and can be reclaimed after the production or consumption process. 372 1.68 Recycling. “Recycling” means the process of collecting, sorting, cleansing, treating and/or 373 marketing Recyclable Materials that would otherwise be disposed of in a landfill. The collection, 374 transportation or disposal of Solid Waste not intended for, or capable of, reuse is not Recycling. 375 1.69 Residential Collection Service. “Residential Collection Service” means ongoing regularly 376 scheduled collection of Residential Garbage and Residential Organic Waste by Contractor from 377 Residential Service Recipients and the delivery of that Residential Garbage to a Disposal Facility and/or 378 Organic Waste to an Organic Waste Processing Facility. 379 1.70 Residential Garbage. “Residential Garbage” means Garbage originating from Residential 380 Service Recipients.
381 1.71 Residential Organic Waste. “Residential Organic Waste” means Organic Waste originating 382 from Residential Service Recipients.
383 1.72 Residential Service Recipient. “Residential Service Recipient” means any Premises in the 384 Service Area comprised of one (1) to four (4) dwelling units. 385 1.73 Residue. “Residue” means Solid Waste that is not diverted from landfill disposal after it has 386 been delivered to an Organic Waste Processing Facility for processing for diversion from landfill disposal. 387 Residue does not include Organic Waste that is processed for diversion but has no available markets. 388 1.74 Reuse. “Reuse” occurs when an item of the Solid Waste stream is reused in its 389 manufactured form without reprocessing. Reusable materials include but are not limited to clothing, indoor 390 and outdoor furnishings, clean fill dirt, architectural detailing, art and art supplies, books and antiques. 391 1.75 Roll-off Collection Service. “Roll-off Collection Service” means Collection Service provided 392 by Contractor in Roll-off Containers.
393 1.76 Roll-off Container. “Roll-off Container” means a large container with a capacity of ten (10), 394 twenty (20), thirty (30), or forty (40) cubic yards that is loaded onto a specialized Collection Vehicle. 395 1.77 Roll-off Service Recipient. “Roll-off Service Recipient” means a Service Recipient receiving 396 Roll-off Collection Service.
397 1.78 SB 1383. “SB 1383” means Senate Bill 1383, the Short-lived Climate Pollutant Reduction 398 Act of 2016.
399 1.79 SB 1383 Regulations. “SB 1383 Regulations” means or refers to, for the purposes of this 400 Agreement, the Short-Lived Climate Pollutants: Organic Waste Reduction regulations developed by Agenda Packet Page 230 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 12 of 82 401 CalRecycle and adopted in 2020 that created 14 CCR, Division 7, Chapter 12 and amended portions of 402 regulations of 14 CCR and 27 CCR.
403 1.80 Service Area. “Service Area” means that area within the city limits of the City of El Cerrito 404 designated by City as the Service Area.
405 1.81 Service Rate(s). “Service Rate(s)” means the maximum rates authorized by this 406 Agreement, as confirmed by resolution of the City Council, and paid by Service Recipients to Contractor 407 for provision of Collection Services. Service Rates are the means of payment of Contractor’s 408 Compensation, which includes compensation for any and all expenses associated with delivery and tipping 409 of Garbage at the Disposal Facility, Organic Waste at the Organic Waste Processing Facility, and C&D at 410 the C&D Processing Facility.
411 1.82 Service Recipient. “Service Recipient” means Residential Service Recipients, Commercial 412 Service Recipients, Roll-off Service Recipients, and City Service Recipients. 413 1.83 Solid Waste. “Solid Waste” has the same meaning as defined in Public Resources Code 414 Section 40191, which defines Solid Waste as all putrescible and nonputrescible solid, semisolid, and liquid 415 wastes, including Garbage, trash, refuse, paper, rubbish, ashes, industrial wastes, demolition and 416 construction wastes, abandoned vehicles and parts thereof, discarded home and industrial appliances, 417 dewatered, treated, or chemically fixed sewage sludge which is not hazardous waste, manure, vegetable 418 or animal solid and semi-Solid Wastes, and other discarded solid and semi-Solid Wastes, with the 419 exception that Solid Waste does not include any of the following wastes: Hazardous waste, as defined in 420 the Public Resources Code Section 40141; Radioactive waste regulated pursuant to the State Radiation 421 Control Law (Chapter 8 (commencing with Section 114960) of Part 9 of Division 104 of the Health and 422 Safety Code); Medical waste regulated pursuant to the State Medical Waste Management Act (Part 14 423 (commencing with Section 117600) of Division 104 of the Health and Safety Code). Untreated medical 424 waste shall not be disposed of in a Solid Waste landfill, as defined in Public Resources Code Section 425 40195.1. Medical waste that has been treated and deemed to be Solid Waste shall be regulated pursuant 426 to Division 30 of the Public Resources Code.
427 1.84 Source Separated. “Source Separated” means materials that have been kept separate 428 from the Solid Waste stream, at the point of generation, for the purpose of additional sorting or processing 429 in order to return them to the economic mainstream in the form of raw material for new, Reused, or 430 reconstituted products, which meet the quality standards necessary to be used in the marketplace, or as 431 otherwise defined in 14 CCR Section 17402.5(b)(4). For the purposes of this Agreement, Source 432 Separated shall include separation of waste and materials into different containers for the purpose of 433 complying with this Agreement.
434 1.85 Term. “Term” means the time period or duration of this Agreement. 435 1.86 Universal Waste or U-Waste. “Universal Waste” or “U-Waste” means hazardous wastes, 436 including, but not limited to, electronic devices, fluorescent lamps, cathode ray tubes, instruments that 437 contain mercury, batteries, and many other items, as determined by the California Department of Toxic 438 Substance Control pursuant to the California Code of Regulations (Title 22 Universal Waste Rule).
Agenda Packet Page 231 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 13 of 82 439 1.87 Waste Reporting System. “Waste Reporting System” means an online/digital data system 440 designated by the City for recording and documenting outreach, customer service, site visits, service 441 levels, weights and volumes by waste stream, and field issues for compliance, and reporting purposes. 442 1.88 White Goods. “White Goods” means enamel-coated major appliances, such as washing 443 machines, clothes dryers, hot water heaters, stoves, and refrigerators. 444 1.89 Work Day. “Work Day” means any day, Monday through Saturday, that is not a Holiday. 445 1.90 Wood waste. “Wood waste” means Solid Waste consisting of stumps, large branches, tree 446 trunks, and wood pieces or particles that are generated from the manufacturing or production of wood 447 products, harvesting, processing or storage of raw wood materials, or construction and demolition 448 activities.
449 Article 2. Term of Agreement
450 2.01 Term. The term of this Agreement shall begin on June 1, 2022, and extend through May 451 31, 2032.
452 2.02 Automatic Annual Extension of Term. Provided that Contractor is in compliance with the 453 terms and conditions of this Agreement, the Term shall be annually extended for one (1) additional 454 Agreement Year on April 30, 2023, and on April 30 of each succeeding year. 455 2.03 Notice of Non-Extension. The automatic annual extension of Term described in Section 456 2.02 above may be terminated by either party in its sole discretion, without cause, by providing written 457 notice to the other party (a “Notice of Non-Extension”) prior to such annual extension. Such Notice shall be 458 effective on April 30 of the Agreement Year in which the Notice is provided and will only terminate the 459 automatic annual extension described in Section 2.02. 460 2.03 An assignment of this Agreement pursuant to Article 32 shall automatically trigger the non461 extension of the Term of this Agreement pursuant to Section 2.03 above, with the Notice of Non-Extension 462 date being the same as the effective date of the assignment of the Agreement. The City may, in its sole 463 discretion, allow the automatic annual extension of this Agreement to continue after an assignment of this 464 Agreement. In the event that the City exercises its discretion to allow the automatic annual extension of this 465 Agreement to continue, it shall provide written notice to the Assignee. 466 2.04 Maximum Term. Notwithstanding Section 2.02 above, the maximum Term of this 467 Agreement shall be twenty-five (25) years through April 30, 2047. 468 2.05 Extension to Maximum Term. On or around May 1, 2036, and provided that Contractor is 469 in compliance with the terms and conditions of this Agreement, the parties shall meet and confer in good 470 faith to determine whether to extend to the maximum Term referenced in Section 2.04 above. In considering 471 whether to extend the maximum Term, the parties shall also conduct a review of the Agreement to 472 determine whether amended or new terms and conditions are needed. 473 Article 3. General Conditions
474 3.01 Grant of Exclusive Agreement. City hereby grants to Contractor, on the terms and 475 conditions set forth herein, the exclusive right and privilege to collect, remove and dispose of, in a lawful 476 manner, Garbage and Organic Waste accumulating in the City’s Service Area that are required to be Agenda Packet Page 232 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 14 of 82 477 accumulated and offered for collection to the Contractor in accordance with the City’s Municipal Code, for 478 the Term of and within the scope set forth in this Agreement. 479 3.02 Exclusions to Exclusivity.
480 3.02.1 Specialized Materials. If Contractor is unable or unwilling to collect and process for 481 diversion of specialized materials, including, but not limited to, Organic Waste, metals, construction and 482 demolition debris, laboratory waste, pallets and others, and which a third party is able to re-use or recycle, 483 Service Recipients shall have the right to engage the third-party recycler to collect and recycle those source484 separated materials provided that the diversion is verified by the City and the third party obtains a City 485 business license.
486 3.02.2 Byproducts of Food and Beverage Processing. Under AB 3036 (2018), certain 487 byproducts from the processing of food or beverages from agricultural or industrial sources, provided they 488 are source-separated and used as animal feed, are exempted from this Agreement. Entities requesting 489 exemption must apply to the City and be any of the following: registered pursuant to Section 110460 of the 490 Health and Safety Code or be exempted from registration pursuant to Section 110480 of the Health and 491 Safety Code or be a beer manufacturer as defined in Section 23012 of the Business and Professions Code, 492 or a distilled spirits manufacturer, as defined in Section 23015 of the Business and Professions Code. 493 3.02.3 Donated Solid Waste. This Agreement shall not prohibit any Service Recipient 494 from donating Organic Waste or Large Items to youth, civic or charitable organizations qualified as such 495 pursuant to Federal law. Organic Waste or Large Items donated pursuant this section must be Source 496 Separated at a premises.
497 3.02.4 Gardening or Landscape Services. This Agreement shall not prohibit a gardening, 498 landscaping, or tree trimming company from removing Green Waste from a premises as an incidental part 499 of a total service offered by that company. This section shall not apply to removal of Green Waste from a 500 premises by a gardening, landscaping, or tree trimming company that is providing a hauling service 501 separately and not as an incidental part of a total service. 502 3.02.5 Sale or Donation of Organic Waste. This Agreement shall not prohibit any person 503 from selling Organic Waste or giving Organic Waste away to persons or entities other than Contractor. 504 However, in either instance: (1) the Organic Waste must be Source Separated from and not mixed with other 505 Solid Waste; and (2) the seller/donor may not pay the buyer/donee any consideration for collecting, 506 processing or transporting such Organic Waste. A discount or reduction in the price for collection, disposal 507 and/or Recycling services for any form of un-segregated or segregated Solid Waste is not a sale or donation 508 of Organic Waste and does not qualify for this exception. However, once Organic Waste has been placed in 509 the Container and the Container set out for Collection, the Organic Waste become the property of Contractor. 510 3.03 Contractor Payments to City.
511 3.03.1 Franchise Fee. Contractor shall pay the City a Franchise Fee equal to fifteen 512 percent (15%) of Gross Revenue. The amount of the Franchise Fee may be adjusted by mutual agreement 513 of the City and Contractor through a written amendment to this Agreement. Contractor shall make monthly 514 payments of the Franchise Fee to the City. Contractor shall calculate and pay the Franchise Fee based on 515 Gross Revenue received from Service Recipients. Contractor shall reconcile Franchise Fee payments to the 516 City for Gross Revenue received during the City’s fiscal year (July 1 through June 30) by August 30 of each Agenda Packet Page 233 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 15 of 82 517 Calendar Year. In the event that the City and Contractor agree to an adjustment to the amount of the 518 Franchise fee during the term of this Agreement, Contractor may, in its sole discretion, include an amount 519 equal to the adjustment in Contractor’s Compensation. 520 3.03.2 Integrated Waste Management Fee. Contractor shall collect Integrated Waste 521 Management Fees (IWM Fees) on its bills. The IWM Fees billed on Contractor’s bills shall be those set by 522 City Council resolution. Contractor shall make monthly payments of collected IWM Fees to the City. 523 Contractor shall pay IWM Fees based on IWM Fee payments received from Service Recipients each 524 calendar month. Contractor shall reconcile IWM payments to the City for IWM Fee payments received from 525 Service Recipients during the City’s fiscal year (July 1 through June 30) by August 30 of each Calendar 526 Year.
527 3.03.3 Remittances. Franchise Fee and IWM Fees remittances to the City will be 528 accompanied by a report, prepared in a format acceptable to City Manager, setting forth the basis, and 529 calculations used for computing the amount paid to the City. The figures used shall be taken from the general 530 books of account of the Contractor. All supporting documentation must be retained by the Contractor. 531 (a) If the Franchise Fee and IWM Fees remittances to the City are not paid by the date 532 set by this Agreement, then in addition to the fees, the Contractor shall pay a penalty as 533 specified in Exhibit 2, except to the extent that such lateness is due to uncontrollable 534 circumstances, as defined in Section 19.06 of this Agreement. 535 (b) In addition, the Contractor shall pay interest on all unpaid fees at the rate of six (6) 536 percent per annum or the prime (lending) rate, whichever is higher but not to exceed the 537 maximum legal rate, from the date the fees were due and payable to the date actually paid. 538 (c) If the delay is due to uncontrollable circumstances, Contractor must request 539 approval in writing from the City Manager at least ten (10) business days prior to the date 540 on which fees and reports are due. City shall contact Contractor within five (5) business 541 days of receiving request for submission delay as to whether delay shall be permitted. 542 3.03.4 Taxes and Utility Charges. The Contractor shall pay all Taxes lawfully levied or 543 assessed upon or in respect of the operating assets or the Collection Services, or upon any part thereof of 544 upon any revenues necessary for the operation of the operating assets and the provision of the Collection 545 Services, when the same shall become due.
546 3.03.5 Disputes. In the event of any disputes between the Contractor and the City with 547 respect to the fees described in Section 3.03, the City shall provide the Contractor with written objection 548 within 365 days of the receipt of the remittance report described in Section 3.03.3, indicating the reason the 549 report is disputed and providing all reasons then known to the City for its objection to or disagreement with 550 such amount. If any such amount is adjusted in the City’s favor pursuant to agreement, mediation, legal 551 proceeding, or otherwise, the Contractor shall pay the amount of such adjustment to the City, with interest 552 pursuant to Section 3.03.3(b) above from the date such disputed amount was due to the City to the date of 553 payment in full of such amount. Nothing contained in this subsection shall limit the authority of any authorized 554 office of the City or any other governmental agency to raise a further objection to any amount billed by the 555 Contractor pursuant to an audit conducted pursuant to Applicable Law. If the Contractor prevails in the 556 dispute, the Contractor shall have the right to recover from the City the overage paid.
Agenda Packet Page 234 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 16 of 82 557 3.04 Service Standards. Contractor must perform all Collection Services under this Agreement 558 in a thorough and professional manner while meeting the minimum performance and diversion standards 559 included herein.
560 3.05 Labor and Equipment. Contractor must provide and maintain all labor, equipment, tools, 561 facilities, and personnel supervision required for the performance of Contractor’s obligations under this 562 Agreement. Contractor must always have sufficient backup equipment and labor to fulfill Contractor’s 563 obligations under this Agreement. No payment for Contractor’s Collection Services or for Contractor’s supply 564 of labor, equipment, tools, facilities or supervision will be provided or paid to Contractor by any Service 565 Recipient except as expressly provided by this Agreement. 566 3.06 Holiday Service. Contractor is not required to provide Collection Services or maintain office 567 hours on Christmas Day and New Year’s Day. In any week in which one of these Holidays falls on a Work 568 Day, Collection Services for the Holiday and each Work Day thereafter will be delayed one Work Day for the 569 remainder of the week with normally scheduled Friday Collection Services being performed on Saturday. 570 Service Recipients subscribed to Saturday service would still receive Saturday service. 571 3.07 Inspections. The City has the right to inspect Contractor’s facilities or Collection Vehicles 572 and their contents at any reasonable time while operating inside or outside the City. 573 3.08 Commingling of Materials. Contractor may not at any time commingle Garbage, Organic 574 Waste or C&D pursuant to this Agreement with any other material type Collected by Contractor, without the 575 express prior written authorization of the Agreement Administrator. 576 3.09 Contamination. Contractor must offer Service Recipients the correct combination of Cart 577 and Bin sizes and collection frequency beyond the minimum service requirements as necessary, that 578 matches their unique service needs to reduce Contamination of Recyclable Materials and Organic Waste. 579 Contractor is only required to collect Organic Waste if it has been separated by the Service Recipient from 580 Garbage and Recyclable Materials. Contractor agrees to provide outreach and support to Service 581 Recipients. Additionally, Contractor’s route collection personnel will report to Contractor’s supervisors if they 582 observe potential Contamination problems, and/or insufficient collection capacity. For purposes of 583 determining if Organic Waste are deemed to be contaminated, if, by visual inspection, Organic Waste is 584 commingled with three percent (3%) by volume of Garbage or Recyclable Materials, then Organic Waste 585 will be deemed to be contaminated and Contractor may take the following steps. 586 3.09.1 First and Second Occurrence. For the first and second occurrence within any one 587 Calendar Year of Contamination for a particular container (i.e., Organic Waste), Contractor must collect the 588 contaminated container (as Garbage) and must affix a City-approved Contamination Violation Notice that 589 meets the requirements of 14 CCR Section 18995.1(a)(4) to the contaminated container which contains 590 instructions on the proper procedures for sorting Organic Waste and Recyclable Materials. Contractor must 591 also notify the Service Recipient by phone, U.S. mail, e-mail, and in person (which may be a container tag 592 or door hanger), that for the third and subsequent incidents of excess Contamination, the Service Recipient 593 may be charged a Contamination charge for the Collection of the contents of the contaminated Container 594 per Exhibit 3 and Contractor may increase the Container size or require an additional Container. Contractor’s 595 representative must also contact the Service Recipient by phone, U.S. mail, e-mail, or in person (which may 596 be a container tag) to ensure that they have the appropriate level of service for proper collection of Organic Agenda Packet Page 235 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 17 of 82 597 Waste. Contractor must also document all Contamination issues in the Waste Reporting System and provide 598 digital/visual documentation to the Service Recipient that clearly documents the Service Recipient’s on-going 599 Contamination problems.
600 3.09.2 Third and Subsequent Occurrences. For the third and subsequent occurrence 601 within any one Calendar Year of Contamination of Organic Waste, Contractor will provide a Contamination 602 Violation Notice that contains instructions on the proper procedures for setting out Recyclable Materials or 603 Organic Waste. Contractor must collect the contaminated Container as Garbage and may charge the Service 604 Recipient a Contamination charge. For any Contamination charge being billed, Contractor must provide 605 digital/visual documentation to the Service Recipient that clearly documents the Service Recipient’s on-going 606 Contamination problems. Contractor may increase the Container size, require locking Containers, or 607 increase collection frequency, and impose a Contamination charge on the account for a period of six months 608 or until the Service Recipient has demonstrated no Contamination for a period of three consecutive months. 609 Contractor must document Contamination issues and charges in the Waste Reporting System and notify 610 City within five (5) Business Days if Contractor increases the Container size, requires locking Containers, 611 increases collection frequency for excessive Contamination, or imposes the Contamination charge to the 612 account. City will consult with Contractor and consider, and pursue as applicable, appropriate legal remedies 613 against offending Service Recipients in order to secure discontinuance of the Contamination. 614 3.09.3 Tracking Occurrences of Contamination. Each Contamination occurrence is 615 tracked annually per Calendar Year, and resets at the start of each Calendar Year if Contamination 616 occurrences are not active and consecutive. Where Contamination is occurring, and occurrences are 617 consecutive and unremedied, their count shall continue across Calendar Years until remedy occurs. In this 618 case, once a Service Recipient has demonstrated no Contamination for a period of three consecutive months 619 the tracking calendar will reset.
620 3.09.4 Disputes Over Contamination Charge. If a Service Recipient disputes a 621 Contamination charge (which must be within 30 days of them being charged), Contractor will temporarily 622 halt any Contamination charge and/or increased Container size and/or collection frequency and Contractor 623 may request a ruling by the Agreement Administrator to resolve the dispute. During the pendency of any 624 request, Contractor may restore Container size, quantity, or collection frequency to the prior levels. A request 625 by Contractor to the Agreement Administrator to rule on any such dispute must be filed within ten (10) 626 Business Days of Contractor’s halting of Contamination charge and must include written documentation and 627 digital/visual evidence of ongoing overall problems. The Agreement Administrator may request a meeting 628 (in person or video conference or phone) with both the Service Recipient and Contactor to resolve the 629 dispute. Following such a meeting, the Agreement Administrator will rule on the dispute within ten (10) 630 Business Days, and the decision on resolving the dispute between Contractor and Service Recipient will be 631 final. If the ruling is in favor of the Service Recipient, Contractor will credit the disputed Contamination 632 charges. If the ruling is in favor of Contractor, Contractor may charge Service Recipient the prior halted 633 Contamination charge resulting from increasing the Container size or collection frequency. 634 3.10 Overage and Correction Procedures. Contractor shall provide the Service Recipients the 635 correct combination of Containers and collection frequency that matches each Service Recipient’s unique 636 service needs to enable clean, efficient, and cost-effective collection of Garbage and Organic Waste. City 637 and Contractor agree that overflow of Garbage or Organic Waste that is not properly in the Service Agenda Packet Page 236 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 18 of 82 638 Recipient’s Containers may negatively impact public health and safety. If a Service Recipient is found to 639 habitually overflow Container(s), i.e., lid will not close, Contractor may take the steps as listed below to 640 correct Service Recipient’s on-going overflow of material. 641 3.10.1 Prior Arrangements. If a Service Recipient has made prior arrangements with 642 Contractor for collection of Garbage or Organic Waste Overages, Contractor must collect such Overages as 643 arranged, and may bill the Service Recipient an Overage charge as set forth in Exhibit 3. 644 3.10.2 No Prior Arrangements. If a Service Recipient has not made prior arrangements 645 with Contractor for collection of an Overage, (i) Contractor may collect such Overage at no additional charge 646 as a courtesy, (ii) Contractor may not collect the Overage and leave a Non-Collection Notice explaining the 647 reason for non-collection of the Overage, or (iii) Contractor may collect the Overage and charge the Service 648 Recipient an Overage charge.
649 3.10.3 Disputes Over Container Overage Charges. Any disputes regarding Overage 650 charges shall follow the same process as for Contamination charges, as described in Section 3.09.4, above. 651 3.11 Ownership of Materials. Except as provided otherwise under Applicable Law, title to 652 Garbage and Organic Waste will pass to Contractor at such time as said materials are set out for Collection. 653 3.12 Ownership of Carts and Bins. Ownership of Garbage and Organic Waste Carts and Bins 654 shall rest with Contractor, except that ownership of Carts and Bins in the possession of a Service Recipient 655 at the expiration of this Agreement shall rest with City. At the time of transfer of such Carts and Bins, 656 Contractor will be reimbursed for the net book value of Garbage and Organic Waste Carts and Bins being 657 transferred. Ownership of Recyclable Material Carts shall rest with the City. At its sole discretion, City may 658 elect not to exercise its rights with regards to this Section and in such case the Carts shall remain the property 659 of Contractor upon termination of this Agreement. In this event Contractor shall be responsible for removing 660 all Carts and Bins in service from the Service Area and reusing or Recycling the Carts and Bins. 661 3.13 Container Cleaning. Contractor shall provide for cleaning of Containers, including Carts, 662 Bins, and Roll-off Containers as requested by Service Recipients or the City per the charges listed in Exhibit 663 3. There shall be no cost to the City for the cleaning of containers in use at City facilities. 664 3.14 Spillage and Litter. Contractor may not litter premises in the process of providing Collection 665 Services or while its Collection Vehicles are on the road. Contractor must transport all materials Collected 666 under the terms of this Agreement in such a manner as to prevent the spilling or blowing of such materials 667 from Contractor's Collection Vehicles. Contractor must exercise all reasonable care and diligence in 668 providing Collection Services so as to prevent spilling or dropping of Garbage or Organic Waste and must 669 immediately, at the time of occurrence, clean up such spilled or dropped Garbage or Organic Waste. 670 3.14.1 Contractor is not responsible for cleaning up sanitary conditions caused by the 671 carelessness of the Service Recipient; however, Contractor must clean up any material or residue that is 672 spilled or scattered by Contractor or its employees. 673 3.14.2 Equipment oil, hydraulic fluids, spilled paint, or any other liquid or debris resulting 674 from Contractor’s operations or equipment repair must be covered immediately with an absorbent material 675 and removed from the street surface. Contractor must document spillage and notify City’s stormwater 676 compliance coordinator within two (2) hours of any spills resulting from Contractor’s operations or equipment.
Agenda Packet Page 237 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 19 of 82 677 When necessary, Contractor must apply a suitable cleaning agent and cleaning technique to the street 678 surface to provide adequate cleaning as approved by the City’s stormwater compliance coordinator to be 679 compliant with the City’s stormwater permit.
680 3.14.3 The above paragraphs notwithstanding, Contractor must clean up any spillage or 681 litter caused by Contractor within two (2) hours upon notice from the City. If City deems necessary, 682 Contractor must engage third-party environmental clean-up specialist to remove any equipment oil, hydraulic 683 fluids, or any other liquid or debris that remains on street after Contractor’s own clean-up efforts. If clean-up 684 is not conducted to satisfaction of City, City has right to engage environmental clean-up specialist to perform 685 additional clean-up work at the expense of Contractor. 686 3.14.4 In the event where damage to City streets is caused by a hydraulic fluid spill (i.e., 687 any physical damage in excess of a simple cosmetic stain caused by the spill), Contractor shall be 688 responsible for all repairs to return the street to the same condition as that prior to the spill. Contractor shall 689 be responsible for all clean-up activities related to the spill. Repairs and clean-up shall be performed in a 690 manner satisfactory to the City and at no cost to the City. 691 3.14.5 To facilitate immediate cleanup, Contractor’s Collection Vehicles must always 692 carry sufficient quantities of absorbent materials along with a broom and shovel. 693 3.15 Regulations and Record Keeping. Contractor must comply with emergency notification 694 procedures required by applicable laws, regulatory requirements, and other sections of this Agreement. All 695 records required by regulations must be maintained at Contractor’s office. 696 3.16 Additions and Deletions. Contractor must provide Collection Services described in this 697 Agreement to new Service Recipients in Contractor’s Service Area within five (5) Work Days of receipt of 698 notice from the new Service Recipient or the City to begin such Service. 699 3.17 Annexation. If during the term of this Agreement, additional territory within or adjacent to 700 the Contractor’s Service Area is acquired by City through annexation, subject to the requirements of Public 701 Resources Code section 49520, Contractor agrees to provide Collection Services in such annexed area in 702 accordance with the provisions set forth in this Agreement. Such Collection Services must begin within five 703 (5) Work Days of receipt of written notice from City, subject to Collection Container availability. Contractor 704 may not begin Collection Service without written authorization from City. 705 3.18 Section 18988.1 and 18988.2 Compliance. Contractor is responsible for delivery of all 706 Garbage, Organic Waste and C&D to properly permitted Disposal Facilities, transfer stations, Organic 707 Waste Processing Facilities, and C&D Processing Facilities as designated by the City. Failure to comply 708 with this provision will result in the levy of an Administrative Charge or Penalty as specified in Exhibit 2 and 709 may result in Contractor being in default under this Agreement. Contractor shall comply with its obligations 710 under this Agreement and the obligations that by operation of law are imposed upon it directly pursuant to 711 the SB 1383 Regulations.
712 3.19 Organic Waste Processing Facility. Contractor must deliver all Organic Waste Collected 713 pursuant to this Agreement to a fully permitted Organic Waste Processing Facility that has been selected 714 by the City. All expenses related to Organic Waste processing will be the sole responsibility of Contractor. 715 Failure to comply with this provision constitutes default under this Agreement. City has the right to designate 716 the Organic Waste Processing Facility and Contractor’s Compensation shall be adjusted to reflect any Agenda Packet Page 238 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 20 of 82 717 increase or decrease in Contractor’s costs resulting from the City’s exercise of flow control rights. Contractor 718 must ensure that the Organic Waste Collected pursuant to this Agreement is not delivered to a Disposal 719 Facility.
720 3.20 Disposal Facility. Except as set forth below, all Garbage Collected as a result of performing 721 Garbage Collection Services must be transported to, and disposed of, at the Disposal Facility that has been 722 selected by the City. All expenses related to Garbage Disposal are responsibility of Contractor. Failure to 723 comply with this provision constitutes default under this Agreement. City has the right to designate the 724 Disposal Facility and Contractor’s Compensation shall be adjusted to reflect any increase or decrease in 725 Contractor’s costs resulting from the City’s exercise of flow control rights. 726 Article 4. Contractor’s Compensation and Billing
727 4.01 Contractor’s Compensation. Contractor shall be due an annual Contractor’s Compensation 728 for provision of Collection Services, which Contractor shall retain from its collection of Service Rates for 729 Collection Services. Contractor’s Compensation amount shall be calculated annually in accordance with 730 Section 4.02 and Exhibit 4 to this Agreement. Annual Contractor’s Compensation set per Exhibit 4 shall 731 also be adjusted annually per a balancing adjustment calculated based on over or under collection of 732 revenues from collection of Service Rates for Collection Services compared to Contractor’s Compensation 733 as set for such Calendar Year. For example, adjusted Contractor’s Compensation as set for Calendar Year 734 2020 was $4,764,353 and Contractor’s collection of revenues from Services Rates for Collection Services 735 during Calendar Year 2020, based on Contractor’s audited financial statement, was $4,866,026, yielding 736 over-collection of revenues from Service Rates for Collection Services of $101,673. That over-collection 737 was credited to Contractor’s Compensation as set for Calendar Year 2022 (calculated per the methodology 738 in Section 4.02 and Exhibit 4 to be $5,070,115) yielding an adjusted Contractor’s Compensation of 739 $4,968,441 due to Contractor in 2022. Contractor’s Compensation for Calendar Year 2023 would likewise 740 be calculated based on 2022 Contractor’s Compensation of $5,070,155 times the Annual Indexed 741 Adjustment per Section 4.02 and Exhibit 4, plus the difference between the 2021 adjusted Contractor’s 742 Compensation of $4,717,975 and the actual Service Rate Revenue for Collection Services for Calendar 743 Year 2021 per the Contractor’s audited financial statements. Example calculation table for annual 744 Contractor’s Compensation and adjustments is shown below. 745
2020 2021 2022
Percentage Increase to Contractor’s Compensation (Per
Section 4.02) 3.72% 1.64% 2.49%
EBS Annual Revenue Requirement for Garbage and
Organic Waste Collection and Franchise Fees $ 4,867,115 $ 4,946,936 $ 5,070,115 Under (Over) Balancing From 2 years prior $ (102,763) $ (228,961) $ (101,673) Adjusted Contractor’s Compensation after Over
(Under) Balancing $ 4,764,353 $ 4,717,975 $ 4,968,441
Service Rate Revenue for Collection Services per
Contractor’s Audited Financial Statements $ 4,866,026
Actual Revenues Over (Under) Adjusted Contractor’s
Compensation $ 101,673
Agenda Packet Page 239 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 21 of 82 746 4.02 Annual Indexed Adjustment to Contractor’s Compensation. Beginning on January 1, 2023, 747 and annually thereafter, Contractor shall, subject to compliance with all provisions of this Section, be eligible 748 for an annual adjustment to Contractors’ Compensation via an Indexed Adjustment calculated in 749 accordance with Exhibit 4 to this Agreement. On or before October 1, 2022, and annually thereafter during 750 the Term of this Agreement, Contractor shall deliver to City its application for adjustment to its 751 Compensation, including required financial information and the calculated Indexed Adjustment to 752 Contractor’s Compensation. Such financial information shall be in the format as may be mutually agreed 753 on between the City and Contractor. Contractor’s failure to provide the financial information shall not 754 preclude the City from applying the Indexed Adjustment using the prior year’s financial data, or pro forma 755 data if no prior year financial data is available, if that application would result in a negative adjustment to 756 Contractor’s Compensation. If Contractor fails to submit the financial information required by October 1, the 757 City at its sole and reasonable discretion, may consider a late request for the Indexed Adjustment. 758 4.03 Detailed Compensation Review. City reserves the right to conduct a detailed review of 759 Contractor’s Compensation no more frequently than every three years. Contractor reserves the right to 760 request a detailed Contractor’s Compensation review if variance arises in total actual costs as compared 761 to total indexed costs by greater than 5% in any year. The methodology to be followed, including 762 allowable and non-allowable expenses and expense limitations, is included in Exhibit 5. Contractor shall 763 pay the cost of the review that will be an allowable expense to be recovered during the following year and 764 then removed from Contractor’s Compensation.
765 4.04 Extraordinary Adjustment to Contractor’s Compensation. If a Change in Law occurs after 766 the Effective Date that City and Contractor agree increases Contractor’s allowable costs of operation, then 767 City and Contractor shall negotiate in good faith a reasonable and appropriate adjustment to Contractor’s 768 Compensation sufficient to offset Contractor’s increased allowable costs of operation resulting from the 769 Change in Law. As an exception to the preceding sentence, Contractor shall not be entitled to an adjustment 770 in Contractor’s Compensation with respect to the first $50,000 of increased costs incurred by Contractor 771 resulting from the Change in Law. The Parties may negotiate and agree on the amount of Contractor’s 772 Compensation adjustment pursuant to this Section 4.04 without a Detailed Compensation Review pursuant 773 to Section 4.03. Contractor shall bear the burden of justifying to City any adjustment due to a Change in 774 Law and shall bear its own costs of preparing its request for an adjustment and supporting documentation. 775 City may request from Contractor such further information as it reasonably deems necessary to fully 776 evaluate Contractor’s request and make its determination whether Contractor has satisfied its burden, 777 which determination shall not be unreasonably withheld. City shall notify Contractor of its determination 778 within ninety (90) calendar days of receipt of the written request and all other additional information 779 reasonably requested by City. Any such change will be implemented on the following January 1st, or within 780 any other time frame agreed upon between City and Contractor. The City Council shall consider 781 Contractor’s request and, based upon the information submitted, confirm whether the adjustment in 782 Contractor’s Compensation has been justified as necessary to offset Contractor’s increased allowable costs 783 of operation resulting from the Change in Law. The adjustment shall be memorialized in a written 784 amendment to this Agreement.
785 4.05 Performance Standards for Adjustments to Contractor’s Compensation. To be eligible for 786 an Indexed Adjustment to Contractor’s Compensation under Section 4.02, a detailed Compensation Agenda Packet Page 240 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 22 of 82 787 adjustment under Section 4.03, or an extraordinary adjustment under Section 4.04, Contractor must cure 788 any material default under Article 23 of this Agreement for which City has provided notice to Contractor. 789 4.06 Billing and Collection Services. Contractor may bill Service Recipients up to the maximum 790 Service Rates authorized by this Agreement, as confirmed by City Council resolution, and other charges 791 per Exhibit 3. Contractor is responsible for the billing and collection of payments for all Service Rates, IWM 792 Fees, and other charges.
793 4.06.1 Production of Invoices. The Contractor shall prepare, mail or electronically 794 transmit, and collect bills (or shall issue written receipts for cash payments) for services under this 795 Agreement in advance but no less than three (3) times per year. Billing shall not be permitted more than 15 796 days prior to the initiation of collection service period. Bills shall not be subject to late notification or charges 797 until 30 days following the closing day of the service period. Contractor shall include e-mail address on all 798 billing notices and shall accept payment by check, credit card or electronic fund transfer, with no fees 799 payable by the Service Recipient or bill payor. Contractor shall make credit card or electronic fund transfer 800 payment known and available on its website and on all paper or electronic bills. Billings shall include 801 sufficient space on the statement to accommodate up to 35 typed characters as specified by the City. Where 802 it has been determined that a Service Recipient has overpaid for service for any reason, Contractor must 803 provide the Service Recipient a credit against future invoices or a refund (where the account is closing or 804 as selected by the Service Recipient, and where the refund amount exceeds the lesser of the regular 805 invoicing amount or $200) within thirty (30) days of such determination. 806 4.06.2 Delinquent Service Accounts. Contractor shall be entitled to payment of Service 807 Rates and IWM Fees, and other charges from the Service Recipients. In the event of nonpayment from a 808 Service Recipient, the Contractor may temporarily stop collection as of the second scheduled collection 809 day after the payment due date until payment has been secured, or until the City Manager authorizes a 810 waiver or exemption from Collection Services as provided for in the City’s Municipal Code. Prior to stopping 811 Collection Services, the Contractor shall individually notify the Service Recipient in writing or by phone that 812 service will be stopped if payment is not secured. If payment is not secured after thirty (30) days from the 813 payment due date, the Contractor shall notify the City Manager in writing of the failure to pay and the date 814 that Collection Service was stopped. Upon notification, the City Manager will investigate whether the lack 815 of Collection Service constitutes a nuisance as defined in Chapter 8.34 of the City’s Municipal Code or 816 whether a waiver or exemption from Collection Service as provided for in the Municipal Code is allowable. 817 The City Manager may require the Contractor to continue to provide Collection Services for occupied 818 residences or businesses and may pursue nuisance abatement pursuant to Chapter 8.34 of the City’s 819 Municipal Code. Any cost recovery of abatement costs, as authorized pursuant to Chapter 8.34 of the City’s 820 Municipal Code, shall not be recoverable by recording a lien or special assessment against the parcel of 821 land on which the nuisance is or was maintained. Contractor shall provide the City with, and shall post on 822 its website, a written procedure through which a Service Recipient may contest billings. 823 4.06.3 Contractor must report to the Agreement Administrator, bi-monthly, all Service 824 Recipients who have received Collection Service and whose account is over ninety (90) days past due. The 825 Contractor may discontinue service to a Service Recipient who is delinquent in paying for Collection 826 Services rendered no earlier than 60 days after the last day of the billing period or that date on which the 827 billing for the service period is delivered to the Service Recipient, whichever is later. For this purpose, Agenda Packet Page 241 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 23 of 82 828 delivery of the billing shall include the date such billing is deposited by to Contractor into the U.S. Mail or 829 delivered electronically. The Contractor shall notify the Service Recipient and the City Manager in writing 830 of its intent to discontinue service not less than 10 business days before such discontinuation shall occur. 831 4.07 Service Rates. Contractor’s Compensation is paid to Contractor solely based on collection 832 of Service Rates from Service Recipients. The City and Contractor will annually meet and confer to prepare 833 recommended adjustments to Service Rates that will meet the Contractor’s Compensation for the coming 834 Calendar Year. The adjustments to the Service Rates are subject to consideration by the City Council to 835 confirm that they are consistent with this Agreement and meet the Contractor’s Compensation for the 836 following Calendar Year. The City Council’s determination regarding the proposed adjustments to the 837 Service Rates will be made by resolution of the City Council. 838 4.08 Procedures in Event of Invalidation of Adjustments to Service Rates. In the event that City 839 is unable by operation of Applicable Law to confirm a proposed adjustment to the Service Rates, or some 840 or all of the Service Rates are disallowed by operation of Applicable Law, Contractor will have the right, 841 within thirty (30) days after notice of any such inability to confirm or invalidation of a Service Rate 842 adjustment, to request, in writing, that City negotiate in good faith regarding alternative adjustments to 843 Service Rates and reductions in programs, services, or fees to compensate for any negative impact from 844 the unconfirmed or invalidated Service Rate adjustment. If City fails to commence negotiations in good faith 845 or negotiations are not completed within forty-five (45) days following the date of receipt of Contractor’s 846 request, either party may terminate this Agreement no earlier than one hundred and eighty (180) days after 847 written notice to the other.
848 Article 5. Diversion
849 5.01 Warranties and Representations. Contractor warrants that it is aware of and familiar with 850 City's Solid Waste system, and that it has the ability to provide sufficient programs and Collection Services 851 designed to ensure City will meet or exceed the diversion requirements as set forth in this Article 5, as well 852 as the diversion requirements of the Applicable Laws (including, without limitation, amounts of Solid Waste 853 to be diverted, time frames for diversion, and any other requirements) (including AB 939, AB 341, AB 1826, 854 AB 1594, SB 1016, and SB 1383, and all amendments and related subsequent legislation), and that it will 855 do so within Contractor’s Compensation as stipulated in this Agreement. 856 5.02 Mutual Cooperation. City and Contractor will reasonably cooperate in good faith with all 857 efforts by each other to meet City's diversion and other compliance requirements imposed by AB 939, AB 858 341, AB 1826, AB 1594, SB 1016, and SB 1383 and other Applicable Laws, and to meet Contractor’s 859 obligations under this Article 5. In this regard, City's obligations include, without limitation, making such 860 petitions and applications as may be reasonably requested by Contractor for time extensions in meeting 861 diversion goals, or other exceptions from the terms of Applicable Laws, and to agree to authorize such 862 changes to Contractor’s Organic Waste, or Garbage programs as may be reasonably requested by 863 Contractor in order to achieve the minimum requirements of this Article 5. 864 5.03 Guarantee. Except for programs currently required by Applicable Law but not set forth in 865 this Agreement, or programs Contractor is expressly instructed by City not to implement, or Collection 866 Services which a Service Recipient refuses to accept, Contractor shall implement the diversion programs 867 set forth in this Agreement such that: (i) Contractor and City will at all times be in compliance with the 868 requirements of the Applicable Laws applicable to them including specifically AB 939, AB 341, AB 1826, Agenda Packet Page 242 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 24 of 82 869 AB 1594, SB 1016, and SB 1383, and (ii) City will meet or exceed the diversion requirements (including, 870 without limitation, amounts of Solid Waste to be diverted, time frames for diversion, and any other 871 requirements) set forth in this Article 5 and the Applicable Laws including AB 939, AB 341, AB 1826, AB 872 1594, SB 1016, and SB 1383, and all amendments thereto. In this regard Contractor agrees that it will, in 873 addition to any other Agreement requirement, at its sole cost and expense:
874 5.03.1 Assist City in responding to inquiries from CalRecycle or any other regulatory 875 agency.
876 5.03.2 Assist City in applying for any extension, including under Public Resources Code 877 section 41820, if so directed by City.
878 5.03.3 Assist City in any hearing conducted by CalRecycle, or any other regulatory 879 agency, relating to City's compliance with the Applicable Laws including AB 939, AB 341, AB 1826, AB 880 1594, SB 1016, and SB 1383.
881 5.03.4 Provide City with other technical assistance as may be needed to comply with the 882 Applicable Laws including AB 939, AB 341, AB 1826, AB 1594, SB 1016, and SB 1383. 883 5.03.5 Be responsible for and pay any fees, fines, penalties or other costs imposed 884 against City by CalRecycle, and indemnify and hold harmless City from and against any fines, penalties, or 885 other liabilities, levied against it for violation of the diversion requirements, set forth in the Applicable Laws, 886 including AB 939, AB 341, AB 1826, AB 1594, SB 1016, and SB 1383, or for violation of any other provision 887 of the Applicable Laws, arising from or in any way related to Contractor's performance of its obligations 888 under this Agreement, provided, however, that all of Contractor’s obligations under this Article 5 shall be 889 subject to the provisions of Section 40059.1 of the Public Resources Code. 890 Article 6. Residential Services
891 6.01 Conditions of Service. Except as set forth below, Contractor must provide Residential 892 Collection Services to all Residential Service Recipients in the Service Area. Residential Collection Services 893 are governed by the following terms and conditions. 894 6.02 Weekly Service. Weekly Residential Collection Services include one (1) 32-Gallon 895 Garbage Cart (with the option to downsize to a 20- or upsize to a 64-Gallon Garbage Cart) and one (1) 64- 896 Gallon Organic Waste Cart as part of the base Residential Collection Service. The actual configuration of 897 Garbage and Organic Waste Cart sizes shall be at the option of the Service Recipient. Contractor shall 898 provide all Residential Service Recipients with at least one (1) 64-Gallon Organic Waste Cart by June 1, 899 2022.
900 6.03 Curb Service. Contractor must provide Residential Collection Service to all Residential 901 Service Recipients in the Service Area whose Residential Garbage is properly containerized in Garbage 902 Carts, Organic Wastes are properly containerized in Organic Waste Carts where the Garbage and Organic 903 Waste carts have been placed within six (6) feet of the curb, swale, paved surface of the public roadway, 904 closest accessible roadway, or other such location agreed to by Contractor and Service Recipient, that will 905 provide safe and efficient accessibility to Contractor's Collection crew and Collection Vehicle.
Agenda Packet Page 243 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 25 of 82 906 6.04 On-Premises Service. Notwithstanding any term or definition set forth in this Agreement, 907 Contractor must provide Collection of Residential Garbage and Organic Waste on the Residential Service 908 Recipients premises, including side or rear yard, as follows and at no additional Cost to the Service 909 Recipient.
910 6.04.1 Residential Service Recipients where all adult Service Recipients residing 911 therein have disabilities that prevent them from setting their Garbage or Organic Waste Cart at the curb 912 for Collection, and if a request for on-premises service has been made. 913 6.04.2 Residential Service Recipients where all adult Service Recipients residing 914 therein have medical or physical conditions that prevent them from setting their Garbage or Organic 915 Waste Cart at the curb for Collection, as determined by the City and agreed by the Contractor, and if a 916 request for on-premises service has been made.
917 6.04.3 Contractor must provide on-premises Collection Service on the same Work Day 918 that curbside Collection would otherwise be provided to the Residential Service Recipient. 919 6.05 Frequency and Scheduling of Service and Hours of Collection. Residential Collection 920 Service must be provided a minimum one (1) time per week on a scheduled route basis. Residential 921 Collection Service must be scheduled so that all Service Recipients receive Garbage Collection Service 922 and Organic Waste Collection Service on the same Work Day. Residential Collection Service must be 923 provided, commencing no earlier than 6:00 a.m. and terminating no later than 7:00 p.m., Monday through 924 Friday, except for Holidays. The City has the right, in coordination with the Contractor, to determine that the 925 Residential Collection Service commence no earlier than 7:00 a.m. The hours, day, or both of Collection 926 may be extended due to uncontrollable circumstances or conditions with the prior verbal or written consent 927 of the Agreement Administrator.
928 6.06 Manner of Collection. The Contractor must provide Residential Collection Service with as 929 little disturbance as possible and must leave any Garbage or Organic Waste Carts in an upright position 930 and with the lid closed at the same point it was Collected without obstructing alleys, roadways, driveways, 931 sidewalks or mail boxes. Contractor’s employees providing Residential Collection Service must follow the 932 regular walk for pedestrians while on private property and may not trespass nor cross property to the 933 adjoining premises unless the occupant or owner of both properties has given permission. Care should be 934 taken to prevent damage to property, including flowers, shrubs, and other plantings. 935 6.07 Non-Collection. Contractor is not required to Collect any Residential Garbage that is not 936 placed in a Garbage Cart. In the event of non-collection, Contractor will follow the steps set forth in Section 937 3.11. Contractor is not required to Collect Organic Waste if the Service Recipient does not segregate the 938 Organic Waste from Garbage or Recyclable Materials. Furthermore, Contractor is not required to Collect 939 Organic Wastes that are contaminated through commingling with Garbage or Recyclable Materials. 940 Contractor will address Contamination in accordance with Section 3.09. 941 6.08 Carts. Contractor shall procure and supply all Residential Service Recipients with new 942 Garbage and Recyclable Materials Carts by April 1, 2023. All Garbage, Organic Waste and Recyclable 943 Materials Carts must meet the color and labelling requirements of 14 CCR 18984 (a)-(c). Specifically, 944 Garbage Carts must be black or grey, Organic Waste Carts must be green, and Recyclable Materials Carts 945 must be blue, and with all such Cart colors subject to pre-approval by the City. Labels on all Carts must be Agenda Packet Page 244 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 26 of 82 946 durable long-lasting labels placed on the Cart lids and must specify what materials are allowed to be placed 947 in each container and items that are prohibited container Contamination for each container, subject to pre948 approval by the City. Contractor shall continue to procure and supply sufficient Carts as necessary to meet 949 the needs of all Residential Service Recipients for the duration of the Agreement. Contractor shall not be 950 entitled to or eligible for any change in Contractor’s Compensation for any expenses related to the Carts 951 purchased pursuant to the first sentence in this Section. Depreciation and interest expenses for all Carts 952 purchased by Contractor pursuant to the first sentence in this Section shall not be included in the amounts 953 of depreciation and interest used for the purposes of determining any Annual Indexed Adjustment to 954 Contractor’s Compensation per Section 4.02 nor for the purposes of a Detailed Compensation Review per 955 Section 4.03. City shall directly reimburse Contractor for the following costs associated with the Recyclable 956 Materials Carts (but not the Garbage Carts or Organic Waste Carts) purchased pursuant to the first 957 sentence of this Section: assembly and distribution, reclamation of existing carts for recyclable materials, 958 taxes, and freight. Contractor shall provide City with an invoice showing actual amounts paid for costs to 959 be reimbursed by City pursuant to the immediately preceding sentence. 960 6.09 Cart Exchange. Upon notification to Contractor by City or a Service Recipient that a change 961 in the size of a Cart is requested, Contractor must deliver such Cart to such Service Recipient within five 962 (5) Work Days.
963 6.10 Cart Replacement. Contractor’s employees must take care to prevent damage to Carts by 964 unnecessary rough treatment. However, any Cart damaged by the Contractor must be replaced by 965 Contractor, at Contractor's expense, within five (5) Work Days at no cost or inconvenience to the Service 966 Recipient.
967 6.10.1 Upon notification to Contractor by City or a Service Recipient that the Service 968 Recipient’s Cart(s) has been stolen or damaged beyond repair through no fault of Contractor, Contractor 969 must deliver a replacement Cart(s) to such Service Recipient within five (5) Work Days. Contractor must 970 maintain records documenting all Cart replacements occurring and report through the Waste Reporting 971 System.
972 6.10.2 Each Service Recipient is entitled to the replacement of one (1) lost, destroyed, 973 or stolen Cart every ten (10) years during the term of this Agreement at no cost to the Service Recipient. 974 Except in the case of a Cart that must be replaced because of damage caused by Contractor or in the case 975 where Contractor elects to replace a Cart rather than repair it on-site, Contractor may bill the Service 976 Recipient for the cost of those replacements in excess of one (1) per type of Cart per Service Recipient in 977 a ten (10) year period, in accordance a Cart Replacement charge per Exhibit 3. 978 6.10.3 Contractor understands and agrees that this provision is intended to be applied 979 on a per Cart type, individual Service Recipient basis and accordingly each Service Recipient could receive 980 up to two (2) replacement Carts, one (1) of each type, every ten (10) years during the term of the contract. 981 6.11 Cart Repair. Contractor is responsible for the repair of Carts, including but not be limited 982 to, hinged lids, wheels and axles. Within five (5) Work Days of notification by the City or a Service Recipient 983 of the need for such repairs, Contractor must repair the Cart or if necessary, remove the Cart for repairs 984 and deliver a replacement Cart to the Service Recipient.
Agenda Packet Page 245 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 27 of 82 985 6.12 Additional Cart Request. Upon notification to the Contractor by City or a Service Recipient 986 that additional Carts for Garbage or Organic Waste are requested, Contractor shall deliver such Carts to 987 such Service Recipient within five (5) Work Days. Contractor shall also notify the City of any Service 988 Recipient requests for additional Recycling Carts.
989 6.13 Holiday Tree Collection. Contractor must Collect Holiday Trees set out at the curb for Collection during the three-week period beginning December 26th 990 each year during the term of this 991 Agreement. Contractor must deliver the Collected Holiday Trees to the Organic Waste Processing Facility. 992 This annual service will be provided at no additional charge to the Service Recipient. Contractor is not 993 required to divert Holiday Trees with tinsel, flocking or ornaments. 994 6.14 Large Item Collection Service. Contractor must provide Large Item Collection Service to all 995 Residential Service Recipients in the Service Area whose Large Items have been placed within six (6) feet 996 of the curb, swale, paved surface of the public roadway, closest accessible roadway, or other such location 997 agreed to by Contractor and Service Recipient, that will provide safe and efficient accessibility to 998 Contractor's Collection crew and Collection Vehicle. Up to two (2) times per Calendar Year each Residential 999 Service Recipient is entitled to receive Large Item Collection amounting to a combined annual maximum of 1000 the equivalent of (a) eight (8) cubic yards of uncontainerized Garbage or Organic Waste, or (b) eight (8) 1001 Large Items, or (c) twenty-five (25) 32-gallon bags at no additional cost and expense. For subsequent 1002 collection in any Calendar Year, the Contractor may bill the Service Recipient the charge per Exhibit 3. 1003 6.14.1 Frequency of Service. Large Item Collection Service will be provided on the next 1004 regular Collection day if the request is received at least two (2) Work Days in advance of the next regular 1005 Collection day. The Service Recipient may not commingle Large Items with Garbage. 1006 6.14.2 Large Items Containing Freon. In the event Contractor Collects Large Items that 1007 contain Freon, Contractor must handle such Large Items in a manner such that the Large Items are not 1008 subject to regulation as Hazardous Waste under applicable State and Federal laws or regulations. 1009 6.14.3 Maximum Reuse and Recycling. Contractor must dispose of Large Items 1010 collected from Service Recipients pursuant to this Agreement in accordance with the following hierarchy:
1011 6.14.3.1 Reuse as is (where energy efficiency is not compromised). 1012 6.14.3.2 Disassemble for reuse or Recycling.
1013 6.14.3.3 Recycle.
1014 6.14.3.4 Disposal.
1015 6.14.4 Disposal of Large Items. Contractor may not landfill such Large Items unless the 1016 Large Items cannot be reused or recycled.
1017 6.14.5 City Direction of Large Items. City reserves the right to direct Contractor to take 1018 specific types of Large Items Collected pursuant to this Section to designated sites not more than twenty 1019 (20) miles from City Hall for the purpose of reuse or Recycling at no cost. Contractor has no obligation to 1020 dispose of the Large Item Residue remaining at the directed site or sites after scavengers and recyclers 1021 have removed reusable or recyclable Large Items.
Agenda Packet Page 246 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 28 of 82 1022 6.15 E-waste and U-waste Collection Service. Contractor shall provide Residential Service 1023 Recipients with three (3) times annual collection of E-waste and/or U-waste at no additional cost or 1024 expense.
1025 Article 7. Commercial Services
1026 7.01 Conditions of Service. Except as set forth below, Contractor must provide Commercial 1027 Collection Services to all Commercial Service Recipients in the Service Area. This service is governed by 1028 the following terms and conditions.
1029 7.02 Provision of Service. Contractor must provide Commercial Garbage Collection Service and 1030 Commercial Organic Waste Collection Service to all Commercial Service Recipients in the Service Area 1031 whose Garbage and Organic Waste are properly containerized in Containers. Contractor must offer 1032 Garbage Carts in 20-, 32- and 64-gallon sizes and Organic Waste Carts in 32- and 64-gallon sizes. 1033 Contractor must offer Garbage Bins in 1 and 2-cubic yard sizes and 1-cubic yards for Organic Waste Bins. 1034 The size of the container and the frequency (above the once weekly minimum) of collection will be 1035 determined between the Service Recipient and Contractor. However, the size and frequency must be 1036 sufficient to provide that no Garbage or Organic Waste need be placed outside the Container. The base 1037 Garbage Collection Service will include Commercial Organic Waste Collection Service as described below. 1038 7.03 Size and Frequency of Service. Commercial Collection Service must be provided as 1039 deemed necessary and determined between Contractor and the Commercial Service Recipient, but such 1040 service must be received no less than one (1) time per week. The size of Garbage and Organic Waste 1041 Containers and the frequency (above the minimum) of Collection will be determined between the 1042 Commercial Service Recipient and Contractor. However, size and frequency must be sufficient to provide 1043 that no Garbage or Organic Waste need be placed outside the Containers. Service Recipients may own 1044 and provide their own Compactor provided that the Service Recipient is completely responsible for its 1045 proper maintenance, and such Compactor is of a type that is compatible with Contractor's equipment. All 1046 other Containers used by Service Recipients must be owned and supplied by Contractor. 1047 7.04 Organic Waste Collection Service. Contractor shall provide all Commercial Service 1048 Recipients with one (1) 64-Gallon Organic Waste Cart by June 1, 2022. Additional Organic Waste Cart or 1049 Bin service may be requested by the Service Recipient, subject to Service Rates for those additional 1050 Containers. To be exempted from Commercial Organic Waste Collection Service, Service Recipient must 1051 apply for waiver per the City’s Municipal Code. All such waiver applications must be reported in the Waste 1052 Reporting System and approved by the City.
1053 7.04.1 Organic Waste - Improper Procedure. Contractor is not required to Collect Organic 1054 Waste if the Service Recipient does not separate the Organic Waste from Garbage and Recyclable 1055 Materials. Furthermore, Contractor is not required to collect Organic Waste that is contaminated through 1056 commingling with Garbage or Recyclable Materials. To address Contamination, Contractor must follow the 1057 steps set forth in Section 3.09.
1058 7.04.2 Additional Organic Waste Containers. Contractor must provide additional Organic 1059 Waste Containers to Service Recipients at Service Rates for those additional Containers, provided that 1060 additional Containers are used by Service Recipients for the proposes of setting out additional Organic 1061 Waste for regular weekly Organic Waste Collection Service Agenda Packet Page 247 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 29 of 82 1062 7.04.3 Compliance with AB 1826 and SB 1383. Contractor will develop and maintain its 1063 Commercial Organic Waste Collection Service in a manner designed to assist City and Service Recipients 1064 to achieve and maintain compliance with AB 1826 and SB 1383. Contractor will notify non-exempt covered 1065 Commercial Service Recipients of the requirements to comply with the law annually starting July 1, 2022 1066 and as requested by the City thereafter.
1067 7.05 Hours of Collection. Commercial Collection Service must be provided, commencing no 1068 earlier than 5:00 a.m., and terminating no later than 7:00 p.m., Monday through Saturday, except for 1069 Holidays. There will be no Commercial Collection Service on Sundays. The hours, day, or both of Collection 1070 may be extended due to uncontrollable circumstances or conditions with the prior verbal or written consent 1071 of the Agreement Administrator. The City has the right, in coordination with the Contractor, to determine 1072 that the Commercial Collection Service commence no earlier than 6:00 a.m. 1073 7.06 Accessibility. Contractor must Collect all Containers that are readily accessible to 1074 Contractor’s crew and Collection Vehicles and not blocked. 1075 7.07 Manner of Collection. Contractor must provide Commercial Collection Service with as little 1076 disturbance as possible and must leave any Container at the same point it originally located without 1077 obstructing alleys, roadways, driveways, sidewalks or mail boxes. 1078 7.08 Non-Collection. Contractor is not required to Collect any Commercial Garbage that is not 1079 placed in a Garbage Container unless such Commercial Garbage is outside the Garbage Container 1080 because of Overage. In the event of non-collection or Overage, Contractor must follow the steps as set 1081 forth in Section 3.10.
1082 7.09 Carts. Contractor shall procure and supply all Commercial Service Recipients that 1083 subscribe to Cart service with new Garbage and Recyclable Materials Carts by April 1, 2023. All Garbage, 1084 Organic Waste and Recyclable Materials Carts must meet the color and labelling requirements of 14 CCR 1085 18984 (a)-(c). Specifically, Garbage Carts must be black or grey, Organic Waste Carts must be green, and 1086 Recyclable Materials Carts must be blue, and with all such Cart colors subject to pre-approval by the City. 1087 Labels on all Carts must be durable long-lasting labels placed on the Cart lids and must specify what 1088 materials are allowed to be placed in each container and items that are prohibited container Contamination 1089 for each container, subject to pre-approval by the City. Contractor shall continue to procure and supply 1090 sufficient Carts as necessary to meet the needs of all Commercial Service Recipients for the duration of 1091 the Agreement. Contractor shall not be entitled to or eligible for any change in Contractor’s Compensation 1092 for any expenses related to the Carts purchased pursuant to the first sentence in this Section. Depreciation 1093 and interest expenses for all Carts purchased by Contractor pursuant to the first sentence in this Section 1094 shall not be included in the amounts of depreciation and interest used for the purposes of determining any 1095 Annual Indexed Adjustment to Contractor’s Compensation per Section 4.02 nor for the purposes of a 1096 Detailed Compensation Review per Section 4.03. City shall directly reimburse Contractor for the following 1097 costs associated with the Recyclable Materials Carts (but not the Garbage Carts or Organic Waste Carts) 1098 purchased pursuant to the first sentence of this Section: assembly and distribution, reclamation of existing 1099 carts for recyclable materials, taxes, and freight. Contractor shall provide City with an invoice showing actual 1100 amounts paid for costs to be reimbursed by City pursuant to the immediately preceding sentence.
Agenda Packet Page 248 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 30 of 82 1101 7.10 Bins. Contractor must make commercially reasonable efforts to distribute newly painted 1102 and labelled Bins to all Commercial Service Recipients in the Service Area that subscribe to Garbage, 1103 Organic Waste and Recycling Bin service by December 1, 2022 with such Bins meeting the color and 1104 labelling requirements of 14 CCR 18984 (a)-(c). All Garbage and Organic Waste Bins must display 1105 Contractor’s name and Contractor’s customer service telephone number and website and all Recycling 1106 Bins must display City’s name and City’s customer service telephone number and website. Garbage and 1107 Organic Waste Bins must be free of dents and painted as needed to maintain an orderly appearance 1108 throughout the term of the Agreement, but not less frequently than once every three years. Garbage and 1109 Organic Waste Bins may be subject to periodic, unscheduled inspections by City and determination as to 1110 sanitary condition will be made by City. Contractor shall continue to procure and supply sufficient Garbage 1111 and Organic Waste Bins as necessary to meet the needs of all Commercial Service Recipients for the 1112 duration of the Agreement. Contractor shall not be entitled to or eligible for any change in Contractor’s 1113 Compensation for any expenses related to the Bins purchased pursuant to the first sentence in this Section. 1114 Depreciation and interest expenses for all Bins purchased or upgraded by Contractor pursuant to the first 1115 sentence in this Section shall not be included in the amounts of depreciation and interest used for the 1116 purposes of determining any Annual Indexed Adjustment to Contractor’s Compensation per Section 4.02 1117 nor for the purposes of a Detailed Compensation Review per Section 4.03. 1118 7.11 Container Exchange. Upon notification to Contractor by City or a Service Recipient that a 1119 change in the size of their Containers is required, Contractor must deliver such Containers to such Service 1120 Recipient within five (5) Work Days.
1121 7.12 Container Replacement. Contractor’s employees must avoid damage to Containers by 1122 unnecessary rough treatment. Any Container damaged by the Contractor must be replaced by Contractor, 1123 at Contractor's expense, within five (5) Work Days at no cost or inconvenience to the Service Recipient. 1124 7.12.1 Upon notification to Contractor by City or a Service Recipient that the Service 1125 Recipient’s Cart(s) has been stolen or damaged beyond repair through no fault of Contractor, Contractor 1126 must deliver a replacement Cart(s) to such Service Recipient within five (5) Work Days. Contractor must 1127 maintain records documenting all Cart replacements occurring and report through the Waste Reporting 1128 System.
1129 7.12.2 Each Commercial Service Recipient is entitled to the replacement of one (1) lost, 1130 destroyed, or stolen Garbage and Organic Container every ten (10) years during the term of this Agreement 1131 at no cost to the Service Recipient. Accordingly, Contractor may bill the Service Recipient for the cost of 1132 those replacements in excess of one (1) Garbage and Organic Container per Commercial Service Recipient 1133 during the term of the Agreement, in accordance with the Container Replacement charge per Exhibit 3. 1134 Contractor must deliver a replacement Container to such Service Recipient within five (5) Work Days. 1135 7.13 Container Repair. Contractor is responsible for repair of Containers. Within five (5) Work 1136 Days of notification by City or a Service Recipient of the need for such repairs, Contractor must repair the 1137 Container or if necessary, remove the Container for repairs and deliver a replacement Container to the 1138 Service Recipient. Container repair also includes the removal of graffiti from the Container. 1139 7.14 Large Item Collection Service. Contractor must provide Large Item Collection Service to all 1140 Commercial Service Recipients in the Service Area that 1) include dwelling units and 2) whose Large Items 1141 have been placed within six (6) feet of the curb, swale, paved surface of the public roadway, closest Agenda Packet Page 249 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 31 of 82 1142 accessible roadway, or other such location agreed to by Contractor and Service Recipient, that will provide 1143 safe and efficient accessibility to Contractor's Collection crew and Collection Vehicle. 1144 7.14.1 General. Each Commercial Service Recipient that includes dwelling units is 1145 annually entitled to receive Large Item Collection of up to a combined annual maximum of the equivalent 1146 of (a) four (4) Large Items, or (b) twelve (12) 32-gallon bags of Garbage per dwelling unit for up to twenty 1147 (20) units at no additional cost and expense. The Contractor may bill the Service Recipient a charge per 1148 Exhibit 3 for Large Item Collection Service in excess of the annual amounts listed in this Section 7.14, 1149 provided that Contractor provides notice to the Commercial Service Recipient in advance of scheduling and 1150 providing Large Item Collection Service that would be subject to a charge. 1151 7.14.2 Frequency of Service. Large Item Collection Service will be provided to 1152 Commercial Service Recipients that include dwelling units within ten (10) Work Days of a request from the 1153 Commercial Service Recipient. The Service Recipient may not commingle Large Items with Garbage, and 1154 the Service Recipient may not use Large Item Collection Service as a supplement to regular Garbage or 1155 Organic Waste Collection Service.
1156 7.14.3 Contractor shall work with the property manager of each eligible Commercial 1157 Service Recipient to arrange for a Large Item Collection at a designated location within the Commercial 1158 Service Recipient on the scheduled Collection date. Only the property manager or other designated 1159 representative of an eligible Commercial Service Recipient may request and schedule Large Item 1160 Collection, not tenants.
1161 7.14.4 Contractor shall, in coordination with the City, develop and implement a program 1162 whereby eligible Commercial Service Recipients can notify their tenants of the availability of the Large Item 1163 Collection Service, and instructing the tenants to request Large Item Collection service through the property 1164 manager or other designated representative of the Commercial Service Recipient. 1165 7.14.5 Large Items Containing Freon. In the event Contractor Collects Large Items that 1166 contain Freon, Contractor must handle such Large Items in a manner such that the Large Items are not 1167 subject to regulation as Hazardous Waste under applicable State and Federal laws or regulations. 1168 7.14.6 Maximum Reuse and Recycling. Contractor must dispose of Large Items collected 1169 from Service Recipients pursuant to this Agreement in accordance with the following hierarchy:
1170 7.14.6.1 Reuse as is (where energy efficiency is not compromised). 1171 7.14.6.2 Disassemble for reuse or Recycling.
1172 7.14.6.3 Recycle.
1173 7.14.6.4 Disposal.
1174 7.14.7 Disposal of Large Items. Contractor may not landfill such Large Items unless the 1175 Large Items cannot be reused or recycled.
1176 7.14.8 City Direction of Large Items. City reserves the right to direct Contractor to take 1177 specific types of Large Items Collected pursuant to this Section to designated sites not more than twenty 1178 (20) miles from City Hall for the purpose of reuse or Recycling at no cost. Contractor has no obligation to Agenda Packet Page 250 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 32 of 82 1179 dispose of the Large Item Residue remaining at the directed site or sites after scavengers and recyclers 1180 have removed reusable or recyclable Large Items.
1181 Article 8. Roll-off Services
1182 8.01 Conditions of Service. Except as set forth below, Contractor must provide Roll-off 1183 Services to Service Recipients in the Service Area requesting such service. Roll-off Collection Services 1184 are governed by the following terms and conditions. Contractor has the exclusive right and obligation to 1185 provide Roll-off Service in the City.
1186 8.02 Frequency and Scheduling of Service and Hours of Collection. Roll-off Service is a non1187 regular temporary service and is scheduled and provided on the request of a Service Recipient in 1188 coordination with the Contractor. Roll-off Service is not a substitute for regular Residential or Commercial 1189 Collection Services. Roll-off Collection Service must not commence earlier than 6:00 a.m. and terminating 1190 no later than 7:00 p.m., Monday through Saturday, except for Holidays. 1191 8.03 Manner of Collection. The Contractor must provide Roll-off Collection Service with as little 1192 disturbance as possible and must leave any Roll-off Containers in a designated accessible location meeting 1193 the requirements of the City and the Service Recipient without obstructing alleys, roadways, driveways, 1194 sidewalks or mailboxes. Contractor’s employees providing Roll-off Collection Service must follow the 1195 regular walk for pedestrians while on private property and may not trespass nor cross property to the 1196 adjoining premises unless the occupant or owner of both properties has given permission. Care should be 1197 taken to prevent damage to property, including flowers, shrubs, and other plantings. Contractor is 1198 responsible for cleaning up any Garbage, Organic Waste, or C&D Waste that spills from any Roll-off 1199 Container during provision of Roll-off Collection Service. 1200 8.04 Roll-off Containers. Contractor is responsible for ensuring that its Roll-off Containers are 1201 well maintained, durable, safe, and labelled in accordance with Container contents. Any Roll-off Containers 1202 that may contain liquids shall be leak proof.
1203 Article 9.City Services
1204 9.01 Conditions of Service. Collection Services provided to City shall be governed by the 1205 following terms and conditions.
1206 9.02 Contractor shall provide Garbage and Organic Waste Collection Services to all City Service 1207 Recipients set forth in Exhibit 1 (and where applicable, subject to the conditions in this section), where the 1208 Containers are not blocked and are accessible by Contractor’s Collection Vehicles. The frequency of 1209 collection may be designated by the City, but not to exceed six (6) times per week per container. City may 1210 change the City Service Recipients receiving service, and the container volume and collection frequency 1211 provided to any City Service Recipient, by written notice to Contractor. 1212 9.03 Contractor shall receive written permission from the City before placing any Containers on 1213 City owned property for service, except that no such permission shall be needed to place Containers at 1214 locations specified for such Containers in Exhibit 1. 1215 9.04 Contractor shall limit the number of trips and the path of travel for Collection Vehicles in 1216 City parking lots.
Agenda Packet Page 251 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 33 of 82 1217 9.05 Public Area Garbage and Organic Waste Collection. At no additional cost or expense to 1218 the City, Contractor shall provide Garbage and Organic Waste Collection Service from Containers placed 1219 at the public-right-of-way locations designated by the City in Exhibit 6, in Containers provided by the City. 1220 Garbage and Organic Waste Containers shall be serviced on a regular schedule of no less than one (1) 1221 day per week, and up to five (5) days per week for high usage areas, or as-needed basis as directed by the 1222 City, to avoid any Overage of Garbage or Organic Waste. 1223 9.06 Clean-Up Services. Within two (2) Work Days of a request from the Agreement 1224 Administrator, Contractor shall provide Roll-off Containers to support City’s requested clean-up services in 1225 the Service Area. City shall be responsible for loading or arranging for loading of each Roll-off Container. 1226 Contractor shall collect, transport and deliver collected Garbage and Organic Waste to a Disposal Facility 1227 or Organic Waste Processing Facility, as appropriate given the characteristics of the load. Contractor shall 1228 deliver, and collect, transport and process the Garbage and/or Organic Waste from up to twenty-four (24) 1229 Roll-off Containers each Calendar Year at no charge to the City. Contractor shall provide written notice to 1230 the Agreement Administrator when twenty (20) such services have been provided. Contractor and City 1231 agree that Contractor shall not exceed twenty-four (24) such services except by written approval of the City. 1232 9.07 Clean-up of Downed Trees. Within one (1) Work Day of a request from the Agreement 1233 Administrator, Contractor shall provide Roll-off Containers to support City’s clean-up and removal of 1234 downed trees that result from natural events (storms, high winds etc.) in the Service Area. City shall be 1235 responsible for loading or arranging for loading of each Roll-off Container. Contractor shall collect, transport 1236 and deliver said Organic Waste to an Organic Waste Processing Facility. Contractor shall deliver, and 1237 collect, transport and process Organic Waste from up to ten (10) Roll-off Containers each Calendar Year 1238 at no charge to the City. Contractor shall provide written notice to the Agreement Administrator when eight 1239 (8) such services have been provided. Contractor and City agree that Contractor shall not exceed ten (10) 1240 such services except by written approval of the City. 1241 9.08 City Fire Prevention Clean-ups. Within four (4) Work Days of a request from the Agreement 1242 Administrator, Contractor shall provide Roll-off Containers to support City’s fire prevention efforts. 1243 Contractor shall collect, transport and deliver said Organic Waste to an Organic Waste Processing Facility. 1244 Contractor shall deliver, and collect, transport and process Organic Waste from up to twenty-four (24) Roll1245 off Containers each Calendar Year at no charge to the City. Contractor shall provide written notice to the 1246 Agreement Administrator when twenty (20) such services have been provided. Contractor and City agree 1247 that Contractor shall not exceed twenty-four (24) such services except by written approval of the City. 1248 9.09 City Roll-off Collection Service. Contractor shall provide Roll-off Collection Services to the 1249 City facilities locations identified in Exhibit 7. Contractor shall provide City with the prioritization of Roll-off 1250 Collection Service that it provides to other Service Recipients, and at the minimum sizes and frequencies 1251 of collection identified in Exhibit 7. Contractor will provide Roll-off Collection Service to the City within 36 1252 hours of request. Contractor may request a meet and confer with the City to add Roll-off routing capacity if 1253 needed service levels increase such that additional routing is needed to meet this service expectation. 1254 9.10 Abandoned Garbage/Illegal Dumping Reporting. When conducting service within the City, 1255 Contractor shall direct its Collection Vehicle drivers to report to Contractor sightings of illegal dumping of 1256 Garbage or Organics Waste by recording: (i) the addresses of any Service Recipient where Garbage, 1257 Recyclable Material, and/or Organic Waste is accumulating; and (ii) the address, or other location Agenda Packet Page 252 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 34 of 82 1258 description at which Garbage, Recyclable Material, and/or Organic Waste has been dumped. Contractor 1259 shall report to the City sightings and the recorded address within two (2) Work Days. 1260 9.11 Abandoned Garbage/Illegal Dumping Clean-up. At City’s direction, Contractor shall collect, 1261 transport and process dumped items from up to fifty (50) illegal dumping clean-up requests per year at no 1262 additional charge to City. Contractor shall respond to clean up items within one (1) Work Day. Contractor 1263 shall provide written notice to the Agreement Administrator when forty (40) such services have been 1264 provided. Contractor and City agree that Contractor shall not exceed fifty (50) such services except by 1265 written approval of the City.
1266 9.12 City-Sponsored Events Service. Upon request by the City, Contractor shall provide 1267 Garbage and Organic Waste Containers and Collection Services at up to five (5) City-Sponsored Events 1268 annually at no cost to the City.
1269 9.13 Large Item Collection Service. Contractor shall collect Large Items, including E-Waste and 1270 Universal Waste, from City Service Recipients as listed on Exhibit 1 on an on-call basis on the same terms 1271 and conditions as are provided to Residential Service Recipients. 1272 Article 10. Back-up Recycling Collection Services
1273 10.01 Back-up Recycling Collection Service by Contractor Collection Vehicle driven by 1274 Contractor Driver. Contractor shall, upon request by the City, provide back-up Collection Vehicles to be 1275 driven by a Contractor driver(s), to provide collection of Recyclable Materials, subject to compliance with all 1276 applicable collective bargaining agreements and the availability of said Collection Vehicles accompanied by 1277 Contractor drivers. The provisions of this Agreement pertaining to liability and insurance shall apply to 1278 Contractor’s Collection Vehicles and drivers while provided to the City under this Section 10.01. Upon such 1279 a request by the City, Contractor shall coordinate with the City to provide the Collection Vehicles and 1280 Contractor drivers for back-up collection of Recyclable Materials and shall do so in a manner meeting the 1281 Collection Service expectations contained in this Agreement. Contractor will be compensated by City for 1282 provision of the back-up Collection Vehicles and Contractor drivers based upon the charges listed in Exhibit 1283 3. The City and Contractor may enter into a separate agreement regarding use of the Contractors drivers if 1284 necessitated by applicable collective bargaining agreements. 1285 10.02 Contractor shall also, upon request by the City, provide back-up Collection Vehicles for use 1286 by City drivers to provide collection of Recyclable Materials, subject to the availability of said Collection 1287 Vehicles. Upon such a request by the City, Contractor shall coordinate with the City to provide Collection 1288 Vehicles for use by City drivers for back-up collection of Recyclable Materials and shall do so in a manner 1289 meeting the Collection Service expectations contained in this Agreement. Contractor will be compensated 1290 by City for provision of back-up Collection Vehicles based upon the charges listed in Exhibit 3. The City and 1291 Contractor shall enter into a separate agreement to address allocation of liability and application of insurance 1292 related to City driver use of Contractor’s back-up Collection Vehicles. City and Contractor may enter into a 1293 separate agreement regarding Contractor’s providing back-up Collection Vehicles to provide such collection 1294 of Recyclable Materials.
Agenda Packet Page 253 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 35 of 82 1295 Article 11. Collection Routes
1296 11.01 Service Routes. Contractor must provide City with and publicly display on its website maps 1297 precisely defining Collection routes, together with the days and the times at which Collection will regularly 1298 commence. Contractor shall update such maps on its website within four (4) Work Days of any change in 1299 Collection routes.
1300 11.02 Service Route Changes. Contractor must submit to City, in writing, any proposed route 1301 change (including maps thereof) not less than sixty (60) calendar days prior to the proposed date of 1302 implementation. Contractor may not implement any route changes without the prior review of the Agreement 1303 Administrator. If the change will change the Collection day for a Service Recipient, Contractor must notify 1304 those Service Recipients in writing of route changes not less than thirty (30) days before the proposed date 1305 of implementation.
1306 11.03 Collection Route Audits. City reserves the right to conduct audits of Contractor’s Collection 1307 routes. Contractor must cooperate with City in connection therewith, including permitting City employees or 1308 agents, designated by the Agreement Administrator, to ride in the Collection Vehicles to conduct the audits. 1309 Contractor has no responsibility or liability for the salary, wages, benefits or worker compensation claims of 1310 any person designated by the Agreement Administrator to conduct such audits. 1311 11.04 Route Map Update. Contractor must revise the Service Recipient route maps to show the 1312 addition of Service Recipients added due to annexation and must provide such revised maps to the 1313 Agreement Administrator as requested.
1314 Article 12. Minimum Performance Standards
1315 12.01 Administrative Charges and Penalties. Administrative charges and penalties as detailed in 1316 Exhibit 2 may be assessed on the Contractor by the City pursuant to this Agreement. Charges and penalties 1317 will be adjusted by the change in the CPI All Other a maximum of one time annually. 1318 12.02 Billing/Financial Audit and Performance Reviews. Contractor shall review its billings to all 1319 Service Recipients. The purpose of the review is to determine that the amount which the Contractor is billing 1320 each Service Recipient is correct with regard to the level of service (i.e., frequency of collection, size of 1321 container, location of container) and Service Rates and charges in effect at the time. The Contractor shall 1322 review Service Recipient accounts not less than every two (2) years and provide a written certification to the 1323 City that all such billing is correct. The documentation of the review, as well as verification that any errors 1324 have been corrected should be provided to the City within thirty (30) days of Contractor’s completion of the 1325 billing review.
1326 12.02.1 Selection and Cost. City may conduct billing audit, financial audit and performance 1327 reviews (together, “reviews”) of Contractor’s performance at any time during the term of this Agreement. The 1328 reviews will be performed by the City or a qualified firm under contract to City. City will have the final 1329 responsibility for the selection of the firm. City may conduct reviews at any time during the term of the 1330 Agreement. City and Contractor agree to each pay fifty percent (50%) of the cost of the audits and 1331 performance reviews.
1332 12.02.2 Purpose. The reviews will be designed to verify that billings have been properly 1333 calculated and they correspond to the level of service received by the Service Recipient, verify that Agenda Packet Page 254 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 36 of 82 1334 Contractor is correctly billing for all Collection Services provided, Franchise Fees, Integrated Waste 1335 Management Fees required under this Agreement have been properly calculated and paid to City, verify 1336 Contractor’s compliance with the reporting requirements and performance standards of this Agreement, 1337 verify the diversion percentages reported by Contractor, and verify any other provisions of the Agreement. 1338 City (or its designated consultant) may utilize a variety of methods in the execution of this review, including, 1339 but not limited to, analysis of relevant documents, on-site and field observations, and interviews. City (or its 1340 designated consultant) will review and document the items in the Agreement that require Contractor to meet 1341 specific performance standards, submit information or reports, perform additional services, or document 1342 operating procedures, that can be objectively evaluated. This information will be documented and be 1343 formatted in a “compliance checklist” with supporting documentation and findings tracked for each of the 1344 identified items. City (or its designated consultant) may review the customer service functions and structure 1345 utilized by Contractor. This may include Contractor’s protocol for addressing complaints and service 1346 interruption procedures. Complaint logs may be reviewed, along with procedures and systems for tracking 1347 and addressing complaints. On-site and field observations by City (or its designated consultant) may include, 1348 but are not necessarily limited to:
1349 1. Interviews and discussions with Contractor’s administration and management personnel; 1350 2. Review and observation of Contractor’s customer service functions and structure; 1351 3. Review of public education and outreach materials; 1352 4. Interviews and discussions with Contractor’s financial and accounting personnel; 1353 5. Interviews with route dispatchers, field supervisors and managers; 1354 6. Interviews with route drivers;
1355 7. Interviews with Collection Vehicle maintenance staff and observation of maintenance practices; 1356 and
1357 8. Review of on-route Collection Services, including observation of driver performance and 1358 collection productivity and visual inspection of residential routes before and after collection to 1359 evaluate cart placement and cleanliness of streets. 1360 12.02.3 Contractor’s Cooperation. Contractor shall cooperate fully with the review and 1361 provide all requested data, including operational data, financial data and other data reasonably requested 1362 by City within fifteen (15) Work Days of the request. 1363 12.02.4 Additional Billing/Financial Audit and Performance Review. In the event that the 1364 Billing/Financial Audit and Performance Review concludes that Contractor is not in compliance with all terms 1365 and conditions of this Agreement and such non-compliance is material, Contractor is subject to 1366 administrative charges and penalties as described in Exhibit 2 as well as reimbursement to the City for the 1367 full cost of the audit plus any underpayments discovered during the Audit. Additionally, City may conduct an 1368 Additional Billing Audit and Performance Review to ensure that Contractor has cured any such area of non1369 compliance. Contractor will be responsible for the cost of any such Additional Billing/Financial Audit and 1370 Performance Review for a maximum cost of Fifty Thousand Dollars ($50,000) to be adjusted by the annual 1371 change in the CPI All Other a maximum of one time annually. 1372 12.02.5 City Requested Program Review. City reserves the right to require Contractor to 1373 periodically conduct reviews of the Residential and Commercial Garbage and Organic Waste collection 1374 programs, provided that such reviews are reasonable and can be accomplished at no additional cost to 1375 Contractor and without interfering with Contractor’s operations. Such reviews could assess one or more of Agenda Packet Page 255 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 37 of 82 1376 the following performance indicators: average volume of Organic Waste per setout per Service Recipient, 1377 participation level, Contamination levels, etc. Prior to the program evaluation review, City and Contractor will 1378 meet and discuss the purpose of the review and agree on the method, scope, and data to be provided by 1379 Contractor.
1380 Article 13. Collection Equipment
1381 13.01 Equipment Specifications. All equipment used by Contractor in the performance of 1382 Collection Services under this Agreement must be of a high quality and meet all Federal, State, and local 1383 regulations and air quality standards. Collection Vehicles must be designed and operated so as to prevent 1384 collected materials from escaping from the Collection Vehicles. Hoppers must be closed on top and on all 1385 sides with screening material to prevent collected materials from leaking, blowing or falling from the 1386 Collection Vehicles. All Collection Vehicles and Containers must be watertight and must be operated so that 1387 liquids do not spill during Collection or in transit. 1388 13.01.1 Collection Vehicles. Contractor shall make commercially reasonable efforts to 1389 operate primary Collection Vehicles that do not exceed ten (10) years from the date of manufacture, except 1390 for backup and Roll-off Collection Vehicles. Contractor must notify City of a need to use any Collection 1391 Vehicle exceeding ten (10) years from the date of manufacture as a primary Collection Vehicle. Such 1392 notification must accompany documentation demonstrating that such Collection Vehicle is in good operating 1393 condition, meets required safety and emissions standards, and is free of leaks. Collection Vehicles must use 1394 renewable diesel. During the Term, to the extent required by law, Contractor shall provide its Collection 1395 Vehicles to be in full compliance with all Applicable Laws, including State and Federal clean air requirements 1396 that are adopted or proposed to be adopted, including, but not limited to, the California Air Resources Board 1397 Heavy Duty Engine Standards as currently proposed to be contained in California Code of Regulations, title 1398 13, sections 2020 et seq., the Federal EPA’s Highway Diesel Fuel Sulfur regulations and all other applicable 1399 air pollution control laws. Collection Vehicles used for Collection of Large Items may not use compactor 1400 mechanisms or mechanical handling equipment that may damage reusable goods or release Freon or other 1401 gases from pressurized appliances.
1402 13.01.2 Fleet Planning. Contractor will work with the City to replace Contractor’s current 1403 Collection Vehicles (as inventoried pursuant to Section 13.06) with Collection Vehicles that will reduce 1404 carbon emissions. As of the Effective Date of this Agreement, Contractor will fuel all diesel Collection 1405 Vehicles with renewable diesel.
1406 13.01.3 Electric or Zero Emission Collection Vehicles. At such time as it is technologically 1407 and economically feasible, and unless a “Notice of Non-Extension” has previously been provided by either 1408 party per Section 2.03, Contractor shall purchase electric or other zero emission Collection Vehicles and 1409 procure electricity or other fuel from qualifying sources to support procurement goals. City and Contractor 1410 shall proactively take such steps as are necessary to plan for, and upon City direction, execute transition of 1411 the Contractor’s Collection Vehicles to reliance on electricity or other zero emission technologies as a fuel 1412 source. Contractor shall report to the City no less than annually on the status of the transition. The City and 1413 Contractor shall, no less than annually, confer on the degree to which it is technologically and economically 1414 feasible to transition some or all Collection Vehicles to electricity or other zero emission technology. In 1415 determining whether it is economically feasible to transition Collection Vehicles per this Section, the City and 1416 Contractor shall review and evaluate Contractor’s current and historical finances and profitability compared Agenda Packet Page 256 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 38 of 82 1417 to the targeted Operating Ratio listed in Exhibit 5. The transition to electric or other zero emission Collection 1418 Vehicles will be economically feasible when the cost, including depreciation and interest, of each such 1419 proposed electric or other zero emission Collection Vehicle that is in excess of the cost, including 1420 depreciation and interest, of a conventional diesel Collection Vehicle is projected, taking into account 1421 Contractor’s projected revenue and other net operating costs, exclusive of Pass-Through Costs and Non1422 Allowable Costs, and without a Compensation adjustment, to achieve an Operating Ratio of ninety and one1423 half percent (90.5%) or less. Upon a determination by the City that it is technologically and economically 1424 feasible to transition some or all Collection Vehicles to electricity or other zero emissions technology, 1425 Contractor shall proceed to purchase and operate such vehicles on a schedule mutually agreed to by 1426 Contractor and City, and Contractor shall only be entitled to or eligible for a change in Contractor’s 1427 Compensation for the cost, including depreciation and interest, of replacement diesel Collection Vehicles 1428 but not for the excess cost, including depreciation and interest, of transitioning to electric or zero emission 1429 Collection Vehicles. For the purposes of determining any Annual Indexed Adjustment to Contractor’s 1430 Compensation per Section 4.02, and for the purposes of conducting any Detailed Compensation Review per 1431 Section 4.03, depreciation and interest expenses for all Collection Vehicles purchased by Contractor 1432 pursuant to this Section shall not include any amounts of depreciation and interest above the amounts that 1433 would have been incurred had Contractor replaced Collection Vehicles with diesel Collection Vehicles and 1434 not transitioned to electric or zero emission Collection Vehicles per this Section. Contractor shall be entitled 1435 to a change in Contractor’s Compensation for construction of an electric charging or other fueling station, 1436 subject to the mutual agreement of the City and Contractor and approval of the City Council. Contractor will 1437 coordinate with the City in finding or constructing a suitable charging or other fueling station for Contractor’s 1438 electric or other zero emission Collection Vehicles. 1439 13.01.4 Collection Vehicle Size Limitations / Overweight Vehicle Charge. Contractor may 1440 not use any Collection Vehicle in violation of weight limitations in Applicable Law. The Contractor may 1441 exceed the Collection Vehicle size limitation for a limited time due to extraordinary circumstances or 1442 conditions with the prior written consent of the Agreement Administrator. The limited time may not exceed 1443 120 days. Contractor must report all instances of overweight Collection Vehicles to City quarterly and as part 1444 of its Annual Reports to the City. Contractor may be assessed administrative charges as specified in Article 1445 12 as a result of exceeding an overweight Collection Vehicle rate of five percent (5.00%) in any Calendar 1446 Year during the term of the Agreement, except to the extent resulting from extraordinary circumstances, as 1447 described below. The overweight Collection Vehicle rate will be calculated as the total number of overweight 1448 Collection Vehicle instances during the Calendar Year, divided by the total number of Collection Vehicle 1449 loads transported during the Calendar Year. Prior to collecting administrative charges for overweight 1450 Collection Vehicles, the City shall afford Contractor a reasonable opportunity to provide the Agreement 1451 Administrator documentation of the extraordinary circumstance that caused the overweight Collection 1452 Vehicles. Extraordinary circumstances in this particular case include, but may be limited to, heavy rains or 1453 high winds that caused excess Green Waste to be generated, rain to accumulate in open Containers, or 1454 normal Collection routes to be delayed or shortened to extreme weather conditions. The Agreement 1455 Administrator shall have authority to consider Contractor’s documentation and uphold and collect the 1456 assessed charge, to reduce the charge, or waive and dismiss the charge. The Agreement Administrator 1457 shall also have the authority to waive charges in advance of an anticipated, or in response to an actual, 1458 emergency event.
Agenda Packet Page 257 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 39 of 82 1459 13.01.5 Registration; Inspection. All Collection Vehicles used by Contractor in providing 1460 Collection Services under this Agreement, except those Collection Vehicles used solely on Contractor’s 1461 premises, are to be registered with the California Department of Motor Vehicles. In addition, each such 1462 Collection Vehicle must be inspected by the California Highway Patrol in accordance with Applicable Law. 1463 Within two (2) Work Days of a request from the Agreement Administrator, Contractor must provide City a 1464 copy of its Collection Vehicle maintenance log and any safety compliance report, including, but not limited 1465 to, any report issued under California Vehicle Code sections 34500 and following, as well as the biennial 1466 “BIT” inspections conducted by the California Highway Patrol. 1467 13.01.6 Safety Markings. All Collection equipment used by Contractor must have 1468 appropriate safety markings including, but not limited to, highway lighting, flashing and warning lights, 1469 clearance lights, and warning flags. All such safety markings must be in accordance with the requirements 1470 of the California Vehicle Code, as may be amended from time to time. 1471 13.01.7 Vehicle Signage and Painting. Collection Vehicles must be painted and numbered 1472 without repetition and must have Contractor's name, Contractor’s customer service telephone number, 1473 website and the number of the Collection Vehicle painted in letters of contrasting color, at least four (4) 1474 inches high, on each side and the rear of each Collection Vehicle. No advertising is permitted other than the 1475 name of Contractor, its logo and registered service marks, except promotional advertisement of the Organic 1476 Waste programs, which is encouraged. City to approve any promotional material of the Organic Waste 1477 Programs affixed to or painted on Contractor’s Collection Vehicles and may require such promotion to be 1478 utilized from time to time in order to encourage correct Recycling, reduce Contamination, and provide 1479 relevant education. Contractor must repaint all Collection Vehicles during the term of this Agreement on a 1480 frequency as necessary to maintain a positive public image as reasonably determined by the Agreement 1481 Administrator, but not less often than once every five years beginning January 1, 2023. 1482 13.02 Vehicle Certification. For each Collection Vehicle used in the performance of Collection 1483 Services under this Agreement, Contractor must obtain a certificate of compliance (smog check) issued 1484 pursuant to Part 5 of Division 26 of the California Health and Safety Code (Section 43000 and following) and 1485 regulations promulgated thereunder and/or a safety compliance report issued pursuant to Division 14.8 of 1486 the California Vehicle Code (Section 34500 and following) and the regulations promulgated thereunder, as 1487 applicable to the Collection Vehicle. Contractor must maintain copies of such certificates and reports and 1488 must make such certificates and reports available for inspection upon request by the Agreement 1489 Administrator.
1490 13.03 No later than January 1, 2023, Contractor must submit to the Agreement Administrator 1491 verification that each of the Contractor’s Collection Vehicles has passed the California Heavy Duty Vehicle 1492 Inspection. Thereafter, Contractor must cause each Collection Vehicle in Contractor’s Collection fleet to be 1493 tested annually in the California Heavy Duty Inspection Program and must, upon request, submit written 1494 verification to City within ten (10) Work Days of the completion of such test. Contractor may not use any 1495 Collection Vehicle that does not pass such inspection. 1496 13.04 Equipment Maintenance. Contractor must maintain Collection equipment in a clean 1497 condition and in good repair at all times. All parts and systems of the Collection equipment must operate 1498 properly and be maintained in a condition satisfactory to City. Contractor must wash all Collection Vehicles 1499 at least once a week.
Agenda Packet Page 258 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 40 of 82 1500 13.05 Maintenance Log. Contractor must maintain a maintenance log for all Collection Vehicles. 1501 The log must at all times be accessible to City by physical inspection upon request of Agreement 1502 Administrator, and must show, at a minimum, each Collection Vehicle Contractor assigned identification 1503 number, date purchased or initial lease, dates of performance of routine maintenance, dates of performance 1504 of any additional maintenance, and description of additional maintenance performed. 1505 13.06 Equipment Inventory. On or before July 1, 2022 Contractor shall provide to City an 1506 inventory of Collection Vehicles and major equipment used by Contractor for Collection or transportation 1507 and performance of Collection Services under this Agreement. The inventory must indicate each Collection 1508 Vehicle by Contractor assigned identification number, DMV license number, the age of the chassis and body, 1509 type of fuel used, the type and capacity of each Collection Vehicle, the number of Collection Vehicles by 1510 type, the date of acquisition, the decibel rating and the maintenance and rebuild status. Contractor must 1511 submit to the Agreement Administrator, either by e-mail, an updated inventory annually to the City or more 1512 often at the request of the Agreement Administrator. Each inventory must also include the tare weight of 1513 each Collection Vehicle as determined by weighing at a certified scale used by Contractor. Each Collection 1514 Vehicle inventory must be accompanied by a certification signed by Contractor that all Collection Vehicles 1515 meet the requirements of this Agreement.
1516 13.07 Reserve Equipment. Contractor shall have available to it, at all times, reserve Collection 1517 equipment which can be put into service and operation within one (1) hour of any breakdown. Such reserve 1518 equipment must correspond in size and capacity to the equipment used by the Contractor to perform the 1519 contractual duties.
1520 Article 14. Contractor’s Office
1521 14.01 Contractor’s Office. Contractor shall maintain an office or call center where calls, emails 1522 and complaints can be received within the City. Such office must be equipped with enough telephones that 1523 all Collection Service-related calls received during normal business hours are answered by an employee. 1524 The office must have responsible persons in charge during Collection hours and must be open during such 1525 normal business hours, 7:30 a.m. to 3:30 p.m. on Monday through Friday. Contractor must provide either a 1526 local or toll-free telephone number that connects to the call center, and a telephone answering service or 1527 mechanical device to receive Service Recipient inquiries during those times when the office is closed. Calls 1528 received after normal business hours must be addressed the next Work Day morning. 1529 14.02 Emergency Contact. Contractor must provide the Agreement Administrator with an 1530 emergency phone number where the Contractor can be reached outside of the required office hours. 1531 14.03 Multilingual/TDD Service. Contractor’s service and emergency telephone numbers must 1532 be accessible by a local (City) phone number or toll-free number. Contractor shall also maintain service and 1533 emergency telephone numbers accessible by teletypewriter (TTY) devices, including cellphone and 1534 smartphone. The service telephone number(s) shall be listed in the telephone directories covering City’s 1535 boundaries and must be under Contractor’s name in the commercial and residential listings. Contractor’s 1536 service and emergency numbers, including TTY numbers, shall be available through an online search and 1537 listed on the Contractor’s website. Contractor must at all times maintain the capability of responding to 1538 telephone calls in English and such other languages as City may direct. Contractor must at all times maintain 1539 the capability of responding to telephone calls through Telecommunications Device for the Deaf (TDD) 1540 Services.
Agenda Packet Page 259 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 41 of 82 1541 14.04 Service Recipient Calls. During office hours, Contractor must maintain a telephone 1542 answering system capable of accepting at least five (5) incoming calls at one time. Contractor must record 1543 all calls including any inquiries, service requests and complaints into a customer service log. All incoming 1544 calls will be answered at the local office or call center within 5 rings. Any call “on-hold” in excess of 1.5 1545 minutes must have the option to remain “on-hold” or request a “call-back” from a customer service 1546 representative. Contractor’s customer service representatives must return Service Recipient calls and 1547 emails. For all phone messages left before 3:00 p.m., all “call backs” must be attempted a minimum of one 1548 time prior to 3:00 p.m. on the day of the call. For messages left after 3:00 p.m., all “call backs” must be 1549 attempted a minimum of one time prior to noon the next Work Day. Contractor must make minimum of three 1550 (3) attempts within one (1) Work Day of the receipt of the call. If Contractor is unable to reach the Service 1551 Recipient on the next Work Day, Contractor must send a postcard or email to the Service Recipient on the 1552 second Work Day after the call was received, indicating that the Contractor has attempted to return the call. 1553 Email messages must be responded to within one (1) Work Day. 1554 14.05 Customer Service. All service inquiries and complaints will be directed to Contractor. A 1555 representative of Contractor must be available to receive the complaints during normal business hours. 1556 Contractor is required to maintain a Customer Service Management System for handling of complaints 1557 received by the Contractor or City for Collection Services provided by this Agreement. All service complaints 1558 will be handled by Contractor in a prompt and efficient manner. Complaints must be addressed and resolved 1559 within three (3) Work Days. In the case of a dispute between Contractor and a Service Recipient, the matter 1560 will be reviewed, and a decision made by the Agreement Administrator. By June 1, 2023, Contractor will 1561 utilize a new Customer Service Management System to maintain a record of all inquiries and complaints in 1562 a manner prescribed by City. The Customer Service Management System shall also provide for City’s 1563 access to it and include, but not be limited to, the functionalities listed below:
1564 14.05.1 Real time identification of service days and routing. 1565 14.05.2 Identification of stopped accounts and generation of daily stop lists. 1566 14.05.3 Service Recipient address and contact information. 1567 14.05.4 Tracking of Containers by address and service location. 1568 14.05.5 Tracking of Garbage, Organic Waste and Recycling routes and service days. 1569 14.05.6 Tracking of Container deliveries, late-set outs and missed pickups. 1570 14.05.7 Creation of route sheets and delivery lists for Garbage, Organic Waste and 1571 Recycling routes.
1572 14.05.8 Notations for any special services, on-premises services, or special conditions for 1573 any Service Recipient.
1574 14.05.9 Documentation of any Service Recipient site visits conducted by Contractor or City. 1575 14.05.10 Documentation of all Contamination or Overages. 1576 14.05.11 Allow for attachment of photos, notices, other documentation in a Service 1577 Recipients account.
Agenda Packet Page 260 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 42 of 82 1578 14.05.12 Schedule, tracking and documentation of Large Item collections and City 1579 provided Recycling clean-ups.
1580 14.05.13 Generation of statistics including number of stops, lifts, and accounts per 1581 route per day.
1582 14.05.14 Direct emails to Service Recipients.
1583 14.05.15 Geocoding of Service Recipient service addresses for maps, routings and 1584 stop lists.
1585 14.06 Complaints. For those complaints related to missed Collections, where Containers are 1586 properly and timely set out, that are received by 12:00 noon on a Work Day, Contractor will return to the 1587 Service Recipient address and Collect the missed materials before leaving the Service Area for the day. For 1588 those complaints related to missed Collections that are received after 12:00 noon on a Work Day, Contractor 1589 will have until the end of the following Work Day to resolve the complaint. For those complaints related to 1590 repair or replacement of Containers, the appropriate Sections of this Agreement will apply. 1591 14.07 Contractor agrees that it is in the best interest of City that all Residential Garbage and 1592 Organic Waste be collected on the scheduled Collection day. Accordingly, missed Collections will normally 1593 be Collected as set forth above regardless of the reason that the Collection was missed. However, in the 1594 event a Service Recipient requests missed Collection service more than two (2) times in any consecutive 1595 two (2) month period the Agreement Administrator will work with Contractor to determine an appropriate 1596 resolution to that situation. In the event Contractor believes any complaint to be without merit, Contractor 1597 will notify the Agreement Administrator, by e-mail. The Agreement Administrator will investigate all disputed 1598 complaints and render a decision.
1599 Article 15. Support Services
1600 15.01 Compliance Representative. Contractor will designate staff to conduct site visits and 1601 provide outreach and education in support of meeting CalRecycle diversion requirements and to meet State 1602 mandates associated with AB 939, AB 341, AB 1826, AB 827, AB 1594, SB 1016, and SB 1383, and all 1603 amendments and related subsequent legislation. The designated staff shall be available as needed to meet 1604 with the City and conduct site visits to implement diversion programs in the Service Area at least four (4) 1605 days per week. The Contractor staff designated pursuant to this section shall also meet with the City to 1606 discuss provision of services under this Agreement no less than quarterly. 1607 15.02 Compost Procurement and Delivery. At no cost to the City, Contractor must provide City 1608 up to 480 cubic yards of Compost annually, delivered to a location and on a schedule as agreed to between 1609 the Contractor and the City.
1610 15.03 Route Reviews. At least once annually, beginning in 2022, Contractor shall conduct a route 1611 review for each of its routes. The number of Containers to review per route shall be calculated on the basis 1612 of the number of Garbage accounts provided service by a specific route for one week. For example, if 1613 “Route A” collects Garbage from 250 accounts, 4 days per week for a total of 1,000 accounts per week; 1614 include a minimum of 25 accounts for the route review of “Route A”. For each route review Contractor shall 1615 inspect at least the following minimum number of Containers but may inspect more if Contractor deems 1616 necessary; and shall inspect all Containers placed for collection (including Recycling Containers, Organic Agenda Packet Page 261 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 43 of 82 1617 Waste Containers, and Garbage Containers). Each inspection shall involve lifting the Container lid and 1618 observing the contents but shall not require Contractor to disturb the contents or open any bags. If 1619 Contractor observes Contamination Contractor shall follow the provisions outlined in Section 3.09. 1620 Contractor may select the Containers to be inspected at random, or (if mutually agreed with the City) by 1621 any other method not prohibited under the SB 1383 regulations. Contractor will also collect photographic 1622 documentation during route reviews. For the avoidance of doubt, Contractor shall not be required to 1623 annually inspect every Container on a route. Contractor shall include the results of each Route Review in 1624 its next regularly scheduled report to City as required by Section 17.
Route Size (# Garbage accounts/ week) Minimum Number of Containers Less than 1,500 25
1,500-3,999 30
4,000-6,999 35
7,000 or more 40
1625 15.04 Compliance Reviews. At least once annually, beginning in 2022, Contractor shall review 1626 the records of its Commercial Service Recipients in the City that are subscribed for at least two (2) cubic 1627 yards per week of combined Garbage, Organic Waste and Recyclable Materials service, to determine 1628 whether those Commercial Service Recipients are subscribed for Organic Waste collection service or have 1629 an applicable waiver. Contractor shall include the results of each compliance review in its quarterly reports 1630 the City, as required by Section 17.
1631 15.05 Site Visits. Based on Contractor’s Compliance Reviews of the list of Commercial Service 1632 Recipients requiring site visit compiled in accordance with Section 15.04 above, Contractor shall conduct 1633 an annual site visit to each Commercial Service Recipient in the City that is determined to not be subscribed 1634 to Organic Waste Collection Service and is not eligible for a waiver. During the site visits, Contractor shall 1635 encourage those businesses to sign up for SB 1383 compliant Organics Waste Collection Service and 1636 provide educational material about SB 1383’s requirements. Contractor will also collect photographic 1637 documentation during all site visits. The Contractor shall conduct no less than 30 in-depth, in-person, 1638 diversion site visits per quarter.
1639 15.06 Education and Outreach. Prior to July 1, 2022, and annually thereafter, Contractor shall 1640 provide the information listed below to all Service Recipients under the Agreement. This information will be 1641 provided, at a minimum, through print and electronic media, on the Contractor’s website, and may also be 1642 provided through workshops, meetings and/or on-site visits. Contractor shall collaborate with the City in the 1643 development of solid waste brochures for residential and commercial Service Recipients and split the cost 1644 (50/50) to design and print all solid waste brochures. The Contractor also agrees to attach a full-service 1645 brochure to each residential cart in the City, at the City’s discretion, beginning at the earliest in Calendar 1646 Year 2022 and at a maximum of every three years thereafter, with the costs not being included in 1647 Contractor’s Compensation. Contractor shall provide Commercial Service Recipients with interactive 1648 assistance such as employee trainings, in a virtual or in-person format, when Organic Waste Collection 1649 Service is added, or upon request.
Agenda Packet Page 262 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 44 of 82 1650 15.06.1 Information on the Service Recipient’s requirements to properly separate Organic 1651 Waste and Recyclable Materials into appropriate Containers. 1652 15.06.2 Information on methods for: the prevention of Organic Waste generation, recycling 1653 Organic Waste on-site, sending Organic Waste to community composting, and any other local requirements 1654 regarding Organic Waste.
1655 15.06.3 Information regarding the methane reduction benefits of reducing the landfill 1656 disposal of Organic Waste, and the methods of Organic Waste recovery contemplated by the Agreement. 1657 15.06.4 Information regarding how to recover Organic Waste. 1658 15.06.5 Information related to the public health and safety and environmental impacts 1659 associated with the landfill disposal of Organic Waste. 1660 15.07 Waivers. Unless other arrangements have been made by the City, Contractor shall be 1661 responsible for the distribution, collection and evaluation of waiver applications as appropriate and provide 1662 the City a recommendation to accept or deny waiver requests. Contractor shall develop waiver application 1663 forms and shall provide them to the City for its approval prior to use. Contractor shall evaluate requests for 1664 exemption or waiver from SB 1383 requirements on the basis of physical space or de minimis generation 1665 and provide the City with periodic recommendations and supporting documentation to deny or approve 1666 waivers, including a site visit and re-evaluation at least every five years as required by the SB 1383 1667 Regulations.
1668 15.08 Edible Food Recovery. Unless other arrangements have been made by the City, Contractor 1669 shall provide the City with a list of Tier One commercial edible food generators located in the City by April 1670 1, 2023 and annually thereafter. Contractor shall provide the City with a list of Tier Two commercial edible 1671 food generators located within their jurisdiction by January 1, 2024 and annual thereafter. Tier One and 1672 Tier Two edible food generators are defined in El Cerrito Municipal Code Chapter 8.12.010. Unless other 1673 arrangements have been made by the City, Contractor shall provide educational materials to Service 1674 Recipients discovered to be out of compliance with the SB 1383 Regulations requirements (e.g., Tier 1 or 1675 2 generator not donating edible food, insufficient interior containers, etc.) and report a list of such Service 1676 Recipients as well as actions taken to the City on a periodic basis. 1677 15.09 Compliance Plan. Contractor, at its own expense, must prepare, submit and implement an 1678 annual (Calendar Year) Compliance Plan (“Plan”), which will guide Contractor’s work efforts. This Plan will 1679 include measures to meet diversion targets, increase diversion, and increase participation of Service 1680 Recipients in Recycling and Organic Waste programs, and should target certain materials or “problem” 1681 areas, including Recycling and Organic Waste sorting and Contamination, within Contractor’s Service Area 1682 where improvements can be maximized. Planned outreach and education services, and outreach materials 1683 should be included as part of the Plan and updated annually. Targets of outreach should be based on local 1684 Solid Waste trends from data obtained by both the City and Contractor, and other reputable sources. 1685 Contractor will maintain current and state-of-the-art public outreach and education services throughout the 1686 term of this Agreement by providing outreach materials to Service Recipients electronically (via email and 1687 social media) in addition to print. Contractor must submit first year draft Plan to the City by September 1, 1688 2022. City will review and provide revisions to draft Plan within thirty (30) days of receipt. Contractor must 1689 revise and submit final Plan to City by December 1, 2022. The Compliance Plan must include the following:
Agenda Packet Page 263 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 45 of 82 1690 15.09.1 City-specific website. Contractor shall maintain a City-specific website that fully 1691 explains the Contractor’s Collection Services and Service Rates, the diversion options available, and allows 1692 Service Recipients to submit service changes, inquiries, complaints or queries. The website must describe 1693 and promote the use of the available Recyclable Materials and Organic Waste services in the City. 1694 Contractor’s local website must provide information specific to the City’s programs. Contractor will ensure 1695 that information provided on the website is maintained and up to date. Content will include proper container 1696 set out, educational materials, newsletters and program descriptions. Contractor’s website shall include all 1697 information required in SB 1383 18985.1 (a), including the list of edible food recovery services 18985.2 (a). 1698 15.09.2 Available Services Notice and Information. At least annually Contractor must 1699 publish and distribute (by mail and electronically) a notice to all Service Recipients regarding the full range 1700 of services offered by Contractor and City. The notice must contain at a minimum (i) clear descriptions of 1701 the materials to be Collected, (ii) procedures for setting out materials, (iii) the days when Garbage Collection 1702 Services and Organic Waste Collection Services will be provided, (iv) Contractor’s local customer service 1703 phone number, (v) instructions on the proper filling of Containers, (vi) instructions as to what materials may 1704 or may not be placed in Recyclable Materials or Organic Waste Containers, (vii) how to select container 1705 sizes to maximize diversion, (viii) participation in Recycling and Organic Waste programs, (ix) the charges 1706 for Overage and Contamination in the event of non-compliance, (x) the availability of on-premises Collection 1707 Services, including the availability of no-charge on-premises Collection Services for qualified persons, (xi) 1708 Large Items Collection Services; and other services described in this Agreement at the direction of the City. 1709 The notice must be provided in English, and other languages as directed by the City, and must be distributed 1710 by Contractor no later than October 1 of each year. The Notice shall meet all requirements of SB 1383 1711 18985.1 (a).
1712 15.09.3 Education and Outreach Materials. Contractor must implement public education 1713 and outreach in conformance with applicable laws (e.g., SB 1383, AB 1826, AB 827, AB 939, AB 341, AB 1714 1594, etc.) and in coordination with the City. Contractor shall attend public events and host booths to promote 1715 education and awareness. Contractor will work with City to identify which special events will be attended. 1716 Contractor, together with City, shall work with local media to ensure information on new programs, events, 1717 Recycling, Organic Waste etc. is communicated to the community. Contractor shall use a variety of options 1718 such as local paper, news, websites, Homeowners Associations, schools and civic groups to distribute 1719 information and education about City Solid Waste programs, and events. Contractor shall distribute 1720 educational material to Service Recipients a minimum of once a quarter by mail or electronically. These 1721 materials should include tips on Recycling properly, use of Organic Waste containers, Composting, battery 1722 and electronics education, prevention of Contamination issues, proper Container placement, resource 1723 information, and HHW education.
1724 15.09.4 Service Recipient Personnel Training. Contractor shall advise and educate 1725 appropriate personnel (management, employees, janitors, etc.) with Commercial Service Recipients on 1726 methods and recommendations to decrease landfilling including best practices for Source Separation. 1727 Annually and during new staff on-boarding, Contractor shall train customer service representatives and 1728 account managers/recycling coordinators serving Organic Waste Service Recipients in the City on the SB 1729 1383 requirements, SB 1383 Regulations as they may be revised from time to time, and on resources 1730 available to assist in compliance. Trainings may be in a virtual or in-person format. The Contractor shall 1731 establish annual customer service and recycling training for all personnel with the objective of providing Agenda Packet Page 264 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 46 of 82 1732 consistent high-level customer service. The Contractor shall provide a copy of the proposed training 1733 materials annually, no later than January 31 of each year along with documentation of all staff who received 1734 the prior year’s training.
1735 15.10 Contractor shall expend at least twenty-five thousand dollars ($25,000) per year (as 1736 adjusted annually by the CPI All Other) for development and subsequent implementation of the Plan, which 1737 may include the annual subscription cost for the Waste Reporting System and consultants but may not 1738 include direct personnel or benefit costs associated with the Contractor’s staff designated pursuant to 1739 Section 15.01.
1740 15.11 Tri-Annual Customer Satisfaction Assessment and Survey. The Contractor shall establish 1741 a tri-annual customer satisfaction assessment and survey, with the first tri-annual survey completed by 1742 December 31, 2024. The customer satisfaction assessment will include an improvement plan, and the 1743 Contractor shall report the results of the assessment and the improvement plan to the City once finalized. 1744 The Contractor shall submit a draft of the survey to the City for approval by April 1 of each year that the 1745 survey is to be conducted.
1746 Article 16. Emergency Service
1747 16.01 Revised Services During an Emergency. In the event of a major storm, earthquake, fire, 1748 natural disaster, pandemic, or other such event, the Agreement Administrator may grant the Contractor a 1749 variance from regular routes and schedules, which will not be withheld unreasonably. As soon as practicable 1750 after such event, Contractor must advise the Agreement Administrator when it is anticipated that normal 1751 routes and schedules can be resumed. The Agreement Administrator will make an effort through the various 1752 outreach media to inform the public when regular Collection Services may be resumed. The clean-up from 1753 some events may require that Contractor hire additional equipment, employ additional personnel, or work 1754 existing personnel on overtime hours to clean debris resulting from the event. Contractor will receive 1755 additional compensation, above the normal Contractor’s Compensation contained in this Agreement, to 1756 cover the costs of rental equipment, additional personnel, overtime hours and other documented expenses 1757 based on the charges per Exhibit 3, provided Contractor has first secured written authorization and approval 1758 from City through the Agreement Administrator. City will be given equal priority and access to resources as 1759 with other jurisdictions held by Contractor or its affiliates. 1760 16.02 Disaster Recovery Support. In the event of a tornado, major storm, earthquake, fire, natural 1761 disaster, or other such event, Contractor agrees to provide disaster recovery support to a reasonable degree, 1762 upon request by Agreement Administrator. This may include additional hauling of debris, temporary storage 1763 of debris where feasible, additional disposal, use of different transfer and disposal facilities, and 1764 documentation of debris type, weight, and diversion. Contractor should follow protocol laid out in the Contra 1765 Costa County or City Disaster Debris Plans, as applied to Solid Waste hauling and handling. 1766 Article 17. Record Keeping and Reporting Requirements 1767 17.01 Record Keeping.
1768 17.01.1 Accounting Records. Contractor must maintain full, complete and separate 1769 financial, statistical and accounting records, pertaining to cash, billing, and provisions of all Collection 1770 Services, prepared on an accrual basis in accordance with generally accepted accounting principles. Such 1771 records will be subject to audit, copy, and inspection. Gross receipts derived from provision of the Collection Agenda Packet Page 265 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 47 of 82 1772 Services will be recorded as revenues in the accounts of Contractor. The Contractor shall keep and preserve, 1773 during the Term of this Agreement, and for a period of not less than four (4) years following expiration or 1774 other termination hereof, full, complete and accurate records, including all cash, billing and disposal records, 1775 as indicated in the Agreement.
1776 17.01.2 City reserves the right to request audited, reviewed, or compiled financial 1777 statements prepared by an independent Certified Public Accountant, or as may be provided by Contractor 1778 or its parent company. In the event that Contractor does not maintain separate financial or accounting 1779 records prepared specifically for Collection Services provided under this Agreement, Contractor may use 1780 industry standard allocation methods to provide financial information as applicable to the service provided 1781 under this Agreement.
1782 17.01.3 Material Records. Contractor must maintain records of the quantities of (i) 1783 Residential and Commercial Garbage Collected and disposed under the terms of this Agreement, (ii) Organic 1784 Waste by type, Collected, purchased, processed, sold, donated or given for no compensation, and residue 1785 disposed under the terms of this Agreement.
1786 17.01.4 Other Records. Contractor must maintain all other records reasonably related to 1787 provision of Collection Services, whether or not specified in this Agreement. 1788 17.02 Monthly Report of Franchise Fee and Integrated Waste Management Fee Payments. 1789 Contractor must submit a monthly report of Franchise Fee and Integrated Waste Management Fee 1790 Payments within thirty (30) days of the end of each month. The monthly payment report must include an 1791 accounting of Contractor’s Gross Revenue received during the preceding month, and the calculated 1792 Franchise Fee payment. It must also include an accounting of receipts of Integrated Waste Management 1793 Fees paid by Service Recipients.
1794 17.03 Quarterly Reports. Contractor must submit quarterly reports no later than 5 p.m. pacific 1795 time on the last day of the month following the end of the prior quarter (January – March, April – June, July 1796 – September, October – December). Quarterly reports must be provided electronically using software 1797 acceptable to the City. If the last day of the month falls on a day that City is closed or a Holiday, then the 1798 report will be due on the next Work Day.
1799 17.04 Annual Reports. Contractor must submit annual reports no later than 5 p.m. PT on April 1, 1800 2023 and each April 1st thereafter for the previous Calendar Year. If April 1st falls on a day that City is 1801 closed, then the report will be due on the next Work Day. Annual reports must be submitted in hard copy 1802 and must also be provided electronically in software acceptable to the City. 1803 17.05 Report Format. All reports to be submitted in a format approved by the City and in a 1804 format specified by the City and must at minimum include the details listed in Exhibit 8. 1805 Article 18. Nondiscrimination
1806 18.01 Nondiscrimination. In the performance of all work and Collection Services under this 1807 Agreement, Contractor may not discriminate against any person based on such person’s race, sex, color, 1808 national origin, religion, marital status, immigration status, disability, or sexual orientation or gender identity. 1809 Contractor must comply with all applicable local, State and Federal laws and regulations regarding 1810 nondiscrimination, including those prohibiting discrimination in employment.
Agenda Packet Page 266 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 48 of 82 1811 Article 19. Quality of Performance of Contractor
1812 19.01 Intent. Contractor acknowledges and agrees that one of City’s primary goals in entering 1813 into this Agreement is to ensure that the Collection Services are of the highest caliber, that Service Recipient 1814 satisfaction remains at the highest level, that maximum diversion levels are achieved, and that materials 1815 Collected are put to the highest and best use to the extent possible. 1816 19.02 Service Supervisor. Contractor must assign a qualified supervisor to be in charge of the 1817 Collection Service within the Service Area and must provide the name of that person in writing to the 1818 Agreement Administrator within thirty (30) days prior to the Effective Date, and at any time the person in that 1819 position changes. The supervisor must be physically located in the Service Area and available to the 1820 Agreement Administrator through the use of telecommunication equipment at all times that Contractor is 1821 providing Collection Services. In the event the supervisor is unavailable due to illness or vacation, Contractor 1822 must designate an acceptable substitute who will be available and who has the authority to act in the same 1823 capacity as the supervisor.
1824 19.03 Agreement Manager. Contractor must designate an Agreement Manager and must provide 1825 the name of that person in writing to City within thirty (30) days prior to the Effective Date and any time the 1826 person in that position changes. The Agreement Manager must be available to the City through the use of 1827 telecommunications equipment at all times that Contractor is providing Collection Services in the Service 1828 Area. The Agreement Manager must provide City with an emergency phone number where the Agreement 1829 Manager can be reached outside of normal business hours. 1830 19.04 Administrative Charges and Penalties. Quality performance by the Contractor is of primary 1831 importance. In respect of this, Contractor agrees to pay City administrative charges and penalties as per 1832 Exhibit 2 should Contractor fail to meet its responsibilities under this Agreement. Should Contractor be in 1833 breach of the requirements set forth in this Agreement, it is mutually understood and agreed that the public 1834 will necessarily suffer damages and that such damages, from the nature of the default in performance will 1835 be extremely difficult and impractical to fix. City finds, and the Contractor agrees, that as of the time of the 1836 execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages 1837 which will be incurred by City as a result of a breach by Contractor of its obligations under this Agreement. 1838 The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact 1839 that: (i) substantial damage results to members of the public who are denied services or denied quality or 1840 reliable service; (ii) such breaches cause inconvenience, anxiety, frustration and deprivation of the benefits 1841 of this Agreement to individual members of the general public for whose benefit this Agreement exists, in 1842 subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary 1843 terms; (iii) services might be available at substantially lower costs than alternative services, and the monetary 1844 loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in 1845 precise monetary terms; and (iv) the termination of this Agreement for such breaches, and other remedies 1846 are, at best, a means of future correction and not remedies which make the public whole for past breaches. 1847 19.05 Procedure for Review of Administrative Charges. The Agreement Administrator may 1848 assess administrative charges and penalties as specified in Article 12 pursuant to this Agreement monthly. 1849 As needed during the term of this Agreement, the Agreement Administrator will issue a written notice to Agenda Packet Page 267 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 49 of 82 1850 Contractor (“Notice of Assessment”) of the administrative charges assessed and the basis for each 1851 assessment.
1852 19.05.1 The assessment will become final unless, within ten (10) calendar days of the date 1853 of the notice of assessment, Contractor provides a written request for a meeting with the City Manager to 1854 present evidence that the assessment should not be made. 1855 19.05.2 The Agreement Administrator will schedule a meeting between Contractor and the 1856 City Manager as soon as reasonably possible after timely receipt of Contractor’s request. 1857 19.05.3 The City Manager will review Contractor’s evidence and render a decision 1858 sustaining or reversing the administrative charges as soon as reasonably possible after the meeting. Written 1859 notice of the decision will be provided to Contractor. 1860 19.05.4 In the event Contractor does not submit a written request for a meeting within ten 1861 (10) calendar days of the date of the Notice of Assessment, the Agreement Administrator’s determination 1862 will be final.
1863 19.05.5 City’s assessment or collection of administrative charges will not prevent City from 1864 exercising any other right or remedy, including the right to terminate this Agreement, for Contractor’s failure 1865 to perform the work and services in the manner set forth in this Agreement. 1866 19.06 Uncontrollable Circumstances.
1867 19.06.1 If either party is prevented from or delayed in performing its duties under this 1868 Agreement by circumstances beyond its control, whether or not foreseeable, including, without limitation, 1869 acts of terrorism, landslides, lightning, forest fires, storms, floods, severe weather, freezing, earthquakes, 1870 other natural disasters, the threat of such natural disasters, pandemics (or threat of same), quarantines, civil 1871 disturbances, acts of the public enemy, wars, blockades, public riots, strikes, lockouts, or other labor 1872 disturbances, acts of government or governmental restraint (including but not limited to public health orders 1873 by Contra Costa County or State officials) or other causes, whether of the kind enumerated or otherwise, 1874 that are not reasonably within the control of the affected party, then the affected party will be excused from 1875 performance hereunder during the period of such disability. 1876 19.06.2 If either party is prevented from or delayed in performing its duties under this 1877 Agreement by circumstances beyond its control, as defined in this Article 19, such failure of or delay in 1878 performance shall not constitute a default or breach. The party prevented or delayed shall perform the duty 1879 as soon as practicable after the circumstance preventing or delaying service has abated. 1880 19.06.3 A party prevented from or delayed in performing its duties under this Agreement 1881 by circumstances beyond its control shall provide the other party with notice immediately upon learning that 1882 it will be prevented from or delayed in performing the duty. 1883 Article 20. Performance Bond
1884 20.01 Performance Bond. No later than the Effective Date, Contractor must furnish to City, and 1885 keep current, a performance bond, for the faithful performance of this Agreement and all obligations arising 1886 hereunder in an amount of one and one half million dollars ($1,500,000) and satisfy the requirements listed 1887 below.
Agenda Packet Page 268 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 50 of 82 1888 20.02 The performance bond must be executed by a surety company licensed to do business in 1889 the State of California; having an "A-" or better rating by A. M. Best or Standard and Poor; and included on 1890 the list of surety companies approved by the Treasurer of the United States. 1891 20.03 In the event City draws on the bond, all of City’s costs of collection and enforcement of the 1892 Bond, including reasonable attorneys’ fees and costs, must be paid by Contractor. 1893 20.04 The performance bond shall be renewed annually for the entire term of the Agreement and 1894 evidence must be provided to City annually.
1895 Article 21. Insurance
1896 21.01 Insurance Policies. Contractor must secure and maintain throughout the term of this 1897 Agreement insurance against claims for injuries to persons or damages to property which may arise from or 1898 in connection with Contractor’s performance of work or Collection Services under this Agreement. 1899 Contractor’s performance of work or Collection Services includes performance by Contractor’s employees, 1900 agents, representatives and subcontractors.
1901 21.02 Minimum Scope of Insurance. Insurance coverage must be at least this broad:
1902 21.02.1 Insurance Services Office Form No. GL 0002 (Ed. 1/96) covering Comprehensive 1903 General Liability and Insurance Services Office Form No. GL 0404 covering Broad Form Comprehensive 1904 General Liability; or Insurance Services Office Commercial General Liability coverage (“occurrence” form 1905 CG 0001), including X, C, U where applicable.
1906 21.02.2 Insurance Services Office Form No.CA 0001 (Ed. 12/93) covering Automobile 1907 Liability, code 1 “any auto”, or code 2 “owned autos” and endorsement CA 0025. Coverage must also include 1908 code 8, “hired autos” and code 9 “non-owned autos”. 1909 21.02.3 Workers’ Compensation insurance as required by the California Labor Code and 1910 Employers Liability Insurance.
1911 21.02.4 Environmental Pollution Liability Insurance. 1912 21.03 Minimum Limits of Insurance. Contractor must maintain insurance limits no less than:
1913 21.03.1 Comprehensive General Liability: $3,000,000 combined single limit per occurrence 1914 for bodily injury, personal injury and property damage. If Commercial General Liability insurance with a 1915 general aggregate limit is used, either the general aggregate limit will apply separately to this Agreement or 1916 the general aggregate limit must be $5,000,000.
1917 21.03.2 Automobile Liability: $10,000,000 combined single limit per accident for bodily 1918 injury and property damage.
1919 21.03.3 Workers’ Compensation and Employers Liability: Workers’ Compensation limits as 1920 required by the California Labor Code and Employers Liability limits of $1,000,000 per accident. 1921 21.03.4 Environmental Pollution Liability: $3,000,000 per occurrence and $5,000,000 1922 aggregate, with five (5) years’ tail coverage. Coverage shall include bodily injury or property damage arising 1923 out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of 1924 pollutants resulting from Contractor’s operations.
Agenda Packet Page 269 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 51 of 82 1925 21.03.5 If Contractor maintains higher limits than the minimum shown above, the City 1926 requires and shall be entitled to coverage for the higher limits maintained by the Service Provider. Any 1927 available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be 1928 available to the City.
1929 21.04 Deductibles and Self-Insured Retention. Any deductibles or self-insured retention must be 1930 declared to City’s risk manager. Should City form a reasonable belief that Contractor may be unable to pay 1931 any deductibles or self-insured retentions, Contractor must procure a bond guaranteeing payment of losses 1932 and related investigations, claim administration and defense expenses in an amount specified by City’s risk 1933 manager.
1934 21.05 Requirements for All Contractor Insurance Policies. 1935 21.05.01 General Liability, Automobile and Environmental Liability Coverage. Contractor’s 1936 general liability, automobile, and environmental liability policies required by this Agreement shall contain 1937 the following:
1938 1. City, its officers, employees, agents and contractors are to be covered as 1939 additional insureds as respects: Liability arising out of activities performed by, or on behalf of, Contractor; 1940 products and completed operations of Contractor; premises owned, leased or used by Contractor; and 1941 automobiles owned, leased, hired or borrowed by Contractor. The coverage must contain no special 1942 limitations on the scope of protection afforded to City, its officers, employees, agents and contractors. 1943 2. Contractor’s insurance coverage must be primary insurance as respects 1944 City, its officers, employees, agents and contractors. Any insurance, or self-insurance maintained by City, 1945 its officers, employees, agents or contractors will be in excess of Contractor’s insurance and will not 1946 contribute with it.
1947 3. Any failure to comply with reporting provisions of the policies will not 1948 affect coverage provided to City, its officers, employees, agents, or contractors. 1949 4. Coverage must State that Contractor’s insurance will apply separately to 1950 each insured against whom claim is made or suit is brought, except with respect to the limits of the 1951 insurer’s liability.
1952 21.05.02All Coverage. Each insurance policy required by this Agreement must be 1953 endorsed to state that coverage may not be canceled except after thirty (30) calendar days (ten (10) days 1954 in the event of cancellation for non-payment) prior written notice has been given to City. Moreover, 1955 Contractor will not order the cancellation of any required insurance policy or change in insurance policy 1956 limits without thirty (30) days prior written notice to City by Contractor. 1957 21.06 Acceptability of Insurers. Insurance is to be placed with insurers having an A.M. Best rating 1958 of A-/VII or better.
1959 21.07 Verification of Coverage. Contractor must furnish City with certificates of insurance and 1960 with original endorsements affecting coverage required by this Agreement. The certificates and endorsement 1961 for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its 1962 behalf. Contractor must furnish City with a new certificate of insurance and endorsements on each renewal 1963 of coverage or change of insurers.
1964 21.07.1 Proof of insurance must be mailed to the following address or any subsequent 1965 address as may be directed by the City:
Agenda Packet Page 270 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 52 of 82 1966 City of El Cerrito Public Works Department
1967 Attn: Operations + Environmental Services Division Manager 1968 10890 San Pablo Avenue
1969 El Cerrito, CA 94530
1970 21.08 Modification of Insurance Requirements. The insurance requirements provided in this 1971 Agreement may be modified or waived by City’s risk manager, in writing, upon the request of Contractor if 1972 City’s risk manager determines such modification or waiver is in the best interest of City considering all 1973 relevant factors, including exposure to City.
1974 21.09 Rights of Subrogation. All required insurance policies must preclude any underwriter's 1975 rights of recovery or subrogation against City with respect to matters related to Contractor’s performance of 1976 its obligations under this Agreement, with the express intention of the parties being that the required 1977 insurance coverage protects both parties as the primary coverage for any and all losses covered by the 1978 above-described insurance. Contractor must ensure that any companies issuing insurance to cover the 1979 requirements contained in this Agreement agree that they will have no recourse against City for payment or 1980 assessments in any form on any policy of insurance. The clauses ‘Other Insurance Provisions’ and ‘Insured 1981 Duties in the Event of an Occurrence, Claim or Suit’ as it appears in any policy of insurance in which City is 1982 named as an additional insured will not apply to City. 1983 21.10 Failure to maintain insurance. Should Contractor fail to obtain or maintain insurance as 1984 required by this Agreement, Contractor shall have 7 days to cure the defect, during which time City shall 1985 have the option, but not the obligation to, at Contractor's sole expense: (i) hire replacement Collection 1986 Services to perform Contractor's tasks until insurance coverage is resumed; or (ii) obtain replacement 1987 insurance coverage during said cure period. Should Contractor fail to correct this defect, City shall have the 1988 option to terminate this Agreement immediately.
1989 Article 22. Hold Harmless and Indemnification
1990 22.01 Hold Harmless. Contractor releases and shall hold City, its elected officials, officers, 1991 agents, employees and volunteers harmless from all of Contractor’s claims, demands, lawsuits, judgments, 1992 damages, losses, or injuries and from all liability to Contractor, to Contractor’s employees, to Contractor’s 1993 contractors or subcontractors, or to the owners of Contractor’s firm, which damages, losses, injuries or 1994 liability occur during the work or Collection Services required under this Agreement, or performance of any 1995 activity or work required under this Agreement.
1996 22.02 Defense and Indemnity of Third-Party Claims/Liability. Contractor shall indemnify, defend 1997 with legal counsel reasonably approved by City, and hold harmless City, its officers, officials, employees and 1998 volunteers (“City indemnitee”) from and against all liability including, but not limited to, loss, damage, 1999 expense, or cost (including without limitation reasonable legal counsel fees, expert fees and all other costs 2000 and fees of litigation) of every nature arising out of or in connection with Contractor’s negligence, 2001 recklessness or willful misconduct in the performance of work hereunder or its failure to comply with any of 2002 its obligations contained in this Agreement, except such loss or damage which is caused by the active 2003 negligence or willful misconduct of City. Should conflict of interest principles preclude a single legal counsel 2004 from representing both City and Contractor, or should City otherwise find Contractor’s legal counsel Agenda Packet Page 271 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 53 of 82 2005 unacceptable, then Contractor shall reimburse City its costs of defense, including without limitation 2006 reasonable legal counsel fees, expert fees and all other costs and fees of litigation. The Contractor shall 2007 promptly pay City any final judgment rendered against City (and its officers, officials, employees and 2008 volunteers) with respect to claims determined by a trier of fact to have been the result of Contractor’s 2009 negligence, recklessness or willful misconduct in the performance of work hereunder or its failure to comply 2010 with any of its obligations contained in this Agreement. It is expressly understood and agreed that the 2011 foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of 2012 California and will survive termination of this Agreement. 2013 22.02.1 Contractor’s obligations under this section apply regardless of whether or not such 2014 claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or 2015 penalty, or liability was caused in part or contributed to by a City Indemnitee. However, without affecting the 2016 rights of City under any provision of this Agreement, Contractor shall not be required to indemnify and hold 2017 harmless City for liability attributable to the active negligence or willful misconduct of City, provided such 2018 active negligence or willful misconduct is determined by agreement between the parties or by findings of a 2019 court of competent jurisdiction. In instances where City is shown to have been actively negligent or guilty of 2020 or willful misconduct and where City’s active negligence or willful misconduct accounts for only a percentage 2021 of the liability involved, the obligation of the Contractor will be for that entire portion or percentage of liability 2022 not attributable to the active negligence or willful misconduct of City. 2023 22.03 Nonwaiver. City does not waive, nor shall be deemed to have waived, any indemnity, 2024 defense or hold harmless rights under this section because of the acceptance by City, or the deposit with 2025 City, of any insurance certificates or policies described in Article 21. 2026 22.04 Diversion Indemnification. Subject to the requirements of Public Resources Code section 2027 40059.1, which will control in the event of any conflict with the provisions of this Section, Contractor agrees 2028 to protect and defend City Indemnitees with counsel selected by Contractor and approved by City, to pay all 2029 attorneys’ fees, and to indemnify and hold City Indemnitees harmless from and against all fines or penalties 2030 imposed by the California Integrated Waste Management Board if the diversion goals specified in California 2031 Public Resources Code section 41780, as it may be amended, are not met by City with respect to the 2032 materials Collected by Contractor and if the lack in meeting such goals is attributable to the failure of 2033 Contractor to implement and operate the diversion programs or undertake the related activities required by 2034 this Agreement. In the event CalRecycle provides an administrative process to challenge the imposition of 2035 a compliance order or a fine or fines, Contractor will be responsible for engaging any consultants or attorneys 2036 necessary to represent City in any challenge. All consultants and attorneys engaged hereunder are subject 2037 to the agreement of City and Contractor.
2038 22.05 Hazardous Substances Indemnification. Contractor agrees to indemnify, defend (with 2039 counsel reasonably approved by City), protect and hold harmless the City Indemnitees from and against any 2040 and all Claims of any kind whatsoever paid, suffered or incurred by or against the City Indemnitees resulting 2041 from any repair, cleanup, removal action or response action undertaken pursuant to CERCLA, the Health & 2042 Safety Code or other similar Federal, State or local law or regulation, with respect to Solid Waste or 2043 Household Hazardous Waste Collected and Disposed of by Contractor. The foregoing indemnity is intended 2044 to operate as an agreement pursuant to Section 107(e) of CERCLA and Section 25364 of the Health & Agenda Packet Page 272 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 54 of 82 2045 Safety Code to defend, protect, hold harmless and indemnify the City Indemnitees from all forms of liability 2046 under CERCLA, the Health & Safety Code or other similar Federal, State or local law or regulation. 2047 22.06 Release Regarding Articles XIIIC and XIIID of the California Constitution. City intends to 2048 comply with all applicable laws concerning the Service Rates. Upon thorough analysis, the parties have 2049 made a good faith determination that the Service Rates for the Collection Services provided under this 2050 Agreement are not subject to California Constitution Articles XIIIC and XIIID because, among other reasons, 2051 such services are provided by a private corporation and not by City, Service Rates are calculated pursuant 2052 to the terms of this Agreement to provide Contractor’s Compensation, the City does not impose Service 2053 Rates on any Service Recipient or property, the receipt of Collection Services is voluntary and not required 2054 of any property within City, and any owner or Service Recipient of property within City has the opportunity 2055 to avoid the Collection Services available under this Agreement either through self-hauling or use of property 2056 in such a manner that Solid Waste is not generated. Accordingly, and subject to Section 4.08, Contractor 2057 agrees to hold harmless and release the City Indemnitees from and against any and all claims Contractor 2058 may have against the City Indemnitees resulting in any form from the Service Rates or in connection with 2059 the application of California Constitution Article XIIIC and Article XIIID to the imposition, payment or collection 2060 of the Service Rates. This Section will survive the expiration or termination of this Agreement for Claims 2061 arising prior to the expiration or termination of this Agreement. 2062 22.07 Consideration. It is specifically understood and agreed that the consideration inuring to 2063 Contractor for the execution of this Agreement consists of the promises, payments, covenants, rights and 2064 responsibilities contained in this Agreement.
2065 22.08 Obligation. This Agreement obligates Contractor to comply with the foregoing 2066 indemnification and release provisions; however, the collateral obligation of providing insurance must also 2067 be complied with as set forth in this Agreement.
2068 22.09 Exception. Notwithstanding other provisions of this Agreement, Contractor’s obligation to 2069 indemnify, hold harmless and defend City, its officers and employees will not extend to any loss, liability, 2070 penalty, damage, action or suit arising or resulting solely from acts or omissions constituting active 2071 negligence, willful misconduct, breach of this Agreement, or violation of law on the part of City, its officers or 2072 employees.
2073 22.10 Damage by Contractor. If Contractor’s employees or subcontractors cause any injury, 2074 damage or loss to City property, including but not limited to City streets or curbs, excluding normal wear and 2075 tear, Contractor shall reimburse City for City’s cost of repairing or replacing such injury, damage or loss. 2076 Such reimbursement is not in derogation of any right of City to be indemnified by Contractor for any such 2077 injury, damage or loss. With the prior written approval of City, Contractor may repair the damage at 2078 Contractor’s sole cost and expense. Any injury, damage or loss to private property caused by the negligent 2079 or willful acts or omissions of Contractor to private property must be repaired or replaced by Contractor at 2080 Contractor’s sole expense. Disputes between Contractor and its Service Recipients or private property 2081 owners as to damage to private property are civil matters and complaints of damage will be referred to 2082 Contractor as a matter within its sole responsibility and as a matter within the scope of Article 22.
Agenda Packet Page 273 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 55 of 82 2083 Article 23. Default of Agreement
2084 23.01 Termination. City may terminate this Agreement, except as otherwise provided below in 2085 this Section, by giving Contractor thirty (30) calendar days’ advance written notice, to be served as provided 2086 in this Agreement, upon the happening of any one of the following events:
2087 23.01.1 Contractor voluntarily takes the benefit of any present or future insolvency statute, 2088 or makes a general assignment for the benefit of creditors, or files a voluntary petition in bankruptcy (court) 2089 or a petition or answer seeking an arrangement for its reorganization or the readjustment of its indebtedness 2090 under the Federal bankruptcy laws or under any other law or statute of the United States or any State thereof, 2091 or consents to the appointment of a receiver, trustee or liquidator of all or substantially all of its property; or 2092 23.01.2 By order or decree of a court, Contractor is adjudged bankrupt or an order is made 2093 approving a petition filed by any of its creditors or by any of the stockholders of Contractor, seeking its 2094 reorganization or the readjustment of its indebtedness under the Federal bankruptcy laws or under any law 2095 or statute of the United States or of any State thereof, provided that if any such judgment or order is stayed 2096 or vacated within sixty (60) calendar days after the entry thereof, any notice of default will be and become 2097 null, void and of no effect; unless such stayed judgment or order is reinstated in which case, such default 2098 will be deemed immediate; or by, or pursuant to, or under the authority of any legislative act, resolution or 2099 rule or any order or decree of any court or governmental board, agency or officer having jurisdiction, a 2100 receiver, trustee or liquidator takes possession or control of all or substantially all of the property of 2101 Contractor, and such possession or control continues in effect for a period of sixty (60) calendar days; or 2102 23.01.3 Contractor has defaulted, by failing or refusing to pay in a timely manner the 2103 administrative charges or other monies due to City and such default is not cured within thirty (30) calendar 2104 days of receipt of written notice by City to do so; or 2105 23.01.4 Contractor has defaulted by allowing any final judgment for the payment of money 2106 owed to City to stand against it unsatisfied and such default is not cured within thirty (30) calendar days of 2107 receipt of written notice by City to do so; or
2108 23.01.5 In the event that the monies due to City under Section 23.01.3 above or an 2109 unsatisfied final judgment under Section 23.01.4 above is the subject of a judicial proceeding, Contractor 2110 will not be in default if the sum of money is bonded. All bonds must be in the form acceptable to the City 2111 Attorney; or
2112 23.01.6 Contractor has defaulted, by failing or refusing to perform or observe the terms, 2113 conditions or covenants in this Agreement, including the maintenance of a performance bond in accordance 2114 with Article 20, or any of the rules and regulations promulgated by City pursuant thereto or has wrongfully 2115 failed or refused to comply with the instructions of the Agreement Administrator relative thereto and such 2116 default is not cured within thirty (30) calendar days of receipt of written notice by City to do so, or if by reason 2117 of the nature of such default, the same cannot be remedied within thirty (30) calendar days following receipt 2118 by Contractor of written demand from City to do so, Contractor fails to commence the remedy of such default 2119 within such thirty (30) calendar days following such written notice or having so commenced fails thereafter 2120 to continue with diligence the curing thereof (with Contractor having the burden of proof to demonstrate (a) 2121 that the default cannot be cured within thirty (30) calendar days, and (b) that it is proceeding with diligence 2122 to cure such default, and such default will be cured within a reasonable period of time). However, Agenda Packet Page 274 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 56 of 82 2123 notwithstanding anything contained herein to the contrary, for the failure of Contractor to provide Collection 2124 Services for a period of three (3) consecutive Work Days, City may secure Contractor's records on the fourth 2125 (4th) Work Day in order to provide interim Collection Services until such time as the matter is resolved and 2126 Contractor is again able to perform pursuant to this Agreement; provided, however, if Contractor is unable 2127 for any reason or cause to resume performance at the end of thirty (30) calendar days all liability of City 2128 under this Agreement to Contractor will cease and this Agreement may be terminated by City. 2129 23.02 Violations. Notwithstanding the foregoing and as supplemental and additional means of 2130 termination of this Agreement under this Article, in the event that Contractor's record of performance shows 2131 that Contractor has defaulted in the performance of any of the covenants and conditions required herein to 2132 be kept and performed by Contractor three (3) or more times in any twelve (12) month period, and regardless 2133 of whether the Contractor has corrected each individual condition of default, Contractor will be deemed a 2134 "habitual violator", will be deemed to have waived the right to any further notice or grace period to correct, 2135 and all such defaults will be considered cumulative and collectively will constitute a condition of irredeemable 2136 default. City will thereupon issue Contractor a final warning citing the circumstances therefor, and any single 2137 default by Contractor of whatever nature, subsequent to the occurrence of the last of such cumulative 2138 defaults, will be grounds for immediate termination of this Agreement. In the event of any such subsequent 2139 default, City may terminate this Agreement upon giving of written final notice to Contractor, such cancellation 2140 to be effective upon the date specified in City's written notice to Contractor, and all contractual fees due 2141 hereunder plus any and all charges and interest will be payable to such date, and Contractor will have no 2142 further rights hereunder. Immediately upon the specified date in such final notice Contractor must cease any 2143 further performance under this Agreement.
2144 23.03 Effective Date. In the event of any of the events specified above, and except as otherwise 2145 provided in such subsections, termination will be effective upon the date specified in City's written notice to 2146 Contractor and upon such date this Agreement will be deemed immediately terminated and upon such 2147 termination, except for payment for Collection Services rendered up to and including the date of termination, 2148 all liability of City under this Agreement to Contractor will cease, and City will have the right to call the 2149 performance bond and will be free to negotiate with other contractors for the operation of interim and long2150 term Collection Services. Contractor must reimburse City for all direct and indirect costs of providing any 2151 interim Collection Services as a result of Contractor’s default in this Agreement. 2152 23.04 Termination Cumulative. City’s right to terminate this Agreement is cumulative to any other 2153 rights and remedies provided by law or by this Agreement. 2154 23.05 Alternative Service. Should Contractor, for any reason, except the occurrence or existence 2155 of any of the events or conditions set forth in Section 19.06 [Uncontrollable Circumstances], refuse or be 2156 unable for a period of more than forty-eight (48) hours, to Collect a material portion or all of the Garbage, 2157 Organic Waste and C&D which it is obligated under this Agreement to Collect, and as a result, Garbage, 2158 Organic Waste and C&D should accumulate in City to such an extent, in such a manner, or for such a time 2159 that the City Manager, in the reasonable exercise of the City Manager's discretion, should find that such 2160 accumulation endangers or menaces the public health, safety or welfare, then City will have the right to enter 2161 into an agreement with another Solid Waste Collection enterprise to Collect any or all Garbage, Organic 2162 Waste and C&D which Contractor is obligated to Collect pursuant to this Agreement. City must provide 2163 twenty-four (24) hours’ prior written notice to Contractor during the period of such event, before contracting Agenda Packet Page 275 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 57 of 82 2164 with another Solid Waste Collection enterprise to Collect any or all Garbage, Organic Waste and C&D that 2165 Contractor would otherwise collect pursuant to this Agreement for the duration of period during which 2166 Contractor is unable to provide such services. In such event, Contractor must undertake commercially 2167 reasonable efforts to identify sources from which such substitute Collection Services are immediately 2168 available and must reimburse City for all of its expenses for such substitute Collection Services during period 2169 in which Contractor is unable to provide Collection Services required by this Agreement. 2170 Article 24. Modifications to the Agreement
2171 24.01 City-Directed Change. City has the power to make changes in this Agreement to impose 2172 new rules and regulations on Contractor under this Agreement relative to the scope and methods of providing 2173 Collection Services as may from time-to-time be necessary and desirable for the public welfare. The size of 2174 Containers specified herein are designed to meet the requirements of the State’s mandates including AB 2175 341, AB 1826 and SB 1383. City reserves the right to redirect Garbage, Organic Waste, and C&D to alternate 2176 Solid Waste facilities and change the designated sizes of Carts and/or Bins in accordance with any such 2177 changes. City will give the Contractor notice of any proposed change and an opportunity to be heard 2178 concerning those matters.
2179 24.02 Recycling Collection. City has the power to direct Contractor to undertake Collection of 2180 Recyclable Materials from Service Recipients. City and Contractor agree to meet and confer in good faith 2181 regarding City’s potential interest in such a change to the Collection Services provided by this Agreement, 2182 Contractor’s ability to provide the requested services, adjustments to this Agreement, and adjustments to 2183 Contractor’s Compensation that would be requested to implement such a change. 2184 24.03 Adjustments to Contractor’s Compensation for a City-Directed Change. In the event of any 2185 City-directed change, Contractor shall be entitled to an adjustment to Contractor’s Compensation using the 2186 procedure described in Exhibit 5. The scope and method of providing Collection Services as referenced 2187 herein will be liberally construed to include procedures, operations and obligations, financial or otherwise, of 2188 Contractor. In the event that City and Contractor cannot agree on an adjustment to Contractor’s 2189 Compensation resulting from a City-directed change within six months of the change request, or other period 2190 as agreed upon by both parties, City and Contractor agree to submit the proposed change to Contractor’s 2191 Compensation to binding arbitration as described in Section 24.05. 2192 24.04 Change in Law. City and Contractor understand and agree that the California Legislature 2193 has the authority to make comprehensive changes in Solid Waste Collection legislation, and that these and 2194 other changes in Applicable Law in the future which mandate certain actions or programs for counties, 2195 municipalities or Contractor may require changes or modifications in some of the terms, conditions or 2196 obligations under this Agreement. Contractor agrees that the terms and provisions of the City of El Cerrito 2197 Municipal Code, as it now exists or as it may be amended in the future, will apply to all of the provisions of 2198 this Agreement and the Service Recipients of Contractor located within the Service Area. In the event any 2199 future change in Federal law or regulations, State or local law or regulation, or the City Code materially alters 2200 the obligations of Contractor, then Contractor may request a change in Contractor’s Compensation. Nothing 2201 contained in this Agreement will require any party to perform any act or function contrary to law. City and 2202 Contractor agree to enter into good faith negotiations regarding modifications to this Agreement which may 2203 be required in order to implement changes in the interest of the public welfare or due to a Change in Law.
Agenda Packet Page 276 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 58 of 82 2204 In the event that City and Contractor agree to a modification to this Agreement to implement changes in the 2205 interest of the public welfare or due to a Change in Law, but they cannot agree on an adjustment to 2206 Contractor’s Compensation resulting therefrom, City and Contractor agree to submit the proposed change 2207 to Contractor’s Compensation to binding arbitration as described in Section 24.05. 2208 24.05 Arbitration. Arbitration shall be conducted by a single arbitrator. If, within twenty (20) days 2209 from the receipt of a request to arbitrate (or such longer period mutually agreed to by the parties), the parties 2210 are unable to agree on an arbitrator, then a single arbitrator shall be appointed pursuant to the Commercial 2211 Arbitration Rules of the American Arbitration Association, which shall govern any arbitration requested under 2212 this provision. Each party shall bear its own costs and expenses of any arbitration, including its attorneys’ 2213 fees. Notwithstanding the immediately preceding sentence subsequent to a Change in Control, the prevailing 2214 party in any arbitration will be entitled to recover from the opposing party all of the prevailing party’s costs 2215 and expenses, including reasonable attorneys’ fees. Each party shall pay one-half of the costs of the 2216 arbitrator, regardless of whether there has been a Change in Control. 2217 Article 25. Legal Representation
2218 25.01 It is acknowledged that each party was, or had the opportunity to be, represented by 2219 counsel in the preparation of and contributed equally to the terms and conditions of this Agreement and, 2220 accordingly, the rule that a contract will be interpreted strictly against the party preparing the same will not 2221 apply due to the joint contributions of both parties. 2222 Article 26. Conflict of Interest
2223 26.01 Contractor is unaware of any City employee or official that has a financial interest in 2224 Contractor's business. During the term of this Agreement and/or as a result of being awarded this 2225 Agreement, Contractor shall not offer, encourage or accept any financial interest in Contractor's business 2226 by any City employee or official.
2227 Article 27. Contractor's Personnel
2228 27.01 Contractor shall make information about wage rates, benefits and job classifications of 2229 Contractor’s employees available to the City prior to any subsequent procurement for the Collection Services 2230 provided hereunder.
2231 27.02 Contractor must employ and assign qualified personnel to perform all services required 2232 under this Agreement. Contractor is responsible for ensuring that its employees comply with all Applicable 2233 Laws related to their employment and position.
2234 27.03 City may request the transfer of any employee of Contractor who materially violates any 2235 provision of this Agreement, or who is wanton, negligent, or discourteous in the performance of their duties 2236 under this Agreement.
2237 27.04 Contractor’s field operations personnel are required to wear a clean uniform shirt bearing 2238 Contractor’s name. Contractor’s employees, who normally come into direct contact with the public, including 2239 drivers, must bear some means of individual photographic identification such as a name tag or identification 2240 card.
Agenda Packet Page 277 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 59 of 82 2241 27.05 Each driver of a Collection Vehicle must at all times carry a valid California driver's license 2242 and all other required licenses for the type of Collection Vehicle that is being operated. 2243 27.06 Each driver of a Collection Vehicle must at all times comply with all applicable State and 2244 Federal laws, regulations and requirements.
2245 27.07 Contractor’s employees, officers, and agents may not identify themselves or in any way 2246 represent themselves as being employees or officials of City. 2247 Article 28. Exempt Waste
2248 28.01 Contractor is not required to Collect or dispose of Exempt Waste but may offer such 2249 services. All such Collection and disposal of Exempt Waste is not regulated under this Agreement, but if 2250 provided by Contractor must be in strict compliance with all Applicable Laws. 2251 Article 29. Independent Contractor
2252 29.01 In the performance of Collection Services pursuant to this Agreement, Contractor is an 2253 independent contractor and not an officer, agent, servant or employee of City. Contractor will have exclusive 2254 control of the details of the services and work performed and over all persons performing such services and 2255 work. Contractor is solely responsible for the acts and omissions of its officers, agents, employees, 2256 contractors and subcontractors, if any. Neither Contractor nor its officers, employees, agents, contractors or 2257 subcontractors will obtain any right to retirement benefits, Workers Compensation benefits, or any other 2258 benefits which accrued to City employees and Contractor expressly waives any claim to such benefits. 2259 Article 30. Laws to Govern
2260 30.01 The law of the State of California governs the rights, obligations, duties and liabilities of 2261 City and Contractor under this Agreement and govern the interpretation of this Agreement. 2262 Article 31. Consent to Jurisdiction
2263 31.01 The parties agree that any litigation between City and Contractor concerning or arising out 2264 of this Contract must be filed and maintained exclusively in the Superior Courts of Contra Costa County, 2265 State of California, or in the United States District Court for the Northern District of California to the fullest 2266 extent permissible by law. Each party consents to service of process in any manner authorized by California 2267 law.
2268 Article 32. Assignment
2269 32.01 No interest in this Agreement may be assigned, sold or transferred, either in whole or in 2270 part, by Contractor without the prior written consent of the City which the City may grant or refuse in its 2271 reasonable discretion. The Contractor shall promptly notify the City in writing at least one hundred twenty 2272 (120) days in advance of the proposed closing of any such proposed assignment, sale or transfer. The 2273 Contractor is encouraged to notify the City as soon as possible of any proposed assignment, sale or transfer. 2274 In the event that the City Council approves of any assignment, sale or transfer, said approval shall not relieve 2275 Contractor of any of its obligations or duties under this Agreement unless this Agreement is modified in 2276 writing to that effect.
Agenda Packet Page 278 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 60 of 82 2277 32.02 Any such assignment, sale or transfer made by the Contractor without the consent of the 2278 City shall be null and void and the attempted assignment, sale or transfer shall constitute a material breach 2279 of this Agreement and give the City grounds to terminate this Agreement upon written notice to the 2280 Contractor, and upon such termination, all liability of the City under this Agreement to the Contractor shall 2281 cease, and the City (1) shall have the right to call the performance bond; and (2) shall be free to negotiate 2282 with other Solid Waste Collection enterprises to provide Solid Waste Collection Services; and (3) shall have 2283 the right to award an agreement for such services to the enterprise of its choice. For purposes of this section, 2284 "assignment, sale or transfer'' shall include, but not be limited to:
2285 32.02.1 A sale, exchange or other transfer to a third party of outstanding common stock of 2286 the Contractor which results in a Change in Control. 2287 32.02.2 A sale to a third party of all or substantially all of the Contractor’s assets dedicated 2288 to providing Collection Services required by this Agreement. 2289 32.02.3 Any subcontracting of the Contractor’s Collection Services required by this 2290 Agreement.
2291 32.02.4 Any dissolution, reorganization, consolidation, merger, recapitalization, stock 2292 issuance or re-issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other 2293 transaction that results in a Change in Control.
2294 32.02.5 Any combination of the foregoing (whether or not related or contemporaneous 2295 transactions) which has the effect of a Change in Control. 2296 32.02.6 Any assignment by operation of law, including insolvency or bankruptcy, 2297 assignment for the benefit of creditors, writ of agreement for an execution being levied against this 2298 Agreement, appointment of a receiver taking possession of Contractor’s property, or transfer occurring in a 2299 probate proceeding that results in a Change in Control. 2300 32.03 The Contractor acknowledges that this Agreement involves rendering a vital service to the 2301 City’s residents and businesses, and that the City has selected the Contractor to perform the Collection 2302 Services specified herein based on:
2303 32.03.1 The Contractor’s experience, skill and reputation for conducting its Solid Waste 2304 management operations in a safe, effective and responsible fashion, at all times in keeping with applicable 2305 local, state and federal environmental laws, regulations and best management practices. 2306 32.03.2 The Contractor’s financial resources to maintain the required equipment and to 2307 support its indemnity obligations to City under this Agreement. The City relied on each of these factors, 2308 among others, in choosing the Contractor to perform the Collection Services to be rendered by the 2309 Contractor under this Agreement.
2310 32.04 The City is concerned about the possibility that an assignment, sale or transfer could result 2311 in significant increases in the costs of Collection Services relative to the costs promised by Contractor that 2312 were a material inducement to City to enter into this Agreement, as well as a change in the quality of service. 2313 Accordingly, the following standards have been set to ensure that any assignment, sale or transfer shall 2314 result in continued quality of service and that the Assignee has the ability to provide Collection Services 2315 without significant increases in costs. At a minimum, no request by the Contractor for the City’s consent to Agenda Packet Page 279 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 61 of 82 2316 an assignment, sale or transfer need be considered by the City unless and until the Contractor has met the 2317 requirements of this Article 32.
2318 32.05 The Contractor shall reimburse the City for its reasonable, documented expenses for 2319 attorneys and other consultants engaged by the City to investigate the suitability of any proposed Assignee, 2320 and to review and finalize any documentation required as a condition for approving any such assignment. In 2321 furtherance of the Contractor’s obligation to the City upon notice by the Contractor of its intention to assign 2322 its rights hereunder the Contractor shall pay the City the sum of one hundred thousand dollars ($100,000) 2323 as a refundable deposit of such expenses of the City. This amount shall be adjusted by the annual change 2324 in the CPI All Other a maximum of one time annually. The City shall refund to the Contractor any portion of 2325 the deposit that the City does not use for the purposes authorized by this Section 32.05. 2326 32.06 The Contractor shall furnish the City with audited financial statements of the proposed 2327 Assignee’s operations for the immediately preceding three (3) operating years. 2328 32.07 The Contractor shall furnish the City with satisfactory proof:
2329 32.07.1 That the proposed Assignee has at least ten (10) years of Solid Waste 2330 management experience including the handling of Solid Waste, Recyclable and Organic Materials on a scale 2331 equal to or exceeding the scale of operations conducted by the Contractor under this Agreement; 2332 32.07.2 That in the last five (5) years, neither the proposed Assignee nor any of its affiliates 2333 have suffered significant major citations or other charges from any federal, state or local agency having 2334 jurisdiction over its operations due to any significant failure to comply with state, federal or local 2335 environmental laws and that the Assignee has provided the City with a complete list of such citations and 2336 charges;
2337 32.07.3 That the proposed Assignee has conducted its operations in a reasonably 2338 environmentally safe and conscientious fashion;
2339 32.07.4 That the proposed Assignee has conducted its Solid Waste management practices 2340 in good faith and substantial compliance with sound management practices, including all federal, state and 2341 local laws regulating the collection and disposal of Solid Waste, including Hazardous Wastes; and 2342 32.07.5 That the proposed Assignee can fulfill the terms of this Agreement in a timely, safe 2343 and effective manner without material changes in the quality of Collection Services or materials increases in 2344 the costs of providing them, in the form of any other available information required by City. 2345 32.08 To assist the City in determining whether to provide consent to an assignment, sale, or 2346 transfer, the City may request from the Assignee (directly or through Contractor) reasonable documentation 2347 of Assignee’s understanding of and ability and plan to perform the obligations proposed to be assumed by 2348 Assignee under the Agreement. To assist the City in determining whether to consent to an assignment, sale, 2349 or transfer the City may also require one or more representatives of the Assignee to meet in person to 2350 demonstrate to the City’s reasonable satisfaction that the Assignee understands and intends and has the 2351 ability to perform the obligations intended to be assumed under this Agreement. 2352 32.09 Under no circumstances shall the City be obliged to consider any proposed assignment, 2353 sale or transfer by the Contractor if the Contractor is in material breach of any provision of this Agreement 2354 at the time of the request or at any time during the period of consideration of the request. The City will provide Agenda Packet Page 280 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 62 of 82 2355 the Contractor with a reasonable opportunity to be heard before the City Manager and the opportunity to 2356 correct any such claimed failure of performance or material breach. 2357 32.10 In the event that City approves an assignment, sale or transfer, the Assignee shall not be 2358 entitled to request any adjustment in Contractor’s Compensation other than as provided under this 2359 Agreement.
2360 32.11 Contractor shall provide an annual written update to the City by October 1 of each year 2361 detailing the Contractor’s plans, actions, accomplishments and next steps with respect to its internal 2362 succession planning. Contractor shall meet with the City on request to discuss details of the Contractor’s 2363 succession planning efforts.
2364 Article 33. Compliance with Laws
2365 33.01 In the performance of this Contractor, Contractor must comply with all Applicable Laws, 2366 including, without limitation, the El Cerrito Municipal Code. 2367 33.02 City shall provide written notice to Contractor of any planned amendment of the El Cerrito 2368 Municipal Code that would substantially affect the performance of Contractor’s Collection Services pursuant 2369 to this Agreement. Such notice must be provided at least thirty (30) calendar days prior to the City Council’s 2370 approval of such an amendment.
2371 Article 34. Permits and Licenses
2372 34.01 Contractor shall obtain, at its own expense, all permits, and licenses required by law or 2373 ordinance and maintain same in full force and effect throughout the term of this Agreement. Contractor must 2374 provide proof of such permits, licenses or approvals and must demonstrate compliance with the terms and 2375 conditions of such permits, licenses and approvals upon the request of the Agreement Administrator. 2376 34.02 The Contractor must have a valid City of El Cerrito Business License throughout the term 2377 of the Agreement.
2378 Article 35. Waiver
2379 35.01 Waiver by City or Contractor of any breach for violation of any term covenant or condition 2380 of this Agreement will not be deemed to be a waiver of any other term, covenant or condition or any 2381 subsequent breach or violation of the same or of any other term, covenant or condition. The subsequent 2382 acceptance by City of any fee, tax, or any other monies which may become due from Contractor to City will 2383 not be deemed to be a waiver by City of any breach for violation of any term, covenant or condition of this 2384 Agreement.
2385 Article 36. Prohibition Against Gifts
2386 36.01 Contractor represents that Contractor is familiar with City’s prohibition against the 2387 acceptance of any gift by a City officer or designated employee. Contractor may not offer any City officer or 2388 designated employee any gifts prohibited by the City. 2389 Article 37. Point of Contact
2390 37.01 The day-to-day dealings between Contractor and City will be between Contractor and the 2391 Agreement Administrator.
Agenda Packet Page 281 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 63 of 82 2392 Article 38. Notices
2393 38.01 Except as provided in this Agreement, whenever either party desires to give notice to the 2394 other, it must be given by written notice addressed to the party for whom it is intended, at the place last 2395 specified and to the place for giving of notice in compliance with the provisions of this Section. For the 2396 present, the parties designate the following as the respective persons and places for giving of notice:
2397 As to the City:
2398 Public Works Director
2399 City of El Cerrito Public Works Dept.
2400 10890 San Pablo Avenue
2401 El Cerrito, CA 94350
2402 Telephone: (510) 215-4385
2403 email: [email protected]
2404 As to the Contractor:
2405 President
2406 East Bay Sanitary Co., Inc.
2407 1432 Kearney St.
2408 El Cerrito, CA 94350
2409 Telephone: (510) 237-4321
2410 email: [email protected]
2411 38.02 Notices will be effective when received at the address as specified above. Changes in the 2412 respective address to which such notice is to be directed may be made by written notice. 2413 38.03 Notice by City to Contractor of a Collection or other Service Recipient problem or complaint 2414 may be given to Contractor orally by telephone at Contractor’s local office with confirmation sent to 2415 Contractor through the Customer Service System by the end of the Work Day. 2416 Article 39. Transition to Next Contractor
2417 39.01 In the event Contractor is not awarded an extension or new contract to continue to provide 2418 Collection Services following the expiration or early termination of this Agreement, Contractor will cooperate 2419 fully with City and any subsequent contractors to assure a smooth transition of Collection Services described 2420 in this Agreement. Such cooperation will include but not be limited to transfer of computer data, files and 2421 tapes; providing routing information, route maps, Collection Vehicle fleet information, and list of Service 2422 Recipients; providing a complete inventory of all Containers; providing adequate labor and equipment to 2423 complete performance of all Collection Services required under this Agreement; taking reasonable actions 2424 necessary to transfer ownership of Carts and Bins, as appropriate, to City; including transporting such 2425 containers to a location designated by the Agreement Administrator; coordinating Collection of materials set 2426 out in new containers if new containers are provided for in subsequent Agreements and providing other 2427 reports and data required by this Agreement.
Agenda Packet Page 282 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 64 of 82 2428 Article 40. Contractor’s Records
2429 40.01 Contractor shall keep and preserve, during the Term of this Agreement, full, complete, and 2430 accurate financial and accounting records, pertaining to cash, billing and disposal transactions for the 2431 Service Area, prepared on an accrual basis in accordance with generally accepted accounting principles. 2432 These records and reports are necessary for the City to properly administer and monitor the Agreement and 2433 to assist the City in meeting the requirements of the Act. The Contractor shall keep and preserve, during the 2434 Term of this Agreement, and for a period of not less than four (4) years following expiration or other 2435 termination hereof or for any longer period required by law, full, complete and accurate records as indicated 2436 in the Agreement.
2437 40.02 Any records or documents required to be maintained pursuant to this Agreement must be 2438 made available for inspection or audit, at any time during regular business hours, upon written request by 2439 the Agreement Administrator, the City Attorney, City Auditor, City Manager, or a designated representative 2440 of any of these officers. Copies of such documents will be provided to City electronically, available to City 2441 for inspection at the local Contractor office, or an alternate site if mutually agreed upon. 2442 40.03 Contractor acknowledges that City is legally obligated to comply with the California Public 2443 Records Act (“CPRA”). City acknowledges that Contractor may consider certain records, reports, or 2444 information contained therein, (“Records”) which Contractor is required to provide to City under this 2445 Agreement, to be of a proprietary or confidential nature. In such instances, Contractor will inform City in 2446 writing of which records are considered propriety or confidential and shall identify the statutory exceptions 2447 to disclosure provided under the CPRA that legally permit non-disclosure of the Records. At such time as 2448 City receives a request for records under the CPRA or Federal Freedom of Information Act (“FOIA”) or a 2449 subpoena or other court order requesting disclosure of the Records, City will notify Contractor of the request, 2450 subpoena or order and of City’s obligation and intent to provide a response within ten (10) calendar days. 2451 Contractor shall within five (5) calendar days either: (i) consent in writing to the disclosure of the Records; 2452 or (ii) seek and obtain, at Contractor’s sole cost and expense, the order of a court of competent jurisdiction 2453 staying or enjoining the disclosure of the Records. If Contractor fails to timely respond, then City may 2454 proceed to disclosure the Records in which event Contractor agrees to the disclosure and waives and 2455 releases City of any liability for the disclosure of the Records. 2456 40.04 Where City has reason to believe that such records or documents may be lost or discarded 2457 in the event of the dissolution, disbandment or termination of Contractor’s business, City may, by written 2458 request or demand of any of the above-named officers, require that custody of the records be given to City 2459 and that the records and documents be maintained in City Hall. Access to such records and documents will 2460 be granted to any party authorized by Contractor, Contractor’s representatives, or Contractor’s successor2461 in-interest. 2462 Article 41. Entire Agreement
2463 41.01 This Agreement and the attached Exhibits constitute the entire Agreement and 2464 understanding between the parties with respect to the subject matter hereof, and the Agreement will not be 2465 considered modified, altered, changed or amended in any respect unless in writing and signed by the parties.
Agenda Packet Page 283 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 65 of 82 2466 Article 42. Severability
2467 42.01 If any provision of this Agreement or the application of it to any person or situation is to any 2468 extent held invalid or unenforceable, the remainder of this Agreement and the application of such provisions 2469 to persons or situations other than those as to which it is held invalid or unenforceable, will not be affected, 2470 will continue in full force and effect, and will be enforced to the fullest extent permitted by law. 2471 Article 43. Right to Require Performance
2472 43.01 The failure of City at any time to require performance by Contractor of any provision of this 2473 Agreement will in no way affect the right of City thereafter to enforce same. Nor will waiver by City of any 2474 breach of any provision of this Agreement be taken or held to be a waiver of any succeeding breach of such 2475 provision or as a waiver of any provision itself.
2476 Article 44. Headings
2477 44.01 Headings in this document are for convenience of reference only and are not to be 2478 considered in any interpretation of this Agreement. 2479 Article 45. Exhibits
2480 45.01 Each Exhibit referred to in this Agreement forms an essential part of this Agreement. Each 2481 such Exhibit is a part of this Agreement, and each is incorporated by this reference. 2482 Article 46. Attorney’s Fees
2483 46.01 In the event that arbitration or litigation is brought by a party in connection with this 2484 Agreement, each party shall bear its own costs and expenses, including, without limitation, attorneys’ fees. 2485 Notwithstanding the immediately preceding sentence subsequent to a Change in Control, in the event that 2486 either party brings arbitration or litigation in connection with this Agreement, the prevailing party will be 2487 entitled to recover from the opposing party all costs and expenses, including reasonable attorneys’ fees, 2488 incurred by the prevailing party in the exercise of any of its rights or remedies under this Agreement or the 2489 enforcement of any of the terms, conditions, or provisions of this Agreement. 2490 Article 47. Effective Date
2491 47.01 This Agreement will become effective when it is properly executed by City and Contractor 2492 and Contractor will begin Collection Services under this Agreement as of June 1, 2022. 2493
Agenda Packet Page 284 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 66 of 82 2494 IN WITNESS WHEREOF, City and Contractor have executed this Agreement on the respective date(s) 2495 below each signature.
2496 CITY OF EL CERRITO CONTRACTOR
2497 A Charter Law City
2498 By: ________________________ By: ________________________ 2499 Karen Pinkos, City Manager Mark Figone, President
2500
2501
2502 ATTEST: ____________________ By: __________________________ 2503 Holly M. Charléty, City Clerk Name
2504 APPROVED AS TO FORM
2505 City Attorney _____________________________
2506 By: _________________________ Secretary, Assistant Secretary, Financial Officer, Asst. 2507 Treasurer
2508 Sky Woodruff
2509
Agenda Packet Page 285 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 67 of 82 2510 Exhibit 1
2511 City Service Recipients
2512 Contractor shall provide no-cost Garbage and Organic Waste Collection Services for the 2513 following City Service Recipients.
Location Service Level Frequency
1. Arlington Park (1) 1 Cubic Yard (CY) bin for garbage (1) 64-gallon for green waste
Once Per Week
Pickup
2. Cerrito Vista Park (1) 1 CY bin for garbage Once Per Week Pickup
3. Community
Center
(1) 1 CY bin for garbage
(3) 64-gallon carts for green waste
Once Per Week
Pickup
4. El Cerrito Library (2) 64-gallon carts for garbage
(2) 64-gallon carts for green waste
Once Per Week
Pickup
5. City Hall (1) 1 CY bin for garbage
(1) 64-gallon cart for green waste
Once Per Week
Pickup
6. Public Safety
Building
(1) 2 CY bin for garbage
(1) 64-gallon cart for green waste
Once Per Week
Pickup
7. Fire Station #72 (2) 64-gallon carts for garbage
(1) 64-gallon cart for green waste
Once Per Week
Pickup
8. Corporation Yard (2) 64-gallon carts for garbage
(2) 64-gallon carts for green waste
Once Per Week
Pickup
9. Recycling Center (1) 64-gallon cart for garbage
(1) 64-gallon cart for green waste
Once Per Week
Pickup
10. Casa Cerrito (1) 64-gallon cart for garbage
(1) 64-gallon cart for green waste
Once Per Week
Pickup
2514 NOTE: Exhibit 1 may be adjusted from time to time, as needed, to include all premises owned, 2515 operated, or maintained by the City.
Agenda Packet Page 286 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 68 of 82 2516 Exhibit 2
2517 Administrative Charges and Penalties
Item
Amount if Not Cured
in 30 Days
If Cured in 30 Days
a. Failure to respond to each complaint within three (3) Work Days of receipt of complaint. $100 per incident per Service Recipient. 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 include all parts of quarterly and annual reports specified Exhibit 8. $100 per day. -0-
e. Failure to submit to City all payments by the deadlines required under the provisions of this Agreement.
1% of the total amount due if fees are 1 – 10
days late; and 10% of the total amount due if
fees are more than 10 days late.
f. Failure for Collection Container to be compliant with specifications of this Agreement.
$50.00/each Collection
Container not
compliant.
-0-
g. Failure for Collection Container to be compliant with SB 1383 labeling requirements.
$50.00/each Collection
Container not
compliant.
-0-
h. Failure to display Contractor’s name and customer
service phone number on Collection Vehicles.
$100 per incident per
day. -0-
i. Failure to Collect a missed collection Container 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-
j. Failure to repair or replace damaged 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.
k. Failure to maintain collection hours as required by this Agreement. $100 per day. -0-
l. Failure to have Contractor personnel in Contractorprovided uniforms.$25 per day per employee. -0-
Agenda Packet Page 287 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 69 of 82 Item
Amount if Not Cured
in 30 Days
If Cured in 30 Days
m. Failure of Contractor to follow Contamination and
Overage procedures as set forth in this Agreement. $100/day for failure to implement correction
plan.
Submit for approval
to City and
implement plan of
correction to City
within 30 days.
n. Vehicle fluid leak incidents from Contractor Collection Vehicles in excess of three (3) during a calendar year. $5000 per incident in
excess of three (3)
o. Failure of Contractor to provide proof of performance bond as required by this Agreement Agreement Default $500 per day p. Failure of Contractor to provide proof of insurance as required by this Agreement Agreement Default $500 per day q. Failure to Collect holiday trees on Collection Days. $25 per day. -0- r. Failure to commence service to a new Service Recipient within seven (7) days after order. $150 per day -0-
w. Failure to initially respond to a Service Recipient
complaint within one (1) business day.
$50.00 per failure to
resolve Service
Recipient compliant or
request
-0-
t. Failure to conduct the required tri-annual customer
satisfaction assessment and survey and report the
results to the City.
$1,000 -0-
u. Failure to conduct any of the required quarterly in-depth diversion site visits within each calendar quarter. $50 -0- v. Failure to provide Roll-off hauling service from the City of El Cerrito Recycling and Environmental Resource
Center and Corporation Yard within 2 working days of
the service being requested.
$250 -0-
w. Failure to return containers to original service location with lids closed. $50 -0-
x. Failure to comply with State and Federal
vehicle weight limitations.
$200 per incident
after twenty-five
(25) such incidents
per quarter.
-0-
Agenda Packet Page 288 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 70 of 82 Item
Amount if Not Cured
in 30 Days
If Cured in 30 Days
y. Failure to use City designated Disposal Facility,
Organics Waste Facility, and C&D Processing Facility
and failure to comply with Section 3.18.
$100/ton -0-
z. Disposal of Organic Waste in the Disposal Facility
without first obtaining the required permission of the
City.
$1,000 per load. -0-
aa. Failure to deliver to Service Recipients new Garbage, Organic Waste, and Recyclable Materials Carts meeting
color and labelling requirements by the date specified in this Agreement.
$1,000 plus $50/day -0-
bb. Failure to be in compliance with the terms and
conditions of the Agreement pursuant to Section
12.02.4. $5,000 -0-
2518
Agenda Packet Page 289 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 71 of 82 2519 Exhibit 3
2520 Service Charges
2521 Services charges will be adjusted by the change in the CPI All Other a maximum of one time 2522 annually. Amounts listed with an asterisk (*) may fluctuate based on market prices except for 2523 labor hours which may fluctuate based on labor agreements; the Contractor shall notify the City 2524 of any adjustments to these prices a maximum of one time annually. 2525
Service Charge Type Charge Per Unit
Standard Service Charges
Contaminated Container Charge (Per Article 3) $25.00
Overage Charge (Per Article 3) $25.00
Cart Cleaning (Per Article 3) $25.00
Bin Cleaning (Per Article 3) $50.00
Roll-off Cleaning (Per Article 3) $100.00
Cart / Bin Replacement Charge (Per Articles 6 and 7)* $65.00 / $1,000.00 Additional Large Item Collection Charge (Per Articles 6 and 7) Per Extra Service Rates Below
Back-up Recycling Collection Services Charges (Per Article 10) and Emergency Service Charges (Per Article 16)
– Collection Vehicle per day* $360.00
– Driver per Hour / Overtime* $152.00 / $174.00
– Driver per Day / Overtime* $889.00 / $1065.00
Extra Service Charges (Services and Charges per Service Recipient Request) Extra Solid Waste Collection Services
Return for Service Charge (if Container not set out) $25.00 Extra 15-gal bag of Garbage or Organic Waste $6.35
Extra 20-gal bag of Garbage or Organic Waste $8.45
Extra 30-gal bag of Garbage or Organic Waste $12.65
Extra 64-gal bag of Garbage or Organic Waste $26.95
Extra 1/2 CU YD (4 x 30-gal bags) $42.50
Extra CU YD (8 x 30-gal bags) $85.00
Extra Dump on 1 YD Container $110.50
Agenda Packet Page 290 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 72 of 82 Service Charge Type Charge Per Unit
Extra Dump on 2 YD Container $196.05
Additional Services
Toilet (Seat & Water Tank)* $75.00
Sofa up to 7FT / Sofa Bed* $60.00 / $80.00
Stuffed Chair / Lazy Boy / Recliner* $60.00
Twin / Full – Mattress or Box Spring* $60.00
Queen / King – Mattress or Box Spring* $65.00
Baby Crib Mattress* $20.00
TV / Computer Monitor* $150.00
Dishwasher / Washer / Dryer / Stove* $100.00
Water Heater * $80 /+$10 per gal
Refrigerator / Freezer / AC Unit* $125.00
Area Rug 5ft and up* $20.00 - $40.00
Office Chair* $20.00
Office Desk* $20.00 - $50.00
Patio Furniture (Tables/Chairs)* $50.00 - $90.00
Dining Table / Chairs* $50.00 - $90.00
L-Shape Sectional* $60.00 - $150.00
Bedframe (Head/Footrest + Railing)* $50.00 - $90.00
Bookshelves / End Tables / Nightstands* $40.00 - $90.00 Exercise Equipment* $100.00 - $150.00
Kitchen Cabinets / Sink / Windows* $50.00 - $150.00
Lock and Key Set for Carts or Containers $30.00
Locking System Installation on Containers $150.00
2526
Agenda Packet Page 291 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 73 of 82 2527 Exhibit 4
2528 Annual Indexed Adjustment to Contractor’s Compensation 2529 The Contractor shall provide the City with annual audited financial statements no later than July 1 of each 2530 year. The City and Contractor agree that Contractor’s Compensation will be adjusted annually based on 2531 the Refuse Rate Index (RRI) methodology described in this Exhibit 4, subject to City Council confirmation 2532 that the proposed adjustments comply with the RRI calculation methodology. The process and timing of 2533 proposed Contractor’s Compensation adjustments based upon the RRI calculation methodology shall be 2534 as described in the last paragraph of this Exhibit 4. 2535
2536 Refuse Rate Index (RRI) Calculation Methodology
2537 Contractor’s Compensation for the following Calendar Year (e.g., 2023) shall be adjusted annually by 2538 multiplying the Contractor’s Compensation for the current Calendar Year (e.g., $5,070,115 for 2022) by 2539 the calculated Index Rate Adjustment Factor that shall equal:
2540
2541 One (1)
2542 Plus
2543 [(Union Salaries and Wages Adjustment Factor x Union Salaries and Wages Expense 2544 Percentage)
2545 Plus
2546 (Non-Union Salaries and Wages Adjustment Factor x Non-Union Salaries and Wages Expense 2547 Percentage)
2548 Plus
2549 (Diesel Fuel Adjustment Factor x Diesel Fuel Expense Percentage) 2550 Plus
2551 (Vehicle Maintenance Adjustment Factor x Vehicle Maintenance Expense Percentage) 2552 Plus
2553 (All Other Adjustment Factor x All Other Expense Percentage) 2554 Plus
2555 (Depreciation and Interest x Depreciation and Interest Expense Percentage)] 2556
2557 Where:
2558 Union Salaries and Wages Adjustment Factor shall be the applicable annual adjustment to the 2559 wages and benefits specified in the Contractor’s then applicable Collective Bargaining 2560 Agreement. The Union Salaries and Wages Expense Percentage used to calculate each annual 2561 adjustment shall be established each year based on the actual percentages of those expense 2562 items as reported in the Contractor’s prior year audited Financial Statement. 2563
2564 Non-Union Salaries and Wages Adjustment Factor shall be equal to the CPI All Other annual 2565 adjustment to the wages and benefits for non-union employees. The Non-Union Salaries and 2566 Wages Expense Percentage used to calculate each annual adjustment shall be established each 2567 year based on the actual percentages of those expense items as reported in the Contractor’s 2568 prior year audited Financial Statement.
2569
2570 Diesel Fuel Adjustment Factor shall be the average annual percentage change in US Energy 2571 Information Administration Weekly Retail Gasoline and Diesel Prices 2572 (https://www.eia.gov/dnav/pet/pet_pri_gnd_dcus_sca_m.htm) for each of the prior 12 months, as 2573 of August of the Current Year. Diesel Fuel Expense Percentage shall be the percentage of the 2574 Contractor’s total operating expenses that are related to diesel fuel expenses. 2575
2576 Vehicle Maintenance Adjustment Factor shall be the average annual percentage change in the 2577 Consumer Price Index (Series ID CUURS49BSA0) for each of the prior 12 months, as of August 2578 of the Current Year. All Other Expense Percentage shall be the percentage of the Contractor’s 2579 total operating expenses that are related to expenses for all other operating categories not 2580 otherwise addressed in this Exhibit 4.
Agenda Packet Page 292 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 74 of 82 2581
2582 Depreciation and Interest Adjustment Factor shall set based on the Contractor’s actual 2583 depreciation and interest expenses for the current year compared to the prior year. Depreciation 2584 and Interest Expense Percentage shall be the percentage of the Contractor’s total operating 2585 expenses that are related to depreciation and interest expenses. 2586
2587 The table below provides the actual RRI calculation which was used to adjust Contractor’s Compensation 2588 for Calendar Year 2022.
2589
2590
2591
2592 Negative Adjustment Factor
2593 In any year that the calculated RRI results in a negative number, there shall be no adjustment to the 2594 Contractor’s Compensation. Instead, the negative number shall be added to the result of the subsequent 2595 year’s calculated RRI. The result shall be an Adjusted RRI that shall be used to calculate the Contractor’s 2596 Compensation adjustment for that subsequent year.
2597
2598 RRI Exceeding Five Percent
2599 In the event that the calculated RRI exceeds five percent (5%), that calculated adjustment will be used to 2600 adjust the Contractor’s Compensation for the next year as provided for in the above methodology. 2601 However, in such a case the City or Contractor has the option to require that a detailed review of the 2602 Contractor’s revenues and expenses be conducted the following year (as per Exhibit 5) in lieu of the RRI 2603 adjustment process for determining an appropriate Contractor’s Compensation adjustment for the next 2604 year.
2605
2606 Request for RRI Compensation Adjustment
2607 The Contractor shall submit to the City its Request for RRI Compensation adjustment by October 1 of 2608 each year. That Request shall provide support for the calculated RRI and shall show the proposed 2609 Contractor’s Compensation for the next Calendar Year as the product of the then current year 2610 Contractor’s Compensation times the RRI. The City shall have the opportunity to review and adjust the 2611 Contractor’s RRI Compensation Adjustment calculations to ensure mathematical accuracy and 2612 adherence to the terms and conditions of this Agreement. The City shall use its best efforts to obtain City 2613 Council confirmation of adjustments to Service Rates sufficient to meet Contractor’s Compensation by Item # Category Data Source Percent Change (1) Category Costs
Category
Weight (2)
Weighted
Percentage
Change (3)
Adjusted
Category
Costs
1 Union Labor
The applicable annual adjustment to the
wage rates and benefits specified in the
Company's applicable Union Agreement
2.59% $989,289 27.26% 0.71% $1,014,917
2 Non-Union Labor
Series ID: CUURS49BSA0
All items in San Francisco-OaklandHayward, CA, all urban consumers, not seasonally adjusted
2.55% $832,336 22.94% 0.58% $853,557
3 Diesel Fuel
California No 2 Diesel Ultra Low Sulfur (0-15
ppm) Retail Prices (Dollars per Gallon)
http://www.eia.gov/dnav/pet/pet_pri_gnd_dc
us_sca_m.htm
3.14% $101,504 2.80% 0.09% $104,687
4 Vehicle Maintenance Series ID: pcu333924333924
Industrial truck, trailer and stacker mfg. 3.75% $125,557 3.46% 0.13% $130,269 5 All Other
Series ID: CUURS49BSA0
All items in San Francisco-OaklandHayward, CA, all urban consumers, not seasonally adjusted
2.55% $1,429,975 39.40% 1.00% $1,466,434
6 Depreciation and Interest Set to actual -0.66% $150,292 4.14% -0.03% $149,297 7 Pension Liability Funding
No annual adjustment to Pension Funding
Liability - Existing rates set to generate
$45,885 annually.
0.00% $0 0.00% 0.00% $0
$3,628,952 100.00% 2.49% $3,719,161
(1) Assumes these are the percentage changes in the indices from year to year. (2) Assumes the categories represent these percentages as a total of CONTRACTOR’S operating costs. (3) Represents the product of Percentage Change x Category Weight.
RRI
RATE YEAR 2022
Agenda Packet Page 293 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 75 of 82 2614 January 1 of the next year. However, the City shall not seek City Council confirmation of any retroactive 2615 adjustments to compensate the Contractor for any delay in confirming the Service Rates.
Agenda Packet Page 294 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 76 of 82 2616 Exhibit 5
2617 Detailed Compensation Review
2618 General
2619 In the event that either City or Contractor requests a Detailed Compensation Review, as provided 2620 for in Section 4.03, the Detailed Compensation Review shall be based on evidence or data 2621 presented by City or Contractor contained within the audited financial statements for the 2622 preceding complete Calendar Year for the services required by this Agreement. 2623 Overview of Detailed Compensation Review Process
2624 The Detailed Compensation Review process is as follows:
2625 1. Identify the reason(s) for the Detailed Compensation Review request. 2626 2. Establish the actual financial results for the prior Calendar Year, which shall consist of all 2627 franchised revenues and expenses as reported in Contractor’s Annual Audited Financial 2628 Statement. It is expected that any revenues and/or expenses attributed to non- franchised 2629 services shall be clearly reported in the Annual Audited Financial Statement along with 2630 the basis used to assign or allocate such revenues and expenses. 2631 3. Make any appropriate adjustments to the actual costs to account for non- allowable costs 2632 and/or to exclude or reduce any costs that were not reasonably and necessarily incurred 2633 in the performance of the services provided in accordance with the Agreement. 2634 4. Calculate the adjustment required to achieve a revenue that will, in turn, result in a 90.5% 2635 (ninety- and one-half percent) targeted Operating Ratio. 2636 5. Complete and submit a Detailed Compensation Review application. 2637 Detailed Compensation Review Application
2638 In support of a Detailed Compensation Review, Contractor shall prepare a Detailed 2639 Compensation Review application (hereinafter “Application”) that shall be submitted to the other 2640 Party no later than August 1. The Application shall include:
2641 1. The reason(s) for the Application.
2642 2. Line-item revenue and expenses for the franchised services as reported in Contractor’s 2643 Annual Audited Financial Statement.
2644 3. Variance analyses of revenues and expenses for the prior five years, along with 2645 explanations for significant variances.
2646 4. Calculated revenue requirement based upon the current Operating Ratio. 2647 5. The Contractor shall depreciate all trucks and containers over 10-years or greater for the 2648 duration of the Term.
2649 6. Requested adjustment to Contractor’s Compensation required to achieve a revenue that 2650 will, in turn, result in a 90.5% (ninety- and one-half percent) targeted Operating Ratio. 2651 Operating Ratio
2652 “Operating Ratio” means the ratio, expressed as a percentage, of the net operating costs actually 2653 incurred by Contractor, exclusive of Pass-Through Costs and Non- Allowable Costs, divided by 2654 Contractor’s net income, as produced by the Service Rates and Service Charges that are applied 2655 to the services provided under this agreement.
2656 Pass-Through Costs
2657 "Pass-Through Cost" means a cost to which no element of overhead, administrative expense, or 2658 profit is added. Pass-Through Costs shall include:
2659 • Franchise fees.
2660 • All processing and disposal (tip fees) costs incurred by Contractor. 2661 Franchise Fees may be included at Contractor’s discretion as an element of costs for calculating 2662 Contractor’s Compensation, however these expenses shall not be included in any costs used as Agenda Packet Page 295 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 77 of 82 2663 a basis for calculating or determining Operating Ratio. Processing and disposal tip fees are not 2664 included in Contractor’s Compensation.
2665 Compensation for Pension Liability
2666 The City agrees that, when Contractor’s Compensation is calculated, compensation for the 2667 Contractor’s then-unfunded pension liability will be 78.5% of actual, pending managerial review 2668 of the pension fund and investment strategy. The Contractor agrees that compensation for the 2669 Contractor’s then-unfunded pension liability shall not exceed $45,885 per year, until a time when 2670 the pension becomes fully funded; upon full funding of the pension liability, or a Change in Control, 2671 the amount will be removed Contractor’s Compensation.
Agenda Packet Page 296 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 78 of 82 2672 Exhibit 6
2673 Public Area Garbage and Organic Waste Collection Locations and 2674 Frequencies
Location Service Frequency
11. San Pablo Avenue (northern city limits to
southern city limits)
Trash receptacles on both sides of street
including at transit shelters
5 times/week
12. Ohlone Greenway (northern city limits to
southern city limits)
Trash receptacles located at cross streets
(e.g., Central Ave., Fairmount Ave.,
Stockton Ave.)
3 times/week
13. El Cerrito High School Area
Trash receptacles located on Ashbury
Avenue between Fairmount Ave. and
Stockton Ave.
3 times/week
14. Hillside Natural Area - can at King Court
entrance, can at Schmidt Entrance 3 times/week
15. Miscellaneous Locations:
• Lincoln. Ave at Clayton Ave.
• Moeser Lane at Sea View Dr.
• Moeser Lane at Shevlin Dr.
• 6510 Stockton Avenue
3 times/week
2675 NOTE: Exhibit 6 locations and collection frequencies may be adjusted by City from time to time, 2676 as needed.
Agenda Packet Page 297 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 79 of 82 2677 Exhibit 7
2678 City Roll-off Service Facilities, Locations and Service Levels 2679 Contractor shall provide Roll-off Container Collection Service as needed for all Roll-off 2680 Container service requests from the City of El Cerrito Recycling and Environmental Resource 2681 Center and Corporation Yard. Tipping Wall Roll-off Containers located at the City’s Corporation 2682 Yard Tipping Wall shall be maintained in good condition and free of leaks. Contractor shall pick 2683 up containers at the Recycling Center and Tipping Wall following all standard operating 2684 procedures required under the facility’s solid waste, stormwater, and other operating permit(s). 2685
Location Container/Service Service Frequency
1. El Cerrito Recycling
Center
20-40 Cubic Yard
containers for Recyclable
Materials delivered to
processing facilities within
35 miles of City Hall, as
directed by City.
Minimum service level of
3 days per week, with 1-2
pickups occurring each
day, for a total of 3-6 pickups per week.
2. El Cerrito Corporation
Yard and Tipping Wall
20 Cubic Yard containers,
including separated
material streams for
landfill disposal, green
waste, and street sweep
spoils.
Minimum service level of
3 days per week, with 1-2
pickups occurring each
day, for a total of 3-6
pickups per week.
2686 NOTE: Exhibit 7, including Roll-off Container collection types and service frequency may be 2687 adjusted by City from time to time, as needed.
Agenda Packet Page 298 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 80 of 82 2688 Exhibit 8
2689 Reporting
2690 The City reserves the right to require reasonable changes to the content and/or format of this 2691 and any and all other reports that the Contractor is required to provide to the City. The City also 2692 reserves the right to require the Contractor to provide any other information that it deems 2693 necessary for effectively administering its franchise with the Contractor in a complete and timely 2694 manner, with the understanding that determination of additional information does not impose 2695 addition costs on the Contractor. Reports shall be submitted in electronic format, with all 2696 numeric information submitted in Excel. Contractor must furnish City with any additional reports 2697 as may reasonably be required, such reports to be prepared within a reasonable time following 2698 the reporting period.
2699 Contractor will provide reasonable assistance to City in preparing annual reports to CalRecycle 2700 (the “Electronic Annual Report” or EAR), including but not limited to supplying required data for 2701 preparation of the reports, and completing all required data input in the Waste Reporting 2702 System. In the event that CalRecycle requires City to report an Implementation Schedule to 2703 comply with AB 341, AB 1826, SB 1383, SB 1594 and other Applicable Laws, Contractor will 2704 provide assistance to City in preparing a report, including Contractor’s policies and procedures 2705 related to compliance with AB 341, AB 1826, SB 1383, and other Applicable Laws and how 2706 Recycling or Organic Waste are collected, a description of the geographic area, routes, list of 2707 addresses served and a method for tracking Contamination, copies of route audits, copies of 2708 notice of Contamination, copies of notices, violations, education and enforcement actions 2709 issued, and copies of educational materials, flyers, brochures, newsletters, website, and social 2710 media.
2711 Quarterly Reports
2712 Contractor shall submit Quarterly Reports to the City. Quarterly Reports to the City must 2713 include:
2714 1. Compliance Reviews. Contractor shall report the date that compliance reviews were 2715 conducted, the name and title of each person that conducted the reviews. Contractor shall 2716 report the results of the review (i.e., Contractor’s findings as to whether the Service 2717 Recipients reviewed are subscribed for Organic Waste collection service, have an 2718 applicable waiver, or neither) and any relevant evidence supporting such findings (e.g. 2719 account records). Contractor shall provide copies of any educational materials issued 2720 pursuant to such reviews. Contractor shall report to the City all Service Recipients 2721 discovered to be out of compliance with the SB 1383 Regulations, including a list of the 2722 service recipients, the type of violation, actions taken to educate those Service Recipients, 2723 and contact information for those Service Recipients. This includes identifying Residential 2724 and Commercial accounts that are subscribed to Garbage collection service but that are not 2725 subscribed Organic Waste Container collection service. Contractor must also provide the 2726 following information separately for both AB 341 and AB 1826, including:
2727 • The total number of non-exempt Commercial Service Recipients that fall under 2728 the AB 341 or AB 1826 thresholds, and the total number of those non-exempt 2729 Commercial Service Recipients that are not subscribed to Commercial Organic 2730 Waste Collection Service.
2731 • A summary of the type of follow-up outreach that was provided to those non2732 exempt Commercial Service Recipients that are not subscribed to Commercial 2733 Organic Waste Collection Service.
2734 2. Route Reviews. Contractor shall report the date that route reviews were conducted, the 2735 name and title of each person that conducted the reviews, a list of the account names and Agenda Packet Page 299 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 81 of 82 2736 addresses covered by the review, and a description of each route reviewed, including 2737 Contractor’s route number. Contractor shall also provide details regarding the results of the 2738 reviews (i.e., the addresses where any prohibited Container Contaminants were found), and 2739 any photographs taken.
2740 3. Contamination. To the extent required by Applicable Law, the quarterly report must include a 2741 summary of all instances of qualifying Contamination under the procedures in Section 3.09. 2742 This summary must include the total number of accounts where Contamination occurred, the 2743 total number of Contamination Violation Notices issued by Contractor to Service Recipients, 2744 a list of accounts where such notices occurred, and the total number of instances where 2745 Container size or Collection frequency was increased specifically due to Contamination. 2746 Within twenty (20) Work Days of request by City, Contractor will provide copies of the 2747 Contamination Violation Notices and the digital documentation of Contamination. The 2748 quarterly report must include each Service Recipient incurring a charge for Contamination in 2749 the previous quarter. Contractor shall provide a description of Contractor’s process for 2750 determining the level of Container Contamination under the Agreement. Contractor shall 2751 provide documentation relating to observed prohibited Container Contaminants, whether 2752 observed during Route Reviews or otherwise. Contractor shall provide copies of the form of 2753 each notice issued to Service Recipients for prohibited Container Contaminants, as well as, 2754 for each such form, a list of the Service Recipients to which such notice was issued, the 2755 date of issuance, the Service Recipient’s name and service address, and the reason for 2756 issuance (if the form is used for multiple reasons). This information will also be provided 2757 monthly to any other government entity approved by the City, including but not limited to 2758 RecycleMore. Contractor shall report the number of times notices were issued to Service 2759 Recipients for prohibited Container Contaminants and the number of Containers where the 2760 contents were disposed due to observation of prohibited Container Contaminants. 2761 4. Collection Overage Charges. The quarterly report must include each Service Recipient 2762 incurring a fee charge for an Overage in the previous quarter. 2763 5. Service Recipient Complaints Log. The quarterly report must include the Service Recipient 2764 call log collected from the previous quarter, including a summary of the type and number of 2765 complaints and their resolution.
2766 6. Missed Pickups. The quarterly report must include a summary of each Service Recipient 2767 receiving a missed pickup in the previous quarter along with a description or the reason for 2768 the missed pickup.
2769 7. Non-Collection. The quarterly report must include a summary of each Service Recipient 2770 receiving a Non-Collection Notice in the previous quarter along with a description for the 2771 Non-Collection Notice.
2772 8. On-hold Accounts. The quarterly report must include each Service Recipient that was not 2773 billed in the previous quarter due to vacation hold, vacancy etc. 2774 Annual Reports
2775 Contractor shall submit Annual Reports to the City. Annual reports to City must include:
2776 1. Compliance. Contractor must document education and outreach conducted, public event 2777 participation, school visits, compliance notices mailed, site visits to meet the requirements of 2778 SB 1383, service level audits completed, information distributed, and media used, and 2779 community events hosted. This must include public education activities undertaken during 2780 the year, including distribution of bill inserts, collection notification tags, community 2781 information and events, tours and other activities related to the provision of Collection 2782 Services. Contractor shall also provide copies of all outreach and education information 2783 (including flyers, brochures, newsletters, invoice messaging, website and social media 2784 postings, emails, and other electronic messages), including the date the information was 2785 disseminated or the direct contact made. For website and social media postings, this shall Agenda Packet Page 300 of 360
City of El Cerrito East Bay Sanitary Collection Services Agreement Page 82 of 82 2786 be the date posted. Contractor must report the total number of Commercial Service 2787 Recipients serviced and the number of containers, container sizes and frequency of 2788 collection for Garbage and Organic Waste for each non-exempt Commercial Service 2789 Recipient.
2790 2. Tonnage and Service Data. Contractor must annually report the number of unique 2791 Residential Service Recipient accounts serviced and the number of unique Commercial 2792 Service Recipient accounts serviced, tonnage of Garbage and Organic Waste collected and 2793 processed for diversion broken down by Container type. Quantities should be broken down 2794 by Residential, Commercial, and City Service Collection Services. 2795 3. Financial Report. Contractor must prepare an annual Financial Report for submittal to the 2796 City. At a minimum, the Financial Report must include the number of Residential Service 2797 Recipients, Commercial Service Recipients provided with Collection Services by Service 2798 Type, container size, frequency of service and current billing Service Rates including any 2799 additional service charges, the Contractor’s gross billing and amount collected for each type 2800 of Service Recipient.
2801 4. Container and Vehicle Inventory. An updated complete inventory of Containers by type and 2802 size, and an updated complete inventory of Collection Vehicles including for each Collection 2803 Vehicle: Collection Vehicle number, route number, date purchased, Collection Vehicle type, 2804 tare weight, license plate number, fuel type and Collection Vehicle make and model. 2805 5. Overweight Vehicles. The annual report must include a summary total of all instances of 2806 overweight Collection Vehicles. This summary must include the number of overweight 2807 Collection Vehicle instances expressed as a percentage of the total number of Collection 2808 Vehicle loads transported.
2809 6. Environmental Stewardship. Contractor must describe all environmental management 2810 policies and activities related to Collection Service, including the use of alternative fuel 2811 Collection Vehicles, reduction of air emissions and wear and tear on the City’s streets, use 2812 of recycled products throughout operations, use of 100% renewable energy at buildings and 2813 facilities owned or operated by the Contractor, internal Source Separation and Reuse 2814 protocol, water and resource conservation activities within facilities (design, construction and 2815 operation), compliance with laws governing e-waste, HHW, and u-waste, and use of non2816 toxic products when possible. 2817 5097459.2
Agenda Packet Page 301 of 360
CITY HALL 10890 San Pablo Avenue, El Cerrito, CA 94530
Telephone (510) 215-4305 Fax (510) 215-4379 http://www.el-cerrito.org
SUPPLEMENTAL AGENDA MATERIALS
REGULAR CITY COUNCIL MEETING
May 17, 2022
(Revised May 18, 2022)
PUBLIC COMMENT INDEX
1. Public Comments received
Agenda Item 6A – Contra Costa Mosquito & Vector Control District Update (MVCD)
1. Presentation
Agenda Item 7A – Military Equipment Policy Ordinance
1. Presentation
Agenda Item 7B – Public Hearing on Master Fee Schedule Revisions for Fiscal Year 2022-23
1. Corrections to Exhibit A to Resolution
2. Presentation
Agenda Item 8A – Proposed Agreement with East Bay Sanitary for the Provision of Solid Waste Collection Services
1. Presentation
Agenda Packet Page 302 of 360
CITY HALL 10890 San Pablo Avenue, El Cerrito, CA 94530
Telephone (510) 215-4305 Fax (510) 215-4379 http://www.el-cerrito.org
SUPPLEMENTAL AGENDA MATERIALS
PUBLIC COMMENT INDEX
REGULAR CITY COUNCIL MEETING
May 17, 2022
(Revised May 18, 2022)
The following Public Comments were received by 4:00 p.m. 5/17/2022, were provided directly to City Councilmembers in advance of the meeting, and were posted online as supplemental materials at www.el-cerrito.org/CouncilMeetingMaterials Public Comments – Items Not on the Agenda
1. Cordell Hindler
2. Annie Wright
3. Peter P
Agenda Item 7A – Military Equipment Policy Ordinance
1. Michael Freeman
2. Cindy McPherson
Agenda Packet Page 303 of 360
From: Cordell Hindler
To: City Clerk
Subject: public comments- Not on the Agenda
Date: Thursday, May 12, 2022 8:44:17 PM
Good Evening Mayor Quinto, Council Members and Staff, I have some Comments for the Record
1. IFor the June 21st Agenda, the Council Should invite Lavonna Martin to provide an Update on Homelessness
2. Also to Have Tim Haile to Provide an Update on Electric Vehicle Charging Station Sincerely
Cordell
Agenda Packet Page 304 of 360
1 From: Annie Wright
Sent: Tuesday, May 17, 2022 2:52 PM
To: City Clerk
Subject: Fwd: CITY COUNCIL AGENDA MAY 17, 2022, ITEM 12. A (Resolution Approving an Updated Agreement with Contra Costa County Animal Services Department ) Attachments: CCC Civil Grand Jury Report.pdf; Vol 1 - Contra Costa County Animal Services Final Report (02-21-18).pdf; Vol 2 - Contra Costa County Animal Services Final Report Appendix (02-21-18) Redacted (1).pdf
Subject: PUBLIC COMMENTS NOT ON AGENDA, MAY 17, 2022, CITY COUNCIL MEETING Dear Mayor Quinto, City Manager Pinkos, Council Members: Ms. Abelson, Mr. Fadelli, Ms.
Motoyama and Ms. Rudnick,
As Contra Costa County residents, taxpayers and animal advocates, we are very concerned for the welfare of Contra Costa County pets, including dogs, owned cats, homeless community cats and wildlife.
Director Beth Ward has proposed her City‐County Animal Services Agreement which has been sent to the eighteen incorporated Cities. The Agreement is below the basic standard of care in practice by shelters across the country, many of them serving much smaller populations with a fraction of CCAS’s budget. This agreement should consider citizens' needs and humane best practices for animal services and care.
Over 1,000 citizens have sent letters to their City Officials objecting to this Agreement.
This Agreement does not outline these critical shelter services:
Quantify Spay/Neuter and Trap, Neuter, Return (TNR)
Public Education Program
Adoption Program
Adequate cat foster care program to ensure cats and dogs get out of the shelter.
Services for Injured Wildlife
Mobile Van Events: Adoptions and Spay/Neuter, Vaccinations Successful Foster Care System
Coordinated transfer to Rescues
Animal redemption program that reduces the number of animals returned to the shelter.
Pet Retention Program
Adoption guidelines to ensure animals are adopted into safe cruelty free homes Joint City‐County Collaboration Committee
(Attachments on file with the City Clerk and available upon request) Agenda Packet Page 305 of 360
2 Scope of Services states, “Calls made to the County for services that are not provided by the County pursuant to this Agreement will be referred back to the City and the City is responsible for determining the next appropriate action.”
Shelter and Emergency Veterinary Service:
The agreement states providing shelter services as required by the California Penal Code Section 597.1. The code addresses misdemeanors committed against animals in the field. Thus, citing of CA PC 597.1 as the governing law overseeing shelters is not applicable and inappropriate.
The agreement also states emergency veterinary services would be accordance with California Penal Code 597(f). However, this narrow definition should not be the only basis of emergency veterinary services.
A Coordinated Pet Retention, Transfer Partner and Adoption programs with assigned staff is required at the shelter. These positions were not included in this agreement, but promise in the fee increase letter.
Injured Wildlife:
In many areas of the county, wildlife such as deer, are being injured by cars, spiked fences, etc. It is inhumane to allow wildlife to suffer for hours or days without being euthanized. Citizens often attend to injured wildlife as resources are unavailable.
Contact with wildlife is a potential public safety risk (possible injury, exposure to diseases, etc.) and these interactions can be traumatic.
Contra Costa Animal Services eliminated services for all live wildlife calls in October 2020 ‐ presumably because of budget restrictions. That same year CCAS had a 1.9 million dollar surplus that went back into the County general fund. These services included humanely euthanizing or transporting injured wildlife to Lindsay Wildlife Hospital. This agreement has a Agenda Packet Page 306 of 360
3 substantial increase in cities funds, however these services are not being reinstated as promised by Beth Ward. Animal Service is referring all calls to the Department of Fish and Game, which are unable to attend to most calls.
Field Officer Response:
The levels of response times are inadequate putting animal lives and people in danger. Example is an "At Large" dog and the potential risks of endangerment to itself, other animals, people and causing traffic accident injuries and fatalities.
Budget:
CCAS presented to Contra Costa County's Public Protection Committee an annual 4.1 million general fund contribution, while the City fees increase every year.
CCAS presented the slide "Looking Ahead" to the Board of Supervisors on April 12, 2022. The increased City fees contribute toward non mandated services and these services should be included in the City‐County agreement. The slide states an increase of spay and neuters to 47% in FY 21‐22, however during the Board of Supervisors’ meeting, the director stated the 47% increase of spay and neuter is “projected” not from Fiscal year 2021/22.
The cities are contributing to these field and shelter staff positions, and they should be included in the Agreement. CCAS'S Budget Presentation slide:
Agenda Packet Page 307 of 360
4 February 22, 2022, Board of Supervisors (BOS) response to the Grand Jury Investigation into Animal Services: Contra Costa County Board of Supervisors responded to the investigation and agreed there is a need to improve animal services throughout the County. The BOS stated “a new service agreement with the cities” will bring a greater level of service throughout the County.
The Grand Jury Recommendation states “The County Board of Supervisors request that CCAS apply for Measure X funding to lower the projected increased financial cost to CCAS‐contracted cities and to support additional low‐cost spay and neuter services.” At the Board of Supervisors’ meeting on February 22, 2022, clarification was given regarding Measure X funds being a general tax and Animal Services could have received Measure X funds, however the County decided not to pursue this funding despite the magnitude of advocacy efforts by concerned citizens. In an email dated October 19, 2021, County Finance Staff States: “Regarding Animal Services – … highly unlikely Measure X will be available now or in the future. Plan is to continue to pursue additional city funding"...
In addition to the many deficiencies in this agreement, the reduction of services has exacerbated the overpopulation of cats and dogs causing a community crisis.
Low‐cost spay/neuters have been halted for two‐years and were reinstated in March 2022. However, CCAS quickly reached their three month capacity for spay/neuter appointments.
Most of the recommended rescue groups providing low‐cost spay/neuters on CCAS' website are no longer viable.
Agenda Packet Page 308 of 360
5 The Return to Field Program for community cats needs to be brought back and revised to minimize compromising the cats’ health.
There has been a 5‐6 week waitlist for the Community Cat Program's trap‐neuter‐return spay/neuters surgeries. Thirty‐two appointments per week is inadequate.
Euthanasia for Animals:
The Director has documented that if the additional fees are not agreed: “The population of sheltered animals would have to be controlled significantly through euthanasia for animals with treatable conditions outside of the Department's veterinary scope of services and financial resources”.
However, the Haden law states that the animal be released to a nonprofit animal rescue or adoption organization in certain circumstances. Therefore, a robust transfer program should be implemented at the shelter and in this agreement.
In August 2020, the Board of Supervisors voted in favor of a recommendation by Animal Services Director, Beth Ward, to close the Pinole Shelter to consolidate services at the Martinez Shelter.
This decision was part of a savings measure approved to close a $35 million budget deficit for fiscal year 20‐21. There were on‐going budget issues and the Shelter closure was considered for years. Covid‐19 should not be the scapegoat for the demise of the Pinole Shelter, which has been a devasating loss for West County. The photos below were taken on April 20, 2022. Potential adopters and pet owners looking for their lost pet or to surrender them, are met with a Temporarily Closed sign.
Agenda Packet Page 309 of 360
6 Agenda Packet Page 310 of 360
7 In 2017, Animal Services hired the firm Citygate Associates to perform a cost analysis of the County's animal services operations for the contracted cities. This report cost the cities and county over $100,000 dollars, paid from the Animal Services Budget.
Citygate recommended to evaluate all contracted services for effectiveness and cost efficiency, to revise the current City‐Animal Services agreement, review current shelter practices to ensure maximum use of shelter space and maximum customer access to the Pinole and Martinez shelters. Most of these recommendations are not reflected in the agreement.
Citygate summarized: In the nearly 10 years since 2008, the Department has experienced reduced staffing, chronic vacancies, budget cuts, retention problems, recruitment problems, and turnover in key leadership personnel. This succession of organizational change has left the agency with a significant loss of institutional knowledge and the need to rebuild and retool.
We highly recommend reading the Citygate Report, as well as the investigative, Grand Jury Report conducted in 2020‐2021, attached below.
The agreement is below the basic standard of care in practice by shelters across the country.
We urge the cities to revise the agreement to be a mutually agreeable, Joint City‐County Collaboration. We agree that increased city funding is needed. A well‐written humane agreement is required, outlining services and reinstating eliminated ones. City representatives, rescue groups and community members should to be involved with creating a new agreement.
Thank you for your careful consideration of these serious issues affecting the welfare of our pet population, Cities and residents of Contra Costa County.
Respectfully yours,
Annie Wright
ARC (Animal Rights Coalition)
Contra Costa County, California
Agenda Packet Page 311 of 360
From: Peter P
To: City Clerk
Subject: Public Comment, Not on Agendas
Date: Tuesday, May 17, 2022 6:31:54 PM
I am glad that the City of El Cerrito is preparing for July 4 celebrations. With Covid now behaving like a common cold, it is time that we start to live our normal life.
But last time I checked, our city is still under pandemic emergency and with it, the eviction moratorium which is in contradiction to state law AB 2179. While our city’s eviction moratorium ties to emergency declaration and seems to have no end, AB2179 only extends eviction protection to the end of June, 2022 for people not paying their rent before the end of March, 2022. It specifically allows eviction for those not paying rent on and after April 1, 2022.
The reasons behind allowing eviction after April1, 2022 is obvious as the State ends rental assistance program by the end of March 2022. Forbinding eviction without providing rent assistance would violate the taking clause of the 5th Amendment of the United State Constitution which reads: “Nor shall private property be taken for public use, without just compensation”.
The clause is intended to uphold the principle that the government should not single out isolated individuals to bear excessive burdens, even in support of an important public good.
El Cerrito City’s eviction moratorium beyond April 1, 2022 does just that —Taking private property for public use without just compensation because the city does not have the money nor the intention to compensate housing providers who are single out to bear excessive burden to house deadbeat tenants.
CAA is suing Alameda county which has the same eviction moratorium policy as El Cerrito.
We don’t know the outcome yet, but I would venture to say that CAA has a good cause. If CAA wins, Alameda county would have to pay out a lot of money.
There’s a good chance that the City of El Cerrito might get sued too if the city insists on violating the taking clause of the 5th Amendment by extending the eviction moratorium without providing rent assistance. If that happens, the costs of attorney’s fees and damages to the housing providers would be too much for our city to bear.
So I am pleading here to our city council members to end the eviction moratorium for the sake of the 5th Amendment of US constitution and for our city's financial integrity.
Agenda Packet Page 312 of 360
From: M 064 Freeman
To: City Clerk
Subject: Military Equipment Hearing
Date: Tuesday, May 17, 2022 10:09:42 AM
Dear El Cerrito City Council Members,
I am an El Cerrito resident and ACLU volunteer very concerned about good government, democracy and human rights. That is why I am concerned about the potential for increased use of military and surveillance equipment in our community.
I strongly support the opinions expressed in the message below which was signed by numerous organizations including American Civil Liberties Union Foundation of Northern California, American Friends Service Committee, Council on American-Islamic Relations, California chapter, Bend the Arc: Jewish Action California, Ella Baker Center for Human Rights, Indivisible East Bay, Media Alliance and many others.
I urge you to read about the many concerns listed below. Most of them are relevant to what is being proposed in El Cerrito. It is important that the policy that is created in El Cerrito addresses all of those concerns.
Thank you.
Sincerely,
Michael Freeman
El Cerrito, CA
We write as community, civil rights and service organizations in California to urge you to fully implement California’s new state law on military equipment used by law enforcement in the state. AB 481 addresses police use of tank-like armored vehicles, assault rifles, tear gas, rubber bullets, drones, and other equipment frequently experienced as military by community members.
We are concerned that dozens of use policies and ordinances proposed so far under the legislation are incomplete and fall far short of the transparency needed for civilian decisions about the large range and volume of military equipment used by police and sheriff departments across the state.[1] We urge you to ensure that military equipment policies meet the standards set by AB 481 and do not undermine the transparency and oversight by elected officials that are a central goal of AB 481.[2] Specifically, we make the following recommendations:
Agenda Packet Page 313 of 360
Law enforcement must not force “emergency” ordinances on governing bodies, which have 180 days to act on proposed use policies. AB 481 requires law enforcement agencies to submit policies for military equipment by May 1, 2022, but permits governing bodies 180 days after submission to deliberate and decide on the policies; after 180 days, law enforcement would not be able to use the equipment (if governing bodies reject the policies or take no action).
Some departments, however, have misled governing bodies and pushed through emergency measures.
Proposed policies must be publicly posted for at least 30 days before a public hearing, to allow the public and elected officials to review what are often technical and lengthy documents.
This window for action by elected officials between 30 days and 180 days after publication offers ample time for communities and governing bodies to recommend changes and to schedule a hearing on revised policies.
Proposed policies frequently don’t define authorized uses as required by AB 481 for several types of equipment. Many proposed policies state that equipment may be authorized for situations that “include but are not limited to” a listing of situations. The phrase “not limited to” makes the list of authorized uses meaningless, since it suggests that authorized uses are limitless. The vagueness of these statements will make it difficult if not impossible to determine whether a particular use of the equipment complies with the policies.
Policies complying with AB 481 should describe uses that are not authorized. For example, if use of drones for criminal investigations is not authorized without a warrant; if use of rubber bullets and chemical agents is not authorized when young children, elderly or other vulnerable persons are present, or for crowd control, without a serious threat to life or bodily harm; if use of the armored vehicle for arresting a suspect is not authorized without consideration of alternatives. Most proposed policies to date fail to set such limits on authorized use.
Military equipment policies must incorporate new state limitations, contained in AB 48, on the use of chemical agents such as tear gas and rubber bullets – considered military equipment under AB 481 - for crowd control. AB 48 prohibits the use of chemical agents, such as tear gas, and kinetic impact rounds in crowd control situations, except “if the use is objectively reasonable to defend against a threat to life or serious bodily injury,” which is a high standard. [3] Yet dozens of policies reviewed for this letter did not effectively incorporate these limitations into their proposed military equipment policies.
Assault rifles are not “standard issue service weapons” and require use policies. Assault rifles Agenda Packet Page 314 of 360
owned by law enforcement agencies, such as AR15 rifles, are expressly included in AB 481, as weapons defined in the state assault weapons ban legislation. AB 481 only excepts weapons covered by the assault weapon ban that are “standard issue service weapons.” (Section 7070 (c)10) Some agencies claim that their assault rifles are “standard issue service weapons,” and therefore exempt from AB 481. Yet these agencies’ existing policy manuals reinforce categorizing assault rifles as non-standard-issue. Accepting assault rifles as “standard issue” firearms that are not subject to AB 481’s transparency and oversight provisions would reinforce militarization of policing across the state.
Military equipment policies should clearly define procedures for documenting the use of military equipment – not only uses of force - to meet AB 481’s report requirements. AB 481 requires law enforcement agencies that receive approval for use of military equipment to publish an annual report on “how equipment was used and the purpose of its use,” summaries of complaints and audits, and the quantity of any military equipment the agency intends to acquire. (Section 7072) Yet many agencies do not document the use of military equipment, do not do so separately from non-military equipment, or document only uses of force. Making militarization of policing transparent requires reporting on deployments visible to the community, not just when a weapon was fired. Policies should clearly state to whom deployments will be reported and how records will be kept.
Adequate enforcement of military equipment policies requires ordinances with a private right of action. AB 481 relies heavily on the vigilance of elected officials to ensure that military equipment policies conform to AB 481 and that agencies comply with the policies as adopted.
If agencies violate AB 481 or the adopted policies, community members have little recourse.
For these reasons, the ordinance adopted by a governing body that approves a military equipment policy should include a private right of action to ensure compliance.[4] We urge you to fully comply with AB 481’s provisions for transparency and community-input on military equipment used by law enforcement, and to reject proposed use policies that do not comply with this legislation, increase risks of harm, or fail to guarantee civil liberties. We hope you will listen to concerns about militarized policing from members of your community, and we stand ready to work with you to ensure full compliance with AB 481.
Agenda Packet Page 315 of 360
From: M 064 Freeman
To: City Clerk; Paul Fadelli; Gabe Quinto; Janet Abelson; Tessa Rudnick; Lisa Motoyama Cc: El Cerrito Progressives
Subject: More issues with the Proposed Military Equipment Policy Date: Tuesday, May 17, 2022 10:16:14 AM
Dear City Council Members,
I have asked an experienced associate to examine El Cerrito's Proposed Military Equipment Policy and he has identified the following additional thoughts and concerns. "The City Council has 180 days from the date that ECPD published the policy (April 13) to take action; in the interim, ECPD can use the equipment as before. The Council should not be hurried, and should schedule a hearing for more community participation - and potentially delegate it to a committee (whether that’s a good idea is something community members can say).
None of the equipment policies specify authorized uses, procedures required to use it, or independent oversight authority, as required by AB 481’s definition of a use policy.
The policy discusses a couple submachine guns owned by the Department, but, again, with little specificity about authorized uses.
The policy for ‘less lethal’ launchers and munitions - chemical agents and impact projectiles - doesn’t conform to AB 48’s limitations on their use for crowd control, which are very restrictive (AB 48, different from AB 481, was also enacted just this year).
The policy omits mention of assault rifles such as AR-15s, though I suspect that El Cerrito PD has them. If they do have then, the only exemption for including them in the military equipment policy is if they are considered “standard issue service weapons.” If they are “standard issue,” that raises a series of questions about militarization. But if they are not (i.e. foot patrol and bike patrol officers don’t carry them), then they should be included in the policy, including information about the number, cost, etc. This is something Council members should ask.
The policy authorizes use of militarized gear owned by other departments - probably by the Contra Costa County Sheriff, but it could be any Bay Area law enforcement agency - including MRAP tank-like vehicles, LRAD ’sound cannons’, and assault rifles. While the policy restricts other agencies from using this equipment in ways not authorized by El Cerrrito’s policy (a good thing), the proposed El Cerrito policy for this gear still lack specificity." Thank you,
Michael Freeman
El Cerrito
Agenda Packet Page 316 of 360
From: Cindy McPherson
To: City Clerk
Subject: Public comment - Agenda Item 7A - May 17
Date: Tuesday, May 17, 2022 8:08:38 PM
Dear El Cerrito City Council Members,
I am an El Cerrito resident who values good government, democracy and human rights. That is why I am concerned about the potential for increased use of military and surveillance equipment in our community.
I strongly support the opinions expressed in the message below which was signed by numerous organizations including American Civil Liberties Union Foundation of Northern California, American Friends Service Committee, Council on American-Islamic Relations, California chapter, Bend the Arc: Jewish Action California, Ella Baker Center for Human Rights, Indivisible East Bay, Media Alliance and many others.
I urge you to read about the many concerns listed below. Most of them are relevant to what is being proposed in El Cerrito. It is important that the policy that is created in El Cerrito addresses all of those concerns.
Thank you.
Cindy McPherson
El Cerrito, CA
*************
We write as community, civil rights and service organizations in California to urge you to fully implement California’s new state law on military equipment used by law enforcement in the state. AB 481 addresses police use of tank-like armored vehicles, assault rifles, tear gas, rubber bullets, drones, and other equipment frequently experienced as military by community members.
We are concerned that dozens of use policies and ordinances proposed so far under the legislation are incomplete and fall far short of the transparency needed for civilian decisions about the large range and volume of military equipment used by police and sheriff departments across the state.[1] We urge you to ensure that military equipment policies meet the standards set by AB 481 and do not undermine the transparency and oversight by elected officials that are a central goal of AB 481.[2] Specifically, we make the following recommendations:
(1) Law enforcement must not force “emergency” ordinances on governing bodies, which Agenda Packet Page 317 of 360
have 180 days to act on proposed use policies. AB 481 requires law enforcement agencies to submit policies for military equipment by May 1, 2022, but permits governing bodies 180 days after submission to deliberate and decide on the policies; after 180 days, law enforcement would not be able to use the equipment (if governing bodies reject the policies or take no action). Some departments, however, have misled governing bodies and pushed through emergency measures.
(2) Proposed policies must be publicly posted for at least 30 days before a public hearing, to allow the public and elected officials to review what are often technical and lengthy documents. This window for action by elected officials between 30 days and 180 days after publication offers ample time for communities and governing bodies to recommend changes and to schedule a hearing on revised policies.
(4) Proposed policies frequently don’t define authorized uses as required by AB 481 for several types of equipment. Many proposed policies state that equipment may be authorized for situations that “include but are not limited to” a listing of situations. The phrase “not limited to” makes the list of authorized uses meaningless, since it suggests that authorized uses are limitless. The vagueness of these statements will make it difficult if not impossible to determine whether a particular use of the equipment complies with the policies. (5) Policies complying with AB 481 should describe uses that are not authorized. For example, if use of drones for criminal investigations is not authorized without a warrant; if use of rubber bullets and chemical agents is not authorized when young children, elderly or other vulnerable persons are present, or for crowd control, without a serious threat to life or bodily harm; if use of the armored vehicle for arresting a suspect is not authorized without consideration of alternatives. Most proposed policies to date fail to set such limits on authorized use. (6) Military equipment policies must incorporate new state limitations, contained in AB 48, on the use of chemical agents such as tear gas and rubber bullets – considered military equipment under AB 481 - for crowd control. AB 48 prohibits the use of chemical agents, such as tear gas, and kinetic impact rounds in crowd control situations, except “if the use is objectively reasonable to defend against a threat to life or serious bodily injury,” which is a high standard.[3] Yet dozens of policies reviewed for this letter did not effectively incorporate these limitations into their proposed military equipment policies. (7) Assault rifles are not “standard issue service weapons” and require use policies. Assault rifles owned by law enforcement agencies, such as AR15 rifles, are expressly included in AB 481, as weapons defined in the state assault weapons ban legislation. AB 481 only excepts weapons covered by the assault weapon ban that are “standard issue service weapons.” (Section 7070 (c)10) Some agencies claim that their assault rifles are “standard issue service weapons,” and therefore exempt from AB 481. Yet these agencies’ existing policy manuals Agenda Packet Page 318 of 360
reinforce categorizing assault rifles as non-standard-issue. Accepting assault rifles as “standard issue” firearms that are not subject to AB 481’s transparency and oversight provisions would reinforce militarization of policing across the state.
(8) Military equipment policies should clearly define procedures for documenting the use of military equipment – not only uses of force - to meet AB 481’s report requirements. AB 481 requires law enforcement agencies that receive approval for use of military equipment to publish an annual report on “how equipment was used and the purpose of its use,” summaries of complaints and audits, and the quantity of any military equipment the agency intends to acquire. (Section 7072) Yet many agencies do not document the use of military equipment, do not do so separately from non-military equipment, or document only uses of force. Making militarization of policing transparent requires reporting on deployments visible to the community, not just when a weapon was fired. Policies should clearly state to whom deployments will be reported and how records will be kept. (9) Adequate enforcement of military equipment policies requires ordinances with a private right of action. AB 481 relies heavily on the vigilance of elected officials to ensure that military equipment policies conform to AB 481 and that agencies comply with the policies as adopted.
If agencies violate AB 481 or the adopted policies, community members have little recourse.
For these reasons, the ordinance adopted by a governing body that approves a military equipment policy should include a private right of action to ensure compliance.[4] We urge you to fully comply with AB 481’s provisions for transparency and community-input on military equipment used by law enforcement, and to reject proposed use policies that do not comply with this legislation, increase risks of harm, or fail to guarantee civil liberties. We hope you will listen to concerns about militarized policing from members of your community, and we stand ready to work with you to ensure full compliance with AB 481.
Agenda Packet Page 319 of 360
From: Cindy McPherson
To: City Clerk
Subject: Public comments - Agenda item 7A - May 17
Date: Tuesday, May 17, 2022 8:09:58 PM
Dear City Council Members,
I was a volunteer with the American Friends Service Committee in examining use policies across the state in regards to the implementation of AB 481, to reduce the militarization of our police. Our lead at AFSC, John Lindsay-Poland, reviewed EC's policy, and I want to raise to you the following concerns. I encourage you to take the time to improve the policy to be thoughtful about creating safety in El Cerrito and reasons for trust in the community with our law enforcement.
(1) "The City Council has 180 days from the date that ECPD published the policy (April 13) to take action; in the interim, ECPD can use the equipment as before. The Council should not be hurried, and should schedule a hearing for more community participation - and potentially delegate it to a committee (whether that’s a good idea is something community members can say).
(2) None of the equipment policies specify authorized uses, procedures required to use it, or independent oversight authority, as required by AB 481’s definition of a use policy.
(3) The policy discusses a couple submachine guns owned by the Department, but, again, with little specificity about authorized uses.
(4) The policy for ‘less lethal’ launchers and munitions - chemical agents and impact projectiles - doesn’t conform to AB 48’s limitations on their use for crowd control, which are very restrictive (AB 48, different from AB 481, was also enacted just this year).
(5) The policy omits mention of assault rifles such as AR-15s, though I suspect that El Cerrito PD has them. If they do have then, the only exemption for including them in the military equipment policy is if they are considered “standard issue service weapons.” If they are “standard issue,” that raises a series of questions about militarization. But if they are not (i.e. foot patrol and bike patrol officers don’t carry them), then they should be included in the policy, including information about the number, cost, etc. This is something Council members should ask. (6) The policy authorizes use of militarized gear owned by other departments - probably by the Contra Costa County Sheriff, but it could be any Bay Area law Agenda Packet Page 320 of 360
enforcement agency - including MRAP tank-like vehicles, LRAD ’sound cannons’, and assault rifles. While the policy restricts other agencies from using this equipment in ways not authorized by El Cerrito’s policy (a good thing), the proposed El Cerrito policy for this gear still lack specificity."
Thank you,
Cindy McPherson
El Cerrito
Agenda Packet Page 321 of 360
Nola Woods
Public Affairs Director
Protecting Public Health Since 1927
Agenda Item No. 6.A.
Agenda Packet Page 322 of 360
District Facts
Agenda Packet Page 323 of 360
Agenda Packet Page 324 of 360
Agenda Packet Page 325 of 360
Agenda Packet Page 326 of 360
Agenda Packet Page 327 of 360
Agenda Packet Page 328 of 360
District Services:
Mosquitoes
Rats/mice
Yellowjackets
Skunks
Ticks
Agenda Packet Page 329 of 360
Agenda Packet Page 330 of 360
Agenda Packet Page 331 of 360
Agenda Packet Page 332 of 360
155 Mason Circle, Concord
www.ContraCostaMosquito.com
Agenda Packet Page 333 of 360
Agenda Item No. 7.A.
Agenda Packet Page 334 of 360
El Cerrito Police
Military
Equipment
Policy
Paul Keith – El Cerrito Police
May 17, 2022
Agenda Packet Page 335 of 360
Military
Equipment
Policy
Mandated by State Law
(Government Code 7070 -7075)
All Military Equipment Owned,
Used or Sought
Council Approval of Department
Policy
Approval by Ordinance
Agenda Packet Page 336 of 360
Military
Equipment
Policy
Process
Inventory of Equipment
Draft Policy created by ECPD and Lexipol
Law Group
30 Day Public Review Period
Council Approves through Ordinance
Process
Annual Public Meetings and Approval
Agenda Packet Page 337 of 360
Categories
of
Equipment
Vehicles
Firearms
Entry Devices (battering rams, flash bang
devices)
Specialty Launchers and Projectiles
Crowd Control Devices
Agenda Packet Page 338 of 360
Questions
or
Comments
Agenda Packet Page 339 of 360
El Cerrito Police
Military
Equipment
Policy
Paul Keith – El Cerrito Police
May 17, 2022
Agenda Packet Page 340 of 360
Agenda Packet Page 341 of 360
Agenda Packet
Page Reference Section Item FY 22 Adopted Fee Proposed Fee Published Corrected Proposed Fee Comments