Contractor agrees to pay (as Liquidated Damages and not as a penalty) the amounts set forth in the Schedule of Liquidated Damages, Exhibit A.
The City may determine the occurrence of events giving rise to Liquidated Damages through the observation of its own employees or representative or investigation of complaints by Customers, occupants, and Generators.
Liquidated Damages will only be assessed after Contractor has been given the opportunity but failed to rectify the damages as described in this Agreement. Before assessing Liquidated Damages, the City shall give Contractor notice of its intention to do so. The notice will include a brief description of the incident(s) and/or non‐ performance. The City may review (and make copies at its own expense) all information in the possession of Contractor relating to incident( s) and non‐ Docusign Envelope ID: 56F70C63-A4EC-482A-9A0E-044D01DEAC83 City of Fresno Non-Exclusive Roll-Off Agreement Page 47 performance. The City may, within ten calendar days after issuing the notice, request a meeting with Contractor. The City may present evidence of non ‐ performance in writing and through testimony of its employees and others relevant to the incident(s) and non‐ performance. The City will provide Contractor with a written explanation of its determination on each incident(s) and non‐ performance prior to authorizing the assessment of Liquidated Damages under this Section 11.4.
The decision of the City shall be final, and the City shall not be subject to, or required to exhaust, any further administrative remedies.
C. Amount. The City may assess Liquidated Damages for each calendar day or event, as appropriate, that Contractor is determined to be liable in accordance with this Agreement in the amounts specified in Exhibit A subject to annual adjustment described below.
The amount of Liquidated Damages specified in Exhibit A shall be adjusted annually on the anniversary of the Effective Date. The adjustment shall be rounded to the nearest cent. Liquidated Damage amounts shall be adjusted to reflect changes in the Consumer Price Index – All Urban Consumers (CPI‐U) compiled and published by the U.S. Department of Labor, Bureau of Labor Statistics, or its successor agency, using the following Bureau of Labor Statistics’ parameters.
• Not Seasonally Adjusted
• Area – Los Angeles‐Riverside‐Orange County, CA
• Item – All Items
• Base Period – 198284=100
The formula for annual adjustment is as follows:
Adjusted Liquidated Damage Amount= Then‐current Liquidated Damage Amount x most current CPI‐U/previous 12‐month CPI‐U
For example:
Current Liquidated Damage Amount = $150.00
Most recently published index (January 2017) = 224.610
Index published 12 months prior to most recently published index (January 2016) = 220.719
Adjusted Liquidated Damage Amount = $150.00 x (224.610/220.719) = $152.64
If the CPI‐ U is discontinued or revised during the Term by the United States Department of Labor, such other government index or computation with which it is replaced shall be used to obtain substantially the same result as would be obtained if the CPI had not been discontinued or revised.
D. Timing of Payment. Contractor shall pay any Liquidated Damages assessed by the City within ten calendar days of the date the Liquidated Damages are assessed.
If they are not paid within the ten-day period, the City may order the termination of the rights or “franchise” granted by this Agreement.
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11.5 DIVERSION NON-PERFORMANCE
If the Contractor’s Diversion level is less than 75% for C&D, less than 70% for Recyclable Materials, and/or less than 90% for Organic Materials Collected in the City for a monthly reporting period, the following steps shall be followed by the City and Contractor.
A. Warning. The City shall issue a written warning to the Contractor within thirty calendar days of receipt of the Contractor’s monthly report documenting the Diversion level for the monthly reporting period. The warning notice shall specify the amount of time (i.e., “correction period”) the City grants the Contractor to improve its performance and meet the Diversion requirements defined in Section 5.3.
B. Opportunity to Improve Performance. The Contractor shall modify its Collection, Processing, Diversion, and public education and outreach programs (subject to the City’s approval) to improve the Diversion level. At the end of the correction period, Contractor shall submit a written report to the City identifying the Diversion level and providing the supporting documentation. If the City determines that the Diversion level equals or exceeds Diversion requirements defined in Section 5.3, the Contractor shall continue to perform services in such a manner as to maintain or improve the Diversion level and the City shall waive its rights to proceed with steps outlined in subsections C and D of this Section 11.5 during the remainder of then‐ current reporting period.
C. Liquidated Damages. If the Contractor fails to improve the Diversion level so that it is equal to or greater than Diversion requirements defined in Section 5.3 by the end of the correction period granted in subsection A of this Section, the City may levy, and Contractor shall pay, Liquidated Damages described in Section 11.4.
D. Termination of the Agreement. If Contractor’s fails to achieve a Diversion level that equals or exceeds Diversion requirements defined in Section 5.3 within six months of the date the City levied Liquidated Damages, the failure to meet the Diversion requirements defined in Section 5.3 shall be considered an event of default and the City may terminate the Agreement in accordance with Section 11.2.
11.6 CONDITIONS UPON TERMINATION
In the event this Agreement is terminated under the provisions of this Article, the following conditions shall be effective:
A. Prohibit Roll‐Off Collection Services. Contractor shall have no right or authority to engage in Roll‐Off Collection services in the City for a period of five years from the date of termination. After five years, should the Contractor provide proof that the event causing the Contractor to default under this Agreement has been corrected, the Contractor may reapply for a non‐ exclusive Roll‐Off Collection service franchise, and the City, at the sole and complete discretion of the City, may reinstate the Contractor based on review of its reapplication.
Docusign Envelope ID: 56F70C63-A4EC-482A-9A0E-044D01DEAC83 City of Fresno Non-Exclusive Roll-Off Agreement Page 49 B. Continuing Liabilities. Contractor shall remain liable to the City for:
1. Fees due in accordance with Article 8 that would otherwise be payable by the Contractor.
2. Liquidated Damages assessed pursuant to Section 11.4.
3. Reports required by Article 7 for Roll ‐Off Collection activities performed by Contractor up to and including the date of termination.
4. Indemnity obligations under Section 10.1.
5. Record keeping and retention obligations under Sections 7.1 and 7.2.
C. Release Customers and Generators from Obligations . Contractor shall allow Permitted Materials Generators served by Contractor to arrange for Permitted Materials Collection services with a hauler authorized to perform such services, without penalty or liability for breach of any contract between Contractor and its Customers or Generators.
D. Remove Roll‐Off Containers. Contractor shall remove all of Contractor’s Roll ‐ Off Containers from all of Contractor’s Collection locations and shall properly Recycle, Process, Compost, or Dispose of Permitted Materials in such Roll ‐Off Containers.
ARTICLE 12
OTHER AGREEMENTS OF THE PARTIES
12.1 RELATIONSHIP OF PARTIES
The Parties intend that Contractor shall perform the services required by this Agreement as an independent Contractor engaged by the City and not as an officer nor employee of the City, nor as a partner of, or joint venturer with, the City. No employee or agent of Contractor shall be, or shall be deemed to be, an employee or agent of the City. Except as expressly provided herein, Contractor shall have control over the manner and means of conducting the Roll‐Off Container Collection, Transportation, Processing, Recycling, Composting, and Disposal services performed under this Agreement, and all Persons performing such services. Contractor shall be solely responsible for the acts and omissions of its officers, employees, Subcontractors, and agents. Neither Contractor nor its officers, employees, Subcontractors, and agents shall obtain any rights to retirement benefits, workers' compensation benefits, or any other benefits which accrue to the City employees by virtue of their employment with the City.
12.2 PERMITS AND LICENSES
Contractor shall obtain and maintain, at Contractor’s sole cost and expense, all permits and licenses applicable to Contractor’s operations under this Agreement which are required by any governmental agency, including a business license issued by the City of Fresno.
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12.3 COMPLIANCE WITH LAW
Contractor shall, at all times, at its sole cost, comply with all Applicable Laws permits and licenses of the United States, the State and the City and with all applicable regulations promulgated by Federal, State, regional or local administrative and regulatory agencies, now in force and as they may be enacted, issued or amended during the Term.
12.4 GOVERNING LAW
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California.
12.5 JURISDICTION
Any lawsuits between the Parties arising out of this Agreement shall be brought and concluded in the courts of Fresno County in the State of California, which shall have exclusive jurisdiction over such lawsuits.
With respect to venue, the Parties agree that this Agreement is made in and will be performed in Fresno County.
12.6 BINDING ON SUCCESSORS
The provisions of this Agreement shall inure to the benefit to, and be binding on, the successors and permitted assigns of the Parties.
12.7 ASSIGNMENT
Neither Party shall assign its rights nor delegate or otherwise transfer its obligations under this Agreement to any other Person without the prior written consent of the other Party. Any such assignment made without the consent of the other Party shall be void and the attempted assignment shall constitute a material breach of this Agreement. Under no circumstances shall any assignment be considered by the City if Contractor is in default at any time during the period of consideration.
12.8 PARTIES IN INTEREST
Nothing in this Agreement, whether express or implied, is intended to confer any rights on any Persons other than the Parties to it and their representatives, successors and permitted assigns.
12.9 WAIVER
The waiver by either Party of any breach or violation of any provisions of this Agreement shall not be deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach of violation of the same or any other provision. The subsequent acceptance by either Party of any monies which become due hereunder, shall not be deemed to be a waiver of any pre‐existing or concurrent breach or violation by the other Docusign Envelope ID: 56F70C63-A4EC-482A-9A0E-044D01DEAC83 City of Fresno Non-Exclusive Roll-Off Agreement Page 51 Party of any provision of this Agreement.
12.10 NOTICE PROCEDURES
All notices, demands, requests, proposals, approvals, consents, and other communications which this Agreement requires, authorizes, or contemplates all, shall be in writing and shall either be personally delivered to a representative of the Parties at the address below or deposited in the United States mail, first class postage prepaid, addressed as follows:
A. If to City:
Director of Public Utilities,
City of Fresno
1626 E St.
Fresno, CA 93706
B. If to Contractor:
UC Cleanup Services
PO Box 121
Kerman, CA 93630
The address to which communications may be delivered may be changed from time to time by a notice given in accordance with this Section. Notice shall be deemed given on the day it is personally delivered or, if mailed, three calendar days from the date it is deposited in the mail.
12.11 REPRESENTATIVES OF THE PARTIES
References in this Agreement to the "City" shall mean the City Council and all actions to be taken by the City shall be taken by the City Council except as provided below. The City Council may delegate, in writing, authority to the Director and/or to other City officials and may permit such officials, in turn, to delegate in writing some or all of such authority to subordinate officers. The Contractor may rely upon actions taken by such delegates if they are within the scope of the authority properly delegated to them.
The Contractor shall, by the Effective Date, designate in writing a responsible officer who shall serve as the representative of the Contractor in all matters related to the Agreement and shall inform the City in writing of such designation and of any limitations upon his or her authority to bind the Contractor. The City may rely upon action taken by such designated representative as actions of the Contractor unless they are outside the scope of the authority delegated to him/her by the Contractor as communicated to the City.
12.12 CRIMINAL ACTIVITY OF CONTRACTOR
12.12.1 Criminal Activity
For purpose of this Section, Criminal Activity shall mean any of the following events or circumstances:
A. Convictions. The entry against any Contractor Party or its officers, of a criminal conviction or a permanent mandatory or prohibitory injunction from a Docusign Envelope ID: 56F70C63-A4EC-482A-9A0E-044D01DEAC83 City of Fresno Non-Exclusive Roll-Off Agreement Page 52 court, municipality, or regulatory agency of competent jurisdiction, based on acts taken in his or her official capacity on behalf of Contractor with respect to:
1. Fraud or criminal offense in connection with obtaining, attempting to obtain, procuring, or performing a public or private agreement related to municipal Solid Waste services of any kind (including Collection, Transportation, transfer, Processing, Recycling, Composting, or Disposal), including this Agreement or any amendment thereto;
2. Bribery or attempting to bribe a public officer or employee of a local, State, or Federal agency;
3. Embezzlement, extortion, racketeering, false claims, false statements, forgery, falsification or destruction of records, obstruction of justice, knowingly receiving stolen property, theft, or misprision (failure to disclose) of a felony;
4. Unlawful disposal of Hazardous Wastes, the occurrence of which any Contractor Party knew or should have known;
5. Violation of antitrust laws, including laws relating to price‐ fixing, bid‐ rigging, and sales and market allocation, and of unfair and anti ‐ competitive trade practices laws;
6. Violation of securities laws; and
7. Felonies.
B. Pleas. Entry of a plea of “guilty,” “nolo contendere,” or “no contest” by a Contractor Party based on acts taken in his, her, or its official capacity on behalf of Contractor with respect to the conduct described in preceding Section
12.12.1.A.
12.12.2 Notice
Contactor shall notify the City in writing within five calendar days of occurrence of any Criminal Activity by any Contractor Party.
12.12.3 Contractor’s Cure
Upon occurrence of any Criminal Activity, Contractor shall immediately do or cause to be done all of the following:
A. Terminate from employment or remove from office any offending individual Contractor Party, unless otherwise directed or ordered by a court or regulatory agency of competent jurisdiction or authority, and unless that termination would constitute a breach of any labor agreement entered into by Contractor, and
Docusign Envelope ID: 56F70C63-A4EC-482A-9A0E-044D01DEAC83 City of Fresno Non-Exclusive Roll-Off Agreement Page 53 B. Eliminate participation by any offending individual Contractor Party in any management, supervision, or decision activity that affects or could affect, directly or indirectly, the performance of the Contractor under this Agreement.
12.12.4 Transfer and Hiring
Contractor shall not allow or cause to be allowed to hire or transfer any individual from any Parent Company or subsidiary company or business entity of Contractor who has committed Criminal Activity as a Contractor representative, field supervisor, officer, or director who is directly or indirectly responsible for performance of this Agreement without obtaining prior written consent of the City, following full disclosure to the City of the facts and circumstances surrounding such Criminal Activity.
12.12.5 The City’s Remedy
In the event of any occurrence of Criminal Activity, the City, in its sole discretion, may terminate the Agreement within thirty calendar days written notice to Contractor, or may impose other sanctions (which may include financial sanctions, temporary suspensions, or any other condition deemed appropriate short of termination) as it will deem proper, in the following events:
A. Contractor fails to comply with the foregoing obligation of this Section, or
B. The Criminal Activity concerns or relates directly or indirectly to this Agreement.
Contractor shall be given the opportunity to present evidence in mitigation during the thirty calendar day notice period.
12.13 ACKNOWLEDGEMENT OF PUBLIC RESOURCES CODE SECTION 49520 NOTICE If Contractor has lawfully provided solid waste collection services in the City for more than three years prior to July 1, 2022, (and is therefore entitled to the notice provided for in Public Resources Code 49520), Contractor shall consider execution of this Agreement by the City as the City’s notice to Contractor, pursuant to Public Resources Code 49520, that Contractor may provide service for a period of five years beyond July 1,2022, after which time the City has the right to establish an exclusive franchise collection system.
ARTICLE 13
MISCELLANEOUS AGREEMENTS
13.1 ENTIRE AGREEMENT
This Agreement, including the Exhibits, represents the full and entire Agreement between the Parties with respect to the matters covered herein.
13.2 SECTION HEADINGS
The article headings and section headings in this Agreement are for convenience of reference only and are not intended to be used in the construction of this Agreement nor to alter or affect any of its provisions .
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13.3 REFERENCES TO LAWS
All references in this Agreement to laws shall be understood to include such laws as they may be subsequently amended or recodified, unless otherwise specifically provided.
13.4 INTERPRETATION
This Agreement shall be interpreted and construed reasonably and neither for nor against either Party, regardless of the degree to which either Party participated in its drafting.
13.5 PRONOUNS AND PLURALS; TENSE
When not inconsistent with the context, words and phrases used in the present tense include the future, and words and phrases used in the singular number include the plural number. Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine and neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.
13.6 TEXT TO CONTROL
The captions of the Articles or Sections in this Agreement are for convenience only and in no way define, limit, extend or describe the scope or intent of any of the provisions hereof, shall not be deemed part of this Agreement and shall not be used in construing or interpreting this Agreement.
13.7 AMENDMENT
This Agreement may not be modified or amended in any respect except in writing signed by the Parties.
13.8 SEVERABILITY
If any non‐material provision of this Agreement is for any reason deemed to be invalid and unenforceable, the invalidity or unenforceability of such provision shall not affect any of the remaining provisions of this Agreement, which shall be enforced as if such invalid or unenforceable provision had not been contained herein.
13.9 COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be considered an original.
13.10 EXHIBITS
Each of the Exhibits identified as Exhibit "A" through “D” is attached hereto and incorporated herein and made a part hereof by this reference.
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IN WITNESS WHEREOF, the Parties have caused the Agreement to be executed on the day and year first above written.
CITY OF FRESNO,
A California municipal corporation
By:
Brock D. Buche, PE, PLS
Director of Public Utilities
APPROVED AS TO FORM
ANDREW JANZ
City Attorney
By:
Angela M. Karst Date
Senior Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By:
Deputy Date
UC CLEANUP SERVICES,
a Sole Propiertorship
By:
Name:Norma Vargas_______________
Title:Bookkeeper__________________________________________________________________________ (If corporation or LLC, Board Chair,
Pres. or Vice Pres.)
By:
Name:
Title:
(If corporation or LLC, CFO,
Treasurer, Secretary or Assistant
Secretary)
Business License:28180_______________
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7/31/2024
A - 1
EXHIBIT A
SCHEDULE FOR LIQUIDATED DAMAGES
Contractor may be assessed Liquidated Damages if Contractor fails to fulfill its obligations with regards to the events listed in this Exhibit in accordance with the terms and conditions of the Agreement with regards to the time frame for accomplishing each event and nature of the responsibility associated with the event unless otherwise stated in this Exhibit.
1. Diversion. Failure to achieve and maintain a minimum of 75% Diversion per month of all C& D Collected within the City, 70% Diversion per month of all Recyclable Materials Collected within the City, and 90% of all Organic Materials Collected within the City.
The greater of
$5,000 or 10% of
the gross Rate
revenues received
for providing C&D,
Recyclable
Materials, and
Organic Materials
services in the
City, for the most
recent 12‐ month
2. Leaks, Litter or Spills . For each occurrence over five during a calendar year of unreasonable leaks, litter, or spills of Permitted Materials near or on public streets and failure to pick up or clean up such material immediately.
$300/ event
3. Unauthorized Collection Hours. For each occurrence
over five during a calendar year of Collecting Permitted Materials during unauthorized hours.
$300/ event
4. Excessive Noise. For each occurrence over 10 during a calendar year
$300/ event
5. Cleaning Collection Vehicles. For each occurrence over five during a calendar year for failure to keep Collection vehicles in a safe and sanitary condition.
$150/ event
6. Labeling of Roll‐Off Containers. For each occurrence of Contractor’s failure to correctly label Contractor ‐owned Roll‐Off Containers (in accordance with Section 6.4).
$500/ event
7. Discourteous Behavior. For each occurrence of
discourteous behavior by Collection vehicle personnel,
customer service.
$500/ event
8. Injuries to Others. For each incident of personal injury to a Person requiring medical treatment or hospitalization, where the negligence of the Contractor or its personnel was a contributing factor to the injury.
$5,000/ incident
9. Monthly Reports. Failure to submit monthly reports in the timeframe specified in this Agreement.
$300/ day*
10. Report Hazardous Waste . For each failure to notify the appropriate authorities of reportable quantities of
Hazardous Waste.
$500/ event
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11. Failure of Other Obligations. Failure to perform any of the obligations set forth in this Agreement not specifically stated above and not corrected or proceeding in good faith to
correct within 24 hours upon 24 hour notification
$150/ for each
obligation per day
until obligation is
performed
* Monthly reports shall be considered late until such time as a correct and complete monthly report is received by City. For each calendar day a report is late, the daily Liquidated Damage shall be as indicated in the monthly reports section above.
In placing Designee’s initials at the places provided, each Party specifically confirms the accuracy of the statements made above and the fact that each Party has had ample opportunity to consult with legal counsel and obtain an explanation of Liquidated Damage provisions of the time that the Agreement was made.
Contractor City
Initial Here: Initial Here:
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EXHIBIT B
STATEMENT OF APPLICANT’S
UNDERSTANDING AND
REPRESENTATIONS
The undersigned (who is duly authorized to bind the company submitting this application) has reviewed the requirements of the non‐ exclusive franchise agreement for Roll ‐Off Collection, Transporting, Processing, Recycling, Composting, and Disposal services for Solid Waste, Recyclable Materials, Organic Materials, and C&D, its exhibits, and reference documents. In addition, the undersigned attests that this application and any other supplementary information submitted with this application do not: (i) contain any untrue statement of a material fact, (ii) contain inaccurate or misleading information, or (iii) omit to state a material fact that is necessary to make the statements made, in light of the circumstances in which they were made, not misleading.
Norma Vargas
Print Name Date
Bookkeepeer
Title
UC Cleanup Services
Company Name
Signature
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EXHIBIT C
APPROVED PROCESSING AND RESIDUE DISPOSAL FACILITIES
The following facilities were selected by the Contractor and approved by the City.
Approved C&D Processing
Site
Approved Disposal Site
(Applicable for Residue
Only) *
Facility name Cedar Avenue Recycling and
Transfer Station (CARTS)
Facility address 3457 S Cedar Ave.
Fresno, CA 93725
RDRS number
Owner
Operator
Approved Recyclables
Processing
Site
Approved Disposal
Site (Applicable for
Residue Only) *
Facility name Mid Valley Disposal
Facility address 2721 S Elm Ave.
Fresno, CA 93706
RDRS number
Owner
Operator
Facility name Cedar Avenue Recycling and
Transfer Station (CARTS)
Facility address 3457 S Cedar Ave.
Fresno, CA 93725
RDRS number
Owner
Operator
Approved Organics
Processing
Site
Approved Disposal
Site (Applicable for
Residue Only) *
Facility name Green Valley Recycling
Facility address 2365 E North Ave.
Fresno, CA 93725
RDRS number
Owner
Operator
* All Solid Waste shall be Disposed of at the Designated Disposal Facility.
Contractor City
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