384/036753-0091
22411274.10 a09/17/25
AGREEMENT
BETWEEN
CITY OF FULLERTON
AND
________________________________________________________ FOR
SOLID WASTE HANDLING SERVICES
EFFECTIVE MARCH 2, 2026
TABLE OF CONTENTS
Page
384/036753-0091
22411274.10 a09/17/25 -iSECTION 1. RECITALS ...........................................................................................................2 SECTION 2. DEFINITIONS......................................................................................................2
2.1 AB 341......................................................................................................2
2.2 AB 939......................................................................................................2
2.3 AB 1594....................................................................................................2
2.4 AB 1826....................................................................................................2
2.5 Affiliate .....................................................................................................2
2.6 Animal Waste............................................................................................3
2.7 Applicable Laws .......................................................................................3
2.8 Approved Facility/ies................................................................................3
2.9 Billings......................................................................................................3
2.10 Bins...........................................................................................................3
2.11 Bulky Items...............................................................................................3
2.12 C&D Debris..............................................................................................4
2.13 CalRecycle ................................................................................................4
2.14 Cart............................................................................................................4
2.15 City............................................................................................................4
2.16 City Council..............................................................................................4
2.17 City Indemnitees.......................................................................................4
2.18 City Limits................................................................................................5
2.19 City Manager ............................................................................................5
2.20 Clean Up Project.......................................................................................5
2.21 Collect/Collection .....................................................................................5
2.22 Collection Vehicle ....................................................................................5
2.23 Commercial Customer(s)..........................................................................5
2.24 Commercial Premises...............................................................................5
2.25 Container...................................................................................................6
2.26 Contractor .................................................................................................6
2.27 County Agreement....................................................................................6
2.28 CPI ............................................................................................................6
2.29 Customer...................................................................................................6
2.30 DMV .........................................................................................................6
2.31 Downtown District....................................................................................6
2.32 Dwelling Unit............................................................................................7
2.33 Effective Date ...........................................................................................7
2.34 Environmental Laws.................................................................................7
2.35 Food Waste ...............................................................................................7
2.36 Franchise Area ..........................................................................................7
2.37 Franchise Fee ............................................................................................8
2.38 Gross Receipts ..........................................................................................8
2.39 Hazardous Contaminant............................................................................8
2.40 Hazardous Substance ................................................................................8 Page
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22411274.10 a09/17/25 -ii2.41 Hazardous Waste ......................................................................................9
2.42 HHWE.......................................................................................................9
2.43 Holiday......................................................................................................9
2.44 Household Hazardous Waste ....................................................................9
2.45 Junk Hauler...............................................................................................9
2.46 Multi-Family Dwelling .............................................................................9
2.47 Municipal Code.......................................................................................10
2.48 NPDES....................................................................................................10
2.49 Operative Date ........................................................................................10
2.50 Organic Waste Cart.................................................................................10
2.51 Organic Waste Processing Facility .........................................................10
2.52 Organics Recycling Waiver....................................................................10
2.53 Percentage Change in CPI ......................................................................10
2.54 Person......................................................................................................10
2.55 Premises..................................................................................................11
2.56 Qualified Disabled Customer..................................................................11
2.57 Qualified Senior Citizen .........................................................................11
2.58 Recycle or Recycling ..............................................................................11
2.59 Recyclable Material ................................................................................11
2.60 Recycling Cart ........................................................................................11
2.61 Refuse .....................................................................................................11
2.62 Refuse Cart..............................................................................................12
2.63 Residential Customers ............................................................................12
2.64 Residential Premises...............................................................................12
2.65 Rolloff Box .............................................................................................12
2.66 SB 1383...................................................................................................12
2.67 Single Family Dwelling ..........................................................................12
2.68 Solid Waste .............................................................................................12
2.69 Solid Waste Handling Services...............................................................13
2.70 Special Wastes........................................................................................13
2.71 SRRE.......................................................................................................13
2.72 Temporary Cleanup Bins........................................................................13
2.73 Temporary Construction Bins.................................................................13
2.74 Temporary Service..................................................................................13
2.75 Term........................................................................................................13
2.76 Walk-Out Service....................................................................................13
2.77 Yard Waste..............................................................................................14
2.78 Terms Defined in 14 CCR Section 18982 ..............................................14
2.78.1 Commercial Edible Food Generator...............................14
2.78.2 Edible Food.....................................................................14
2.78.3 Food Recovery................................................................14
2.78.4 Food Recovery Organization ..........................................14
2.78.5 Food Recovery Service ...................................................14
2.78.6 Large Event.....................................................................14
2.78.7 Large Venue....................................................................14 Page
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22411274.10 a09/17/25 -iii2.78.8 Organic Waste.................................................................14
2.78.9 Tier One Commercial Edible Food Generator................14
2.78.10 Tier Two Commercial Edible Food Generator...............14 SECTION 3. GRANT OF EXCLUSIVE FRANCHISE FOR SOLID WASTE
HANDLING SERVICES FOR ALL RESIDENTIAL AND
COMMERCIAL PREMISES .............................................................................14
3.1 Grant and Scope of Franchise .................................................................14
3.2 Franchise Rights to Include Right to Use City Rights of Way...............15
3.3 Matters Excluded from Scope of Franchise............................................15 SECTION 4. ENFORCEMENT OF EXCLUSIVITY .............................................................16 SECTION 5. ACCEPTANCE; WAIVER ................................................................................17 SECTION 6. TERM .................................................................................................................17 SECTION 7. CONDITIONS TO EFFECTIVENESS OF AGREEMENT..............................17
7.1 Accuracy of Representation....................................................................17
7.2 Absence of Litigation..............................................................................17
7.3 Furnishing of Insurance, Bond, Letter of Credit, and Corporate Guaranty..................................................................................................18
7.4 Effectiveness of City Council Action .....................................................18
7.5 Payment of Fees and Costs.....................................................................18 SECTION 8. SOLID WASTE HANDLING SERVICES PROVIDED BY
CONTRACTOR .................................................................................................18
8.1 General....................................................................................................18
8.1.1 Equipment.......................................................................18
8.1.2 Performance Standards ...................................................18
8.1.3 Noise and Disruption ......................................................18
8.1.4 Collection Times.............................................................18
8.1.5 Collection Schedule ........................................................19
8.1.6 Commingling of Routes..................................................19
8.1.7 Requirements For Handling of Source Separated
Solid Waste .....................................................................19
8.1.8 Requirement to Deliver Solid Waste to the
Approved Facilities.........................................................19
8.1.9 Implementation, Outreach and Education Plan ..............20
8.1.10 Collection and Replacement of Containers.....................20
8.1.11 Contractor’s Containers..................................................20
8.1.12 Missed Collections..........................................................22
8.1.13 Contamination of Containers with Materials that
are not Solid Waste .........................................................22
8.1.14 SB 1383 Container Contamination Monitoring..............23
8.1.15 Overfilling of Bins or Rolloff Boxes..............................25 Page
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22411274.10 a09/17/25 -iv8.2 Solid Waste Handling Services for Residential Customers....................25
8.2.1 Single Family Dwellings – Standard Service
With Three Carts.............................................................25
8.2.2 Residential Refuse Cart Collection Program..................26
8.2.3 Residential Recycling Cart Collection Program.............26
8.2.4 Residential Organic Waste Cart Collection
Program...........................................................................26
8.2.5 Manure Collection ..........................................................27
8.2.6 Low Volume Discount for Qualified Senior
Citizen Customers...........................................................27
8.2.7 Walk-Out Service............................................................27
8.2.8 Standard Collection Location .........................................27
8.2.9 Extra Cart Collection(s)..................................................28
8.2.10 Bulky Item Service for Residential Customers...............28
8.2.11 Bulky Item Diversion......................................................28
8.2.12 Proper Handling of Bulky Items.....................................28
8.3 Solid Waste Handling Services For Commercial Customers.................29
8.3.1 Scope of Services for Commercial Customers ...............29
8.3.2 Number of Containers and Frequency of
Collection........................................................................29
8.3.3 Overloaded Containers....................................................29
8.3.4 Rolloff Box Dry Run and Standby Charges ...................30
8.3.5 Access to Containers.......................................................30
8.3.6 Sunday or Holiday Bin or Rolloff Collection.................30
8.3.7 Minimum Requirements for Commercial
Organic Waste Recycling Program.................................30
8.3.8 Commercial Scout and Push Out Service .......................32
8.3.9 Requirements for Solid Waste Handling Services
in the Downtown Area ....................................................33
8.3.10 Commercial Bulky Item Service.....................................33
8.4 Temporary Services................................................................................33
8.4.1 Charges for Temporary Services ....................................34
8.4.2 Temporary Cleanup Bins................................................34
8.4.3 Temporary Construction Bins.........................................34
8.4.4 Temporary Rolloff Boxes...............................................34
8.4.5 Placement of Temporary Containers in the Right
of Way.............................................................................35
8.4.6 Compliance with C&D Regulations ...............................35
8.5 Other Collection Programs As May Be Required by Law .....................35
8.6 Indemnification, Warranties Guarantees And Related
Obligations Provided In Connection With Applicable Laws .................36
8.6.1 AB 939 Obligations, Guarantee, and
Indemnification...............................................................36
8.6.2 Guaranteed Minimum Contractor Recycling Rate .........37
8.6.3 Waste Generation/Characterization Studies ...................38 Page
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22411274.10 a09/17/25 -v8.6.4 Implementation of Additional Diversion Services .........38
8.7 Additional Services.................................................................................38
8.7.1 City Sponsored Events....................................................38
8.7.2 Holiday Trees..................................................................39
8.7.3 HHW Collection Event...................................................39
8.7.4 Bi-annual shredding event ..............................................39
8.7.5 Residential Compost Drive-Thru Giveaway...................39
8.7.6 Seasonal Compost Program............................................40
8.7.7 Sweeps of Hot Spots.......................................................40
8.7.8 On Call Bulky Item Collection to Assist City
Departments....................................................................40
8.7.9 Collection of Solid Waste and Bulky Items
Consolidated at City Yard...............................................41
8.7.10 Consultation in Connection with Solid Waste
and Related Matters ........................................................41
8.8 Special Services......................................................................................41
8.9 Additional SB 1383 Services..................................................................41
8.9.1 Assistance with Edible Food Recovery
Obligations......................................................................41
8.9.2 Assistance with Organics Recycling Waivers ................42
8.9.3 Dedicated Recycling Coordinator...................................43
8.9.4 Transition Plan................................................................43 SECTION 9. CONTRACTOR’S COLLECTION VEHICLES ...............................................43
9.1 General....................................................................................................43
9.2 Collection Vehicle DMV Registration and Annual City Inspection................................................................................................44
9.3 Collection Vehicle Minimum Requirements..........................................44
9.4 Costs of Operation ..................................................................................46
9.5 Correction of Defects and Removal of Vehicles from Use within City ..............................................................................................47 SECTION 10. CONTRACTOR’S SOLID WASTE HANDLING SERVICE
PERSONNEL .....................................................................................................47
10.1 Uniforms.................................................................................................47
10.2 Identification of Employees....................................................................47
10.3 Employee List .........................................................................................47
10.4 Driver’s License......................................................................................47
10.5 Screening of Field Employees................................................................47
10.6 Discontinued Use of Unsatisfactory Employees.....................................48
10.7 Training and Legal Compliance..............................................................48
10.8 Customer Service ....................................................................................48
10.8.1 Office Hours....................................................................48
10.8.2 Telephone Customer Service Requirements...................48
10.8.3 Complaint Documentation..............................................49
10.8.4 Resolution of Customer Complaints...............................49 Page
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22411274.10 a09/17/25 -vi10.8.5 Government Liaison........................................................49
10.9 Education and Public Awareness............................................................50
10.9.1 General............................................................................50
10.9.2 Written Program Materials .............................................50
10.9.3 Public Outreach...............................................................50
10.9.4 On-going Education Requirements.................................50
10.9.5 Annual and Ongoing Organic Waste and
Recycling Program Outreach..........................................51
10.9.6 Plastic Bag Recycling Education....................................52 SECTION 11. CONTRACTOR’S CONSIDERATION ............................................................52
11.1 Reimbursement for Negotiation Costs....................................................53
11.2 Legislative Compliance Fee....................................................................53
11.3 Consultant and Legal Reimbursement....................................................53
11.4 Franchise Fee ..........................................................................................53
11.5 NPDES Fee .............................................................................................54
11.6 City Billing Fee.......................................................................................54
11.7 Services at City Facilities........................................................................54 SECTION 12. CHARGE FOR LATE PAYMENTS..................................................................55 SECTION 13. CONTRACTOR’S BILLING SERVICES AND SYSTEMS ............................55
13.1 Residential Customers – Use of City Utility Bills..................................55
13.2 Direct Billing by Contractor ...................................................................55
13.3 Credits for Services not Provided ...........................................................56
13.4 Temporary Service Stop .........................................................................57
13.5 Delinquent Accounts...............................................................................57
13.6 Minimum Requirements for Billing Statements.....................................57
13.7 Billing System.........................................................................................58
13.7.1 Computerization of Account Information.......................58
13.7.2 Minimum Computer Programming
Requirements ..................................................................59
13.7.3 Billing Inquiries..............................................................59
13.7.4 Distribution of Public Information..................................59
13.7.5 Collection and Processing of Payments..........................59 SECTION 14. FAITHFUL PERFORMANCE...........................................................................60
14.1 Surety ......................................................................................................60
14.1.1 Forfeiture of Surety.........................................................60
14.1.2 Use of Surety by City......................................................60
14.1.3 Replacement Letter of Credit..........................................60 SECTION 15. INSURANCE COVERAGE...............................................................................61
15.1 Comprehensive General Liability...........................................................61
15.2 Automobile Liability Insurance ..............................................................61
15.3 Workers’ Compensation Insurance.........................................................61 Page
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22411274.10 a09/17/25 -vii15.4 Environmental Pollution Control Insurance ...........................................62
15.5 Endorsements..........................................................................................62
15.6 Acceptability of Insurers.........................................................................62
15.7 Insurance of Subcontractors....................................................................62
15.8 Verification of Coverage.........................................................................63
15.9 Loss or Reduction in Insurance...............................................................63 SECTION 16. ASSIGNMENT, SUBLETTING, AND TRANSFER;
REQUIREMENTS AND LIMITATIONS .........................................................63
16.1 General....................................................................................................63
16.2 Assignment to be Broadly Interpreted ....................................................63
16.3 Nature of Agreement – Personal to Contractor.......................................64
16.4 Procedure for Consideration of Assignment...........................................64 SECTION 17. REVIEW OF SERVICES AND PERFORMANCE...........................................65
17.1 Performance Review...............................................................................65
17.1.1 Bi-Annual Review ..........................................................65
17.1.2 Additional Performance Reviews...................................66
17.2 Performance Satisfaction Survey............................................................66 SECTION 18. CITY’S REMEDIES; DEFAULT AND TERMINATION................................66
18.1 Notice of Default.....................................................................................66
18.2 Failure to Cure ........................................................................................67
18.3 Review by City Manager ........................................................................67
18.4 City Council Review...............................................................................67
18.5 Performance During Reviews.................................................................67
18.6 Termination without Right to Cure.........................................................68
18.7 Liquidated Damages ...............................................................................68
18.7.1 General............................................................................68
18.7.2 Service Performance Standards; Liquidated
Damages for Failure to Meet Standards..........................69
18.7.3 Calculations for Liquidated Damages.............................69
18.7.4 Process for Assessment of Liquidated Damages............71
18.7.5 Timing of Payment .........................................................72 SECTION 19. CONTRACTOR’S REMEDIES; ADMINISTRATIVE HEARING..................72
19.1 Administrative Hearing...........................................................................72
19.2 Other Remedies; Claims.........................................................................72
19.3 Actions for Damages...............................................................................73 SECTION 20. CITY’S ADDITIONAL REMEDIES FOR BREACH BY
CONTRACTOR .................................................................................................73
20.1 Right to Use Equipment..........................................................................73
20.2 Right to Authorize Others.......................................................................73
20.3 Damages/Equitable Relief ......................................................................73 Page
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22411274.10 a09/17/25 -viiiSECTION 21. RIGHTS OF CITY TO PERFORM DURING EMERGENCY .........................73
21.1 Provision of Service................................................................................73
21.2 Possession of Equipment ........................................................................74
21.3 Exclusions from Right to Possession of Equipment without Compensation .........................................................................................74 SECTION 22. PRIVACY...........................................................................................................74 SECTION 23. REPORTS AND ADVERSE INFORMATION.................................................74
23.1 General Application and Interpretation ..................................................74
23.2 Use of Reporting Software......................................................................75
23.3 Customized Reports................................................................................75
23.4 Monthly Reports.....................................................................................75
23.5 Quarterly Reports....................................................................................77
23.6 Annual Reports.......................................................................................77
23.7 Confidential and Proprietary Information...............................................78
23.8 Format of Reports...................................................................................79
23.9 Adverse Information ...............................................................................79
23.10 Failure to Report .....................................................................................79 SECTION 24. COMPENSATION .............................................................................................79
24.1 Contractor’s Rates...................................................................................79
24.2 Resolution of Disputes Regarding Rate Adjustments.............................80
24.3.3 Compliance with Agreement Required For
Annual Increase ..............................................................81
24.3.4 City Manager Approval of Annual Rate
Increases..........................................................................81
24.3.5 Contractor Responsibility to Calculate Rate
Adjustments....................................................................81
24.4 Discretionary Adjustments......................................................................82 SECTION 25. IDENTIFICATION OF CONTRACTOR ..........................................................82 SECTION 26. CITY’S FLOW CONTROL OPTION/COUNTY AGREEMENT ....................82
26.1 Flow Control Option...............................................................................82 SECTION 27. INDEMNIFICATION.........................................................................................83
27.1 General Indemnification .........................................................................83
27.1.1 Defense of Indemnitees...................................................84
27.1.2 Survival of General Indemnity Following Term ............84
27.2 Hazardous Substances Indemnification ..................................................84 SECTION 28. CONTRACTOR’S BOOKS AND RECORDS; AUDITS .................................85
28.1 Maintenance and Inspection of Records.................................................85
28.2 CERCLA Defense Records.....................................................................85
28.3 Annual Compliance Review ...................................................................85 Page
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22411274.10 a09/17/25 -ix28.4 Audits......................................................................................................86
28.4.1 Periodic Examination of Services...................................86
28.4.2 Route Audit.....................................................................86 SECTION 29. TRANSITION OBLIGATIONS.........................................................................87 SECTION 30. RULES AND REGULATIONS OF CITY MANAGER....................................87 SECTION 31. FORCE MAJEURE ............................................................................................88
31.1 Events Constituting Force Majeure; Relief From Default......................88
31.2 Disaster Cleanup and Labor Unrest Plans ..............................................88 SECTION 32. GENERAL PROVISIONS .................................................................................89
32.1 Independent Contractor...........................................................................89
32.2 Pavement Damage ..................................................................................89
32.3 Property Damage ....................................................................................89
32.4 Right of Entry .........................................................................................89
32.5 Law to Govern; Venue............................................................................89
32.6 Notices....................................................................................................90
32.7 Savings Clause ........................................................................................90
32.8 Exhibits Incorporated..............................................................................90
32.9 Joint Drafting ..........................................................................................91
32.10 Attorneys’ Fees and Litigation Costs......................................................91
32.11 City’s Authorized Agent.........................................................................91
32.12 Integrated Agreement..............................................................................91
32.13 Section Headings ....................................................................................91
32.14 Compliance with Law.............................................................................91
EXHIBIT A MAXIMUM RATE SCHEDULE FOR SOLID WASTE HANDLING SERVICES
EXHIBIT B DOWNTOWN DISTRICT MAP/LIST
EXHIBIT C APPROVED FACILITIES
EXHIBIT D SCOPE OF SERVICES
EXHIBIT E CITY HOT SPOTS
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AGREEMENT
This Agreement (“Agreement”) is entered into to be effective as of March 2, 2026, by and between the CITY OF FULLERTON, a California municipal corporation (“City”), and [______________] (“Contractor”) to provide an exclusive franchise for Solid Waste Handling Services within the City. City and Contractor are referred to collectively as the “Parties” and individually as a “Party.”
R E C I T A L S:
A. The Legislature of the State of California, by enactment of AB 939, has declared that it is in the public interest to authorize and require local agencies to make adequate provision for the disposal of all Solid Waste within their jurisdictions.
B. Pursuant to California Public Resources Code Section 40059(a)(1), the City Council of the City has determined that the public health, safety and welfare require that an exclusive franchise agreement be awarded to a qualified Solid Waste enterprise for Solid Waste Handling Services within the City Limits.
C. It is the intent of the Parties that Contractor, and not the City, shall be solely responsible for establishing and collecting all charges for Solid Waste Handling Services provided by Contractor pursuant to this Agreement, subject to maximum rates for services which have been agreed upon as part of the consideration for the City’s grant of the exclusive franchise rights set forth herein.
D. City and Contractor are mindful of the provisions of the laws governing the safe collection, transport, Recycling, processing, and disposal of Solid Waste, including AB 939, AB 341, AB 1594, AB 1896, SB 1383, the Resource Conservation and Recovery Act (“RCRA” – 42 U.S.C. § 6901 et. seq.), and the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” – 42 U.S.C.§ 9601 et. seq.) City and Contractor desire to leave no doubts as to their respective roles, and to memorialize that by entering into this Agreement City is not thereby becoming an “arranger” or a “generator” as those terms are used in CERCLA, and that it is Contractor, not City, who is “arranging for” the Collection, transport for disposal, composting, and Recycling of municipal Solid Waste in the City which may contain Hazardous Substances.
City and Contractor understand and agree that it is Contractor, and not City, who will arrange to Collect Solid Waste, that City has not, and, by this Agreement does not, instruct Contractor on its Collection methods, nor supervise the Collection process, nor do the Parties intend to place title to such Solid Waste in City, but rather intend that whatever, if any, title in and to such Solid Waste that otherwise might exist in or with City in the absence of this Agreement is hereby transferred to Contractor, and further that if Contractor gains title to such Solid Waste it is by operation of law and agreement with its Customers and is not the result of this Agreement. By entering this Agreement, City and Contractor further desire to confirm that Contractor has agreed to indemnify the City in connection with any claims relating to the inadvertent or intentional Collection, transportation and/or disposal by Contractor of Hazardous Contaminants that may occur in connection with Contractor’s performance under this Agreement in accordance with the terms and conditions set forth herein.
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E. Contractor has agreed, as part of this Agreement, to provide such services as are necessary or desirable to ensure that City complies with the requirements of all Applicable Laws.
C O V E N A N T S:
Based upon the foregoing Recitals and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by each of the Parties, City and Contractor hereby agree as follows:
SECTION 1.
RECITALS
The Parties acknowledge the above recitals are true and correct and incorporate them herein as if they were fully restated.
SECTION 2.
DEFINITIONS
Whenever any term used in this Agreement has been defined by the California Public Resources Code or the California Code of Regulations, the definition of such term set forth therein shall apply unless the term is otherwise defined in this Agreement.
2.1 AB 341
“AB 341” shall mean Assembly Bill 341 from the 2011-2012 Regular Session of the California Legislature (Chapter 476, Statutes 2011).
2.2 AB 939
“AB 939” shall mean the California Integrated Waste Management Act of 1989, currently codified as California Public Resources Code Section 40000 et seq., as it may be amended from time to time.
2.3 AB 1594
“AB 1594” shall mean Assembly Bill 1594 from the 2013-2014 Regular Session of the California Legislature (Chapter 719, Statutes 2014).
2.4 AB 1826
“AB 1826” shall mean Assembly Bill 1826 from the 2013-2014 Regular Session of the California Legislature (Chapter 727, Statutes 2014).
2.5 Affiliate
“Affiliate” shall mean a business in which Contractor owns a direct or indirect ownership interest, a business (including corporations, limited and general partnerships and sole proprietorships) which has a direct or indirect ownership interest in Contractor and/or a business which is also owned, controlled or managed by any business or individual which has a direct or 384/036753-0091
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indirect ownership interest in Contractor. For purposes of determining whether an indirect ownership interest exists, the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided, however, that (i) “ten percent (10%)” shall be substituted for “fifty percent (50%)” in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and (ii) Section 318(a)(5)(C) shall be disregarded. For purposes of determining ownership under this paragraph and constructive or indirect ownership under Section 318(a), ownership interest of less than ten percent (10%) shall be disregarded, and percentage interests shall be determined on the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater.
2.6 Animal Waste
“Animal Waste” shall mean animal carcasses, dead animals, and/or parts or portions of dead animals. Animal Waste shall not include manure.
2.7 Applicable Laws
“Applicable Laws” shall mean all federal, state, county, and local laws, regulations, rules, orders, judgments, decrees, permits, approvals, or other requirements of any governmental agency having jurisdiction over an aspect of this Agreement that are in force on the Effective Date, and as may be enacted, issued or amended thereafter, including without limitation City’s Municipal Code, AB 939, AB 341, AB 1594, AB 1896, SB 1383, and 14 CCR, Division 7, Chapter 12.
2.8 Approved Facility/ies
“Approved Facility” or “Approved Facilities” shall have the meaning set forth in Section 8.1.8 hereof.
2.9 Billings
“Billings” or “Billing” or “Bill” shall mean the statements of charges provided to Customers for services rendered by Contractor pursuant to the terms of this Agreement.
2.10 Bins
“Bins” shall mean a Container, including dumpsters, compactors, and any similar such devices with a capacity of between approximately one and one-half (1½) and eight (8) cubic yards.
2.11 Bulky Items
“Bulky Items” shall mean Solid Waste comprised of individual object that cannot and/or would not typically be accommodated within a Cart, and/or that cannot easily fit into compaction units of front-loader Collection Vehicles, including specifically: furniture (including chairs, sofas, mattresses, and rugs); appliances (including refrigerators without Freon, ranges, washers, dryers, water heaters, dishwashers, plumbing, small household appliances and other similar items, commonly known as “white goods”); residential wastes (including wood waste, tree branches, scrap wood, in the aggregate not exceeding one cubic yard per Collection); and clothing. For purposes of this Agreement, and notwithstanding any provision hereof to the contrary, Bulky Items 384/036753-0091
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shall specifically include “covered electronic waste” (as that term is defined in the California Code of Regulations) including discarded stereos, televisions, computers and monitors, cellular phones, and other similar type of equipment and products. Bulky Items do not include car bodies, car batteries, C&D Debris or (with the exception of appliances/white goods described above) items that cannot reasonably and safely be loaded and unloaded into a vehicle by two people using equipment of the type which, pursuant to industry standards, would normally be carried in a vehicle used in Collecting Bulky Items. In the event a question arises as to whether a specific item, or category of items meets the definition of Bulky Items, City shall be responsible to determine whether said definition shall apply, which determination shall be final and binding on the Parties.
2.12 C&D Debris
“C&D Debris” shall mean Solid Waste generated, produced, or discarded in connection with construction, demolition, landscaping, land clearing, or similar activities within the City, including materials such as, but not limited to, concrete, plaster, drywall, Yard Waste, wood, wood scraps, dirt, rock and rubble, without regard to whether such materials are Recycled.
2.13 CalRecycle
“CalRecycle” shall mean the State of California Department of Resources Recycling and Recovery, the department within the State Natural Resources Agency responsible for the administration of the Integrated Waste Management Act of 1989, California Public Resources Code Section 40000 et seq.(“Act”), or any successor department or agency created or designated for such purpose pursuant to the Act.
2.14 Cart
“Cart” shall mean a plastic Container with a capacity of between approximately thirty-five (35) to ninety-six (96) gallons, having a hinged lid and wheels and serviced by an automated or semi-automated process, as opposed to a manual process of lifting and dumping.
2.15 City
“City” shall have the meaning ascribed in the Preamble of this Agreement.
2.16 City Council
“City Council” shall mean the City Council of City.
2.17 City Indemnitees
“City Indemnitees” shall mean the City and its past and present elected and appointed officials, officers, commissions, boards, members, employees, representatives, agents, consultants, and volunteers.
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2.18 City Limits
“City Limits” shall mean the territorial boundaries of the City together with all amendments and changes thereto, which boundaries are depicted on maps, incorporated herein by reference, that are kept on file in the office of the City Clerk of the City, and which are from time to time amended to reflect changes.
2.19 City Manager
“City Manager” shall mean the City Manager of the City or his or her designee. Without limiting the City Manager’s ability, consistent with his/her lawful powers, to appoint any City staff member as his/her designee in connection with any aspect of this Agreement, or to change the following designation, the Public Works Director is presumed to be the City Manager’s designee in connection with any operational issues addressed herein.
2.20 Clean Up Project
“Clean Up Project” shall mean occasional efforts whereby a Customer cleans up its Premises, and in the process desires to remove unwanted items (such as Bulky Items, household items, cloths, furnishings, and similar items that technically meet the definition of Solid Waste) from its premises, and hires a Junk Hauler to assist in doing so. The activities involved in a Clean Up Project, and the related activities of a Junk Hauler, might otherwise fit the definition of Temporary Services, with the difference being that Junk Haulers (not Customers) must, as part of the services provided, load Solid Waste to be Collected into a vehicle or vehicle trailer, as opposed to Customers placing Solid Waste into a Container and arranging for Collection when the Customer has completed loading the Container.
2.21 Collect/Collection
“Collect” or “Collection” shall mean to take physical possession of, transport, and remove Solid Waste from a Premises.
2.22 Collection Vehicle
“Collection Vehicle” shall mean vehicles used by Contractor for the Collection of Solid Waste.
2.23 Commercial Customer(s)
“Commercial Customer(s)” shall mean all Customers at Commercial Premises.
2.24 Commercial Premises
“Commercial Premises” shall mean property upon which a business activity is conducted, including but not limited to retail sales, services, manufacturing, assembling, storage, or wholesale operations, but excluding businesses conducted upon Residential Premisesthat are permitted under applicable zoning regulations and that do not constitute the primary use of the property.
Commercial Premises include Premises upon which the following exist: Multi-Family Dwellings, 384/036753-0091
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hotels, motels, assisted living facilities, convalescent centers, nursing homes, churches and private schools.
2.25 Container
“Container” shall mean any and all types of Solid Waste receptacles, including Carts, Bins and Rolloff Boxes.
2.26 Contractor
“Contractor” shall have the meaning ascribed in the Preamble of this Agreement, or any Party pursuant to the terms hereof permitted to become the successor or assignee thereof.
2.27 County Agreement
“County Agreement” shall mean that certain Waste Disposal Agreement originally entered in 2009, and amended in 2015, as the same may be amended from time to time, between various Orange County cities, including specifically the City of Fullerton, and the County of Orange relating to the use of the County’s landfills for the disposal of Solid Waste Collected in such cities, and which is on file in the office of City’s City Clerk.
2.28 CPI
“CPI” shall mean the Consumer Price Index for All Urban Consumers, not seasonally adjusted, all items index (CPI-U) – All items in Los Angeles-Long Beach-Anaheim (CUURS49ASA0). Should this index no longer be published at any time during the Term, the City Manager and Contractor shall in good faith attempt to agree upon such other index to apply to this Agreement that most reasonably reflects the forgoing, and in the event that after 60 days no such agreement is reached the City Council will select an index that it believes best reflects the intent hereof, with such decision being final.
2.29 Customer
“Customer” or “Customers” shall mean any Person receiving Solid Waste Handling Services from Contractor within the Franchise Area.
2.30 DMV
“DMV” shall mean the California Department of Motor Vehicles.
2.31 Downtown District
“Downtown District” shall mean that certain area in the City identified on attached Exhibit B, which is comprised of a map identifying the Downtown District, and the businesses located therein, which are listed as part of Exhibit B along with their relevant characteristics, which map and list may amended from time to as more fully set forth herein. 384/036753-0091
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2.32 Dwelling Unit
“Dwelling Unit” shall mean one or more rooms designed for occupancy, living and sleeping purposes and containing kitchen facilities or an area designed for the preparation of food.
2.33 Effective Date
“Effective Date” shall mean March 2, 2026, the date upon which the City Council voted to adopt a Resolution by which to approve this Agreement, and upon which date this Agreement shall become legally binding upon the Parties.
2.34 Environmental Laws
“Environmental Laws” shall mean all federal and state statutes, county, local and City ordinances concerning public health, safety and the environment including, by way of example and not limitation, CERCLA, RCRA, the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq.; the Federal Water Pollution Control Act, 33 USC §1251 et seq.; the Federal Clean Air Act, 42 USC §7401 et seq.; the Toxic Substances Control Act, 15 USC §2601 et seq.; the Oil Pollution Act, 33 U.S.C. § 2701 et seq.; the Emergency Planning and Community Rightto-Know Act, 42 U.S.C. § 11001 et seq.; the Occupational Safety and Health Act, 29 USC §651 et seq.; the California Hazardous Waste Control Act, California Health and Safety Code §25100 et seq.; the Carpenter-Presley-Tanner Hazardous Substance Account Act, California Health and Safety Code §78000 et seq.; the Hazardous Materials Release Response Plans & Inventory Act, California Health and Safety Code § 25500 et seq.; the Porter-Cologne Water Quality Control Act, California Water Code §13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code §25249.5 et seq.; the Toxic Mold Protection Act, California Health & Safety Code § 26100, et seq.; the California Underground Storage of Hazardous Substances Laws, Chapter 6.7 of Division 20 of the California Health and Safety Code, §25280 et seq.; California Law governing the Above Ground Storage of Petroleum, Chapter 6.67 of Division 20 of the California Health and Safety Code, §25270 et seq.; and California law governing Hazardous Material Release Cleanup, Chapter 6.10 of Division 20 of the California Health and Safety Code, § 25403 et. seq.; as currently in force or as hereafter amended, and all rules and regulations promulgated thereunder.
2.35 Food Waste
“Food Waste” shall mean a subset of Organic Waste comprised of (i) any type of food (including without limitation fruits, vegetables, meat, poultry, seafood, bones, rice, beans, pasta, bread, dairy products), (ii) food soiled paper (for example, napkins, paper towels, and paper plates that are contaminated with food), and (iii) tea bags, coffee grounds, and coffee filters.
2.36 Franchise Area
“Franchise Area” shall mean all Premises within the City Limits, including Premises which may be annexed and thereby added to the City Limits following the Effective Date. 384/036753-0091
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2.37 Franchise Fee
“Franchise Fee” shall mean the franchise fee set forth and more fully defined in Section 11.3 hereof.
2.38 Gross Receipts
“Gross Receipts” shall mean and include all monies, fees, charges, consideration, and revenue received by Contractor, in connection with, arising from, or in any way attributable to the Solid Waste Handling Services carried out by or on behalf of Contractor pursuant to this Agreement. Gross Receipts includes, without limitation, (i) monthly or quarterly Customer charges that are received by Contractor for Collection of Solid Waste, without subtracting Franchise Fees, and (ii) fees imposed and collected pursuant to this Agreement. Gross Receipts does not include revenue from the sale of Recyclable Material, Organic Waste, and other material that is diverted from disposal.
2.39 Hazardous Contaminant
“Hazardous Contaminant” shall mean any “hazardous material,” as that term is defined under California Health & Safety Code Sections 25260 and 25501(n); any “hazardous substance,” as that term is defined herein or under California Health & Safety Code Sections 25281(h) and 78075(a), and under Title 42, Section 9601(14) of the United States Code; any “hazardous waste,” as that term is defined herein and under Title 42, Section 6903(5) of the United States Code and under California Health & Safety Code Section 25117; any chemical which the Governor has identified as a chemical known to the State to cause cancer or reproductive toxicity pursuant to California Health & Safety Code Section 25249.8; any crude oil or refined or unrefined petroleum product or any fraction or derivative thereof; and any asbestos or asbestos-containing material.
The term “Hazardous Contaminant” shall also include any and all amendments to the abovereferenced statutory and regulatory provisions made before or after the date of execution of this Agreement.
2.40 Hazardous Substance
“Hazardous Substance” shall mean any of the following: (a) any substances defined, regulated or listed (directly or by reference) as “Hazardous Substances,” “Hazardous Materials,” “Hazardous Wastes,” “Toxic Waste,” or “Toxic Substances” or similarly identified as being hazardous to human health or the environment, in or pursuant to (i) CERCLA; (ii) the Hazardous Materials Transportation Act, 49 USC §5101, et seq.; (iii) RCRA; (iv) the Federal Water Pollution Control Act, 33 USC §1251 et seq.; (v) California Health and Safety Code §§25115-25117, 25249.8, 25281, and 78075; (vi) California Health & Safety Code §§ 25260 and 25501(n); (vii) the Clean Air Act, 42 USC §7401 et seq.; and (viii) California Water Code §13050; (b) any substances identified in any and all amendments, rules or regulations promulgated thereunder to such enumerated statutes or acts currently existing or hereafter enacted; and (c) any other hazardous or toxic substance, material, chemical, waste or pollutant identified and/or regulated as hazardous or toxic under any other applicable federal, state or local laws or regulations, including any of the Environmental Laws, currently existing or hereinafter enacted, including, without limitation, any asbestos or asbestos-containing material, polychlorinated biphenyl’s (“PCBs”), 384/036753-0091
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any crude oil or refined or unrefined petroleum product or any fraction or derivative thereof, any natural gas and/or synthetic fuel products, and by-products thereof.
2.41 Hazardous Waste
“Hazardous Waste” shall mean all substances defined as Hazardous Waste, acutely Hazardous Waste, or extremely Hazardous Waste by the State of California in Health and Safety Code §25110.02, §25115 and/or §25117, or in the future amendments to or recodifications of such statutes or identified and listed as Hazardous Waste by the US Environmental Protection Agency (EPA), pursuant to RCRA, all future amendments thereto, and all rules and regulations promulgated thereunder.
2.42 HHWE
“HHWE” shall mean the Household Hazardous Wastes Element of the City’s General Plan.
2.43 Holiday
“Holiday” shall mean the following National holidays: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day; provided, however, Contactor may propose additional or different Holiday’s if necessary to conform this Agreement to its labor agreement(s), and such changes may occur if approved in writing by the City Manager subject to his/her reasonable discretion.
2.44 Household Hazardous Waste
“Household Hazardous Waste” shall have the meaning set forth in California Health and Safety Code Section 25218.1(f).
2.45 Junk Hauler
“Junk Hauler” shall mean a Person or entity holding a business license that Collects unwanted materials from Clean Up Projects (such as Bulky Items, household items, cloths, furnishings, and similar items that technically meet the definition of Solid Waste) and transports them to one or more lawful locations for disposal, processing, recycling, resale, or reuse. Junk Haulers’ activities in connection with a Clean Up Project might otherwise fit the definition of Temporary Services with the difference being that Junk Haulers (not Customers) must, as part of the services provided, load Solid Waste to be Collected into a vehicle or vehicle trailer, as opposed to Customers placing Solid Waste into a Container and arranging for Collection when the Customer has completed loading the Container. Junk Haulers may not use vehicles commonly referred to as “front loaders” or “side loaders” by Solid Waste Enterprises in connection with the services they provide.
2.46 Multi-Family Dwelling
“Multi-Family Dwelling” shall mean any building or lot containing more than one Dwelling Unit at which Contractor determines (and City agrees) the Dwelling Units should receive Solid Waste Handling Services through the use of shared Bins, since Customers at such Premises 384/036753-0091
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are not reasonably able to store Carts or otherwise receive individualized Solid Waste Handling Services through the use of the automated Collection system utilizing Carts, as contemplated by this Agreement for Single Family Dwellings. While it is anticipated that the definition of MultiFamily Dwellings (and related services required by this Agreement) will apply to Premises upon which more than four (4) Dwelling Units exist, any ambiguity as to whether a Customer’s Premises qualifies for purposes of this Agreement as a Single Family Dwelling or Multi-Family Dwelling shall be resolved by the City Manager, using this definition as a guide, whose decision shall be final. Multi-Family Dwellings are deemed to be Commercial Premises for purposes of this Agreement.
2.47 Municipal Code
“Municipal Code” shall mean City’s Municipal Code of Ordinances and all uncodified ordinances duly adopted by City, as such may be amended from time to time.
2.48 NPDES
“NPDES” shall mean the National Pollutant Discharge Elimination System.
2.49 Operative Date
“Operative Date” shall mean July 1, 2027, the date upon which the Collection services contemplated herein shall commence.
2.50 Organic Waste Cart
“Organic Waste Cart” shall mean a Cart designated for the Collection of Organic Waste.
2.51 Organic Waste Processing Facility
“Organic Waste Processing Facility” shall mean a facility which processes Organic Waste in a manner that complies with all Applicable Laws.
2.52 Organics Recycling Waiver
“Organics Recycling Waiver” shall mean a waiver granted to a Customer by City pursuant to SB 1383.
2.53 Percentage Change in CPI
“Percentage Change in CPI” shall mean the percentage change in the CPI for the 12 month period ending on the immediately preceding date of December 31.
2.54 Person
“Person” shall mean any individual, firm, association, organization, partnership, corporation, business trust, joint venture, the United States, the State of California or any subdivision thereof.
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2.55 Premises
“Premises” shall mean any land, building, and/or structure within the City Limits where Solid Waste is generated or accumulated.
2.56 Qualified Disabled Customer
“Qualified Disabled Customer” shall mean a Residential Customer who (1) holds a DMVissued disabled Person placard/license plates, and (2) provides a letter to Contractor from a physician confirming: (i) the Customer is unable to move his/her Carts from their normal location for storage to the location where they are to be Collected by Contractor, and (ii) that to the best of the physician’s knowledge there is no other capable Persons living in Customer’s household to provide this service. Contractor may require a Customer to provide a letter from a physician on an annual basis demonstrating that the Customer continues to meet the definition of Qualified Disabled Customer. Any dispute as to whether a Customer is a Qualified Disabled Customer shall be resolved by the City Manager, whose determination shall be final.
2.57 Qualified Senior Citizen
“Qualified Senior Citizen” shall mean a Residential Customer who is at least 65 years old, and is either: (i) both the owner (as shown on the County Assessor’s rolls) and a full time resident (as applicable to residency requirements for State income tax purposes) of the Single Family Dwelling at which Solid Waste Handling Services is to be provided, or (ii) both a lessee who is obligated for payment of rent at, and a full time resident of, such Single Family Dwelling.
Contractor may require a Customer to present reasonable documentation demonstrating that the Customer meets the definition of Qualified Senior Citizen. Any dispute as to whether a Customer is a Qualified Senior Citizen shall be resolved by the City Manager whose determination shall be final.
2.58 Recycle or Recycling
“Recycle” or “Recycling” shall mean the process of Collecting, sorting, cleaning, treating and reconstituting materials that would otherwise be disposed of and returning these materials to the economic mainstream in the form of raw materials for new, reused or reconstituted products.
2.59 Recyclable Material
“Recyclable Material” or “Recyclables” shall mean that Solid Waste discarded within the Franchise Area which is capable of being Recycled.
2.60 Recycling Cart
“Recycling Cart” shall mean a Cart designated for the Collection of Recyclable Material.
2.61 Refuse
“Refuse” shall mean that Solid Waste which the Applicable Laws do not require be Collected in a Container designated for the Collection of Recyclable Material or Organic Waste. 384/036753-0091
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2.62 Refuse Cart
“Refuse Cart” shall mean a cart designated for the Collection of Refuse.
2.63 Residential Customers
“Residential Customers” shall mean all Customers at Residential Premises.
2.64 Residential Premises
“Residential Premises” shall mean all Premises upon which Single Family Dwelling Units exist.
2.65 Rolloff Box
“Rolloff Box” shall mean Solid Waste Collection Containers of ten (10) yards or larger, including compactors.
2.66 SB 1383
“SB 1383” means Senate Bill 1383 of 2016 approved by the Governor on September 19, 2016, which added Sections 39730.5, 39730.6, 39730.7, and 39730.8 to the Health and Safety Code, and added Chapter 13.1 (commencing with Section 42652) to Part 3 of Division 30 of the Public Resources Code, establishing methane emissions reduction targets in a Statewide effort to reduce emissions of short-lived climate pollutants as amended, supplemented, superseded, and replaced from time to time. For the purposes of this Agreement, SB 1383 specifically includes the Short-Lived Climate Pollutants (SLCP): Organic Waste Reductions regulations developed by CalRecycle and adopted in November 2020 that created Chapter 12 of 14 CCR, Division 7 and amended portions of regulations of 14 CCR and 27 CCR, as they may be amended from time to time.
2.67 Single Family Dwelling
“Single Family Dwelling” shall mean a building or lot containing one Dwelling Unit, and for purposes of this Agreement includes individual Dwelling Units at a building or and lot upon which more than one Dwelling Unit exists where each such Dwelling Unit is determined by the City to be reasonably able to receive individualized Solid Waste Handling Service by the automated process utilizing Carts contemplated herein. While it is anticipated that the definition of Single Family Dwelling (and related services required by this Agreement) will apply at Premises upon which four (4) or fewer Dwelling Units exist, any ambiguity as to whether a Customer’s Premises qualifies for purposes of this Agreement as a Single Family Dwelling or Multi-Family Dwelling shall be resolved by the City Manager, using this definition as a guide, whose decision shall be final.
2.68 Solid Waste
“Solid Waste” shall mean and include all discarded putrescible and non-putrescible solid, semisolid, and liquid wastes, including garbage, trash, refuse, rubbish, construction waste, 384/036753-0091
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industrial waste, commercial Solid Waste, Bulky Items, and any other discarded solid, semisolid, and liquid waste permitted to be disposed of at a Class III landfill and which are included within the definition of “Nonhazardous Solid Waste” set forth in the California Code of Regulations, as it may be amended from time to time. Solid Waste does not include Hazardous Contaminants, Hazardous Substances, Hazardous Waste, Household Hazardous Waste, low-level radioactive waste, untreated medical waste, or Special Wastes. Solid Waste includes Refuse, discarded Recyclable Materials, and Organic Waste.
2.69 Solid Waste Handling Services
“Solid Waste Handling Services” shall mean the Collection, and thereafter the transfer, transport, Recycling, processing, and disposal of Solid Waste generated at Premises within the Franchise Area.
2.70 Special Wastes
“Special Wastes” shall mean waste materials including sewage, sludge, industrial sludge, asbestos, auto bodies, tires, used motor oil, Animal Waste, explosive substances, radioactive materials, and other materials which may not be disposed of at a Class III landfill, or which require special handling.
2.71 SRRE
“SRRE” shall have the meaning ascribed in Section 8.6.1(a) of this Agreement.
2.72 Temporary Cleanup Bins
“Temporary Cleanup Bins” shall mean three (3) cubic yard Bins used in connection with Temporary Service for Collection of Solid Waste that does not include C&D Debris.
2.73 Temporary Construction Bins
“Temporary Construction Bins” shall mean three (3) cubic yard Bins used in connection with Temporary Service for Collection of C&D Debris.
2.74 Temporary Service
“Temporary Service” shall mean Solid Waste Handling Services using Bins or Rolloff Boxes on an as-needed and temporary basis in conjunction with construction, demolition, cleanup or other similar projects.
2.75 Term
“Term” shall have the meaning ascribed in Section 6 of this Agreement.
2.76 Walk-Out Service
“Walk-Out Service” shall mean a service by which rather than a Customer placing Carts out for Collection at the designated Collection location, Contractor accesses the Customer’s 384/036753-0091
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backyard, side yard, or such other location where the Customer’s Carts are stored, and moves them to the location designated for Collection; and, following Collection, returns such Carts to the location upon the Customer’s Premises where they are stored.
2.77 Yard Waste
“Yard Waste” shall mean all leaves, grass cuttings, and shrubs that accompany routine household or property maintenance functions.
2.78 Terms Defined in 14 CCR Section 18982
The following terms used herein are defined in 14 CCR Section 18982, and shall have the meaning defined therein:
2.78.1 Commercial Edible Food Generator
2.78.2 Edible Food
2.78.3 Food Recovery
2.78.4 Food Recovery Organization
2.78.5 Food Recovery Service
2.78.6 Large Event
2.78.7 Large Venue
2.78.8 Organic Waste
2.78.9 Tier One Commercial Edible Food Generator
2.78.10 Tier Two Commercial Edible Food Generator
SECTION 3.
GRANT OF EXCLUSIVE FRANCHISE FOR SOLID WASTE HANDLING SERVICES FOR ALL RESIDENTIAL AND COMMERCIAL PREMISES.
3.1 Grant and Scope of Franchise
Except as hereinafter expressly set forth, City hereby grants to Contractor and Contractor hereby accepts from City, for the Term hereof, the exclusive contract, right, and privilege to Collect and thereafter transport, Recycle, process and dispose of, all Solid Waste (including source separated and discarded Organic Waste and Recyclable Material) generated or accumulated within the Franchise Area. The exclusive franchise, right and privilege granted to Contractor by this Agreement shall be interpreted to be consistent with all Applicable Laws, now in effect and adopted during the Term of this Agreement, and the scope of this Agreement shall be limited by all Applicable Laws. In the event that future interpretations of current law or future enactments limit the ability of City to lawfully grant Contractor the scope of services as specifically set forth 384/036753-0091
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herein, Contractor agrees that the scope of this Agreement will be limited to those services and materials which may be lawfully provided, and that City shall not be responsible for any lost profits claimed by Contractor as a result thereof. Nothing in this Agreement shall be construed as giving Contractor the right to Collect Solid Waste, including specifically Recyclable Material, which has not been discarded and placed for Collection by Contractor in a location designated for that purpose.
3.2 Franchise Rights to Include Right to Use City Rights of Way The exclusive franchise granted by this Agreement includes the right for Contractor to conduct business on City’s rights-of-way as more fully described herein in order to carry out its obligations as set forth in this Agreement, including by: allowing the placement and/or storage of its Containers in rights-of-way; allowing Collection Vehicles to drive at a pace, and repeatedly stop in rights-of-way in a manner which disrupts traffic to the degree reasonably necessary to carry out its obligations hereunder, and which actions would otherwise be prohibited and a violation of laws applicable to the general public; and, Collecting, delivering and otherwise servicing Containers within rights of way and disrupting traffic as may be reasonably necessary to do so.
The franchise hereby granted includes the right to encroach on City’s rights-of-way for the forgoing purposes, without the need for an encroachment permit being issued to Contractor or its Customers (as would be required of the general public to use City’s rights-of-way in a similar manner) in connection with the services Contractor provides hereunder; provided however, Contractor’s rights to use the City’s rights-of-way may be limited by the City Manager as necessary for the protection of health, safety and public welfare. Notwithstanding the franchise rights granted herein to impede traffic as may be necessary to perform services hereunder, Contractor shall take reasonable steps to schedule Collection of Containers, and otherwise perform its obligations hereunder, in a manner that endeavors to minimize the impact of its business activities on the flow of traffic.
3.3 Matters Excluded from Scope of Franchise
Notwithstanding any other provisions set forth in this Agreement to the contrary, the exclusive franchise granted herein shall exclude:
(a) the Collection, transportation, processing, Recycling and/or disposal of any Solid Waste otherwise within the scope of this Agreement by a Person authorized by the City to act as a self hauler in connection with waste it generates, as that term may be used in the Municipal Code;
(b) the sale or donation of Recyclable Material by the Person or entity that generated such Recyclable Material (the “Generator”) to any Person or entity other than Contractor; provided, however, to the extent permitted by law, if the Generator is required to pay monetary or non-monetary consideration, including without limitation a reduction or discount in price (or other forms of consideration the Generator is required to pay), for the Collection, transportation, transfer, or processing of Recyclable Material to any Person or entity other than Contractor, then such transaction shall not be considered a sale or donation; 384/036753-0091
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(c) any Solid Waste otherwise within the scope of this Agreement which is Collected or transported to a disposal or Recycling facility by City employees in the course and scope of their employment with City;
(d) except as provided otherwise herein, the Collection, transportation, or disposal of Hazardous Contaminants; Hazardous Substances; Hazardous Waste; Household Hazardous Waste; items commonly known in the waste industry as “universal waste” and/or “e-waste”; biohazardous waste; untreated medical waste; infectious waste; Animal Waste; used cooking fats, oils, grease and similar waste; Special Waste; or other materials which do not constitute Solid Waste;
(e) the Collection, transportation, and disposal of C&D Debris by a contractor, handyman, repairman, or other similar service provider, using its own equipment, as an incidental part of the services provided to its Customers, rather than as a hauling service, provided that such waste is not Collected or transported by a third party hired for the primary purpose of Collecting and transporting said materials;
(f) the Collection, transportation and delivery for disposal or processing of Solid Waste generated in connection with Clean Up Projects by Junk Haulers; (g) the Collection, transportation and delivery of Edible Food recovered for human consumption;
(h) the Collection, transportation, and disposal of Yard Waste and related Solid Waste by a gardener, or landscaper, as an incidental part of the gardening or landscaping services;
(i) the Collection, transportation and delivery for processing of materials that meet the definition of Solid Waste in manners not contemplated by this Agreement, using methodologies not offered by Contractor, which further the obligations of City and Customers to comply with the Applicable Laws, including specifically such laws related to the diversion of Organic Waste from landfill disposal; provided, however, this provision is only intended to apply in unusual situations meeting the foregoing criteria, and any ambiguity as to its application shall be decided by the City Manager, whose decision shall be final; and (j) the Collection, transfer, transport, Recycling, processing, and disposal of Solid Waste provided by any Person having a legal right to continue doing so, pursuant to Public Resources Code Section 49520, et. seq., or otherwise, as long as and to the extent such legal right continues to exist; except that to the degree any territory in which Contractor has a franchise granted by another governmental entity is annexed into City during the Term, Contractor agrees the provisions of this Agreement shall apply to such territory.
SECTION 4.
ENFORCEMENT OF EXCLUSIVITY
Contractor shall be responsible for enforcing the exclusivity of this Agreement. City shall reasonably assist Contractor in its efforts to enforce the exclusivity hereof. In addition, City shall adopt such ordinances or other regulations as it deems to be necessary or desirable to protect the 384/036753-0091
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exclusive rights granted herein. City shall have the right, but not the obligation, to enforce the exclusivity hereof, including by instituting appropriate legal proceedings, and/or to request that Contractor do so. Contractor shall have an affirmative obligation to enforce such exclusivity provisions when requested to do so by City. Contractor shall reimburse City for its reasonable legal costs, administrative costs (including staff time), or other expenses incurred in connection with City’s actions to either enforce the exclusivity hereof, or to assist Contractor in doing so.
SECTION 5.
ACCEPTANCE; WAIVER
Contractor agrees to be bound by and comply with all the requirements of this Agreement.
Contractor waives Contractor’s right to challenge the terms of this Agreement under federal, state, or local law, or administrative regulation.
SECTION 6.
TERM
The term of this Agreement (the “Term”) shall be for the period commencing on the Effective Date, and ending at midnight on June 30, 2037, unless this Agreement is terminated sooner pursuant to Section 18 hereof. Notwithstanding the forgoing, the Term may be extended twice, at City's sole option, including based upon a determination that Contractor has performed its obligations hereunder in an exemplary manner, with each extension of the Term being a period of five (5) years such that the total Term, may be twenty (20) years if both options to extend the Term are exercised by City. The City Manager is authorized to exercise each of the two options to extend the Term, and an extension of the Term occasioned by the exercise of such options shall not need formal action by the City Council so long as it is not inconsistent with any action to the contrary taken by the City Council. Any extension of the Term as a result of the exercise of the options set forth herein shall become effective upon written notice thereof being provided to Contractor prior to the expiration of the Term (or the Term as it may have been extended.) SECTION 7.
CONDITIONS TO EFFECTIVENESS OF AGREEMENT
The satisfaction of each and all of the conditions set out below as of the Effective Date, each of which may be waived in whole or in part by City in writing, is a condition precedent to the effectiveness of this Agreement:
7.1 Accuracy of Representation
All representations and warranties made by Contractor and set forth in this Agreement shall be accurate, true, and correct on and as of the Effective Date.
7.2 Absence of Litigation
There shall be no litigation pending in any court challenging the award of this Agreement to Contractor or the execution of this Agreement or seeking to restrain or enjoin its performance. 384/036753-0091
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7.3 Furnishing of Insurance, Bond, Letter of Credit, and Corporate Guaranty Contractor shall have furnished evidence of the insurance and Surety required by Sections 14 and 15 hereof.
7.4 Effectiveness of City Council Action
The City Council Resolution approving this Agreement shall have become effective pursuant to California law.
7.5 Payment of Fees and Costs
Contractor shall have made payment to City of all fees, costs and other payments due on or before the Effective Date, as more fully set forth in Section 11.
SECTION 8.
SOLID WASTE HANDLING SERVICES PROVIDED BY CONTRACTOR
8.1 General
8.1.1 Equipment
Contractor shall furnish all labor, supervision, materials, supplies, and equipment necessary to provide for all Solid Waste Handling Services required by the terms of this Agreement.
8.1.2 Performance Standards
Contractor shall perform Solid Waste Handling Services as required hereunder in a workmanlike manner consistent with good housekeeping standards, generally accepted standards in the industry, and all relevant provisions of Applicable Laws.
8.1.3 Noise and Disruption
Contractor shall perform Solid Waste Handling Services as required hereunder in such a manner as to minimize noise and other disruptive impacts including, without limitation, those upon traffic. Contractor shall use its best efforts to coordinate its Collection schedules such that street sweeping on any given street shall occur the business day following Collection of Solid Waste by Contractor. If and to the degree it is necessary for Contractor to utilize so called “scout trucks” or similar vehicles to Collect Solid Waste at a given Premises, and then deliver it to and transfer it into a Collection Vehicle, the location at which such Collection Vehicle waits, and at which such transfer/delivery occurs, shall be subject to the City Manager’s approval. Any such location approved by the City Manager is subject to change in the City Manager’s discretion.
8.1.4 Collection Times
Unless otherwise approved in writing by the City Manager: (i) Contractor shall not commence Collection of Solid Waste at Commercial Premises until 6:00 a.m., nor shall such 384/036753-0091
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activities occur after 9:00 p.m., (ii) Contractor shall not commence Collection of Solid Waste at Residential Premises until 7:00 a.m., nor shall such activities occur after 7:00 p.m., and (iii) Contractor shall not Collect Solid Waste at any Premises on Sundays or Holidays.
8.1.5 Collection Schedule
Contractor shall establish routes for all Customers serviced pursuant to the terms hereof in City, and provide City with maps, or other means satisfactory to City demonstrating such routes.
The routes shall be sufficiently identified to reasonably enable the City to assess compliance with its obligations pursuant to the Applicable Laws, including specifically 14 CCR §§ 18984.5 and 18984.6. Contractor shall establish a Collection schedule and both the Collection schedule and routes shall be approved by the City Manager, taking into account the efficiency of routes, such that all Commercial Customers and Residential Customers within the City will have not less than one established Collection day each week. Contractor shall provide notice to each Customer of its established Collection day(s), and shall provide at least 30 day’s written notice to Customers of any change in their established Collection day(s). Notwithstanding any provision herein to the contrary, should any established Collection day fall on a Holiday, Contractor shall provide for Collection one (1) day later during the pick-up week, and the regular Collection schedule shall be resumed the following week. A “pick-up week” shall be defined as Monday through Saturday.
Contractor may not change its established Collection schedules without obtaining the prior written consent of the City Manager.
8.1.6 Commingling of Routes
Contractor shall not during its Collection process commingle Solid Waste Collected hereunder in a Collection Vehicle with Solid Waste Collected in any other jurisdiction, or on behalf of any other entity operating or existing within City that is not subject to this Agreement, and is specifically prohibited from combining Collection routes related to services provided pursuant to this Agreement with Collection routes for any other jurisdictions it services. Notwithstanding the forgoing, if Contractor utilizes a methodology satisfactory to the City Manager and CalRecycle to account for one or more types of Solid Waste Collected within City being commingled with such Solid Waste Collected from other jurisdictions, and Contractor obtains the written consent of the City Manager to commingle such Solid Waste with Solid Waste Collected from other jurisdictions, Contractor may commingle such Solid Waste in a Collection Vehicle. The City Manager may grant and withdraw his/her consent for such commingling in his/her absolute and sole discretion.
8.1.7 Requirements For Handling of Source Separated Solid Waste Contractor shall ensure all Solid Waste that is source separated in Containers by material type remains so separated after Collection, and shall utilize Collection Vehicles dedicated for the purpose of Collecting Solid Waste which has been source separated prior to Collection that are designed to ensure that once Collected, such material is not commingled with other Solid Waste.
8.1.8 Requirement to Deliver Solid Waste to the Approved Facilities Contractor has provided a list of all facilities to which it intends to deliver Solid Waste for disposal or processing, attached hereto as Exhibit C, and has verified that each is properly permitted to process or dispose of the type of materials proposed to be delivered to it (the 384/036753-0091
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“Approved Facilities”). All Solid Waste Collected by Franchisee pursuant to this Agreement shall be delivered to one of the Approved Facilities identified in Exhibit C, except as may be necessitated by a Force Majeure event, or temporary closure not exceeding five (5) business days.
In no case may Solid Waste be delivered to a facility that is not properly permitted to handle the type of materials so delivered. Franchisee may update Exhibit C, and the Approved Facilities noted therein, at any time subject to the City Manager’s approval, which approval will not be withheld so long as any facility proposed to be added is properly permitted to process or dispose of the type of Solid Waste proposed to be delivered to it in a manner that complies with the Applicable Laws. Notwithstanding anything to the contrary in this subsection, should City exercise its Flow Control Option as set forth in Section 26.1, Contractor shall only deliver Solid Waste to facilities for disposal or processing in a manner consistent therewith.
8.1.9 Implementation, Outreach and Education Plan
Within six (6) months of the Effective Date Contractor shall present a final Implementation, Outreach and Education Plan to the City for approval, which shall have been prepared in coordination with City Staff. The City shall either approve this Plan or provide direction to Contractor for required modifications, and Contractor shall take all such actions as may be necessary to, and shall, secure final approval from City of its Implementation, Outreach and Education Plan on or before November 13, 2026. Contractor shall begin to implement the Implementation, Outreach and Education Plan at a date to be contained therein, which shall not be later than January 8, 2027. Contractor’s Implementation, Outreach and Education Plan shall be updated if, and as often as, deemed necessary by City to enable Customers to understand Contractor’s various diversion programs, and their obligations under the Applicable Laws, in order to ensure compliance with SB 1383. Contractor shall comply with all programs, requirements and timelines set forth in the approved Implementation, Outreach and Education Plan, as it may be amended from time to time. If at any time following the one (1) year anniversary of the Operative Date City determines that despite Contractor complying with its Implementation, Outreach and Education Plan, less than ninety percent (90%) of Commercial Customers are participating in State mandated programs (such as those set forth in AB 341, AB 1826 and SB 1383), Contractor shall update such Implementation, Outreach and Education Plan to include funding for and working with a Public Education and Outreach Consultant, all in a manner satisfactory to City.
8.1.10 Collection and Replacement of Containers
Contractor shall replace Carts used for Collection at Single Family Dwellings in the location designated for their Collection. Contractor shall Collect Containers used by Commercial Customers from the location upon the Premises of each such Customer designated for their storage; and, Contractor shall replace such Containers to that location with gates and/or doors secured, as applicable, after Collection is completed, unless different arrangements are agreed upon by the Customer and Contractor.
8.1.11 Contractor’s Containers
(a) All Containers used in City upon the Operative Date shall be new, or refurbished to “as new” condition, shall meet all color and other requirements imposed by the Applicable Laws.
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(b) All of Contractor’s Containers shall be maintained, in appearance and function in good condition and free from graffiti or other damage that could render the equipment “unsightly” or non-compliant with the Applicable Laws as determined by the City Manager or CalRecycle.
(c) Contractor shall be responsible to maintain and replace, as necessary, all of its Containers and shall replace, or otherwise remedy, unsightly and/or noncompliant containers within three (3) days after receiving notice to do so from the City. (d) Contractor shall ensure it maintains an accurate list that contains the total number and type of its Containers at each service address, as well as the frequency of Collection for each such Container. Each Container shall be bar coded, numbered, or otherwise marked in a manner satisfactory to City, such that an inventory of each Container distributed to each Customer exists as part of Contractor’s Container list. Contractor shall keep this list up to date at all times, provide it to City upon request, and shall include a current updated list with each monthly, quarterly and annual report as set forth in Section 23. (e) All Carts shall be maintained by Contractor in a watertight condition, as shall all Bins which are used primarily for the disposal of Solid Waste containing liquids; and, shall at all times comply with the provisions of any applicable NPDES permit. (f) On an ongoing basis, Contractor shall proactively monitor its Containers and any Container it identifies as not meeting the standards hereof shall be replaced within seven (7) days. Commencing on the fifth anniversary of the Operative Date Contractor shall perform an annual inspection of all Containers, to ensure compliance with the Container maintenance standards required herein. This inspection shall at a minimum include a written “checklist,” in a form satisfactory to City, wherein the condition of each Container is annually verified by a visual inspection by Contractor, and its condition is recorded (i.e., “excellent,” “showing wear,” “needs replacement,” or such other designations as agreed up) with such information reported to the City, as part of the annual report required by Section 23. Contractor shall replace any damaged Containers at no charge to Customers; provided, however, Contractor shall be entitled to charge Customers rates which do not exceed the maximum rates set forth in Exhibit A for the replacement of any Container damaged by a Customer, ordinary wear and tear excepted.
(g) Contractor shall replace any damaged, lost or stolen Carts within three (3) business days of receiving a request to do so from a Customer, at no cost to Customers. Contractor shall be obligated to replace a lost or stolen Cart for a Customer at no charge two (2) times during the Term hereof. For each replacement of a lost or stolen Cart thereafter, Contractor may charge Customers an amount which does not exceed the maximum rates set forth in Exhibit A.
(h) Contractor shall, at a Customer’s request, annually refurbish, replace, and steam clean as necessary all Bins at no charge to the Customer. City may require the steam cleaning, refurbishment or replacement of Bins more frequently if it determines such action is needed to protect public health and safety. Additional steam cleaning, refurbishment or 384/036753-0091
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replacement shall be provided when required by City or requested by a Customer at a charge not to exceed the maximum rate set forth in Exhibit A hereto. (i) Contractor shall annually steam clean City owned enclosures where Containers are stored at no charge to the City. In the Downtown District, Contractor shall on a weekly basis, at no cost to City, power wash, and clean up any debris in City owned enclosure areas, and the area within a ten (10) foot radius of such enclosures. Additional enclosure steam cleaning for City owed enclosures shall be provided when required by City if it determines such action is needed to protect public health and safety, and shall also be provided when requested by a Customer, with such steam cleaning occurring at a charge not to exceed the maximum rate set forth in Exhibit A. All steam cleaning and power washing performed by Contractor shall occur in a manner that complies with all Applicable Laws, including specifically the requirements of any applicable NPDES permit.
(j) Contractor shall remove any graffiti that appears on its Containers, utilizing methods that comply with the Applicable Laws, within one (1) business day after becoming aware of it.
(k) All Bins and Rolloff Boxes shall be kept freshly painted in a uniform fashion and shall be identified with Contractor’s name and phone number in letters not less than three inches high on its exterior so as to be visible when the Container is placed for use. (l) At a Customer’s request Contractor shall provide Bins with locking lids and locks, at rates which do not exceed the maximum rates set forth in Exhibit A. In addition, Contractor may impose a per Collection surcharge upon Customers utilizing locking Bins, at rates which do not exceed the maximum rates set forth in Exhibit A.
8.1.12 Missed Collections
In case of a missed Collection of properly set out Container(s) reported by a Customer, Contractor shall Collect the missed Container(s) from such Customer no later than the next day (excluding Sundays) following the date the missed Collection is reported. Records of the addresses of all missed Collections shall be maintained by Contractor, and shall be reported to City upon request. If Contractor demonstrates to the satisfaction of the City Manager a pattern of ongoing late “set-outs” by a given Customer, missed Collections resulting from late set-outs by that Customer shall not be considered in evaluating Contractor’s performance hereunder. The Customer service phone system required by Section 10.8.2 hereof is intended, among other things, to serve as a “hotline” for Customers to call in the event Solid Waste placed for Collection is not Collected by Contractor and to facilitate having such Solid Waste Collected as soon as reasonably possible, and in no event later than as required by the provisions hereof.
8.1.13 Contamination of Containers with Materials that are not Solid Waste Contractor shall not be required to Collect Containers contaminated with materials that do not meet the definition of Solid Waste (such as Hazardous Contaminants.) Whenever Contractor decides not to Collect any Container so contaminated, Contractor shall collect evidence using photography of a type acceptable to City depicting the material which makes Collection inappropriate, leave a tag at least 2” by 6” in size, clearly indicating the reason for Contractor’s 384/036753-0091
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refusal to Collect the material and/or Container. The tag shall provide Contractor’s business name and its local telephone number and shall be attached to the Container or the article refused.
Contractor shall provide a copy of the depiction of the contaminating material to the Customer either as part of the tagging, or by electronic or US Mail within a week of its refusal to make the Collection, and shall maintain a record of all such tagging including at a minimum the date of such notice, street address, reason for non-Collection, copy of the depiction of the materials that were not suitable for Collection, and a summary of any communications between Contractor and the Customer involved. If required by City, Contractor shall use a software program that enables compliance with this Section to occur by use of a smart phone, tablet or similar application. All records created in connection with this Section shall be retained for not less than 1 year to enable them to be inspected by City upon request.
8.1.14 SB 1383 Container Contamination Monitoring
Contractor shall provide a Container contamination monitoring program in connection with all Customers that complies with all Applicable Laws, and is approved by the City, which meets the following requirements:
(a) Contractor shall provide on-going monitoring of the contents of Containers, using a method that is approved by City and complies with all Applicable Laws including specifically, without limitation 14 CCR § 18984.5, and may accomplish its obligations hereunder by physical inspection of the contents of Containers by Collection personnel at the time of Collection, and/or use of cameras which view, record and save images of the contents of Containers.
(b) Contractor shall take such steps as are necessary to comply with its on-going Container contamination monitoring obligations hereunder, and in so doing shall at a minimum assign one (1) “full time” staff person (meaning a typical forty (40) hour per week job assignment, taking into account typical leave time) to perform the function of a “route auditor” to conduct inspections of Containers and otherwise be responsible for contamination compliance monitoring and related reporting in compliance with the Applicable Laws. The route auditor shall perform and/or oversee Contractor’s inspection and other monitoring and enforcement-related functions, prepare reports required by CalRecycle, which shall be certified by Contractor as to completeness and accuracy, conduct public outreach and education, participate in and facilitate community events throughout the year to promote Contractor’s programs, and assist with resolution of Customer complaints. Contractor shall keep records documenting the route auditor’s activities, in a manner subject to the City Manager’s reasonable approval, sufficient to substantiate the requirement that one (1) person on a “full time” assignment has been satisfied. (c) Contractor shall monitor all Containers in order to determine if any meet the definition of “Contaminated Container” which shall mean twenty percent (20%) or more of the volume of the contents of the Container is comprised of materials other than that for which the Container is designated. In the event Contractor encounters a Contaminated Container, Contractor shall document the fact it is a Contaminated Container in a manner satisfactory to City, which shall at a minimum demonstrate: (i) twenty percent (20%) or more of the volume of the contents of the Container is comprised of materials other than that for which the Container is designated, and (ii) the identity of the Customer to whom the Container was provided by 384/036753-0091
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Contractor. Contractor shall record such event in a computer logging/data-base system and include the date, time, Customer’s address, type of Container (i.e., whether designated for general Solid Waste, Organic Waste, or Recyclable Materials) as well as video or photographic evidence of the contamination connecting it to the Customer/owner of the Container, and shall retain the video/photographic evidence of the incident to enable reasonable review, including review in connection with challenges by Customers to Contractor’s determination a Container was a Contaminated Container. Contractor shall notify the Customer of the contamination incident as soon as reasonably feasible, in a manner consistent with the provisions of this Section, and provide the information required by this Section to the Customer upon request. In addition, Contractor shall provide the Customer with education materials related to the appropriate items to be placed in each Container. Contractor shall maintain the forgoing records and provide them to the City as part of its monthly reporting, or more frequently if necessary to comply with City’s enforcement obligations set forth in the Applicable Laws.
(d) Upon discovering a Contaminated Container, Contractor shall provide notice by leaving a tag on the Container, or delivering the notice by mail, electronic mail, text or other electronic means reasonably calculated to ensure the Customer actually receives the notice. Contractor shall then Collect the Contaminated Container and deliver the contents to a facility properly permitted to receive it. Contractor shall Collect the Contaminated Container no later than the end of the business day following its regularly scheduled Collection day. Electronic delivery may be utilized for contamination notices if Contractor has a delivery address for that mode of communication for a Customer. If not, notices shall be mailed to the address used by Customer for billing purposes as well as the location where Collection occurs, if different. (e) If Contractor observes the same Residential Customer having a Contaminated Container on more than three (3) Collections in any calendar year, Contractor may charge a contamination fee in an amount that does not exceed that set forth in Exhibit A.
Contractor may charge Commercial Customers a contamination fee in an amount that does not exceed that set forth in Exhibit A for each occurrence upon which a Contaminated Container is placed out for Collection. Notwithstanding the forgoing, no contamination fee may be charged in connection with Contaminated Containers during the period between the Operative Date and July 1, 2028, with the intent that Contractor use that period to focus on education of Customers as to the requirements of the Applicable Laws. In order to impose a contamination fee, Contractor shall have complied with subsections (c) and (d) above, and shall additionally provide the date of the contamination incident as part of an invoice to the Customer related to the contamination fee; as well as a notification that any challenge to the contamination fee must occur within sixty (60) days of the date of the invoice. The invoice shall also provide information regarding the process by which to challenge the appropriateness of the contamination fee. Contractor shall establish a process for Customers to bring such challenges, which shall include an opportunity for Customers to receive the information required in subsection (c) and (d), and to present to Contractor any evidence it may have supporting the Customer’s challenge to the contamination fee. Contractor’s process for dispute resolution shall be subject to the City Manager’s approval. Contractor shall provide City with a summary of any such challenges including Contractor’s determination as to whether to impose the contamination fee, and the City Manager shall have the ability to overrule any such determination based upon substantial evidence supporting such decision. 384/036753-0091
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(f) Contractor shall provide information to City regarding Contaminated Containers in the monthly reports it submits to City, with sufficient specificity to enable City to determine if enforcement action against a Customer is warranted and to meet the reporting requirements of SB 1383. In addition, Contractor shall maintain the above noted records related to contamination and provide them to City, and otherwise assist City with such enforcement efforts as City may deem appropriate.
(g) Contractor shall perform route reviews or waste evaluations of each route in City on an ongoing basis in a manner that meets the requirements of 14 CCR § 18984.5, and is approved by City. Once such action is completed, Contractor shall provide any notification to Customers as may be required by the Applicable Laws. Contractor shall keep records of the reviews and/or evaluations conducted pursuant to this provision, including specifically the records required by 14 CCR § 18984.6, and provide such records to City upon request. In addition, Contractor shall include a summary of such information in a form acceptable to City in its monthly, quarterly and annual reports to City.
8.1.15 Overfilling of Bins or Rolloff Boxes
Where Contractor identifies instances of overfilling of Bins or Rolloff Boxes at any Commercial Premises Receiving Bin or Rolloff service, it shall document the overfilling through the use of photography of a type acceptable to City. Contractor may charge an overage fee in an amount not exceeding the maximum rate set forth in Exhibit A for cleaning up the Container area and placing overfilled material into the Collection Vehicle.
8.2 Solid Waste Handling Services for Residential Customers [THIS SECTION SUBJECT TO MODIFICATION IF AN ALTERNATIVE COLLECTION PROGRAM IS PROPOSED AND ACCEPTED BY CITY]
8.2.1 Single Family Dwellings – Standard Service With Three Carts Commencing on the Operative Date, Contractor shall provide each Customer at a Single Family Dwelling with one (1) ninety-six (96) gallon Refuse Cart, one (1) ninety-six (96) gallon Recycling Cart, and one (1) ninety-six (96) gallon Organic Waste Cart, which shall be Collected at least once per week as more fully set forth herein (“Standard Service.”) Any Customer requesting smaller Carts shall instead be provided by Contractor with a set of either: (i) one (1) sixty-four (64) gallon Refuse Cart, one (1) sixty-four (64) gallon Recycling Cart, and one (1) sixtyfour (64) gallon Organic Waste Cart, or (ii) one (1) thirty-five (35) gallon Refuse Cart, one (1) thirty-five (35) gallon Recycling Cart, and one (1) thirty-five (35) gallon Organic Waste Cart.
Upon request from any Customer at a Single Family Dwelling, Contractor shall provide such Customer with one or more additional Refuse Carts, Recycling Carts or Organic Carts of the same size as the other Carts distributed to such Customer, and shall Collect all Solid Waste placed for Collection in such additional Carts at rates that do not exceed the maximum rates set forth in Exhibit A associated with additional Carts.
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8.2.2 Residential Refuse Cart Collection Program
Commencing on the Operative Date, Contractor shall Collect all Solid Waste placed out for Collection in Refuse Carts not less than once per week using an automated Collection system at rates that do not exceed the maximum rates for Standard Service set forth in Exhibit A, as applicable to the size of each Customers set of Carts. Contractor shall not be required to Collect Solid Waste that is not contained within a Refuse Cart.
8.2.3 Residential Recycling Cart Collection Program
Commencing on the Operative Date, Contractor shall Collect Recyclable Material placed in Recycling Carts for Collection from each Customer at a Single Family Dwelling on the same day as such Customer’s Refuse Cart is Collected, utilizing an automated Collection process.
Customers shall be directed to place Recycling Carts in the same location for Collection as Refuse Carts. As of the Effective Date, the following materials shall be allowed to be deposited by Customers for Collection in Recycling Carts: empty aluminum cans; empty glass jars and bottles; bi-metal, and tin cans; empty aerosol containers; empty polyethylene terephthalate plastic (“PET”); high density polyethylene plastic (“HDPE”); plastics types 3 – 7; plastic toys and tools, and other plastic materials (if readily identifiable as being recyclable by plastic type number, but excluding expanded polystyrene); metal foil; dry newspaper; dry mixed paper (e.g., ledger, computer paper, junk mail, magazines, paperback books, cereal boxes, envelopes, paper shopping bags and nonmetallic wrapping paper); dry corrugated cardboard; and telephone books. City and Contractor agree to meet from time to time as needed, and in good faith consider modifications to the above list of acceptable Recyclable Material to address developments in processing technologies, emerging uses for various types of materials, changes in available markets, or other relevant issues; and, this list shall be updated to include any materials which the Applicable Laws may require to be Collected in Recycling Carts.
8.2.4 Residential Organic Waste Cart Collection Program Contractor shall provide a program for the Collection and processing of Organic Waste from all Customers at Single Family Dwellings that complies with the requirements of SB 1383 (the “Residential Organic Recycling Program”). The program may include parameters that describe which materials Collected are suitable for delivery to the Organic Waste Processing Facility(ies) identified on Exhibit C. Contractor shall Collect Organic Waste placed in Organic Waste Carts for Collection from each Customer on the same day as such Customers’ Refuse Cart is Collected, using an automated Collection process. Customers shall be directed to place Organic Waste Carts in the same location for Collection as Refuse Carts. Contractor shall deliver all Organic Waste it Collects to a properly permitted Organic Waste Processing Facility in accordance with 14 CCR Section 18983.1(b). Contractor may, as part of its Residential Organic Waste Recycling Program, permit Customers to place Organic Waste in compostable plastic bags and place such bags for Collection in Organic Waste Carts; and, shall do so if required by City. Should the use of plastic bags be permitted. Contractor’s Residential Organic Waste Recycling Program shall comply with all provisions of the Applicable Laws related to the use of plastic bags and/or compostable plastic bags, including without limitation those set forth in 14 CCR §18984.1 and 18984.4, and any associated notification and reporting requirements. 384/036753-0091
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8.2.5 Manure Collection
Contractor may provide Customers whose Premises are zoned in a manner authorizing equestrian or other large animals to be kept on site, and who so request, with Containers for the Collection of manure in a manner consistent with the Scope of Services set forth in Exhibit D at rates that do not exceed the maximum rates set forth on Exhibit A.
8.2.6 Low Volume Discount for Qualified Senior Citizen Customers Upon request, Contractor shall provide any Residential Customer who is a Qualified Senior Citizen with Standard Service using __________ (__) gallon Carts. Contractor shall provide Standard Service to such Customers at rates that do not exceed the maximum rates set forth in Exhibit A applicable to the Qualified Senior Citizen Discount. [THIS SECTION WILL BE MODIFIED TO COINCIDE WITH PROPOSAL.]
8.2.7 Walk-Out Service
Contractor shall provide Walk-Out Service to any Residential Customer requesting such service at rates that do not exceed the maximum rates set forth in Exhibit A (which rates may be charged in addition to rates associated with Standard Service.) The maximum rates applicable to Walk-Out Service will vary depending on the distance Contractor is required to move a Customer’s Carts from their storage location to the designated location for their Collection. Contractor shall not be required to move Carts more than 100 yards in connection with providing Walk-Out Service; provided, however, Contractor may agree to do so with a given Customer in which case the service shall be deemed to be a “special service” as set forth in Section 8.8. Contractor may require as a condition of Walk-Out Service that a Customer sign a standardized agreement, the terms of which shall be subject to City’s approval, which authorizes entry onto the Customer’s property and holds Contractor harmless from liability (including specifically liability related to pets escaping) associated with Contractor providing such Walk-Out Service. Contractor shall provide Walk-Out Service at no charge to any Qualified Disabled Customer requesting it.
8.2.8 Standard Collection Location
Standard Service includes Collection by Contractor of Carts placed for Collection by Customers in the public right of way adjacent to a Customer’s Premises, generally in the location from which vehicle access to the Customer’s Premises from the street occurs (which may be rear alley ways in some cases). Customers are to be directed to, where feasible, place Carts for Collection in the right of way near the edge of the street (if applicable against the curb/gutter), in front of, or otherwise adjacent to their Premises. If a Customer and Contractor cannot agree upon a Collection location, or if City determines the selected location may cause safety or other concerns, City may make the final determination of the Collection location. Absent unusual circumstances approved in writing by the City Manager, the Collection location for each Customer will be the same Collection location that was utilized for such purpose in connection with Solid Waste Handling Services provided prior to the Effective Date of this Agreement. 384/036753-0091
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8.2.9 Extra Cart Collection(s)
In the event extra Collection(s) are required by a Residential Customer in any given month, Contractor may charge an amount for such Collection(s) that does not exceed the maximum rate for the “extra pickups” as set forth in the attached Exhibit A. Should an extra Collection involve Walk-Out Service, Contractor may charge Customers a prorated portion of the applicable maximum rates for such services in addition to “extra pickup” charges. Any dispute as to the appropriate proration of such rates shall be resolved by the City Manager whose determination shall be final.
8.2.10 Bulky Item Service for Residential Customers
Contractor shall provide Bulky Item Collection services, on an on-call basis, to all Residential Customers in City. Contractor shall not charge for the first four (4) requests for Bulky Item Collection during each calendar year from any Residential Customer, and there shall be no limitation on the number of Bulky Items to be Collected in each “no charge” Bulky Item Collection. Thereafter, Contractor may charge Residential Customers rates for Bulky Item Collection which shall not exceed the maximum rates set forth in the attached Exhibit A. Bulky Item Collection service requests shall be responded to within a reasonable time but not longer than seven (7) days from the Customer’s request for service. Contractor shall produce, keep current, and provide public information specifically outlining its Bulky Item Collection service, which shall specifically include the annual publication and distribution of a brochure describing this service to all Residential Customers in City.
8.2.11 Bulky Item Diversion
Bulky Items Collected pursuant to this Agreement may not be landfilled until the following hierarchy of diversion efforts has been followed by Contractor:
(a) Reuse as is (if energy efficient);
(b) Disassemble for reuse or Recycling;
(c) Recycle, Transformation, or other means of diversion; and (d) Disposal.
This hierarchy is intended to preclude the use of typical Collection Vehicles with compacting mechanisms for Bulky Item Collection. The disposition of Bulky Items shall be tracked by Contractor and this information shall be included in Contractor’s monthly reports to City.
8.2.12 Proper Handling of Bulky Items
Contractor shall properly handle all materials required to be Collected as Bulky Items, in accordance with all Applicable Laws, including specifically items that require special handling pursuant to the Environmental Laws, such as materials commonly known in the waste industry as “universal waste” and/or “e-waste.”
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8.3 Solid Waste Handling Services For Commercial Customers
8.3.1 Scope of Services for Commercial Customers
[THIS SECTION SUBJECT TO MODIFICATION IF AN ALTERNATIVE COLLECTION PROGRAM IS PROPOSED AND ACCEPTED BY CITY]
Contractor shall provide programs for the Collection and disposal of Refuse (the “Commercial Refuse Program”), the Collection and processing of Organic Waste (the “Commercial Organic Waste Recycling Program”), and the Collection and processing of Recyclable Material (the “Commercial Recyclable Material Program”) from all Commercial Customers that comply with the requirements of all Applicable Laws including specifically SB 1383, and shall do so in a manner that is consistent with the Scope of Services provided by Contractor as part of its proposal to City, Attached hereto as Exhibit D. On or before the Operative Date, Contractor shall provide each Commercial Customer with sufficient Containers, of a type and size that comply with the Scope of Services for Commercial Customers, as reflected in Exhibit D. Commencing on the Operative Date, Contractor shall Collect all Solid Waste placed out for Collection by each Commercial Customer at rates that do not exceed the maximum rates for the services received by each such Customer as set forth in Exhibit A. Contractor shall provide specified services requested by Commercial Customers which are reflected in the Scope of Services, such as Containers with locks, extra pickups, or relocation of Containers at rates not exceeding the maximum rates set forth in Exhibit A. Additional services not reflected in the Scope of Services may be provided as a Special Service pursuant to the terms of Section 8.8.
8.3.2 Number of Containers and Frequency of Collection
Contractor shall work with Commercial Customers to evaluate the actual number and type of Containers needed, and frequency of their Collection, with a goal of meeting the requirements of the Applicable Laws, taking into account each Customers’ actual needs (including the best strategy to comply with all relevant laws and regulations in the most economically feasible manner), and public health and safety needs. The City Manager shall resolve any dispute that may exist between Contactor and any Commercial Customer as to the number of Containers or frequency of Collection needed to comply with this provision. Contractor shall assist the City in identifying Customers subject to this provision that are not in compliance with their obligations under the Applicable Laws. Contractor shall produce, keep current, and provide public information specifically outlining its Commercial Recyclable Materials Program, and its Commercial Organic Recycling Program, which shall specifically include the annual publication and distribution of a brochure describing these services to all applicable Customers in City.
8.3.3 Overloaded Containers
Contractor may refuse to Collect overloaded Containers, or may Collect them as a Special Service pursuant to Section 8.8. A Bin is deemed to be overloaded if Solid Waste protrudes more than one (1) foot above the surface, and a Rolloff Box is deemed to be overloaded in the same circumstance or if transporting it would cause Contractor to be out of compliance with Applicable Laws.
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8.3.4 Rolloff Box Dry Run and Standby Charges
When Contractor arrives at the time scheduled with a Customer to Collect a Rolloff Box, (whether provided for Commercial service or Temporary Service), there may be occasions in which the Customer: (1) advises Contractor’s personnel that it has decided not to have the Rolloff Box Collected at all and Contractor therefore makes a trip without “pulling” the Rolloff Box (a “Dry Run”) or, (2) asks Contractor’s personnel to wait for a period of time before “pulling” the Rolloff box (“Standby Time”). Contractor may charge Customers a rate for Dry Runs not exceeding the maximum rate set forth in the attached Exhibit A. Contractor may not charge Customers for an initial 10 minutes of Standby Time, but thereafter may charge Customers a rate for each increment of up to 15 minutes of Standby Time, which rate shall not exceed the maximum rate set forth in the attached Exhibit A.
8.3.5 Access to Containers
Contractor shall undertake all reasonable efforts to complete Collection at each Commercial Customer’s Premises in accordance with scheduled routing. If, at the scheduled time for Collection, a Container is not accessible to the Collection Vehicle, Contractor shall notify the Commercial Customer by telephone of the situation and request that access be provided. If the Commercial Customer is unavailable or unable to provide prompt access to the Container, Contractor shall provide Collection service a later time, but may charge an extra pickup fee in an amount not exceeding the maximum rate set forth in Exhibit A.
8.3.6 Sunday or Holiday Bin or Rolloff Collection
If a Commercial Customer requests that a Bin or Rolloff Box be Collected on a Sunday or Holiday, and presuming such Collection request has been approved by the City Manager as required by Section 8.1.4, in addition to any other applicable charges, Contractor may treat the Collection as a Special Service and include a surcharge pursuant to Section 8.8.
8.3.7 Minimum Requirements for Commercial Organic Waste Recycling Program
In addition to the related provisions found in the Scope of Services, the following provisions shall apply in connection with the Commercial Organic Waste Recycling Program:
(a) Contractor shall deliver each Commercial Customer at least one Container designated for the Collection of Organic Waste excepting such Customers for whom City issues an Organics Recycling Waiver.
(b) Contractor shall make available information related to its Commercial Organic Waste Recycling Program and shall promote said program through its website, mailers, brochures, billing inserts, email content, social media, and online announcements, all as more fully set forth herein.
(c) Contractor shall notify City of instances where there is a repeated refusal by a Customer to implement the Commercial Organic Waste Recycling Program.
City agrees in such instances to provide reasonable assistance to Contractor, which may include 384/036753-0091
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adding City’s name to materials prepared for distribution to Customers regarding the requirements of the Applicable Laws, enforcement of its related ordinances as it may deem necessary (subject to its prosecutorial discretion), and participation by City staff in meetings with Commercial Customers who repeatedly refuse to implement the Commercial Organic Waste Recycling Program.
(d) Contractor may, as part of its Commercial Organic Waste Recycling Program, allow Customers to place Organic Waste in plastic bags and place such bags for Collection in Containers designated for the Collection of Organic Waste; and, shall permit the use of plastic bags if required by City. If plastic bags are permitted, Contractor’s Commercial Organic Waste Recycling Program shall comply with all provisions of the Applicable Laws related to the use of plastic bags and/or compostable plastic, including without limitation those set forth in 14 CCR §18984.1 and 18984.4, and any associated notification and reporting requirements. (e) On behalf of City, Contractor shall regularly identify opportunities for, barriers to, and incentives for Organic Waste Recycling, and shall engage in Customer education and outreach related to Organic Waste Recycling in a manner that ensures City is in compliance with the City’s obligations to conduct outreach and education as set forth in the Applicable Laws, including SB 1383. The method(s) by which Contractor contacts Customers for these purposes, unless otherwise specified, may be by any reasonable means Contractor desires (which may include direct mail, email, telephone calls, site visits and/or such other methods as Contractor reasonably deems appropriate), provided that such methods result in compliance with all Applicable Laws.
(f) Contractor shall identify Large Venues, Large Events and Tier 1 and Tier 2 Commercial Edible Food Generators. Once identified, Contractor shall engage in such education and outreach efforts as may be required by Contractor’s Implementation, Outreach and Education Plan, as it may be updated from time to time. To the extent known to Contractor, Contractor shall advise such Customers of any obligations under the Applicable Laws with which they are not in compliance regarding Recycling and Organic Waste collection services. (g) If requested by City, Contractor shall conduct visual inspections of Commercial Premises to evaluate their compliance with Organic Waste obligations and service level needs. Contractor shall annually conduct Customer surveys and onsite inspections on behalf of City in a manner that complies with the Applicable Laws at Premises that do not participate in Contractor’s Commercial Organic Waste Recycling Program, utilize an inhouse program, provide Edible Foods to Food Recovery Organizations or Food Recovery Services and/or otherwise recycle or divert Organic Waste. Contractor shall provide copies to City of surveys conducted, and summaries of visual inspections performed, if any, each month and submit copies of all such materials as part of its monthly, quarterly and annual reports to the City in accordance with Section 23. In the event a Customer refuses to participate in Contractor’s Commercial Organic Waste Recycling Program, and does not report to Contractor that it achieves compliance with its obligations under the Applicable Laws through other methods, Contractor shall provide the City with Customer’s name, address, contact information and such other information available to Contractor as may be requested by City or CalRecycle, in a format approved by City.
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(h) Contractor, with such support from City as may be reasonably necessary, shall perform at least the following outreach as part of its Commercial Organic Waste Recycling Program to all applicable Customers:
(i) Initial Direct Mailing Outreach to be performed by
Contractor. Contractor shall prepare a multi-lingual letter (in languages reasonably requested by City) regarding the requirements of AB 1826 and SB 1383 for City approval. Upon receipt of City approval, the letter shall be printed using the City’s electronic letterhead and mailed or delivered by Contractor to all applicable Customers, informing such Customers of the availability of the Commercial Organic Waste Recycling Program and the requirements for compliance with AB 1826 and SB 1383. The letter shall note that subscription to Contractor’s Commercial Organic Waste Recycling Program is mandatory under State law for Customers that do not receive an Organics Recycling Waiver from City or otherwise comply with their obligations as generators of Organic Waste as set forth in the Applicable Laws. This letter shall be included in the Implementation, Outreach and Education Plan and shall be distributed to Customers in a manner that complies therewith.
(ii) Initial Direct Mailing of Out of Compliance Outreach to be performed by Contractor. Within the timeframes to be included in the Implementation, Outreach and Education Plan, and in any event within one year of the Operative Date, Contractor shall prepare a letter for City approval and mail or deliver it to all Customers who are not in compliance with their obligations related to Organic Waste under the Applicable Laws. The letter shall explain the requirements of the Applicable Laws, detail the Customer’s specific reasons for non-compliance, and explain the annual reporting requirements to CalRecycle. The letter is to be printed using the City’s electronic letterhead. Contractor shall concurrently provide City with a list of all Customers it believes are not in compliance with the regulatory requirements applicable to them associated with their generation of Organic Waste under the Applicable Laws, (including but not limited to a contact Person, service and billing addresses, phone number, email, account notes and any other information reasonably necessary) as well as all available information relating to any refusal by the Customer to participate in the Commercial Organic Waste Recycling Program, in order that such information may be utilized for enforcement purposes and included in reports to CalRecycle.
8.3.8 Commercial Scout and Push Out Service
Certain Commercial Premises within City are uniquely configured such that a specialized vehicle may be needed to retrieve a Customer’s Container in order for a regular Collection Vehicle to service the Container (“Scout Service”). In addition, certain Premises may be configured such that a Customer’s Container must be manually moved a distance of more than twenty-five (25) feet in order to be serviced by a Collection Vehicle (“Push Out Service”). By way of clarification, Push Out Service does not apply to Bins that must be moved less than twenty-five (25) feet in order to be serviced by a Collection Vehicle; and, any Container that is required to be moved more than 50 feet to be serviced shall be required to use Scout Service. Contractor shall provide Scout Service and Push Out Service at rates which shall not exceed the maximum rates set forth in Exhibit A. The City Manager shall resolve any disputes between Contractor and a Customer as to whether Scout Service and/or Push Out Service is appropriate or required, and his/her determination shall be final.
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8.3.9 Requirements for Solid Waste Handling Services in the Downtown Area
Businesses within the Downtown District shall receive the same services required of all other Commercial Customers as set forth herein, with the exception that due to space constraints the Containers provided for such services shall be located in City-owned trash enclosures, and applicable Customers shall be billed for “shared services” as more fully set forth in Exhibit A and consistent with the Scope of Services (Exhibit D). City may revise the map designating the Downtown District, Exhibit B, in its sole discretion. The list of businesses included in Exhibit B denotes each business in the Downtown District as being either an “Organics Generator” or “All Other Businesses” (i.e., a business that does not generate Organic Waste.) The City may update such list in its sole discretion should it deem it appropriate to do so. Notwithstanding the foregoing, Contractor shall have the affirmative obligation to update this list each time a business changes, or in the event a new business moves into the Downtown District that did not previously exist, so as to designate which of the two applicable categories the business falls into. Contractor shall charge each such business for the Collection services it provides rates that do not exceed the maximum rates set forth in Exhibit A, in a manner consistent with the Scope of Services, bases upon which of the two applicable categories the business falls into. Notwithstanding the forgoing, there may be cases in which a business in the Downtown District has sufficient space to provide appropriate enclosures for its own Containers, and thus may opt out of the shared services contemplated by this Section. In the event a Commercial Customer in the Downtown District opts out of the contemplated shared services Contractor shall: (1) advise City in order to enable City to determine if the Customer is able to comply with all Applicable Laws if it does so; (2) identify such Customers on Exhibit D in the same manor as all other Customers with the additional notation of “opt out”; and (3) charge rates for services provided to such Customers that do not exceed the maximum rates on Exhibit A for Commercial Customers not in the Downtown District.
8.3.10 Commercial Bulky Item Service
Contractor shall provide unlimited Bulky Item Collection services to Commercial Customers on an on-call basis. Contractor may charge rates for such services which shall not exceed the maximum rates set forth in the attached Exhibit A. Bulky Item Collection service calls shall be responded to within a reasonable time but not longer than seven (7) days from the date of the Commercial Customer’s request for service. Contractor shall produce, keep current, and provide public information specifically outlining the Bulky Item pick-up service. Bulky Items Collected pursuant to this Section are subject to the diversion and handling requirements set forth in Sections 8.2.11 and 8.2.12.
8.4 Temporary Services
Contractor shall provide Temporary Services on an on call basis to any Customer requesting such service.
8.4.1 Charges for Temporary Services
No charges excepting rates not exceeding the maximum rates set forth in the attached Exhibit A shall be imposed by Contractor, unless approved in accordance with Section 8.8. 384/036753-0091
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8.4.2 Temporary Cleanup Bins
Temporary Cleanup Bins shall be provided for any Customer requesting such service at rates not exceeding the maximum rate for “Temporary Cleanup Bins” set forth in the attached Exhibit A. Customers shall be entitled to have a Temporary Cleanup Bin at their Premises for up to seven (7) days. Should a Customer request that the Solid Waste in a Temporary Cleanup Bin be Collected during this period and that thereafter the Container be replaced, Contractor may treat the request as a request for the early removal of the Temporary Cleanup Bin, and may charge the Customer for such service in the same manner as if a new Temporary Cleanup Bin were requested.
If a Customer requests additional days (beyond seven (7) business days) to keep a Temporary Cleanup Bin for use, Contractor may charge a daily rental rate that does not exceed the maximum rate set forth in the attached Exhibit A.
8.4.3 Temporary Construction Bins
Temporary Construction Bins shall be delivered to any Customer requesting such service at rates not exceeding the maximum rate for “Temporary Construction Bins” set forth in the attached Exhibit A. While Customers shall be entitled to keep a Temporary Construction Bin at their Premises for as long as the project for which they are provided continues, the maximum rates set forth in Exhibit A apply to periods of up to seven (7) days, and include one Collection during that period. Should a Customer request to that a Temporary Construction Bin be Collected sooner than the end of seven (7) days, and that thereafter the Container be replaced, Contractor may treat the request as a request for the early removal of the Temporary Construction Bin and may charge the Customer for the replacement in the same manner as if a new Temporary Construction Bin were requested. If a Customer requests additional days (beyond seven (7) business days) to keep a Temporary Construction Bin for use without being Collected, Contractor may charge a daily rental rate that does not exceed the maximum rate set forth in the attached Exhibit A.
8.4.4 Temporary Rolloff Boxes
Temporarily placed Rolloff Boxes shall be delivered to any Customer requesting such service at rates not exceeding those set forth in the attached Exhibit A. Customers shall be entitled to have a Temporary Rolloff Box at their Premises for up to seven (7) calendar days. Should a Customer request that the Solid Waste in a Temporary Rolloff Box be Collected during this period and that thereafter the Container be replaced, Contractor may treat the request as a request for the early removal of the Temporary Rolloff Box, and may charge the Customer for such service in the same manner as if a new Temporary Rolloff Box were requested. If a Customer requests additional days (beyond seven (7) calendar days) to keep a Temporary Rolloff Box for use, Contractor may charge a daily rental rate that does not exceed the maximum rate set forth in the attached Exhibit A.
8.4.5 Placement of Temporary Containers in the Right of Way.
Containers used for Temporary Service shall not remain in any public right-of-way for a period exceeding two (2) consecutive weeks; provided, however, the City Manager may direct that a shorter time apply in a given circumstance. Such Containers may not be placed in any public right-of-way so as to create a safety hazard or so as to block any right-of-way to a degree that it is not reasonably usable as determined by the City Manager. Containers used for Temporary 384/036753-0091
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Services and placed in City's rights-of-way shall be subject to such requirements as may be imposed by City, and at a minimum shall be equipped with reflectors, reflective tape, reflective paint, or other reflective devises which, to the satisfaction of the City Manager, make such Containers reasonably visible to vehicle traffic at night.
8.4.6 Compliance with C&D Regulations
Contractor shall comply with all Applicable Laws in connection with Temporary Services it provides including specifically any ordinance which may be in effect regulating C&D Debris (including, without limitation, the California Green Building Standards Code as it may be amended from time to time), shall comply with any specific diversion levels and project-based diversion reporting that may be required by such regulations, and shall use City approved software in connection with any such reporting. At a minimum, Contractor shall provide a C&D Debris report to City on behalf of any Customer for whom it provides Collection of C&D Debris that outlines the types of Solid Waste Collected, the amount of each stated in tons, the location where all such Solid Waste is delivered for processing and/or disposal, the tonnage divereted from disposal, the tonnage reused, and all data related to diversion or other topics as may be required by the California Green Building Standards Code. Contractor shall make all reasonable efforts to recycle all C&D Debris it Collects, especially to the degree such loads contain clean inert materials. Towards this end, where appropriate Contractor shall provide Customers separate Containers within which to Collect different types of marketable materials, such as dirt, steel, concrete, and wood, as well as Containers designed for Recyclable Materials and Organic Waste Collection. Contractor shall create educational and outreach materials targeting Temporary Services Customers, subject to City Approval, which City and or Contractor can provide to such Customers.
8.5 Other Collection Programs As May Be Required by Law In the event any federal or state law or regulation imposes upon City or Contractor a requirement for the implementation of any source separated program for the Collection of any type of Solid Waste not already covered by this Agreement, whether commercial or residential in nature, Contractor shall design and present a program to City to comply with such requirement, which program shall meet the City Manager’s reasonable approval (“Proposed Program”). Prior to the implementation of any such Proposed Program, City and Contractor shall meet and confer in good faith in advance to determine a fair and reasonable adjustment to the maximum rates set forth in Exhibit A in order to fairly compensate Contractor for implementing said Proposed Program. In determining a fair and reasonable rate adjustment, City shall consider the cost to Contractor in providing the Proposed Program. Contractor shall present the Proposed Program within ninety (90) days of a request to do so by City.
8.6 Indemnification, Warranties Guarantees And Related Obligations Provided In Connection With Applicable Laws
8.6.1 AB 939 Obligations, Guarantee, and Indemnification (a) Warranties and Representations, Diversion Guaranty.
Contractor warrants and represents that it is aware of and familiar with City’s Source Reduction and Recycling Element (the “SRRE”), that it is familiar with City’s waste stream, and that it has 384/036753-0091
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the ability to and will provide sufficient programs and services to ensure that City will meet or exceed the diversion goals (including, without limitation, amounts of Solid Waste to be diverted and time frames for diversion, and any other requirements) set forth in AB 939, and all amendments thereto, and that it shall do so without imposing any costs or fees other than those for which maximum rates are set forth in Exhibit A (including if it implements new programs to achieve such goals which are not called out herein). Stated otherwise, Contractor acknowledges that it is responsible for ensuring that its various programs achieve the diversion requirements hereunder, and that it may be required to modify its programs from time to time, at no additional cost to the City or Customers, to meet such diversion requirements. (b) Mutual Cooperation. City and Contractor shall reasonably cooperate in good faith with all efforts by each other to meet City’s diversion and other compliance requirements imposed by AB 939, AB 341, AB 1826, SB 1383 and other Applicable Laws. In this regard, City’s obligations shall include, without limitation, making such petitions and applications as may be reasonably requested by Contractor for time extensions in meeting diversion goals, or other exceptions from the terms of AB 939, AB 341, AB 1826, SB 1383 and other Applicable Laws.
(c) Waste Reduction and Program Implementation. Contractor shall implement the programs required by this Agreement immediately upon the Operative Date hereof. Contractor shall provide City with monthly, quarterly and annual written reports in a form adequate to meet City’s reporting requirements pursuant to the Applicable Laws. Contractor shall be responsible to prepare, or assist City with the preparation of all reports and other information as may be required by any agency, including specifically, the State of California, in order to comply with the Applicable Laws. Contractor shall reimburse City for any costs City incurs in appearing before CalRecycle in relation thereto.
(d) Guarantee and Indemnification. Contractor warrants and guaranties that it will carry out its obligations under this Agreement such that: (i) both it and City will at all times be in compliance with the requirements of all Applicable Laws, and (ii) City will meet or exceed the diversion requirements (including, without limitation, amounts of Solid Waste to be diverted, time frames for diversion, and any other requirements) set forth in the Applicable Laws, provided, however, that Contractor shall not be in breach of the guarantee obligations set forth above to the extent that, despite Contractor’s best efforts, Contractor is prevented from satisfying clause (i) and/or clause (ii) above, of this subsection (d), due to factors outside of Contractor’s direct or indirect control. Contractor shall immediately notify City, in writing, in the event Contractor determines that Contractor may not satisfy clause (i) and/or clause (ii) above.
Furthermore, Contractor agrees that it will, in addition to any other requirement contained herein, subject to the requirements of Public Resources Code Section 40059.1, at its sole cost and expense:
(i) defend, with counsel approved by City, indemnify,
and hold harmless City and City’s officials, employees, and agents from and against all fines and/or penalties and other liabilities which may be imposed by CalRecycle or any other regulatory agency if: (1) Contractor fails or refuses to timely provide information relating to its operations which is required pursuant to this Agreement or any Applicable Laws and such failure or refusal prevents or delays City from submitting reports required by Applicable Laws in a timely manner; (2) Contractor fails or refuses to timely implement programs or otherwise comply with the provisions 384/036753-0091
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of this Agreement related to the mandates of the Applicable Laws and such failure or refusal prevents or delays City from complying with the Applicable Laws in a timely manner; or, (3) the source reduction and Recycling goals, diversion goals, program implementation requirements, or any other requirements of Applicable Laws are not met within the Franchise Area; (ii) assist City in responding to inquiries from
CalRecycle;
(iii) assist City in preparing for, and participating in any review of City’s SRRE pursuant to Applicable Laws;
(iv) assist City in applying for any extension if so directed by City;
(v) assist City in any hearing conducted by CalRecycle
relating to City’s compliance with Applicable Laws;
(vi) assist City with the development of and implement a public awareness and education program that is consistent with the City’s SRRE and HHWE, as well as any related requirements of Applicable Laws;
(vii) provide City with advice on Recycling, source
reduction, and other technical assistance related to compliance with the Applicable Laws; (viii) defend, with counsel reasonably acceptable to City, City and City’s officials, employees, and agents against the imposition of fines and/or penalties, or any other liabilities, issued by CalRecycle pursuant to AB 939, SB 1383 or any other law or regulation;
(ix) be responsible for and pay, any fees, penalties or other costs imposed against the City by CalRecycle, and reimburse, indemnify and hold harmless City from and against any and all costs, fees, charges, fines, penalties, or other liabilities, levied against it for violation of AB 939’s diversion requirements, or violation of any other provision of the Applicable Laws, to the extent arising from or in any way related to Contractor’s performance of its obligations under this Agreement.
8.6.2 Guaranteed Minimum Contractor Recycling Rate
Contractor shall conduct its operations hereunder such that the City meets the diversion goals set forth in the Applicable Laws (“Recycling Diversion Requirement”). For the purposes of this Section, diversion includes only Recycling methods and processes which are accepted by the State toward meeting the City’s diversion goal under the Applicable Laws. To comply with this Section, Contractor shall submit timely tonnage reports supporting the Recycling Diversion Requirement, and provide supporting documentation as may be requested by City or its designee as part of, or independent of, an audit.
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8.6.3 Waste Generation/Characterization Studies
Contractor acknowledges that City must perform Solid Waste generation and disposal characterization studies periodically to comply with the requirements of the Applicable Laws.
Contractor agrees to participate and cooperate with City and its agents to accomplish studies and data collection and prepare reports, as needed and directed by City, to determine weights and volumes of Solid Waste Collected and characterize Solid Waste generated, disposed, transformed, diverted or otherwise handled/processed to satisfy the requirements of the Applicable Laws.
8.6.4 Implementation of Additional Diversion Services
In the event City does not meet the Recycling Diversion Requirement with respect to all waste generated in the Franchise Area, City may direct Contractor to perform additional services (including the implementation of new diversion programs) or modify the manner in which it performs existing services, and Contractor agrees to do so at no additional charge. Contractor shall seek City approval for the implementation of new diversion programs, which City may deny, approve or conditionally approve in its reasonable discretion. Pilot programs and innovative services which may entail new Collection methods, and use of new or alternative waste processing and disposal technologies are included among the kinds of changes which City may direct.
8.7 Additional Services
As part of the consideration for entering into this Agreement, Contractor shall provide the following additional services:
8.7.1 City Sponsored Events
Contractor shall provide Solid Waste Handling Services consistent with the Applicable Laws for up to nine (9) City-sponsored large events at no additional charge. In fulfilling the obligations created by this Section, Contractor shall provide Containers to Collect and dispose of all Solid Waste (including cardboard waste boxes with liners, reusable metal/plastic event Containers, Bins or Rolloff Boxes as appropriate), Containers to Collect source-separated Recyclable Materials, port-a-potties, and hand-wash stations as needed for each venue or event.
The events to which this Section applies shall be determined by City each year, and may include events such as Forth of July Celebration, Spring Eggstravaganza, and First Night. In addition to providing the forgoing scope of services for City-sponsored events, the City supports various smaller events each year. Contractor shall at a minimum provide cardboard waste boxes with liners or metal/plastic reusable event Containers, consistent with industry standards, for Collection of Refuse, Recyclable Materials and Organic Waste, at no cost for use at such events in a manner as requested by City. City shall Collect cardboard boxes with liners or metal/plastic special event Containers and consolidate the Solid Waste Collected therein in Containers provided by Contractor at a City Facility; and, thereafter, Contractor shall Collect such containerized, consolidated Solid Waste and deliver it to an appropriate facility for processing or disposal at no cost to City.
8.7.2 Holiday Trees
For at least three (3) weeks following December 25th each year, Contractor shall, free of charge, Collect all Holiday Trees placed out for Collection by Customers. Such trees shall not be 384/036753-0091
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comingled with other Solid Waste and shall be delivered to a proper facility for processing, rather than disposal, as required by the provisions hereof.
8.7.3 HHW Collection Event
Contractor shall, once per calendar year, hold an event, at a City-designated site (selected after coordination with Contractor), to collect Household Hazardous Waste (“HHW”) comprised of batteries, E-waste, and waste tires from City residents (the “HHW Collection Event.”) Each annual event shall last at least four (4) hours, during which residents can deliver the above noted HHW items for Collection and handling by Contractor, and Contractor shall Collect and properly handle all such materials delivered by residents during each event. Contractor shall conduct each HHW Collection Event, and shall handle all HHW Collected, in a manner consistent with the terms hereof and the Applicable Laws. This shall at a minimum require that Contractor obtain and maintain any required federal, State, and local permits and documentation (such as manifests and disposal/disposition records for all Collected materials), and ensure all Collection and transportation occurs pursuant to proper licenses. Contractor shall maintain, and provide such records and reporting related to each HHW Collection Event to all applicable regulatory agencies in a manner consistent with the Applicable Laws.
8.7.4 Bi-annual shredding event
Contractor shall, twice each calendar year, hold an event at no cost to City or residents, each of which shall last at least four (4) hours, during which residents can bring up to the equivalent of 4 so called “bankers boxes” of documentsforshredding. Each shredding event shall be located at a location to be designated by City, and the timing of each event shall be proposed by Contractor but subject to City’s approval. Contractor shall Collect all documents delivered by residents during each event. Contractor shall be responsible for staffing the shredding events in a manner satisfactory to City bearing in mind the need to direct traffic, accept material from the public, and shred the material Collected. All materials Collected for shredding shall be shredded, and shall be treated in a manner consistent with industry standards related to the Collection and shedding of confidential documents.
8.7.5 Residential Compost Drive-Thru Giveaway
Contractor shall provide all necessary staffing, equipment and materials in connection with one (1) annual event by which compost is made available to Residents at no cost (the “Compost Drive-Thru Giveaway Event.”) The Compost Drive-Thru Giveaway Events shall be held on a Saturday, at such location as directed by City, and last from 8:00 a.m. to 12:00 noon on a date mutually agreed upon by City and Contractor. At each Compost Drive-Thru Giveaway Event Contractor shall make available for distribution to residents compost which may be used to satisfy City’s procurement obligations in connection with SB 1383 as set forth in 14 CCR Section 18993.1(f). Such compost shall be bagged in a manner acceptable to City, with each bag containing approximately 30 pounds of compost. Contractor shall make available up to twenty eight (28) tons of compost (or approximately 1,880 bags) for each Drive-Thru Giveaway event, with the actual amount to be provided for each event to be determined in coordination with City.
Participating residents shall be allowed to take at least four (4) bags of compost during each such 384/036753-0091
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event. Contractor may request reasonable proof that the participants receiving compost at such events are residents of City.
8.7.6 Seasonal Compost Program
Contractor shall provide all necessary staffing, equipment and materials in connection with a “Seasonal Compost Program” in which Contractor shall annually provide City no less than 250 tons of compost which may be used to satisfy City’s procurement obligations in connection with SB 1383 as set forth in 14 CCR Section 18993.1(f). In connection with each Seasonal Compost Program, Contractor shall deliver unbagged, bulk compost to a location within City, designated by City, and shall provide a minimum of one delivery of such compost per week for not less than eight consecutive weeks, with the specific parameters each season to be coordinated with City.
The start date, delivery location and allocation of the required tonnage each week shall be determined by City.
8.7.7 Sweeps of Hot Spots
Contractor shall, not less than one time per week, conduct sweeps of the “hot spots” in City, meaning any public property located in the areas identified on the map attached as Exhibit E upon which City has identified ongoing abandonment of Bulky Items is occurring. In connection therewith, Contractor shall, at no cost to City, Collect all abandoned Bulky Items located within the hot spots. City intends as part of its ongoing code enforcement activities to attempt to curtail abandonment of Bulky Items in the hot spots, and accordingly Exhibit E may be amended by City on an ongoing basis to identify new hot spots, or expand or eliminate existing hot spots. Bulky Items Collected pursuant to this Section are subject to the diversion and handling requirements set forth in Sections 8.2.11 and 8.2.12.
8.7.8 On Call Bulky Item Collection to Assist City Departments Contractor shall, respond to calls from City to provide Containers and dispose of Bulky Items and other Solid Waste as a result of illegal or unauthorized dumping, or other matters stemming from code enforcement, police or fire activities, or other similar activities where a need arises for the Collection of Bulky Items. Contractor agrees that if requested to provide such services in connection with abatement activities for which reimbursement is sought from the property owner by City through abatement liens or otherwise, Contractor will provide billing information sufficient for City to include it in its liens, and Contractor will be paid at such time as the abatement lien is paid, or reimbursement is otherwise obtained by City from the property owner. In the absence of such reimbursement, Contractor shall provide the required hereby at no cost to City. Upon receipt of a call for service from City made pursuant to this Section, Contractor shall advise City within four (4) hours as to when service will be provided, and unless otherwise agreed by City service shall be provided within 24 hours.
8.7.9 Collection of Solid Waste and Bulky Items Consolidated at City Yard Contractor acknowledges that City staff Collects abandoned Bulky Items, and other Solid Waste, in connection with code enforcement and other maintenance efforts. Contractor shall Collect Bulky Items that are consolidated at City facilities in connection with these efforts at no cost to City, and process/dispose of them subject to the diversion and handling requirements set 384/036753-0091
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forth in Sections 8.2.11 and 8.2.12. Contractor shall also Collect containerized Solid Waste consolidated at City facilities as a result of the above noted staff efforts as part of the services provided to City at no cost set forth in Section 11.7.
8.7.10 Consultation in Connection with Solid Waste and Related Matters Contractor shall provide consulting services to City at no charge in connection with Solid Waste, Organic Waste and Recyclable Material related issues. Contractor’s obligations in this regard shall include, without limitation, reviewing and commenting on development applications when requested to do so by City.
8.8 Special Services
Contractor may provide special pickup procedures or services in addition to the services described herein for Customers who request or require such services at reasonable rates established between Contractor and the Customer. Any dispute regarding the rate for special services may be referred to the City Manager, whose decision shall be final. Contractor shall notify the City Manager of any such services prior to such time as they are provided in order to allow the City an opportunity to conduct necessary inspections and impose appropriate regulations as needed. A description of any special services provided, and the associated rates charged, shall be included in the monthly reports required by Section 23.
8.9 Additional SB 1383 Services
8.9.1 Assistance with Edible Food Recovery Obligations.
Contractor shall assist City and Commercial Customers in meeting their obligations set forth in 14 CCR Section 18985.2. While City will be contracting with a third party to assist with these obligations, Contractor shall coordinate with City on an ongoing basis and provide at least the following to the degree not provided by the third party with whom the City contracts:
(a) As required by 14 CCR Section 18991.3, Contractor shall identify all Commercial Customers that meet the definition of Tier One or Tier Two Commercial Edible Food Generators. Contractor shall identify all new Commercial Customers meeting this criterion on an ongoing basis. Contractor shall create, and keep current, a list of such Commercial Customers which list shall include: Customer name; service address; contact information; Tier One or Tier Two classification; type of business (as it relates to the Tier One or Tier Two Commercial Edible Food Generator definition); and such other information as may be required by City to enable it to contact the Customer. Contractor shall provide a summary of this information in a form acceptable to City as part of its monthly, quarterly and annual reports to City. (b) Contractor shall cooperate with and assist City and/or its consultants in conducting annual inspections of Commercial Customers who are Tier One or Tier Two Commercial Edible Food Generators to assess their compliance with the requirements of 14 CCR Section 18991.3.
(c) At least annually Contractor shall provide Tier One and Tier Two Commercial Edible Food Generators with the following information:
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(i) Information about the Contractor’s and/or City’s
Edible Food Recovery program;
(ii) Information about Food Recovery Organizations and
Food Recovery Services operating within the City, including information regarding how to contact such Food Recovery Organizations and Food Recovery Services; and, (iii) Information about actions that Commercial Edible
Food Generators can take to prevent the creation of Food Waste. (d) Contractor may provide the information required by this Section to Commercial Customers by including it with regularly scheduled notices, education and outreach materials, billing inserts, or other information disseminated to Commercial Customers. (e) Contractor shall assist City, as well as operators of Large Venue’s and Large Events with reporting and other assistance necessary to meet their Edible Food Recovery and other requirements under the Applicable Laws, including without limitation, SB 1383, to the extent arising out of Contractor’s Collection of Organic Waste pursuant to this Agreement.
(f) Contractor shall keep records of its efforts in connection with this Section, as well as records that provide its best estimate of the total tonnage of Edible Food recovered within the City to the extent Contractor has obtained such information through performance of its Organic Waste Collection Program pursuant to this Agreement, and shall provide summaries of such information in a form acceptable to City, using a software program acceptable to City, as part of its monthly, quarterly and annual reports to City.
8.9.2 Assistance with Organics Recycling Waivers
(a) Contractor shall, upon request, assist Customers in assessing if they qualify for an Organics Recycling Waiver, and provide such assistance as may be necessary for the Customer and City to evaluate any application submitted for such a waiver. Such assistance shall include a review of the Customer’s waiver application and providing City with any information or data regarding the Customer’s Premises, service levels or other factors which may be necessary to enable City to evaluate a waiver request. Contractor’s obligations in connection with this Section specifically include conducting on site inspections of Customer’s Premises. (b) City shall notify Contractor of any Organics Recycling Waivers it grants, and no waiver granted after related services have commenced for a Customer shall be effective until 48 hours after Contractor receives notice of such waiver from the City, in order to allow sufficient time for Contactor to adjust services in effect for a Customer. Thereafter, at least once every five (5) years, or more often if requested by City, Contractor shall conduct such reasonable investigation and fact finding as may be necessary to enable City to determine if the criteria by which City granted the waiver continues to exist. (c) Contractor shall maintain a record of each Organics Recycling Waiver issued by the City, as well as any ongoing activity it undertakes in connection with subsection (b) above to provide data related to ongoing eligibility. A summary of such information 384/036753-0091
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shall be provided by Contractor, in a form acceptable to City along with Contractor’s monthly, quarterly and annual reports to City.
8.9.3 Dedicated Recycling Coordinator
Contractor shall assign two and twenty-two tenths (2.22) staff persons or equivalent time to act as “full time” Recycling coordinators to City (meaning a typical forty (40) hour per week job assignment, taking into account typical leave time) who shall be responsible for assisting with public education and outreach as well as compliance (including, but not limited to, inspections, monitoring, enforcement and reporting) with AB 939, AB 341, AB 1826, SB 1383, related Food Recovery efforts, and such other of the Applicable Laws related to diversion and Recycling as may be applicable during the Term. The Recycling coordinators shall coordinate with City in connection with AB 939, AB 341, AB 1826 and SB 1383 program implementation and shall perform and/or oversee Contractor’s inspection and other monitoring and enforcement-related functions, prepare reports required by CalRecycle, which shall be certified by Contractor as to completeness and accuracy, conduct public outreach and education, participate in and facilitate community events throughout the year to promote Contractor’s programs, and assist with resolution of Customer complaints. The Recycling coordinators shall coordinate with City Staff on a regular basis, anticipated to be at least weekly, to discuss ongoing efforts, and any related issues. Contractor shall keep records documenting the Recycling coordinator’s activities, in a manner subject to the City Manager’s reasonable approval, sufficient to substantiate the requirement that the two and twenty-two tenths (2.22) “full time” staff person or equivalent Recycling coordinators requirement has been satisfied.
8.9.4 Transition Plan
Contractor shall strictly adhere to the transition plan included in the Scope of Services attached hereto as Exhibit D. Any variations from this transition plan shall be approved in writing by City.
SECTION 9.
CONTRACTOR’S COLLECTION VEHICLES
9.1 General
Contractor shall provide Collection Vehicles that are sufficient in number and capacity to efficiently perform the work required by this Agreement in strict accordance with its terms.
Contractor is expressly obligated to provide such Collection Vehicles and routes as are required to meet the service standards set forth herein. Contractor shall have available on Collection days sufficient back-up vehicles for each type of Collection Vehicle used to respond to complaints and emergencies. Contractor shall use Collection Vehicles of a size and nature capable of performing as required hereunder. All vehicles used by Contractor in the City which are not Collection Vehicles shall be operated in compliance with all Applicable Laws, including by having current DMV registration.
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9.2 Collection Vehicle DMV Registration and Annual City Inspection (a) Not less than 30 days prior to the Operative Date, Contractor shall furnish City a written inventory of all Collection Vehicles (the “Vehicle Inventory”) used in providing Solid Waste Handling Services pursuant to this Agreement. This inventory shall list all Collection Vehicles by manufacturer, ID number, date of acquisition, vehicle type, fuel type (i.e., diesel, LNG, RNG, zero emission, etc.) and capacity. The Vehicle Inventory shall be included in the reports provided to City pursuant to Section 23, and updated within 30 days of any new Collection Vehicle being placed into service in the Franchise Area. (b) Each Collection Vehicle shall be registered with the DMV as of the Operative Date, with such registration kept current each year. Contractor shall provide evidence satisfactory to City of each Collection Vehicle’s current DMV registration as of the Operative Date, and the Vehicle Inventory shall reflect the last date upon which each Collection Vehicle was registered with the DMV prior to the Operative Date, and the annual DMV registration renewal date for each Collection Vehicle. Annually, Upon each Collection Vehicle’s DMV registration being renewed, Contractor shall provide evidence satisfactory to City of such renewal, and include the date such registration was renewed as an update to the Vehicle Inventory. (c) Prior to the Operative Date, each Collection Vehicle to be used in City shall be inspected by the City’s Police Department, and shall be issued a sticker demonstrating it has passed the City’s Police Departments annual inspection (an “Inspection Tag”). Each Collection Vehicle used in City shall thereafter be annually instected by City’s Police Department and no Colleciton Vehicle shall be used for Solid Waste Handling Services in City unless it has a current City Police Department issued Inspection Tag. Contractor shall provide evidence satisfactory to City of each Collection Vehicle’s current City Police Department inspection as of the Operative Date, and the Vehicle Inventory shall reflect the last date upon which each Collection Vehicle passed the City Police Deaprtment’s inspection prior to the Operative Date, and the annual renewal deadline for each Collection Vehicle. Annually, Upon the occurrence of each Collection Vehicle’s Police Department inspection, Contractor shall provide evidence satisfactory to City of each Collection Vehicle passing such inspeaction, and include the date of each Collection Vehicle passing such inspection as an update to the Vehicle Inventory. (d) City may cause or require any Collection Vehicle used in performance of this Agreement to be inspected and tested at any reasonable time and in such manner as it may be appropriate to determine that the Collection Vehicle is being maintained in compliance with the provisions of this Agreement.
9.3 Collection Vehicle Minimum Requirements
Each Collection Vehicle utilized by Contractor in the performance of this Agreement shall meet the following minimum standards:
(a) Each Collection Vehicle shall be fueled in accordance with Applicable Laws.
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(b) Each Collection Vehicle shall be in “as-new” operating condition and appearance, and at no time can any Collection Vehicle used in the City be over 12- years of age.
(c) Each Collection Vehicle shall be equipped with devices capable of covering every open section of the Collection Vehicle in which Solid Waste may be placed and, while operating upon the public rights-of-way, shall be covered so as to prevent any Solid Waste from falling or being blown or otherwise dislodged from the Collection Vehicle. (d) Each Collection Vehicle shall be continuously maintained so as to both: (1) meet the highest industry standards with regards to efforts to prevent liquid from leaking and to the degree possible ensure each Collection Vehicle is “watertight” and “leak-proof” and, (2) at all times comply with the provisions of all Applicable Laws, including, without limitation, the Vehicle Code and any applicable NPDES permit, with regard to materials leaking from Collection Vehicles. Contractor shall be responsible to promptly clean any spillage or Solid Waste that leaks or otherwise escapes the Collection Vehicle; and, should City staff be required to participate or assist in any way with such clean up (including, without limitation, supervision, reporting, traffic control, or any other taks) Contractor shall reimburse City for actual costs incurred by City as a result thereof.
(e) As frequently as determined necessary by the City Manager, each Collection Vehicle shall be painted and shall have routine body work performed so that such vehicles do not become unsightly, as determined by the City Manager. (f) Contractor’s name, telephone number, and a vehicle number shall be visibly printed or painted in letters not less than five (5) inches in height on both sides of each Collection Vehicle. Any other information or signage printed, painted, or displayed on Contractor’s Collection Vehicles, when such vehicles are providing Collection services within City Limits, shall be subject to approval by City.
(g) Each Collection Vehicle shall be maintained in a clean and sanitary condition both inside and out and shall be washed at least once every seven (7) calendar days and steam cleaned on a regular basis. The undercarriage of all Collection Vehicles shall be cleaned as part of this process such that no grease, fluids, or similar substances unreasonably “cakes” onto any portion of the Collection Vehicle, including in any manner that inhibits the ability of Contractor or City to detect leaks or cracks.
(h) Each Collection Vehicle shall carry a broom, shovel, and operable fire extinguisher, and shall be equipped with a communication device sufficient to allow the driver to communicate directly with Contractor’s dispatcher and/or main office. (i) Each Collection Vehicle shall be kept in good repair and working order, and shall be equipped with appropriate safety equipment (specifically including warning systems related to pedestrians, vehicles, bicycles, and video monitor-based back-up system, or its equivalent, as well as video recording devices) that is, or becomes standard in the waste industry, and GPS tracking systems having the ability to record vehicle locations on designated dates/times. Video recording devices on all Collection Vehicles shall, at a minimum, 384/036753-0091
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have the capacity to demonstrate whether a Collection occurred at a designated time and location for every Customer. Video recordings and GPS tracking data shall be backed up for not less than thirty (30) days from the date of each Collection, and be capable of being captured and maintained longer for specific events if requested by City.
(j) Contractor shall keep a sufficient supply of replacement parts and equipment on hand to ensure adequate vehicle maintenance and timely and continuous performance of the Solid Waste Handling Services contemplated by this Agreement. (k) Contractor shall inspect each Collection Vehicle daily to ensure that all equipment is operating properly. Collection Vehicles which are not operating properly shall be removed from service until repaired and operating properly. (l) Contractor shall perform all scheduled maintenance functions upon Collection Vehicles in accordance with the manufacturer’s specifications and schedule.
Contractor shall repair, or arrange for the repair of, all of its vehicles and equipment for which repairs are needed because of accident, breakdown or any other cause so as to maintain all equipment in a safe and operable condition.
(m) Contractor shall keep accurate records of all Collection Vehicle maintenance and repair, recorded according to date and mileage, including signed verifications that repairs and maintenance have been properly performed, and shall make such records available to City upon request.
(n) No Collection Vehicle shall be utilized if it is leaking brake, hydraulic, or other fluids, and Contractor shall clean up any leaks or spills from its Collection Vehicles per the NPDES permits in effect at the time. No fluids shall be washed into storm drains at any time. All NPDES dry-cleaning measures shall be complied with. All Collection Vehicles must be equipped with absorbent for such cleanup efforts. (o) Contractor shall utilize Collection Vehicles of a size, weight, nature, and type so as to not be unreasonably intrusive on the community with respect to noise, emissions, maneuverability, safety, and other factors, and to avoid or minimize pavement damage and wear and tear of the street or adjacent properties, as approved by the City Manager. (p) Contractor shall not load Collection Vehicles in excess of the manufacturer’s recommendations or limitations imposed by state or local laws or regulations.
Noise levels of equipment used for Collection shall not exceed 75db (seventy-five decibels) when measured at a distance of twenty-five (25) feet from the Collection Vehicle, five (5) feet from the ground.
9.4 Costs of Operation
Contractor shall be responsible for any costs incurred in connection with ensuring all Collection Vehicles comply with all Applicable Laws, including, without limitation, any such laws and regulations that may now exist or hereinafter be adopted relating to noise, fuels, emission standards, or weight limits.
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9.5 Correction of Defects and Removal of Vehicles from Use within City Contractor agrees to immediately remove from service, and replace or repair, to the City’s satisfaction, any Collection Vehicle which City determines to be of unsightly appearance, unsafe, unsanitary, leaking, out of compliance with any Applicable Law or this Agreement, or otherwise in an unsatisfactory operating condition; and, such Collection Vehicle shall not be returned to service until the City Manager gives his/her written consent for its return.
SECTION 10.
CONTRACTOR’S SOLID WASTE HANDLING SERVICE PERSONNEL
10.1 Uniforms
Each of Contractor’s Collection employees shall wear a clean uniform bearing Contractor’s name.
10.2 Identification of Employees
Contractor shall provide identification badges, cards or similar devices, for all of its employees, and all authorized subcontractors, who may make personal contact with residents of the City. City may require Contractor to notify Customers yearly, or more frequently if determined necessary by City, of the form of said identification.
10.3 Employee List
Contractor shall provide a list of current employees and authorized subcontractors to City upon request.
10.4 Driver’s License
Each employee operating a Collection Vehicle as part of his or her duties shall, at all times, carry a valid operator’s license for the type of Collection Vehicle he or she is operating. All employees who may have contact with Customers in the course of performing their duties shall possess the ability to communicate effectively with Customers.
10.5 Screening of Field Employees
Contractor shall make reasonable efforts to determine if its employees working in the field (i.e., drivers of Collection Vehicles, and employees otherwise involved in Collection at Customer Premises) have been convicted of a felony, and shall identify any such employees known to it to City. City shall have the ability to require that any employee so identified by Contractor not work in the field within City.
10.6 Discontinued Use of Unsatisfactory Employees
No employee shall continue to have any involvement whatsoever with regard to any work in any way relating to or arising from this Agreement if City gives notice to Contractor that such employee is determined by City to be discourteous, disorderly, inefficient, or otherwise 384/036753-0091
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objectionable (provided the term “otherwise objectionable” shall not permit City to “ban” an employee for reasons that violate public policy; and, further, City shall give a reason for requesting the “ban” of any employee from engaging in work related to this Agreement.)
10.7 Training and Legal Compliance
Contractor shall provide operating and safety training that meets minimum OSHA standards for all personnel, and shall comply with all laws and regulations applicable to its employees and personnel. Contractor shall establish and vigorously enforce an education program designed to train Contractor’s employees in the identification of Hazardous Wastes, and will provide employees with appropriate literature to leave behind at Premises which improperly place Hazardous Wastes for Collection along with Solid Waste.
10.8 Customer Service
10.8.1 Office Hours
Contractor shall maintain a local office at the location identified in Exhibit D, for communication with the public that, at a minimum, will be open from 8:00 a.m. to 5:00 p.m.
Monday through Friday, and 8:00 a.m. to 12:00 p.m. Saturday, Holidays excepted. The location of the local office may only be changed upon written approval of the City Manager, which approval will not be unreasonably withheld. At least one responsible and qualified representative of Contractor shall be present and available at said office during all times that an office is required to be open as noted above (“Office Hours”), for personal communication with the public regarding Billings (including the acceptance of Bill payments made in person, Saturdays excepted), complaints, customer service inquiries, and other Customer inquiries, and a similarly qualified Person shall be available for communication with the public by phone during any times other than Office Hours when Collection is occurring.
10.8.2 Telephone Customer Service Requirements
(a) Toll Free Number
Contractor shall maintain a toll free telephone number that rings at an office at all times during Office Hours. English, Spanish, and Korean speaking personnel will be available during Office Hours to assist Customers with telephonic inquiries. Contractor shall have the ability (through the use of outside resources or otherwise) to communicate with Customers who only speak Spanish or Korean to ensure their inquiries, questions, complaints and other matters are dealt with in a reasonably timely fashion. All such personnel shall be polite and responsive, and shall be sufficiently knowledgeable, and have the authority to respond and/or advise Customers seeking assistance. Contractor’s telephone system shall be adequate to handle the volume of calls typically experienced on the busiest days. Contractor shall provide City with a 24-hour emergency number to a live Person, not voicemail.
(b) Call Responsiveness
Contractor shall make reasonable attempts to answer all phone calls within five (5) rings.
If a call has been placed on hold for three (3) minutes, the caller will either be switched to a 384/036753-0091
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message center which shall be responsible to obtain the caller’s address and phone number, or a Customer service representative will obtain the Customer’s address and a number at which the call can be returned. Contractor shall make at least three (3) attempts within the next business day to return the call, with the first such attempt not more than one (1) hour after the caller leaves the message. If Contractor is unsuccessful in contacting the Customer after following this procedure, it shall send a letter to the caller indicating its efforts.
10.8.3 Complaint Documentation
All service complaints shall be directed to Contractor. Contractor shall log all complaints received and said log shall include the date and time the complaint was received, the name, address and telephone number of the complaining party, a description of the complaint, the name of the employee recording the complaint and the action taken by Contractor to respond to and remedy the complaint. All written Customer complaints and inquiries shall be date-stamped when received. All complaints shall be initially responded to within one (1) business day (Monday through Friday) of receipt. Contractor shall log action taken to respond to and remedy the complaint. Daily logs of complaints shall be retained for a minimum of twenty-four (24) months. and shall be available to City at all times upon request. All Customer service records and logs kept by Contractor shall be available to City upon request. City shall, at any time during regular Office Hours, have access to Contractor’s Customer service department for purposes that may include monitoring the quality of Customer service or researching Customer complaints.
Contractor shall provide to City records of complaints, in a form satisfactory to the City Manager, that includes all of the complaints received, and their resolution, as part of the monthly, quarterly and annual reports required by Section 23.
10.8.4 Resolution of Customer Complaints
Disputes between Contractor and its Customers regarding the services provided in accordance with this Agreement may be resolved by the City Manager. The City Manager’s decision in connection with any complaint resolution shall be final. Intervention by the City is not a condition precedent to any rights or remedies third parties might otherwise have in any dispute with Contractor. Nothing in this Section is intended to affect the remedies of third parties against Contractor.
10.8.5 Government Liaison
Contractor shall designate in writing a “Government Liaison” who shall be responsible for working with City and/or City’s designated representative(s) to resolve Customer complaints. City shall have the right to approve Contractor’s choice for a liaison. It is anticipated that the Government Liaison will regularly attend City events involving community outreach programs and will routinely attend City Council meetings.
10.9 Education and Public Awareness
On or before January 1 of each calendar year during the Term hereof, Contractor shall submit for City Manager’s approval a written proposal for programs to be implemented in the upcoming year which are designed to provide information to and educate the public regarding 384/036753-0091
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Recycling, composting, and waste reduction and diversion, and which are consistent with City’s SRRE and HHWE, as well as any related requirements of the Applicable Laws.
10.9.1 General
Contractor acknowledges and agrees that education and public awareness are critical, key and essential elements of any efforts to achieve the requirements of the Applicable Laws, including specifically SB 1383. Accordingly, Contractor agrees to exploit opportunities to expand public and Customer knowledge concerning needs and methods to reduce, reuse and Recycle Solid Waste and to cooperate fully with City in this regard.
10.9.2 Written Program Materials
Contractor shall maintain a program of providing information relevant to the need and the methods to reduce, reuse and Recycle Solid Waste, and shall, upon request from City, include such information along with Bills provided to Customers. All public education materials shall be approved in advance by City. Contractor shall keep a record of all promotional and public education materials utilized, and shall summarize its public outreach and education efforts in the monthly, quarterly and annual reports required by Section 23.
10.9.3 Public Outreach
At a minimum, Contractor shall promote Recycling through presentations and educational materials to the Chamber of Commerce, homeowners’ associations, construction contractors and other civic groups. Contractor shall also provide articles on Recycling for local newsletters.
10.9.4 On-going Education Requirements
In order to promote public education, in addition to any other materials it develops, Contractor shall create the following public education materials and programs at its expense, which will be distributed as indicated below. All of these materials and programs shall be produced and/or available in English, Spanish, and Korean, and all written materials shall be approved by City in advance of distribution, and shall bear the City seal, unless otherwise approved by the City:
(a) Bi-annual Brochure/Newsletter. Not less than two (2) times each calendar year during the Term, at times acceptable to City, Contractor shall prepare a community brochure or newsletter for the City to post on its website, and/or distribute electronically or as bill insert (or such other means as the Parties shall agree, with any associated costs being borne by Contractor. Contractor shall coordinate with City to arrive at a preferred means of distribution which shall be determined by City, with the goal of having it distributed to the maximum possible number of Customers. The newsletter shall provide relevant information about Contractor’s services, including, at a minimum: information regarding access to and use of available Solid Waste Handling Services; Collection schedules; Holiday Collection schedules; information about mandatory commercial Recycling and program offerings; Contractor’s Customer service numbers; procedures to begin and terminate services; and information promoting and explaining available programs, such as Recycling, Organic Waste, Holiday Tree and Bulky Item Collections, the proper handling and disposal of such wastes, and the Special Services set forth in Section 8.8.
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(b) Welcome Packet/How-To Brochure. Contractor will prepare and distribute a brochure to new Customers when they start Solid Waste Handling Service. This packet will contain updated information on how to use the Contractor-provided Carts, when, where and how to place Solid Waste for Collection, and who to contact with Solid Waste Handling Service or Billing questions.
(c) Corrective Action Notice. Contractor shall develop a corrective action notification form for use in instances where a Customer sets out inappropriate materials for Collection that explains the appropriate manner for disposal of such items. (d) Contractor Representative. Contractor’s Government Liaison shall as part of his or her job function routinely visit civic groups, school assemblies, and homeowners’ associations, to promote and explain the Recycling and other programs that Contractor offers, and participate in demonstrations, and civic events. (e) Web Site Page. Contractor shall dedicate a link on its web site to City services, which shall include at least the following information: a listing of contact names and numbers for Customer Service; Collection schedules, including Holiday schedules; available programs, including Recycling, Organic Waste, Holiday Tree and Bulky Item Collections; information about mandatory commercial Recycling and program offerings; information regarding the proper use of Containers and the materials to be deposited in each type of Container for Collection; Contractor’s Special Waste Collection Event and Mulch Giveaway Event; and the procedures to begin and terminate services. Contractor shall assist the City in establishing a link to this web page from the City’s web site.
10.9.5 Annual and Ongoing Organic Waste and Recycling Program Outreach (a) Contractor, in coordination with City, shall annually contact all Customers and provide information related to its Commercial and Residential Organic Waste Recycling Programs as applicable to each Customer, which at a minimum shall include the information required by 14 CCR Section 18985.1. Contractor shall annually provide City with a list of all Customers it believes are in non-compliance with their obligations under the Applicable Laws related to their generation of Organic Waste and/or Recyclable Materials (including but not limited to a contact person, service and billing addresses, phone number, and email) as well as all available information relating to any refusal by the Customer to participate in Contractor’s Commercial Organic Waste Recycling Program, Residential Organic Waste Recycling Program, or Commercial Recyclable Materials Program, as applicable, that may be necessary for enforcement purposes and are required in reports to CalRecycle pursuant to SB 1383. (b) Contractor shall implement and follow all timelines, planned tasks, and schedules contained in its Outreach and Education Plan, including specifically those related to SB 1383. Commencing in 2028, not less than ninety (90) days prior to July 1 each year, or more frequently if deemed necessary and requested by City, Contractor shall submit a proposed update to the Implementation, Outreach and Education Plan for the upcoming year to City demonstrating its compliance with its obligations hereunder, which shall be subject to the City Manager’s reasonable approval. Contractor shall implement the activities identified in any update 384/036753-0091
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to the Implementation, Outreach and Education Plan in accordance with the time schedule to be included in such updated Plan.
(c) Contractor shall perform at least the following ongoing outreach efforts in connection with its Commercial Organic Waste Recycling Program:
(i) Provide Organic Waste recycling information
including Step by Step process; guidelines for new employee training; do’s and don’ts of separation; signage examples; source reduction suggestions; links to online Contractor and City programs/resources; information on environmentally preferable purchasing policies; and resource list of sustainability programs and toolkits from trade organizations like the National Restaurant Association and US Composting Council Curb to Compost Toolkit and/or government agencies like the EPA toolkit for Reducing Food Waste and Packaging and FTC Guidelines on compostable and degradable claims.
(ii) Provide samples of indoor and outdoor Container
options and signage.
(iii) Contact or provide information to help identify
Customer’s “startup team” to implement the program and provide long term support. (iv) Provide employee training materials to Customers.
(v) Propose solutions for the identified challenges and waste stream specifics.
(vi) Provide Customers with information identifying Food Recovery Organizations and Food Recovery Services.
10.9.6 Plastic Bag Recycling Education
Contractor shall include in its educational and outreach materials provided to Customers pursuant to this Agreement information regarding the technology for Recycling plastic bags and plastic wrap, and instructing Customers to return plastic bags to grocery and other retail stores that accept plastic bags for Recycling.
SECTION 11.
CONTRACTOR’S CONSIDERATION
In addition to any other consideration set forth herein, as part of its consideration for entering into this Agreement, and for the exclusive franchise, right and privilege to provide Solid Waste Handling Services within City as specified herein, Contractor shall provide the following:
11.1 Reimbursement for Negotiation Costs
Contractor shall reimburse City for the costs it incurred in connection with evaluating proposals, selecting Contractor and entering this Agreement with Contractor. Upon adoption of 384/036753-0091
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the Resolution approving this Agreement, City will provide an invoice to Contractor for such cost reimbursement, and payment shall be within thirty (30) of the date of such invoice.
11.2 Legislative Compliance Fee
Contractor shall pay City an annual fee of Two Million Dollars ($2,000,000.00), adjusted July 1 each year commencing in 2028 by the Percentage Change to CPI, to defray its administrative costs related to complying with this Agreement, including the costs associated with complying with related legislation (the “Legislative Compliance Fee”). The Legislative Compliance Fee shall be paid to City quarterly, within ten (10) days following the end of each calendar quarter with the first payment due on the Operative Date. Should any such due date fall on a weekend, Holiday, or other day in which the City’s business offices are closed, payment shall be due on the first day thereafter in which the City’s business offices are open. The amount of each Legislative Compliance Fee payment shall be twenty-five percent (25%) of the annual Legislative Compliance Fee as adjusted each July 1 by the Percentage Change to CPI.
11.3 Consultant and Legal Reimbursement
Contractor shall reimburse City for its actual consultant costs and legal fees incurred in the administration of this Agreement, including fees and costs associated with analyzing new legislation, considering requests from Contractor (including specifically, without limitation, requests for rate increases), analyzing and assisting City resolve issues that arise between the Parties, and otherwise analyzing issues of any type or nature that arise in connection with this Agreement (the “Consultant/Legal Reimbursement.”) Invoices for the Consultant/Legal Reimbursement will be provided to Contractor by City on at least an annual basis, but may be provided on an ongoing basis by City in its discretion, and payment by Contractor shall be due to City within thirty (30) days of the date of each such invoice.
11.4 Franchise Fee
Contractor shall pay a franchise fee to City (the “Franchise Fee”) which the parties have evaluated and agree is a reasonable reflection of the value of the franchise granted hereby, including the value of the right afforded Contractor to utilize the City’s rights of way to conduct its business in a manner not granted to any other business in City. The Franchise Fee shall equal to ten percent (10%) of Contractor's Gross Receipts, or portion thereof, during the entire Term of this Agreement.. Except with respect to Gross Receipts collected from Customers by City on behalf of Contractor, the Franchise Fee shall be paid to City monthly on or before the fifteenth (15th) day of each month. Should any such due date fall on a weekend, Holiday, or other day in which the City's business offices are closed, payment shall be due on the first day thereafter in which the City's business offices are open. The amount of each payment shall be equal to ten percent (10%) of Contractor's Gross Receipts in the calendar month preceding the date payment was due (excluding amounts collected from Customers by the City on behalf of Contractor). The Franchise Fee due hereunder shall apply to Gross Receipts of Contractor collected after the expiration of the Term hereof relating to Contractor's performance during the Term hereof. Franchise Fee payments shall be accompanied by a statement certified by an officer of Contractor attesting to the accuracy of the amounts paid, and setting forth the basis for their calculation in a manner acceptable to City.
The Franchise Fee due in connection with amounts that are collected from Customers by City on 384/036753-0091
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behalf of Contractor shall be deducted by City prior to City forwarding funds it receives for payment of Solid Waste Handling Services to Contractor.
11.5 NPDES Fee
Contractor shall pay City an annual fee of One Million Five Hundred Fifty Thousand Dollars ($1,550,000), adjusted July 1 each year commencing in 2028 by the Percentage Change to CPI, to mitigate the impacts of its operations on the City’s storm drain system and the associated financial burden incurred by the City to comply with its NPDES Permit obligations (the “NPDES Fee”). The NPDES Fee shall be paid to City quarterly, within ten (10) days following the end of each calendar quarter with the first payment due on the Operative Date. Should any such due date fall on a weekend, Holiday, or other day in which the City’s business offices are closed, payment shall be due on the first day thereafter in which the City’s business offices are open. The amount of each NPDES Fee payment shall be twenty-five percent (25%) of the annual NPDES Fee as adjusted each July 1 by the Percentage Change to CPI.
11.6 City Billing Fee
Contractor shall pay City a fee equal to One Hundred Fifty-Five Thousand Dollars per year to compensate the City for billing related services performed (such as staffing, mailing, collection, accounting, and remittance of payments to the franchised hauler) for each Customer who is invoiced for Solid Waste Handling Services provided hereunder in connection with the City’s utility invoices (the “City Billing Fee”.) The City Billing Fee will adjusted July 1 each year commencing in 2028 by the Percentage Change to CPI. The City will retain the City Billing Fee from amounts collected in connection with Billing that occurs pursuant to Section 13.1 hereof. [THIS SECTION TO BE DELETED IN EVENT SELECTED PROPOSAL INCLUDES BILLING BY CONTRACTOR]
11.7 Services at City Facilities
Contractor shall provide Solid Waste Handling Services (including Recycling services, and Organic Waste Collection) at all Premises owned and/or operated by the City, at no cost to City, and shall provide Containers for such Solid Waste Handling Service as City deems appropriate for each of its various Premises (i.e., Carts, Bins or Rolloff Boxes). Such Solid Waste Handling Services shall be provided for all existing City facilities, as they may be expanded from time to time, as well as all new or additional facilities acquired/constructed during the Term hereof.
Contractor shall carry out its obligations pursuant to this provision in a manner, and to a degree, approved by the City Manager, and consistent with the Applicable Laws and this Agreement.
Notwithstanding the forgoing, Contractor shall not be required to provide Solid Waste Handling Services at no cost in connection with the following activities, and rather may charge rates that do not exceed the maximum rates set forth on Exhibit A for which the Collection of such Solid Waste:
(1) construction or demolition projects at City facilities, or (2) Solid Waste generated at Premises owned by City, but generated in connection with activities undertaken by persons or entities utilizing the City’s Premises as a result of a lease, operating agreement, license or similar right or entitlement. By way of example only, this exemption from no cost service would apply to Solid Waste generated by an entity which obtains the exclusive right to utilize a City park for a special event (unless the provisions of Section 8.7.1 apply).
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SECTION 12.
CHARGE FOR LATE PAYMENTS
In the event Contractor fails to timely make any of the payments provided for in this Agreement, Contractor shall pay to City, as additional consideration, a sum of money equal to five percent (15%) per annum, calculated on a daily basis for each day sums remain past due. This amount is required in order to defray those additional expenses and costs incurred by City by reason of the delinquent payment including, but not limited to, the cost of administering, accounting for, and collecting said delinquent payment and the cost to City of postponing services and projects necessitated by the delay in receiving the revenue.
SECTION 13.
CONTRACTOR’S BILLING SERVICES AND SYSTEMS
13.1 Residential Customers – Use of City Utility Bills
[AS DRAFTED, AGREEMENT CONTEMPLATES CITY BILLING FOR
RESIDENTIAL CUSTOMERS, AND WILL BE MODIFIED TO REFLECT CONTRACTOR
DOING SO IF A PROPOSAL THAT INCLUDES DIRECT BILLING FOR ALL CUSTOMERS IS ACCEPTED]
Customers receiving Solid Waste Handling Services at Single Family Dwellings will be billed by the City on behalf of Contractor and bills for such services shall be included along with the bills for utility services City provides to such Customers. City will collect payments provided to it by such Customers on behalf of Contractor, and may deduct applicable fees (i.e., Franchise Fees, City Billing Fees, etc.) as well as such other amounts (if any) owed to City or Customers pursuant to this Agreement (including specifically, without limitation, liquidated damages or credits due to Customers), and thereafter remit the balance of such payments to Contractor. If, for any reason, billing for a Customer at a Single Family Dwelling is not provided by City, such Customer shall be billed directly for services by Contractor in the same manner as other Customers, as set forth herein. City is billing Customers on behalf of Contractor, however Contractor shall be responsible for collecting amounts unpaid if Customers do not pay amounts indicated as due for Contractor's services on City's utility bills. City shall endeavor to assist Contractor with its collection efforts if requested by Contractor, however City's obligation shall be limited to providing such assistance as it deems reasonable and prudent.
13.2 Direct Billing by Contractor
In connection with any Customer not billed on behalf of Contractor by City as part of its utility bills as set forth above, Contractor shall provide such Customers with itemized bills for Solid Waste Handling Services, distinctly showing charges for all classifications of services, including charges for late payments. Contractor acknowledges that it, and not Customers, is to pay a Franchise Fee and the other fees noted herein to City as consideration for this Agreement.
Accordingly, Contractor’s Bills shall not include separate itemization of a “Franchise Fee” or other similar designation relating to fees which Contractor is required to pay to City. Contractor shall reproduce and include in any Billing, at no additional cost, one page informational “inserts” provided by City. Billings may be made in advance for all Customers, or may be made in arrears 384/036753-0091
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as deemed appropriate by Contractor. Customers at Premises for which service commences after the first of the month, or who canceling service prior to the end of the month shall be charged on a prorated per-Collection basis.
13.3 Credits for Services not Provided
(a) Contractor may only charge Customers for services actually provided, and shall credit Customers for any charges Billed in connection with services that are not provided for any reason, including an event that qualifies as a force majeure and excuses Contractor’s performance pursuant to Section 31.1. In determining the appropriate amount of a credit for service not provided, a pro-rata allocation shall occur if a rate for the services missed is not readily ascertainable By way of example only, in the event a labor stoppage occurs, and qualifies as a force majeure event, each Residential Customer shall receive a credit for services not actually received during such period; and the amount of which credit will be determined by a pro-rata calculation of the monthly rate for Standard Services charged to such Customer as applied to any services not provided. Any dispute regarding the appropriate means by which to calculate a credit due to a Customer, or by which to pro-rate charges so as to provide a credit for only those services not provided, shall be resolved by the City Manager, who’s determination shall be final. (b) When Contractor Collects a Container following a missed Collection, it may not impose overage charges that might otherwise be applicable in recognition of the Customer having been required to use the Container for longer than expected due to Contractor’s failure to Collect it.
(c) Customers are not entitled to a credit for services not provided if they fail to place their Container out for Collection (i.e., in the case of Residential Customers), or otherwise not make a Container available for Collection (i.e., in the case of Commercial Customers, if a Customer unreasonably blocks a Container, fails to provide access to a locked area, etc.) Should a dispute arise as to whether services were not provided such that a Credit is warranted, Contractor shall bear the burden of demonstrating that it attempted to Collect a Container but was unable to do so as a result of the actions or inactions of the Customer, and at a minimum shall provide GPS tracking information of, and video evidence from, the Collection Vehicle demonstrating Contractor was at the Collection location at the appropriate time, and that the Container was not available for Collection. Should Contractor fail to provide at least the forgoing within one week of the date of the missed Collection for which a credit is sought, City may deem the requested credit to be appropriate. All disputes regarding whether a credit for services not provided is appropriate shall be resolved by the City Manager, who’s determination shall be final.
(d) Because Billing errors may not be readily apparent to a Customer, Contractor shall provide Customers with credits for any services they do not receive, but for which they are charged, without regard to when the error is discovered. Any provision of an agreement between Contractor and a Customer that is contrary to this Section shall not be enforced by Contractor.
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13.4 Temporary Service Stop
Customers may request a temporary service stop and may not be charged for monthly Standard Service during the temporary service stop if such service is stopped for a minimum of one continuous month due to extended vacation, home remodeling/home construction. Contractor shall provide notice to City of a request for a temporary service stop within three (3) working days.
Contractor shall resume service to the prior established service level within five (5) days' notice of a request by the Customer to resume service. At any time during the temporary service stop, if a Customer places Solid Waste out for Collection, then Contractor shall resume regular service and charge the Customer its normally applicable rates, as permitted by Exhibit A, prorated to take into account any time during which the temporary service stop is in effect and service was not provided.
Any dispute regarding the application of this Section between a Customer and Contractor shall be decided by the City Manager whose decision shall be final.
13.5 Delinquent Accounts
Any Solid Waste Handling Service account unpaid by the due date listed on the Billing statement shall be deemed delinquent. Except to the extent otherwise provided herein, it shall be the sole responsibility of Contractor to take any authorized measures to collect any delinquent sums owed. Contractor may charge late fees for delinquencies in an amount not exceeding the maximum rates set forth in Exhibit A. Contractor may discontinue Solid Waste Handling Service to any Customer whose account is delinquent in the manner as set forth in this Section. Customers who have not remitted required payments within thirty (30) days after the date of Billing shall be notified on forms approved by the City Manager. Said forms shall contain a statement that Solid Waste Handling Services may be discontinued fifteen (15) days from the date of notice if payment is not made before that time. If payment is not made by the expiration of said fifteen (15) day period, Contractor may discontinue Solid Waste Handling Services forty-eight (48) hours thereafter. Contractor shall resume Solid Waste Handling Services on the next regularly scheduled Collection day for any Customer whose Solid Waste Handling Service is discontinued upon receipt of payment of all outstanding charges, including late fees, and fees for restarting service (which may be imposed in accordance with the maximum rates set forth in Exhibit A), or at such sooner time as directed to do so by City. A deposit equal to the maximum rate for one month’s Solid Waste Handling Services as set forth in Exhibit A, as such rates may be amended from time to time, may be required of accounts which have been discontinued for non-payment prior to reinstituting Solid Waste Handling Service at such accounts. Contractor shall provide City with reasonable advance notice prior to suspending Solid Waste Handling Service to any Customer and City reserves the right to require Contractor continue to provide Solid Waste Handling Service to any Customer to, among other things, avoid negatively impacting public health or safety.
13.6 Minimum Requirements for Billing Statements
In addition to any other pertinent data, Billing statements provided by Contractor shall contain the following information, and the language contemplated for compliance with this requirement shall be subject to the City Manager’s approval:
(a) A “statement date” indicating the date the Bill is generated. 384/036753-0091
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(b) The service address associated with the account, the billing address, an itemized quantity of each type of Solid Waste Handling Service the Customer receives, and the rate charged for each type of Solid Waste Handling Service. Customers should be able to determine from the Bill the types of Solid Waste Handling Services they are receiving, and the rates charged for each individual Solid Waste Handling Service. (c) A notice to Customers that the Customer’s account will become delinquent if payment is not received by the 30th day following the statement date, and a notification of the amount of fees that will be imposed and the potential for Solid Waste Handling Services interruptions if payments are not received by the specified date and time. (d) An advisement to Customers that payment can be made in the following manner:
(i) by mailing payment to Contractor at such address as Contractor may designate; or
(ii) by automatic withdrawal from a checking account;
(iii) by major credit card or Automated Clearing House
on-line (i.e., via the Internet); or
(iv) in person at Contractor’s local office by cash, check, credit card or other acceptable forms of payment.
(e) An advisement that inquiries relating to Solid Waste Handling Services should be directed to Contractor, including an address, phone number and internet site, for such inquiries.
13.7 Billing System
13.7.1 Computerization of Account Information
Contractor shall provide and maintain, at its expense, computer equipment sufficient to operate pertinent computer programs and otherwise provide the services required by this Section.
Contractor shall create, at its own expense, computer programs sufficient to operate a computerized Billing system, permanently maintain all account records and otherwise meet the requirements of this Section. Contractor shall utilize computer software, satisfactory to City, in connection with its Billing systems that is compatible with software utilized by City, so as to allow for City to have access to Customer Billing records and account information; and, shall be updated, modified or changed as may be necessary in order for this to occur on an ongoing basis.
13.7.2 Minimum Computer Programming Requirements
In addition to any other requirements set forth herein, the programs created by Contractor to operate and maintain the Billing system shall at a minimum be able to perform the following functions:
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(a) create a permanent record of any adjustment to a Customer’s account;
(b) work in connection with a backup system such that all Customer account data and records are protected from a computer failure and permanently preserved on not less than a daily basis; and
(c) allow Customers to make payments on-line (i.e., via the Internet) by a major credit card or ACH.
13.7.3 Billing Inquiries
All Billing inquiries shall be entered into the computerized Billing system. Contractor’s computer programs shall keep a permanent record of all Billing inquiries and all adjustments to Customer Bills resulting therefrom.
13.7.4 Distribution of Public Information
If requested to do so by City, and at no charge to City, Contractor shall insert any printed material prepared by City into its Billing statements for delivery to its Customers. City shall not request Contractor to include any printed material in its Bills if such material is of a size, shape, or weight that would increase Contractor’s postage costs or if such material does not fit into the envelopes utilized by Contractor to mail the Bills. Any printed material to be included in the Bills to be mailed by Contractor shall be provided to Contractor within a reasonable time in advance of Contractor’s scheduled mailing date, such that the insertion of such material into Billing envelopes does not delay their scheduled mailing date. If Contractor issues Bills electronically, to the degree reasonable, copies of inserts that would otherwise be mailed shall be included with such electronically distributed Billings.
13.7.5 Collection and Processing of Payments
All payments received by Contractor shall be appropriately credited to Customer accounts, deposited in a bank account and accounted for in a businesslike manner utilizing generally accepted accounting principles. With respect to payments received from each Customer, unless a Customer specifically directs a different allocation, funds shall be allocated first to outstanding charges for Solid Waste Collection, then to any related delinquency fees or other administrative charges, up to the amount of any outstanding balance. Any overpayment shall be credited to future Bills in the same sequence, or returned to Customers as appropriate.
SECTION 14.
FAITHFUL PERFORMANCE
14.1 Surety
Contemporaneously with execution of this Agreement, as security for Contractor’s faithful performance of all obligations of this Agreement, Contractor shall provide a surety mechanism (the “Surety”) as more fully defined below in the amount of Three Hundred Thousand Dollars ($300,000.00). Two Hundred Fifty Thousand Dollars ($250,000.00) of the Surety may be 384/036753-0091
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comprised of either a performance bond or an irrevocable letter of credit, or a combination of both.
If a letter of credit is utilized to satisfy some or all of the Surety requirements, it shall be drawn upon a financial institution with an office within fifty (50) miles of City, and otherwise in a form acceptable to the City Attorney. The performance bond, if any, shall be issued by a duly authorized corporate surety company authorized to do business in California, and in a form acceptable to the City Attorney. Fifty Thousand Dollars ($50,000.00) of the Surety shall be a cash deposit, in an interest bearing account, with such interest increasing the principle amount of the Surety, held in the name of the City upon such terms and conditions as deemed satisfactory to the City Manager.
The cost of the Surety shall be the sole responsibility of Contractor. The Surety shall be released within ninety (90) days after both (i) the expiration of the Term of this Agreement, and (ii) Contractor’s satisfactory performance of all obligations hereunder.
14.1.1 Forfeiture of Surety
In the event Contractor shall for any reason become unable, or fail in any way, to perform as required by this Agreement, City may declare a portion or all of the Surety, as may be necessary to recompense and make whole the City, forfeited to the City. Upon partial or full forfeiture of the Surety, Contractor shall restore the Surety to its original amount within thirty (30) days of the City’s notice to do so. Failure to restore the Surety to its full amount within thirty (30) days shall be a material breach of this Agreement.
14.1.2 Use of Surety by City
Notwithstanding any provision hereof to the contrary, thirty (30) days following City providing Contractor with written notice of its failure to pay City any amount owing under this Agreement, or failure to perform any obligation hereunder, any portion of the Surety may be utilized by City for purposes related to securing performance of such obligations, including, but not limited to: (1) payment of sums due under the terms of this Agreement which Contractor has failed to timely pay to City, including specifically liquidated damages; and (2) reimbursement of costs borne by City to correct violations of this Agreement not corrected by Contractor.
14.1.3 Replacement Letter of Credit
City may draw upon the entire letter of credit (if any) utilized to meet Contractor’s obligations pertaining to the Surety, and convert it to a cash deposit, if Contractor fails to cause the letter of credit to be extended or replaced with another satisfactory letter of credit no later than sixty (60) days prior to its expiration.
SECTION 15.
INSURANCE COVERAGE
Contractor shall procure and maintain during the entire Term of this Agreement the following types of insurance and shall maintain the following minimum levels of coverage, which shall apply to any claims which may arise from or in connection with Contractor’s performance hereunder or the actions or inactions of any of Contractor’s officers, agents, representatives, employees, or subcontractors in connection with Contractor’s performance. The insurance requirements hereunder in no way limit Contractor’s various defense and indemnification obligations or any other obligations as set forth herein. 384/036753-0091
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15.1 Comprehensive General Liability
Insurance which affords coverage at least as broad as Insurance Services Office “occurrence” form CG 00 01 including completed operations and contractual liability, with limits of liability of not less than $10,000,000 per occurrence and $10,000,000 annual aggregate for liability arising out of Contractor’s performance of this Agreement. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the limits combined with the primary will equal the minimum limits set forth above. If written with an aggregate, the aggregate shall be double the occurrence limit. Such insurance shall be endorsed to:
(a) Name the City and its employees, representatives, officers and agents as additional insured for claims arising out of Contractor’s performance of this Agreement. (b) Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City.
15.2 Automobile Liability Insurance
Automobile Liability Insurance with a limit of liability of not less than $10,000,000 each occurrence and $10,000,000 annual aggregate. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the limits combined with the primary will equal the minimum limits set above. Such insurance shall include coverage for all “owned,” “hired” and “non-owned” vehicles, or coverage for “any auto.” Such insurance shall be endorsed to:
(a) Name the City and its employees, representatives, officers and agents as additional insured for claims arising out of Contractor’s performance of this Agreement. (b) Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City.
15.3 Workers’ Compensation Insurance
Workers’ Compensation Insurance in accordance with the Labor Code of California and covering all employees of the Contractor providing any service in the performance of this agreement. Such insurance shall be endorsed to waive the insurer’s right of Subrogation against the City, and its employees, representatives, officers and agents, with respect to the performance of Contractor’s obligations under this Agreement.
A statement on an insurance certificate will not be accepted in lieu of the actual endorsement unless your insurance carrier is the State of California Insurance Fund (SCIF) and the endorsement numbers 2570 and 2065 are referenced on the certificate of insurance.
15.4 Environmental Pollution Control Insurance
Contractor shall maintain either an endorsement to its general liability policy, or a separate policy of insurance covering environmental pollution and contamination that names the City and 384/036753-0091
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its employees, representatives, officers and agents as additional insureds. Said coverage shall be in the amount of not less than Three Million Dollars ($3,000,000) per occurrence, and Three Million Dollars ($3,000,000) in the aggregate, and shall substantially comply with all other provisions set forth in Section 15.1.
15.5 Endorsements
A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. Insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval.
Additional Insured Endorsements shall not:
(a) Be limited to “Ongoing Operations”
(b) Exclude “Contractual Liability”
(c) Restrict coverage to the “Sole” liability of Contractor (d) Contain any other exclusion contrary to the Agreement.
Any Deductible in Excess of $50,000 and/or Self-Insured Retentions must be disclosed to the City.
15.6 Acceptability of Insurers
Each policy shall be from a company with current A.M. Best’s rating of A VII or higher and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus lines brokers under applicable provisions of the California Insurance Code or any federal law. Any other rating must be approved in writing by the City.
15.7 Insurance of Subcontractors
Contractor shall be responsible for causing Subcontractors to maintain the same types and limits of coverage in compliance with this Agreement, including naming the City as an additional insured to the Subcontractor’s policies.
15.8 Verification of Coverage
Contractor shall furnish City with certificates of insurance and with original endorsements affecting coverage required by this Article. The certificates and endorsements for each insurance policy are to be signed by a Person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be on forms provided by or acceptable to City and are to be received and approved by City before work commences.
15.9 Loss or Reduction in Insurance
In the event that Contractor fails to retain or maintain insurance with the scope and amounts of coverage required hereunder, City shall have the right, but not the obligation, to either terminate 384/036753-0091
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this Agreement, or obtain insurance coverage as required herein on behalf of Contractor and utilize funds from the Surety defined in Section 14 to pay the cost of providing such coverage.
SECTION 16.
ASSIGNMENT, SUBLETTING, AND TRANSFER;
REQUIREMENTS AND LIMITATIONS
16.1 General
The franchise granted by this Agreement shall not be sold, hypothecated, sublet, assigned, or otherwise transferred, nor shall any of the rights or privileges herein be hypothecated, leased, assigned, sold, or otherwise transferred, either in whole or in part, nor shall title thereto, either legal or equitable, or any right, interest, or property therein, pass to or vest in any Person, except Contractor, either by action or inaction of Contractor or by operation of law (any of the foregoing, an “Assignment”), without the prior written consent of the City which may be withheld with or without cause. For purposes of permitting Contractor to subcontract to assist in providing discrete services hereunder, and provided Contractor will continue to provide substantially all Solid Waste Handling Services hereunder with its own employees, the written consent of the City Manager shall suffice. Any other Assignment shall require the written consent of the City Council as expressed by a Resolution. Any attempt by Contractor to hypothecate, subcontract, lease, assign, sell, or otherwise transfer any right or interest in this Agreement without the written consent of City shall be null and void and shall give rise to City’s right, but not obligation, to terminate this Agreement.
16.2 Assignment to be Broadly Interpreted
For purposes of this Section the term “Assignment” shall be given the broadest possible interpretation, and shall include, but not be limited to: (i) a sale, exchange or other transfer of substantially all of Contractor’s assets dedicated to Solid Waste Handling Services under this Agreement to a third party; (ii) a sale, exchange or other transfer of any capital stock or other voting securities of Contractor to a third party; (iii) any dissolution, reorganization, consolidation, merger, re-capitalization, stock issuance or re-issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction which results in a change of ownership or control of Contractor, including, without limitation, (a) any actual sale, transfer, or acquisition of Contractor by any entity in which Contractor, or Contractor’s principals as of the Effective Date, do not own a majority interest and control, (b) Contractor’s grant of a management contract to any Person or entity which is applicable to any aspect of Contractor’s performance pursuant to this Agreement, or (c) transfer of the beneficial interest of the cumulative amount of ten percent (10%) or more of Contractor’s voting securities to a Person, entity, or group of Persons acting in concert who, as of the Effective Date hereof, own less than ten percent (10%) of such voting securities, and in which Contractor does not own a majority interest and control; (iv) any assignment by operation of law, including those resulting from mergers or acquisitions by or of Contractor or any of its Affiliates, insolvency or bankruptcy, making assignment for the benefit of creditors, writ of attachment for an execution being levied against this Agreement, appointment of a receiver taking possession of Contractor’s property, transfer occurring in the event of a probate proceeding, foreclosure, retention of collateral in satisfaction of debt or other judicial or non-judicial remedy by a creditor; and (v) any combination of the foregoing (whether or not in related or contemporaneous 384/036753-0091
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transactions) or any other circumstances which has the effect of any such transfer or change of ownership, or change of control of Contractor.
16.3 Nature of Agreement – Personal to Contractor
Contractor acknowledges that this Agreement involves rendering a vital service to City’s residents and businesses, and that City has selected Contractor to perform the services specified herein based on (1) Contractor’s experience, skill and reputation for conducting its Solid Waste Handling Services in a safe, effective and responsible fashion, at all times in keeping with applicable Environmental Laws, regulations and best Solid Waste Handling Services management practices, and (2) Contractor’s financial resources to maintain the required equipment and to support its indemnity obligations to City under this Agreement. City has relied on each of these factors, among others, in choosing Contractor to perform the Solid Waste Handling Services to be rendered by Contractor under this Agreement.
16.4 Procedure for Consideration of Assignment
If Contractor requests City’s consideration of and consent to an Assignment, the City Council may deny, approve or conditionally approve such request in its sole and absolute discretion. Under no circumstances shall City be obliged to consider any proposed Assignment if Contractor is in default at any time during the period of consideration. Should the City consent to any Assignment request, such Assignment shall not take effect until all conditions relating to the City’s approval have been met including, but not limited to, conditions requiring acceptance of amendments to this Agreement. Any request for an Assignment shall be made in a manner to be prescribed by the City Manager, and no request by Contractor for consent to an Assignment need be considered by City unless and until Contractor has met (or with respect to matters that would only occur upon completion of the Assignment if approved, made reasonable assurances that it will meet) the following requirements:
(a) Contractor shall undertake to pay City its reasonable direct and indirect expenses, including administrative, investigative, consulting, and attorneys’ fees and costs necessary to investigate the suitability of any proposed assignee, and to review and finalize any documentation required as a condition for approving any such Assignment (collectively the “Administrative Assignment Fee”). An advance non-refundable payment in an amount to be determined by the City Manager towards the Administrative Assignment Fee shall be paid to the City prior to City’s consideration of any Assignment request, although Contractor shall be responsible to pay all costs incurred by City in considering a request for Assignment, including those in excess of the aforesaid deposit amount, regardless of whether City consents to the Assignment. The Administrative Assignment Fee is in addition to and not in lieu of any franchise fees specified in this Agreement.
(b) If requested to do so, Contractor shall furnish City with audited financial statements of the proposed assignee’s operations for the immediately preceding three (3) operating years.
(c) Contractor shall furnish City with satisfactory proof: (i) that the proposed assignee has at least ten (10) years of Solid Waste Handling Services experience on 384/036753-0091
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a scale equal to or exceeding the scale of operations conducted by Contractor under this Agreement; (ii) that in the last five (5) years, the proposed assignee has not suffered any significant citations or other censure from any federal, state or local agency having jurisdiction over its Solid Waste Handling Services operations due to any significant failure to comply with any Applicable Laws, including any Environmental Laws, and that the assignee has provided City with a complete list of such citations and censures; (iii) that the proposed assignee has at all times conducted its Solid Waste Handling Services in an environmentally safe and conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste Handling Services in accordance with sound Solid Waste Handling Services practices, in full compliance with all Applicable Laws, including all Environmental Laws; and, (v) of any other information required by City to ensure the proposed assignee can fulfill the terms of this Agreement in a timely, safe and effective manner. (d) The proposed assignee shall execute an agreement in a form reasonably acceptable to City assuming all of Contractor’s rights and liabilities under this Agreement.
SECTION 17.
REVIEW OF SERVICES AND PERFORMANCE
17.1 Performance Review
17.1.1 Bi-Annual Review.
Commencing in or about July 1, 2029, and every two (2) years thereafter, City may conduct a review of Contractor’s Solid Waste Handling Services, source reduction, processing and other diversion services and overall performance under this Agreement (the “Performance Review”).
The purpose of the Performance Review is to provide for a discussion and review of technological, economic, and regulatory changes in Collection, source reduction, Recycling, processing and disposal to achieve a continuing, advanced Solid Waste Handling Services, source reduction and Recycling and disposal system; and to ensure all Solid Waste Handling Services are being provided by Contractor with adequate quality, effectiveness and economy and in full compliance with the terms of this Agreement. Topics for discussion and review at the Performance Review shall include, but shall not be limited to, Solid Waste Handling Services provided, feasibility of providing new Solid Waste Handling Services, application of new technologies, Customer complaints, possible amendments to this Agreement, developments in the law, new initiatives for meeting or exceeding all applicable diversion requirements, regulatory constraints and Contractor performance. City and Contractor may each select additional topics for discussion at any Performance Review.
17.1.2 Additional Performance Reviews.
In addition to the Bi-Annual Performance Review, if the number of Customer complaints regarding Contractor’s Solid Waste Handling Services are deemed by City to be excessive, City may, hold a Performance Review at any time. Should City choose to do so, it shall notify Contractor of its intent to hold Performance Review at least ninety (90) days in advance thereof.
The notice will indicate whether the hearing will occur before City staff, the Council, or such other body as the City may designate in the notice. Forty-five (45) days after receiving notice from City 384/036753-0091
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of a Performance Review, Contractor shall submit a report to City which may contain such information as it wishes to have considered, and shall contain the following:
(a) Current diversion rates and a report on Contractor’s outreach activities for the past year.
(b) Recommended changes and/or new programs and/or Solid Waste Handling Services to improve the City’s ability to meet all applicable diversion requirements and to contain costs and minimize impacts on rates. (c) Any specific plans for provision of changed or new programs and/or Solid Waste Handling Services by Contractor.
17.2 Performance Satisfaction Survey
If requested by the City, Contractor will create and conduct a survey at Contractor’s expense in preparation for any Performance Review. City shall notify Contractor of its desire for such a survey at least ninety (90) days in advance of the Performance Review. The purpose of the survey is to determine Customer satisfaction with current Collection services, and Customer service provided by Contractor. The survey shall be conducted by an independent third party market research organization, who shall contact a Customer sample deemed appropriate to obtain a margin of error not to exceed five percent (5%). Contractor shall obtain City’s approval of the survey’s content, format, and Customer contact list prior to its distribution. The City may require that Contractor have Customer responses to the survey returned directly to the City. The survey results shall be made available to the City thirty (30) days prior to the Performance Review. If approved in writing by the City Manager, the foregoing may be satisfied by Contractor providing Customer survey data it gathers in the regular course of its business.
SECTION 18.
CITY’S REMEDIES; DEFAULT AND TERMINATION
18.1 Notice of Default
If the City Manager determines that Contractor has defaulted in the performance of any obligation hereunder, or that Contractor’s performance pursuant to this Agreement with respect to such matters has not been in conformity with reasonable industry standards which are obtained in similar cities in Southern California, the provisions of this Agreement, the requirements of the Municipal Code, the requirements of CalRecycle, including, but not limited to, requirements for source reduction and Recycling or any other applicable federal, state, or local law or regulation, including but not limited to the laws governing transfer, storage, or disposal of Special Wastes, or Hazardous Substances (to the extent applicable to Contractor, and/or Contractor’s activities under this Agreement), the City Manager may provide written notice to Contractor of such default. The City Manager may, in such written notice, set a reasonable time within which correction of such default shall be made. Unless a longer or shorter time is otherwise specified by the City Manager, a reasonable time for correction shall be thirty (30) days from the date such written notice is given. 384/036753-0091
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18.2 Failure to Cure
If Contractor fails to correct, to the satisfaction of the City Manager, all deficiencies contained in the written notice thereof within the specified time, or if it is not reasonably possible to correct such deficiencies within the specified time, and Contractor fails to commence to correct or remedy such deficiencies within the specified time and diligently effect such correction or remedy thereafter, then the City Manager may refer the matter to the City Council for review, or review the matter himself or herself.
18.3 Review by City Manager
If the City Manager reviews the matter and determines that Contractor has failed to properly or adequately correct any default set forth above, the City Manager, in the exercise of his or her discretion, may terminate this Agreement, or take such other action as he or she deems appropriate to pursue any remedy available to City. A decision or order of the City Manager shall be final and binding on Contractor unless Contractor files a “Notice of Appeal” with the City Clerk within fifteen (15) business days of the date the notice of the City Manager’s decision is given to Contractor. The City Manager shall schedule any appeal for consideration by the City Council at the earliest feasible City Council Meeting following the date a Notice of Appeal is given to City.
18.4 City Council Review
In the event an appeal of a decision of the City Manager is filed, or if the City Manager refers the matter to the City Council without rendering a decision, the City Council shall set the matter for consideration before the City Council as a regular agenda item. In reviewing the matter the City Council may consider any information reported by the City Manager regarding the deficiencies, and shall give Contractor, or its representatives and any other interested Person, a reasonable opportunity to be heard. The City Council shall determine whether Contractor has failed to properly or adequately perform as set forth above, and if so whether to terminate this Agreement, or to pursue any other remedy available to City.
18.5 Performance During Reviews
Contractor’s performance under this Agreement is not excused during any period of time when its performance is under review as set forth above, including at any time prior to a final decision as to whether such performance is deficient.
18.6 Termination without Right to Cure
The above right of termination as a result of Contractor’s failure to timely cure any deficiency is in addition to City’s right to terminate this Agreement without affording Contractor an opportunity to cure under any of the following circumstances:
(a) If Contractor practices, or attempts to practice, any fraud upon City.
(b) If Contractor becomes insolvent, unable, or unwilling to pay its debts, or upon listing of an order for relief in favor of Contractor in a bankruptcy proceeding. 384/036753-0091
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(c) If Contractor willfully violates any orders or rulings of any regulatory body having jurisdiction over Contractor, which violation will materially interfere with Contractor’s performance of this Agreement directly related to Solid Waste Handling Services provided by Contractor pursuant to this Agreement. So long as City’s rights are not prejudiced during the pendency of any challenge to such orders or rulings by Contractor, Contractor may contest any such orders or rulings by appropriate proceedings conducted in good faith, in which case no material breach of this Agreement shall be deemed to have occurred until a final ruling has been rendered.
(d) If Contractor ceases to provide Solid Waste Handling Services, including Collection of Solid Waste and/or Recyclable Material as required under this Agreement over all or any portion of the Franchise Area for a period of seven (7) consecutive days or more, for any reason not specified as a force majeure event hereunder. (e) If Contractor fails to materially comply with any insurance or indemnification requirement set forth in this Agreement; provided, however, that Contractor shall have a reasonable opportunity to cure any default relating to the Contractor’s failure to provide the City with proof of insurance, so long as such insurance is in effect at all times. (f) If City is required to pay any fine or penalty, which Contractor is required by the terms hereof to pay, yet which Contractor fails, refuses, neglects or is unable to timely pay.
(g) If Contractor, or any management level employee of Contractor is convicted of a “Criminal Matter” (as defined herein). For purposes of this Section the term “Criminal Matter” refers to any felony or misdemeanor offense having any relationship to either Solid Waste Handling Services or public corruption (including, without limitation, bribery, conflict of interest related allegations, vote selling, or any similar type charges).
18.7 Liquidated Damages
18.7.1 General
The City finds, and Contractor agrees, that as of the time of the execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by City as a result of a breach by Contractor of certain specific obligations under this Agreement. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied Solid Waste Handling Services or denied quality or reliable Solid Waste Handling Services; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of this Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that the Solid Waste Handling Services that are the subject of this Agreement might be available at substantially lower costs than alternative Solid Waste Handling Services and the monetary loss resulting from denial of Solid Waste Handling Services or denial of quality or reliable Solid Waste Handling Services is impossible to calculate in precise monetary terms; and (iv) the termination of this Agreement for such specific breaches, and other remedies 384/036753-0091
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are, at best, a means of future correction and not remedies which make the public whole for past breaches.
18.7.2 Service Performance Standards; Liquidated Damages for Failure to Meet Standards
The Parties further acknowledge that consistent, reliable Solid Waste Handling Services are of utmost importance to City and that City has considered and relied on Contractor’s representations as to its quality of Solid Waste Handling Services commitment in entering into this Agreement with Contractor. The Parties further recognize that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable Solid Waste Handling Services and performance. The Parties further recognize that if Contractor fails to achieve the performance standards, or fails to submit required documents in a timely manner, City and its residents will suffer damages and that it is and will be impractical and extremely difficult to ascertain and determine the exact amount of damages which City will suffer. Therefore, without prejudice to City’s right to treat such breaches as an event of default, the Parties agree that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages for such specific breaches, considering all of the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be anticipated and the anticipation that proof of actual damages would be costly or impractical. In placing their 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 the liquidated damage provisions at the time that this Agreement was made.
Contractor
Initial Here
City
Initial Here
18.7.3 Calculations for Liquidated Damages
Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set forth below for each type of action warranting such damages:
(a) Contract Compliance
(i) For each failure to comply with any provision of this Agreement not otherwise expressly called out in this Section 18.7.3, exceeding 10 of any type or nature in any calendar year: $150.00
(b) Collection Reliability
(i) For each failure to commence providing Solid Waste
Handling Services to a new Customer account within seven (7) days after it is ordered, which exceed five (5) such failures annually: $150.00.
(ii) For each failure, which exceeds ten (10) such failures annually, to Collect Solid Waste from any established Customer on the scheduled Collection day:
$150.00.
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(iii) For each failure to Collect Solid Waste, which has been properly set out for Collection, from the same Customer on two (2) consecutive scheduled Collection days: $150.00.
(c) Collection Quality
(i) For each occurrence of failure to properly return
empty Containers to their proper location and thereby causing pedestrian or vehicular traffic impediments which exceeds ten (10) such occurrences annually: $150.00. (ii) For each occurrence of Collecting Solid Waste during unauthorized hours which exceeds five (5) such occurrences annually: $250.00. (iii) For each occurrence of damage to private property in an amount in excess of $1,000 where compensation has not been paid, which exceeds five (5) such occurrences annually: $250.00.
(iv) For each failure to clean up Solid Waste spilled from properly filled (not overfilled) Containers, excepting amounts that are so nominal in nature that they would not reasonably be expected to be noticed by the driver of a Collection Vehicle, within 90 minutes that exceeds ten (10) such failures annually: $150.00. (d) Use of Collections Vehicles without Registration or Inspection (i) For each day, exceeding one (1), in which a Collection Vehicle is used in City without such Collection Vehicle having a current registration from the DMV: $500.00.
(ii) For each day, exceeding five (5), in which a
Collection Vehicle is used in City without such Collection Vehicle having a current Inspection Tag issued by City: $500.00.
(e) Customer Responsiveness
(i) For each failure to initially respond to a Customer complaint within one (1) business day, which exceeds five (5) such occurrences annually:
$250.00.
(ii) For each failure to process Customer complaints to City as required herein, which exceeds five (5) such occurrences annually: $250.00. (iii) For each failure to remove graffiti from Containers, or to replace with Containers bearing no graffiti, within one (1) business day of a request from City that exceeds ten (10) failures annually: $150.00.
(f) Timeliness of Submissions to City
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(i) Any report shall be considered late until such time as a correct and complete report is received by City. For each calendar day a report is late, the daily liquidated damage amount shall be:
(1) Monthly Reports: $150.00 per day.
(2) Quarterly Reports: $250.00 per day.
(3) Annual Reports: $350.00 per day.
(g) Cooperation During Transition With Subsequent Solid Waste Enterprise
(i) Subject to applicable data security and privacy laws, for each day routing information, including Billing information and other operating records needed to provide Solid Waste Handling Service to a Premises, is requested by City in accordance with Section 29 and is received after City-established due dates, both for preparation of a request for proposals and for any subsequent Solid Waste enterprise’s implementation of service: $1,000/day. (ii) For each day delivery of keys, security codes, remote controls used to access garages, gates and bin enclosures, or other means of access to Solid Waste Containers is delayed beyond one (1) day prior to new Solid Waste enterprise providing Solid Waste Handling Servicing to Customers with access issues: $1,000/day.
18.7.4 Process for Assessment of Liquidated Damages
(a) City may determine the occurrence of events giving rise to liquidated damages through the observation of its own employees or representative or through an investigation of Customer complaints. It is the desire of the Parties to work together to avoid the imposition of liquidated damages and accordingly City will endeavor to timely communicate to Contractor any information that it receives which might give rise the imposition of liquidated damages in order to facilitate Contractor’s ability to correct any deficiency, or prevent the recurrence of any conduct for which liquidated damages might eventually be imposed. (b) Prior to assessing liquidated damages, City shall give Contractor notice of its intention to do so. The notice will include a brief description of the incident(s)/non-performance. Contractor may review (and make copies at its own expense) all information in the possession of City relating to incident(s)/non-performance. Contractor may, within ten (10) days after receiving the notice, request a meeting with the City Manager.
Contractor may present evidence in writing and through testimony of its employees and others relevant to the incident(s)/non-performance. The City Manager will provide Contractor with a written explanation of his or her determination on each incident(s)/non-performance prior to authorizing the assessment of liquidated damages. The decision of the City Manager to assess liquidated damages thereafter shall be final.
(c) 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. 384/036753-0091
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18.7.5 Timing of Payment
Contractor shall pay any liquidated damages assessed by City within ten (10) days after they are assessed. If they are not paid within the ten (10) day period, City may proceed against any security required by this Agreement to obtain payment, may withhold payments it otherwise owes to Contractor (i.e., funds collected by City in connection with utility billing payments) as a means by which to obtain payment, or may find Contractor in default and exercise its right to terminate this Agreement as set forth herein.
SECTION 19.
CONTRACTOR’S REMEDIES; ADMINISTRATIVE HEARING
19.1 Administrative Hearing
Should Contractor contend that City is in breach of any aspect of this Agreement, it shall give notice to the City Manager requesting an administrative hearing on the allegation. The hearing shall occur as soon as reasonably possible, or on such date as mutually agreed by the Parties, and shall be held before an impartial hearing officer to be determined by the City Manager.
The hearing officer shall make an advisory ruling on Contractor’s allegations, and suggest a remedy if a breach by City is determined to exist. The hearing officer’s ruling and recommendations shall become final and binding if the Parties so agree in writing within thirty (30) days of the date notice of the decision is given to both Parties. Otherwise, the hearing officer’s ruling shall have no further force or effect.
19.2 Other Remedies; Claims
Contractor shall be entitled to all available remedies in law or equity for City’s breach of this Agreement; provided, however, Contractor shall not file or otherwise commence any action against City, in law or equity, in any court, until after an administrative hearing as set forth above has been completed, and the above noted thirty (30) day period to accept the hearing officer’s decision has passed, or either City or Contractor has given timely written notice to the other that it will not accept the hearing officer’s decision.
19.3 Actions for Damages
As a prerequisite to the filing and maintenance of any action for damages by Contractor against City arising out of this Agreement, Contractor shall present a claim to City, as required by Government Code Section 910 et seq., within thirty (30) days of the date of the occurrence giving rise to the claim for damages.
SECTION 20.
CITY’S ADDITIONAL REMEDIES FOR BREACH BY CONTRACTOR
In addition to any other remedies set forth herein, City shall be entitled to any or all of the following rights and remedies in the event of a breach of this Agreement by Contractor:
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20.1 Right to Use Equipment
The right to use Contractor’s equipment for the purpose of providing Solid Waste Handling Services, for a period not to exceed one (1) month. In the case of equipment not owned by Contractor, Contractor shall assign to City, to the extent Contractor is permitted to do so under the instruments pursuant to which Contractor possesses such equipment, the right to use the equipment. If City exercises its rights under this Section, City shall pay to Contractor the reasonable rental value of the equipment for the period of City’s use thereof (although payment may, if appropriate, occur in the form of a setoff against damages otherwise owed by Contractor pursuant to the terms hereof);
20.2 Right to Authorize Others
The right to Authorize others to perform the Solid Waste Handling Services otherwise to be performed by Contractor hereunder, or to perform such Solid Waste Handling Services itself; and
20.3 Damages/Equitable Relief
The right to obtain damages and/or injunctive relief. Both Parties recognize and agree that in the event of a breach of this Agreement by Contractor, City will suffer irreparable injury and incalculable damages sufficient to support injunctive relief, to specifically enforce the provisions of this Agreement, and to enjoin the breach hereof.
SECTION 21.
RIGHTS OF CITY TO PERFORM DURING EMERGENCY
21.1 Provision of Service
Should Contractor, for any reason whatsoever, refuse or be unable to provide Solid Waste Handling Services for a period of more than seventy-two (72) hours, and if as a result thereof, Solid Waste should accumulate in City to such an extent or in such a manner that the City Manager finds that such accumulation endangers or menaces the public health, safety, or welfare, City shall have the right, upon twenty-four (24) hours prior written notice to Contractor, during the period of such emergency, to temporarily take possession of any or all equipment and facilities of Contractor previously used in providing Solid Waste Handling Services and provide, through its own forces or otherwise, Solid Waste Handling Services which Contractor otherwise would be obligated to provide pursuant to this Agreement. Contractor agrees that in such event it shall fully cooperate with City to affect such a transfer of possession for City’s use.
21.2 Possession of Equipment
Contractor agrees, that in the event of circumstances described in Section 21.1 above, City may take temporary possession of and use all of said equipment and facilities without paying Contractor any rental or other charges. Upon Contractor giving City notice that it is able to resume its normal responsibilities under this Agreement City shall relinquish possession of all of the above mentioned property to Contractor.
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21.3 Exclusions from Right to Possession of Equipment without Compensation Specifically excluded from the circumstances in which City may possess and utilize Contractor’s equipment without compensation are circumstances in which Contractor fails or refuses to provide Solid Waste Handling Services hereunder for any reason which is not a force majeure event as defined herein. In such circumstances City’s right to utilize and possess Contractor’s equipment shall be subject to the provisions of the above Section 20.
SECTION 22.
PRIVACY
Contractor shall strictly observe and protect the privacy rights of Customers. Information identifying individual Customers or the composition or contents of a Customer’s Solid Waste stream, or any of the Billing information pertaining to any Customers, shall not be revealed to any Person, governmental unit, private agency, or company, unless upon the authority of a court of law, by statute, ordinance, or regulation of a governmental agency having jurisdiction, or upon valid authorization of the Customer. This provision shall not be construed to preclude Contractor from preparing, participating in, or assisting in the preparation of waste characterization studies or waste audits which may be required by the Applicable Laws or this Agreement. Contractor shall not market or distribute, outside the normal course of its business, mailing lists with the names and addresses of Customers. The rights afforded Customers pursuant to this Section shall be in addition to any other privacy right afforded Customers pursuant to federal or state law.
SECTION 23.
REPORTS AND ADVERSE INFORMATION
23.1 General Application and Interpretation.
The Parties acknowledge that City will require reporting at various intervals by which information important to City can be compiled and analyzed. Throughout the Term the Parties agree to work together to address City’s needs with respect to the information to be contained in reports prepared by Contractor. The following is intended as a starting point in order to have established an objective baseline for reporting, but the frequency and content of the reports called out below may be changed at the direction of City if necessary to comply with the Applicable Laws, or by agreement of the Parties provided any such change is approved by the City Manager in writing, and consistent with the Applicable Laws. Contractor agrees to provide all information in its control necessary for City to meet its reporting obligations under the Applicable Laws, and to provide reports more frequently than set forth herein if necessary to do so, all in a format reasonably acceptable to City. The express requirements set forth herein are not intended as a limitation, but rather set forth minimums which Contractor shall comply with in order to meet its obligation to provide information and reports. Contractor shall provide any additional information or reports requested by City to enable it to meet its obligations under the Applicable Laws not set forth herein.
23.2 Use of Reporting Software.
Contractor shall utilize computer software, satisfactory to City, to produce reports required under this Section, and shall be responsible for costs associated therewith. The computer software 384/036753-0091
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utilized shall be compatible with software utilized by City, and shall be updated, modified or changed as may be necessary in order for this to occur on an ongoing basis.
23.3 Customized Reports.
Upon request from City, Contractor shall prepare and provide customized reports containing information that Contractor is required to maintain hereunder in any reasonable format as may be requested by City.
23.4 Monthly Reports
On a monthly basis, and no later than the last business day of each month, Contractor shall submit a written report, in a form approved by City, which includes, at least the following information related to the prior month, with each report including a year-to-date summary page as well as the data submitted from the monthly report(s) submitted in the previous calendar year:
(a) a summary of all Solid Waste Collected, sorted by type of waste Refuse, Recyclable Materials, and Organic Waste (and within each type, any additional breakdown reasonably available to Contractor as a result of its normal operations (i.e., paper, CRV, Food Waste)
(b) the facilities where all Solid Waste was delivered for disposal or processing and including the weight in tons so delivered; and, if requested by City, true and accurate copies of landfill and processing facility tipping receipts, records showing delivery at processing or reuse facilities, and similar such documents in order to enable City to verify Contractor’s reports.
(c) a narrative of problems encountered (i.e., scavenging or other issues) and actions taken to address such problems and any recommendations for the City to assist with such actions.
(d) a description of outreach and educational activities conducted, including copies of promotional and/or educational materials distributed to Customers during the month.
(e) a description of the total quantities in tons of diversion in a manner that complies with the Applicable Laws and is acceptable to CalRecycle. (f) the number of Containers, broken down by Container type utilized and Container capacity; including specifically all Containers used in connection with Temporary Services.
(g) a summary of all C&D Debris related services provided to Customers, including a summary of activities taken to ensure compliance with the California Green Building Standards Code and other Applicable Laws related to C&D Debris. (h) a summary of all new accounts, accounts with services stopped or suspended, and accounts reactivated following stops or suspensions. 384/036753-0091
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(i) the total number of Organics Recycling Waivers granted by City and the total number of related verifications performed by Contractor. (j) the number of Bulky Item Collections by type, and the disposition of Bulky Items associated therewith.
(k) the total number of Organics Recycling Waivers requested and a summary of the status of each waiver for which information or assistance requested by City from Contractor is pending.
(l) a report of contamination monitoring activities including:
(i) the number of route reviews and/or waste evaluations conducted and a summary thereof;
(ii) a description of the process used for determining the level of contamination;
(iii) a summary of actions taken in cases where
contamination was identified.
(iv) a summary of contamination fees assessed, broken
down by Customer type and amounts.
(m) a report listing all complaints asserting lack of compliance with SB 1383 and a summary of action taken in connection with each. (n) a report summarizing Customer service related complaints, and the status or resolution of such complaints.
(o) a report summarizing missed Collections and associated credits, including Customer names, addresses, date of missed Collection, the specific services not provided, and any other information the City may determine it needs to accurately calculate and or verify credits per Section 13.3.
(p) a report summarizing all incidents of spills, leaks or discharges from Collection Vehicles, or occurring during the Collection process, including a summary of each incident identifying the materials which were involved in the discharge, the address (or approximate address), the Collection Vehicle involved by number or other identifying means, photographs of the spill, leak or discharge, photographs depicting the site after it is cleaned up, and the method used for clean up (including specifically all actions taken to ensure compliance with NPDES requirements.)
(q) an update to the Vehicle Inventory summarizing (if and as applicable) new Collection Vehicles placed into service in the City, and applicable updates to DMV registration or annual City Inspection Tags for each Collection Vehicle. 384/036753-0091
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(r) a report of activities related to Edible Food Generators including:
(i) the total number of known Tier One and Tier Two
Commercial Edible Food Generators located within the City. (ii) the number of known Food Recovery Services and
Food Recovery Organizations located and operating within the City that contract or have written agreements with Commercial Edible Food Generators for Food Recovery (iii) the number of Tier One and Tier Two Commercial
Edible Food Generators participating in an Edible Food Recovery program (iv) a report of the total pounds of Edible Food Recovered in the previous month if known to Contractor.
(v) the number of Commercial Edible Food Generators
who participate in an Edible Food Recovery program, if known to Contractor, and any known reasons provided by those who do not participate.
(s) upon request, but not otherwise required in monthly reports, a summary of each Customer account, showing the address for service, the services received, and the rates charged for all services.
23.5 Quarterly Reports
Within thirty (30) days after the end of each calendar quarter during the Term, Contractor shall provide a summary of the information required in the monthly reports, in a format reasonably acceptable to City, and such other information and/or back up data as may be reasonably requested by City to enable it to comply with its obligations under the Applicable Laws.
23.6 Annual Reports
Within thirty (30) days after the end of each calendar year during the Term and within thirty (30) days after the end of the Term, Contractor shall submit a written annual report, in a form approved by City, which includes, at least the following information:
(a) a summary of the information required in the monthly and quarterly reports, in a format reasonably acceptable to City, and such other information and/or back up data as may be reasonably requested by City to enable it to comply with its obligations under the Applicable Laws.
(b) a summary of the previous year’s activities including, but not limited to, Solid Waste Handling Services begun or discontinued during the reporting year, and the number of Customers broken down on a monthly basis; (c) any information and reports not otherwise contained in this Section 23 required by City to meet its reporting obligations imposed by the Applicable Laws; 384/036753-0091
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(d) a revenue statement, certified by the chief financial officer of Contractor, setting forth all fees and payments to the City, including Franchise Fees, and the basis for the calculation thereof, including specifically a breakdown of sources of revenue included in Gross Receipts and the amount of revenue derived from each such source comprising Gross Receipts;
(e) a list of Contractor’s officers and the members of its Board of Directors; and
(f) a list of stockholders or other equity investors holding five percent (5%) or more of the interest in Contractor.
(g) a report showing Contractor’s verification of the condition of all Containers, as required by Section 8.1.11(f).
23.7 Confidential and Proprietary Information.
Contractor acknowledges that City is legally obligated to comply with the California Public Records Act (“CPRA”), lawfully issued subpoenas, and other legal obligations. City acknowledges that certain records, reports, or information contained therein, which Contractor may be required to maintain under this Agreement or Applicable Law, are protected by or exempt from disclosure under Applicable Law (including, without limitation, law governing data security and privacy rights) or are of a proprietary or confidential nature or may include intellectual property of Contractor, including, without limitation, any confidential information, copyrighted material, proprietary information, trade secrets or trademark/service mark, as well as any and all such documents or reports containing such information (together, “Contractor’s Intellectual Property”).
In such instances, Contractor will inform City in writing of which records which may be protected or exempt from disclosure under Applicable Law or contain Contractor’s Intellectual Property. At such time as City receives a request for records under the CPRA or Federal Freedom of Information Act or a subpoena or other court order requesting disclosure of records which include Contractor’s Intellectual Property, City shall notify Contractor of the request, subpoena or order and of City’s obligation and intent to provide a response within ten (10) days. Contractor shall within five (5) days either: (i) consent in writing to the disclosure of the records; or (ii) seek and obtain, at Contractor’s sole cost and expense, the order of a court of competent jurisdiction staying or enjoining the disclosure of the records. Nothing in this Agreement shall require Contractor to disclose any records, reports, or information protected by or exempt from disclosure under Applicable Law to the City or any third party, or provide any of Contractor’s Intellectual Property to City or any third party under any circumstances. The City agrees to hold all documents and information reviewed by City pursuant to this Agreement which comprise Contractor’s Intellectual Property as confidential and shall not disclose the same unless and to the extent disclosure is required pursuant to Applicable Law.
23.8 Format of Reports
Each report shall be submitted to City, addressed to the City Manager or his or her designee.
Records related to performance of this Agreement shall be maintained by Contractor in forms and by methods that facilitate flexible use of data contained in them to structure reports, as needed. 384/036753-0091
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The format of each report shall be approved by City. Contractor agrees to submit all reports to email addresses designated by City in an electronic format approved by the City, using software systems as may be directed by City.
23.9 Adverse Information
Contractor shall provide City copies of all reports, pleadings, applications, notifications, communications, and documents, as well as copies of all decisions, correspondence, and actions, and other material adversely affecting this Agreement, or related in any manner to Contractor’s performance of this Agreement, submitted or received by Contractor to or from the United States Environmental Protection Agency, CalRecycle, the California Regional Water Quality Control Board, and any other federal, state, regional, or local regulatory agency. Copies shall be submitted to City simultaneously with Contractor’s filing of such matters with said agencies. Contractor’s routine correspondence to said agencies need not be automatically submitted to City, but shall be made available to City upon written request.
23.10 Failure to Report
The refusal of Contractor to file any of the reports required, or the inclusion of any materially false or misleading statement or representation made knowingly by Contractor in such report shall be deemed a material breach of this Agreement, and shall subject Contractor to all remedies, legal or equitable, which are available to City under this Agreement or otherwise.
SECTION 24.
COMPENSATION
24.1 Contractor’s Rates
Contractor shall provide Solid Waste Handling Services to Customers pursuant to this Agreement at rates it sets, charges to, and collects from Customers, which rates shall not exceed the maximum rates set forth in Exhibit A, which sets out the maximum rates that may be charged by Contractor, as such maximum rates may be adjusted from time to time pursuant to the terms hereof. The maximum rates set forth in Exhibit A are inclusive of all Solid Waste Handling Services to be provided, including transportation, disposal, and Container costs, and no other charges shall be imposed by Contractor for such Solid Waste Handling Services.
24.2 Resolution of Disputes Regarding Rate Adjustments
Any dispute regarding an adjustment to the maximum rates Contractor may charge, or the computation thereof, shall reasonably be decided by the City Manager. The rates in effect at the time such dispute is submitted to the City Manager shall remain in effect pending resolution of such dispute. The effective date of the adjusted maximum rate following the resolution of any such dispute, whether retroactive or prospective, shall be determined by the City Manager.
24.3 Annual Adjustments to Maximum Rates
The maximum rates set forth on Exhibit A are comprised of a Service Component, meaning __% of such rates, and a Disposal/Processing Component, meaning __% of such rates [THE 384/036753-0091
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APPLICABLE PERCENTAGE FIGURES WILL BE BASED UPON THE INFORMATION
CONTAINED IN THE PRICING FORM PROVIDED BY THE SELECTED PROPOSER WITH ITS PROPOSAL].
1 Commencing on July 1, 2028, the Service and Disposal Components of the maximum rates as set forth in Exhibit A shall be adjusted (the “Annual Adjustment”) as more fully described below, and the Annual Adjustment shall occur each year thereafter on each subsequent July 1st during the Term hereof (the “Adjustment Dates”), as follows:
24.3.1 Service Component.
The Service Component of the maximum rates set forth in Exhibit A will be adjusted by the Percentage Change in CPI on each Adjustment Date.
24.3.2 Disposal/Processing Component.
The Disposal/Processing Component of the maximum rates set forth in Exhibit A will be adjusted by the percentage increase in the tipping fees or other charges imposed by the County of Orange pursuant to the County Agreement which become effective as of the applicable Adjustment Date as compared with the applicable tipping fees or charges imposed by the County of Orange in the preceding Adjustment Date.
It is the intention of the parties that the Disposal/Processing component associated with any of the maximum rates as set forth in Exhibit A shall be adjusted no more often than annually on each Adjustment Date such that they reflect each Customers pro-rata share of any increase or decrease in the actual tipping fees charged by the County of Orange landfill system, and actual, processing fees paid by Contractor for processing Recyclable Materials and Organic Waste.
Recognizing that the disposal component is comprised of and intended to be a pass through of actual costs incurred as tipping fees and processing fees associated with the Approved Facilities set forth in Exhibit C, and that tipping fees and processing fees vary for each such facility, the adjustments to the Disposal/Processing component for each upcoming year will be based on actual costs incurred in the prior year. To accomplish this, in advance of each Adjustment Date, Contractor shall tabulate the actual tonnage of Solid Waste delivered to each of the Approved Facilities during the prior calendar year. The increase if any in tipping fees or processing fees for the upcoming year at each Approved Facility shall then be proportionately applied to the tonnages of Solid Waste delivered to each, such that the adjustment to the Disposal/Processing component will reflect a pass through of actual costs incurred at each of the different Approved Facilities utilized. Notwithstanding the forgoing, the increase in tipping fees or processing fees at any Approved Facility with is owned, operated or controlled by Contractor or any Affiliate of Contractor shall not exceed the Change in CPI. Once established, the overall increase to the Disposal/Processing component will be allocated on a pro-rata basis amongst each category of Customers for the upcoming year. Contractor shall propose the Annual Adjustment to the Disposal/Processing Component, as well as the proposed apportionment of tonnage per category 1 There are various maximum rates set forth in Exhibit A for services which do not include processing or disposal such as, by way of example “Bin Relocation” and “Bin Cleaning.” Such services are comprised only of a Service Component, and shall only be adjusted annually based on the formula applicable to the Service Component. Any dispute as to the applicability of this provision shall be resolved by the City Manager.
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of Customer to the City Manager each year in connection with his/her approval of the Annual Adjustment referenced in Section 24.3.4, along with all data used to calculate the proposal, and such proposal shall be subject to the City Manager’s approval (with the City Manager’s determination as to the appropriate allocation being final.) Commencing on July 1, 2028, and thereafter on each subsequent July 1st during the Term, the maximum rates as set forth in Exhibit A shall be increased based on the Percentage Change in CPI (the “Annual Adjustment”), provided all other relevant conditions of such increase are satisfied.
24.3.3 Compliance with Agreement Required For Annual Increase No increase to the maximum rates shall occur as part of an Annual Adjustment request if Contractor did not substantially comply with all terms of this Agreement in the rate year preceding the increase, including without limitation, provisions hereof relating to insurance and surety requirements, or reporting, diversion, and Customer service standards.
24.3.4 City Manager Approval of Annual Rate Increases.
Contractor shall request an Annual Adjustment from, and provide all information necessary to support such Annual Adjustment to the City Manager on or before March 31 each year. The City Manager shall approve such a request unless he/she determines, based upon substantial evidence, that either: (1) it does not comply with the adjustment formula set forth herein, or (2) Contractor did not substantially comply with all terms of this Agreement in the rate year preceding the requested increase.
24.3.5 Contractor Responsibility to Calculate Rate Adjustments It is anticipated that to obtain City Manager’s approval of Contractor’s requested rate increase, Contractor shall provide all necessary information to justify the request. City will make an effort to verify information provided by Contractor, but ultimately Contractor bears the burden of ensuring the submitted information is correct and supported by all necessary documentation.
Contractor agrees and acknowledges that City is entitled to rely, in good faith, on information submitted by Contractor, including mathematical calculations, CPI data, and other documentation, to justify Contractor’s requested rate increase. In the event that there are errors in Contractor’s requested rate increase request, including, but not limited to, an inaccurate rate adjustment request, inaccurate application of the rate increase formula described above, or usage of inaccurate data, Contractor acknowledges and agrees that City is entitled to seek recovery of damages on behalf of the public sufficient to compensate for the errors. Contractor also waives any arguments or defenses Contractor now has or may have in the future, including estoppel, waiver, or other similar equitable remedies, with respect to any action, claim, demand, proceeding or suit in law or equity of any and every kind and description brought by the City due to errors in Contractor’s requested rate increase.
24.4 Discretionary Adjustments
Contractor may request an adjustment to the maximum rates set forth in Exhibit A at reasonable times other than as set forth above for unusual changes in the cost of providing Solid Waste Handling Services under this Agreement. For each request for an adjustment to the maximum rates brought pursuant to this Section Contractor shall prepare a schedule documenting 384/036753-0091
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the extraordinary costs. Such request shall be prepared in a form acceptable to City with support for the assumptions made by Contractor in preparing the estimate. The City Council shall review Contractor’s request and, in the City Council’s reasonable judgment make the final determination as to whether an adjustment to the maximum rates will be made, and, if an adjustment is permitted, the appropriate amount of the adjustment.
SECTION 25.
IDENTIFICATION OF CONTRACTOR
Contractor has agreed to use the name “_________” to identify itself to the public as the specific organization that shall provide all Solid Waste Handling Services under this Agreement.
Unless otherwise approved in writing by City, Contractor shall identify itself using the foregoing in all correspondence, Billing statements, directory listings, publications, brochures, references, signs, and vehicle and Container identification.
SECTION 26.
CITY’S FLOW CONTROL OPTION/COUNTY AGREEMENT
26.1 Flow Control Option
City shall have the authority to choose the location for the delivery and/or disposal of all Solid Waste, including without limitation Recyclable Materials, Organic Waste, and C&D Debris Collected pursuant to this Agreement (hereinafter City’s “Flow Control Option”). Contractor expressly consents to City’s exercise of it's Flow Control Option, and waives any and all rights to challenge City’s ability to do so, including without limitation any rights under the Commerce Clause of the United States Constitution. As of the Effective Date, City shall be deemed to have exercised its Flow Control Option so as to require disposal of Solid Waste Collected hereunder at the Orange County landfill system in a manner consistent with its obligations under the County Agreement (including, without limitation, its obligations related to Solid Waste that is delivered to a processing/transfer facility prior to being delivered to a landfill for disposal), and Contractor has agreed to handle all Solid Waste Collected hereunder in a manner consistent with City’s exercise of its Flow Control Option as noted above. Contractor may utilize the Approved Facility(ies) for the delivery, transfer and processing of Recyclable Materials and Organic Waste understanding any residue from processing must be handled in a manner that is consistent with City’s obligations under the County Agreement. Notwithstanding any provision hereof to the contrary, at any time during the Term of this Agreement the City Manager may notify Contractor in writing that City desires to exercise its Flow Control Option with regard to Recyclable Materials and/or Organic Waste; or, alternatively, that it no longer desires to exercise its Flow Control Option as noted above. In the event City so notifies Contractor, the Parties shall work together to arrive at an adjustment to the maximum rates set forth in Exhibit A, either upward or downward as the case may be, to reflect any increased or decreased costs Contractor incurs due to the resulting change.
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SECTION 27.
INDEMNIFICATION
27.1 General Indemnification
Contractor hereby agrees to and shall defend, reimburse, indemnify and hold harmless the City Indemnitees from and against any and all claims, suits, actions, proceedings, liabilities, damages, injuries, demands, orders, losses, costs, fees, charges, expenses, fines, liens, penalties, reasonable attorneys’ fees, reasonable consultant fees, forfeitures and judgments, of whatever kind or nature (collectively, “Claims”) in law or equity or in other proceedings, whether judicial, quasijudicial or administrative in nature, of any and every kind and description (including, but not limited to, injury to and death of any Person and damage to any property, or for contribution or indemnity claimed by third parties) arising out of, resulting from, and/or in any way connected with this Agreement including: (1) the negligence or willful misconduct of Contractor, its officers, employees, agents, and/or subcontractors in performing services under this Agreement; (2) the failure of Contractor, its officers, employees, agents, and/or subcontractors to comply in all respects with the provisions of this Agreement (including without limitation Contractor’s obligation to ensure City complies with the requirements of the County Agreement), all Applicable Laws (including, without limitation, the Environmental Laws), ordinances and regulations, and/or applicable permits and licenses; (3) the acts of Contractor, its officers, employees, agents, and/or subcontractors in performing services under this Agreement for which strict liability is imposed by law (including, without limitation, the Environmental Laws); and (4) any challenge to the award of, or any provisions of this Agreement (including any claim that the application of any provision hereof violates any provision of the California Constitution). The foregoing defense, reimbursement, indemnity and hold harmless provisions shall apply regardless of whether such Claim is also caused in part by any of City Indemnitees’ negligence, but shall not extend to matters resulting from the City Indemnitees’ sole negligence or willful misconduct. Contractor further agrees to and shall, upon demand of City, at Contractor’s sole cost and expense, defend (with attorneys acceptable to City) the City Indemnitees against any and all Claims in law or equity or other proceedings, whether judicial, quasi-judicial or administrative in nature, arising or resulting from any of the aforementioned events, and to reimburse City for any and all costs and expenses City incurs in providing any such defense, either before, during or after the time Contractor elects to provide such defense, including any and all costs incurred in overseeing any defense to be provided herein by Contractor. Contractor shall receive credit towards this indemnity obligation for any sums received by or for the benefit of City from insurance obtained by Contractor for the benefit of City.
27.1.1 Defense of Indemnitees.
Contractor, upon demand of City, made by and through the City Attorney, shall protect City and appear in and defend the City Indemnitees in any claims or actions by third parties, whether judicial, administrative or otherwise, including, but not limited to disputes and litigation over the definitions of “Solid Waste” or “Recyclable Material,” the scope of the rights granted herein, conflicts between the rights granted herein and rights asserted by other Persons, or the limits of City’s authority with respect to the grant of licenses, or agreements, exclusive or otherwise, asserting rights under the Dormant Commerce Clause or any other federal or state laws to provide Collection services in the City.
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27.1.2 Survival of General Indemnity Following Term.
The provisions of this Section shall not terminate or expire, shall be given the broadest possible interpretation, and shall survive the expiration or earlier termination of this Agreement.
27.2 Hazardous Substances Indemnification
Without regard to any insurance coverage or requirements (but giving credit to Contractor for any sums received by or for the benefit of City from insurance obtained by Contractor for the benefit of City), and without limiting the above general indemnification obligation in any way, Contractor specifically agrees to and shall, to the maximum extent permitted by law, defend (with counsel acceptable to City), defend, reimburse, indemnify, and hold the City Indemnitees harmless from and against any and all Claims,(including but not limited to response costs, investigative costs, assessment costs, monitoring costs, treatment costs, mitigation costs, cleanup costs, removal costs, remediation costs, and similar costs, damages and expenses) that arise out of or are alleged to arise out of or in any way relate to any action, inaction or omission of Contractor that either, (i) results in any Claim asserting that any of the City Indemnitees are liable, responsible or in any way obligated to investigate, assess, monitor, study, test, treat, remove, remediate, or otherwise cleanup, any Hazardous Contaminant; or (ii) relates to material Collected, transported, Recycled, processed, treated or disposed of by Contractor. Contractor’s obligations pursuant to this Section shall apply, without limitation, to: (i) any Claims brought pursuant to or based on the provisions of any Environmental Laws, and any and all amendments and regulations thereto, and any other federal, state, regional or local environmental statutory or regulatory provision; (ii) any Claims based on or arising out of or alleged to be arising out of the ownership, use, lease, sale, design, construction, maintenance or operation by Contractor of any facility; (iii) any Claims based on or arising out of or alleged to be arising out of the marketing, sale, distribution, storage, transportation, disposal, processing or use of any materials recovered by Contractor; and/or (iv) any Claims based on or arising out of or alleged to be arising out of any breach of any express or implied warranty, representation or covenant arising out of or in connection with this Agreement.
The foregoing defense, reimbursement, indemnity and hold harmless obligations shall apply irrespective of the negligence or willful misconduct of Contractor or any Affiliate of Contractor, but shall not extend to matters resulting from the City Indemnitees’ sole negligence, or willful misconduct. The provisions of this Section shall not terminate or expire, shall be given the broadest possible interpretation, and shall survive the expiration or earlier termination of this Agreement.
SECTION 28.
CONTRACTOR’S BOOKS AND RECORDS; AUDITS
28.1 Maintenance and Inspection of Records
Contractor shall maintain all records relating to the Solid Waste Handling Services provided hereunder, including but not limited to Customer lists, Billing records, accounts payable records, maps, AB 939 compliance records, records reflecting the number of Refuse, Recycling and Organic Waste routes and route hours by service category, records demonstrating facilities, equipment and personnel used to perform Solid Waste Handling Services, records reflecting the number of Refuse, Recycling and Organic Waste Containers in service by frequency of Collection 384/036753-0091
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for each Customer type; records reflecting the number of Rolloff Box pulls, and such other documents and materials which reasonably relate to Contractor’s compliance with the provisions of this Agreement (the “Records”), for the full Term of this Agreement, and an additional period thereafter of not less than three (3) years, or any longer period required by law. Contractor shall keep all records related to its performance and obligations under this Agreement, included specifically any records that reflect actions taken related to City’s obligations under the Applicable Laws which have been delegated to it, in a manner which makes them easily accessible, and readily available. City shall have the right to either inspect or to obtain copies of the Records within 5 business days of any request if reasonably possible, and in any case Contractor shall produce the Records for inspection, or copies of any such Records to City, within 30 days of any request Inspection of Records, unless otherwise agreed, shall occur at Contractor’s regular place of business.
28.2 CERCLA Defense Records
City views the ability to defend against CERCLA Claims and related litigation as a matter of great importance. For this reason, the City regards the ability to prove where Solid Waste Collected in the City was taken for Disposal, as well as where it was not taken, to be matters of significant importance. Contractor shall maintain data retention and preservation systems which can establish where Solid Waste Collected in the City was landfilled (and therefore establish where it was not landfilled) for not less than five (5) years following the termination of this Agreement, and agrees to notify the City Manager, City Clerk and City Attorney before destroying such records thereafter. At any time, including after the expiration of the Term hereof, Contractor shall provide copies of such records to City. The requirements of this Section shall survive the expiration of the Term of this Agreement.
28.3 Annual Compliance Review
City intends to review Contractor’s performance annually at its expense to ensure compliance with the terms and provisions of this Agreement (“Annual Compliance Review”). At a minimum, City intends to have internal staff or outside consultants review Contractor’s performance to ensure ongoing compliance with the terms hereof, including, but not limited to, the payment of required fees, performance of the Solid Waste Handling Services stated herein, implementation of programs required under the Agreement, Contractor’s maintenance and upkeep of records, and compliance with all Applicable Laws. Contractor shall provide any and all information reasonably requested by City in connection with its efforts to ensure compliance with the terms hereof, regardless of whether such information is specifically otherwise called out herein as an item that Contractor is required to maintain and provide to City.
28.4 Audits
28.4.1 Periodic Examination of Services
From time to time, City may request Contractor to make any or all of its records reasonably required (as determined by the City Manager) to verify Contractor’s performance hereunder available to an independent qualified auditor or examiner, to be selected by the City, for auditing and examination purposes (a “Discretionary Audit”). The independent qualified auditor or 384/036753-0091
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examiner shall agree to a reasonable non-disclosure agreement with Contractor to protect Contractor’s Intellectual Property and be subject to California data security and privacy rights under Applicable Law. City shall bear the cost of any Discretionary Audit, except as otherwise provided herein. Should any Discretionary Audit reveal an underpayment of any Franchise Fee required pursuant to this Agreement, the amount of such underpayment shall become due and payable to City not later than fifteen (15) days after written notice of such underpayment is sent to Contractor by City, complete with any additional late charges as set forth herein. If a Discretionary Audit reveals inaccuracies or inconsistencies in more than five percent (5%) of all Customer accounts, either with Contractor’s operations or Billing systems, or an underpayment of Franchise Fees of more than three percent (3%), Contractor shall bear the entire cost of such Discretionary Audit and shall pay a sum necessary to cover such costs to the City within thirty (30) days of demand.
28.4.2 Route Audit
Contractor shall complete an audit at its expense of its Collection routes for all Customers at Residential or Commercial Premises at such times as may be requested by City; provided, however, that while City may request that such an audit occur at any time, it may not request such audits at Contractor’s expense more than two (2) times during the initial Term, and once during each (if any) extended Term. The timing of such audits is at the City’s discretion and may be required to be timed with the issuance of a request for proposals for a new agreement. The route audit, at minimum, shall consist of an independent physical observation by Person(s) other than the route driver or route supervisor of each Customer in the City. The route audit shall include, as a minimum, the following information for each account: route number; truck number; account name; account number; account service address; service level per Billing cycle (quantity, size, frequency); observed Containers (quantity, type and size); Container condition; signage; and graffiti. Within thirty (30) days after the completion of the route audit, Contractor shall submit to City a report summarizing the results thereof which shall include: identification of the routes; truck numbers; number of accounts, by route and in total; number of Containers (broken down by type) per service address, per route and total number of Containers; types of exceptions observed; number of exceptions by type; total monthly Billing, pre-audit; total monthly Billing, post-audit (subsequent to corrections of identified exceptions); percentage of the number of accounts with errors to the total number of accounts served; and percentage of the “net” change in monthly Billing as a result of the audit to the total pre-audit monthly Billing. The report shall include a description of the procedures followed to complete the audit, and shall include the names and titles of those supervising the route audits and the name and titles of those performing the observations.
Additionally, the report shall include a description of the pre-audit training of the route auditors, particularly if temporary personnel are used. The report shall also include a description of the changes and Contractor’s plans to resolve any exceptions. The route audit data and results of the audit shall be available for review by the City or its representative.
SECTION 29.
TRANSITION OBLIGATIONS
At the end of the Term, or in the event this Agreement is terminated for cause prior to the end of the Term, Contractor shall cooperate fully with City and any subsequent Solid Waste enterprise it designates to assure a smooth transition of Solid Waste Handling Services. 384/036753-0091
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Contractor’s cooperation shall include, but not be limited to, providing route lists, Billing information and other operating records needed to service all Premises covered by this Agreement subject to Applicable Laws regarding data security, privacy and Contractor’s Intellectual Property.
The failure to cooperate with City following termination shall be conclusively presumed to be grounds for specific performance of this covenant and/or other equitable relief necessary to enforce this covenant. Contractor shall provide or use reasonable efforts to arrange to provide any new Solid Waste enterprise with all keys, security codes and remote controls used to access garages, gates and Bin enclosures. Contractor shall be responsible for coordinating transfer immediately after its final Collection activities, so as to not disrupt Solid Waste Handling Services, including coordinating with the new Solid Waste enterprise on the removal of Contractor’s Containers and the delivery of the new Solid Waste enterprise’s Containers. Contractor shall provide City with detailed route sheets containing service names and addresses, billing names and addresses, monthly rate and service levels (number and size of containers and pickup days) at least ninety (90) days prior to the transition date, provide an updated list two weeks before the transition, and a final updated list with any changes the day before the transition, unless otherwise agreed upon between Contractor and City or the new Solid Waste enterprise. Contractor shall provide means of access to the new Solid Waste enterprise at least one full business day prior to its first day of Collection, and within sufficient time so as to not impede in any way the new Solid Waste enterprise from easily servicing all Containers subject to Applicable Laws regarding data security and privacy. Contractor’s obligation set forth in this Section are material provisions of this Agreement and in the event of any failure to meet the requirements of this Section in a timely manner, in addition to liquidated damages as may be applicable pursuant to Section 18, contractor agrees to pay a late fee in the amount of Five Thousand Dollars ($5,000.00).
SECTION 30.
RULES AND REGULATIONS OF CITY MANAGER.
The City Manager shall have the power to establish rules and regulations respecting the accumulation, Collection and transportation of Solid Waste not inconsistent with the provisions of this Agreement, providing such rules and regulations are found to be reasonably necessary by the City Manager for enforcement of the provisions of this Agreement, or any and all applicable laws and ordinances, and for the preservation of the public peace, health and safety. Contractor agrees to comply with any and all such rules and regulations. In the event the enforcement by City of any such rules or regulations results in increased costs to Contractor for the performance of the work and services under this Agreement, Contractor may seek a discretionary increase in the maximum rates set forth in Exhibit A, pursuant to Section 24.4 hereof.
SECTION 31.
FORCE MAJEURE
31.1 Events Constituting Force Majeure; Relief From Default Contractor shall not be in default under this Agreement in the event that its ability to provide Solid Waste Handling Services, in compliance with its obligation to do so hereunder, is temporarily interrupted or discontinued for any of the following reasons: riots, wars, sabotage, civil disturbances, insurrections, strikes or other labor disturbances lasting seven (7) days or less, embargoes or delays in transportation, explosion, natural disasters or threats of natural disaster 384/036753-0091
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such as floods, earthquakes, landslides, fires, pandemics, quarantines, or “other catastrophic events” which are beyond the reasonable control of Contractor. The term “other catastrophic events” does not include: (i) the financial inability of Contractor to perform; (ii) failure of Contractor to obtain any necessary permits or licenses from other governmental agencies except to the extent the delay is caused by the governmental agency(ies); (iii) the failure to obtain the right, or the loss of the right, to use the facilities of any public utility where such failure is due in substantial part to the acts or omissions of Contractor; or (iv) strikes or other labor disturbances lasting longer than seven (7) days. City may contract with third parties as it may deem necessary or appropriate to provide services required by this Agreement and not provided by Contractor during any period in which Contractor’s failure to perform hereunder is not a default as a result of the application of this Section.
31.2 Disaster Cleanup and Labor Unrest Plans
Within one hundred and eighty (180) days after the Effective Date, Contractor shall prepare a disaster cleanup plan (the “Disaster Cleanup Plan”) and a labor unrest implementation plan (“the Labor Unrest Plan”) that set forth procedures for Collection of Solid Waste, and implementation of other Solid Waste Handling Services set forth herein, following a major disaster such as an earthquake, fire or other similar event, or a strike or labor unrest. The Plans shall address priorities for cleanup at critical facilities, discuss procedures for reimbursement for costs, describe communication plans, list key contact persons, and provide maps showing proposed sites for stockpiling of disaster debris that cannot be transported to the landfill or processing facilities.
Contractor shall coordinate the Plans with City, including specifically its emergency service teams.
The draft Plans shall be presented to the City Manager for consideration and approval, and shall be revised as necessary until satisfactory to City, whose final approval shall be secured not less than thirty (30) days prior to the Operative Date. The final Plans shall be distributed to those employees of Contractor and City who would have a role in implementing them in the event of a disaster or labor unrest. Contactor shall comply with all obligations set forth in the Disaster Cleanup Plan and the Labor Unrest Plan. At a minimum the Disaster Clean Up Plan and Labor Unrest Plan shall require that Contractor provide five (5), forty (40) cubic yard Rolloff Boxes, at five (5) different locations designated by City during any event to which the Plans apply. Each such Rolloff Box shall be Collected by Contractor and delivered for disposal (or processing if appropriate) once per day during any event to which the Plans apply; and, Contractor shall not charge City or Customers for such services. The Labor Unrest Plan shall include a provision requiring weekly reports, including for periods which are defined as force majeure (i.e., labor unrest of 7 days or less), outlining any Customers who did not receive all services required by this Agreement, specifying which services were not provided, and, in the event services are provided in an untimely manner, listing the Customers who received late services and specifying the services provided late as well as the date upon which services were provided.
SECTION 32.
GENERAL PROVISIONS
32.1 Independent Contractor
Contractor is an independent contractor and not an officer, agent, servant, or employee of City. Contractor is solely responsible for the acts and omissions of its officers, agents, employees, 384/036753-0091
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and subcontractors, if any. Nothing in this Agreement shall be construed as creating a partnership or joint venture between City and Contractor. Neither Contractor nor its officers, employees, agents, or subcontractors shall obtain any rights to retirement or other benefits which accrue to City employees.
32.2 Pavement Damage
Contractor shall be responsible for the cost of repair of any extraordinary damage to the public streets located within the City resulting from providing the Solid Waste Handling Services required hereunder, including specifically, without limitation, damage caused to pavement by fluids leaking from Collection Vehicles.
32.3 Property Damage
Any physical damage caused by the negligent or willful acts or omissions of employees, agents, or subcontractors of Contractor, to private or public property, shall be promptly repaired or replaced at Contractor’s expense.
32.4 Right of Entry
Contractor shall not have the right, until Contractor receives permission from the property owner, to enter or drive on any private street, court, place, easement, or other private property for the purpose of providing Solid Waste Handling Services pursuant to this Agreement.
32.5 Law to Govern; Venue.
The laws of the State of California shall govern this Agreement without reference to its conflicts of laws principles. In the event of litigation between the Parties, venue in state trial courts shall lie exclusively in the County of Orange.
32.6 Notices
All notices required or permitted to be given under this franchise shall be in writing and shall be personally delivered, electronically delivered, or sent by United States certified mail, postage prepaid, return receipt requested, and addressed as follows:
To City: City of Fullerton
Attn: City Manager
303 W. Commonwealth Ave
Fullerton CA 92832
Email: ______________________
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With a copy to: City of Fullerton
Attn: City Clerk
303 W. Commonwealth Ave
Fullerton CA 92832
Email:________________________
To Contractor:
or to such other address as either Party may from time to time designate by notice to the other given in accordance with this Section. Notice shall be deemed given on the date served or delivered electronically if served personally or electronically between the hours of 8:00 a.m. to 5:00 p.m. on any regular business day for City’s business offices. If mailed, notice shall be deemed given three (3) business days from the date such notice is deposited in the United States mail in the manner proscribed above.
32.7 Savings Clause
If any provision of this Agreement is for any reason held to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the validity and enforceability of any of the remaining provisions of this Agreement.
32.8 Exhibits Incorporated
Exhibits A through E are attached to and incorporated in this Agreement by reference.
32.9 Joint Drafting
This Agreement shall be interpreted as if it were drafted jointly by the Parties to the Agreement.
32.10 Attorneys’ Fees and Litigation Costs
In the event either Party brings any action or proceeding to enforce or interpret the terms or provisions of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable attorneys’ fees and other litigation costs and expenses, including without limitation expert witness fees, consultant fees and costs. Without limiting its scope in any way, this provision is expressly intended to, and shall, apply to fees and costs incurred in any appeal.
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32.11 City’s Authorized Agent
Notwithstanding anything contained herein to the contrary, and excepting amendments hereto and such actions set forth herein specifically calling for City Council action or approval, the City Manager is designated as the City’s authorized agent to take any action with regard to any matter, or enforce any right, set forth herein requiring or authorizing action by the City.
32.12 Integrated Agreement
This Agreement contains the entire integrated agreement and understanding concerning the subject matter herein and supersedes and replaces any prior negotiations, promises, proposals, and agreements between the Parties, whether written or oral. The Parties acknowledge this document has been executed with the consent and upon the advice of counsel. Each of the Parties acknowledges that no party or agent or attorney of any other Party has made any promise, representation, or warranty, express or implied, not contained in this Agreement, to induce the other party to execute this instrument.
32.13 Section Headings
The 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.
32.14 Compliance with Law
In providing the services required under this Agreement, Contractor shall at all times, at its sole cost, comply with all Applicable Laws, including the laws and regulations of the United States, the State of California, the provisions of the Municipal Code, and any federal, state, regional or local administrative and regulatory agencies, now in force and as they may be enacted, issued or amended.
[Signatures on Next Page]
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“City”
CITY OF FULLERTON, a California
municipal corporation
By:
, Mayor
ATTEST:
By:
, City Clerk
APPROVED AS TO FORM:
By:
, City Attorney
“Contractor”
.
By:
Its:
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EXHIBIT A
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EXHIBIT A
MAXIMUM RATE SCHEDULE FOR SOLID WASTE HANDLING SERVICES:
TO BE CREATED BASED ON SUCCESSFUL PROPOSAL
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EXHIBIT B
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EXHIBIT B
DOWNTOWN DISTRICT MAP/LIST
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EXHIBIT C
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EXHIBIT C
APPROVED FACILITIES
TO BE CREATED BASED ON SUCCESSFUL PROPOSAL
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EXHIBIT D
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EXHIBIT D
SCOPE OF SERVICES
BASED ON SUCCESSFUL PROPOSAL
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EXHIBIT E
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EXHIBIT E
CITY HOT SPOTS