AGENDA
CITY OF GUSTINE
CITY COUNCIL
SPECIAL MEETING
PCORPORATED NOVAT COUNCIL CHAMBERS, CITY HALL
352 5' STREET GUSTINE, CALIFORNIA
Teleconference Line 1(872)240-3212 Access code: 528-193-397 MARCH 21, 2022 - 6:00 P.M.
In accordance with State and County "stay-home" orders and in an effort to protect public health and prevent the spread of COVID-19 (novel coronavirus), the City of Gustine will conduct the City Council meeting in accordance with California Assembly Bill 361 as follows:
1. Council Chambers at City Hall will be closed to the public. The City Council encourages the public to join the meeting from your computer, tablet or smartphone by following the link: https://global.gotomeeting.com/join/528193397 or via telephone by dialing (872) 240-3212, access code: 528-193-397.
2. Members of the public who wish to comment on matters before the Council, in lieu of doing so in person, may do so by joining the meeting virtually or by dialing in via telephone. Members of the public who choose to use the teleconference line are urged to place themselves on MUTE while listening in order to reduce static and background noise. Alternatively, members of the public may provide comment on an item by submitting an email to the City Clerk at: [email protected]. Email comments will be read aloud at the meeting and included in the record, and will be subject to the same three (3) minute time limit when read aloud. Please include the agenda item in the subject line of the email. All email comments must be received by 5:00 p.m. on Monday, March 21, 2022 to be included in the meeting.
3. If you have questions or require accommodation, please contact the City Clerk's office at (209) 854-9407 as soon as possible.
CALL TO ORDER - PLEDGE OF ALLEGIANCE
Please take a moment to silence your cell phones.
ROLL CALL
Council Members: Bonta - Brazil - Ford - Mayor Pro Tem Alexander - Mayor Nagy
PRESENTATIONS
PUBLIC COMMENT
At this time, any person may comment on any item which is not on the agenda. PLEASE STATE YOUR NAME FOR THE RECORD. Action will not be taken on the topic unless deemed an urgency matter by a 3/5 vote of the City Council. Topics not considered an urgency matter may be referred to City staff and/or placed on a subsequent agenda for consideration, by a 3/5 vote of the City Council.
Members of the public, who have questions or comments regarding a specific agenda item, may comment on that item before consideration of that item, when recognized by the Mayor.
ADMINISTRATIVE AGENDA
1. Consider Authorizing City Manager to Execute Task Order for Services for Waste Water Treatment Plant Operation
1. Receive Staff Report
2. Receive Public Comment
3. Consider a motion to authorize the City Manager to execute task order for Waste Water Treatment Plant Operator services
2. Consider Resolution Awarding Exclusive Franchise Agreement for Collection and Disposal of Solid Waste
1. Receive Staff Report
2. Receive Public Comment
3. Consider a motion to approve the resolution
CLOSED SESSION PUBLIC COMMENT
Are there any items on the closed session calendar that any member of the public would like to comment on?
CLOSED SESSION
1. PUBLIC EMPLOYEE PERFORMANCE EVALUATION
Pursuant to Section 54957. TITLE: City Attorney
2. CONFERENCE WITH LABOR NEGOTIATOR- Pursuant to Government Section 54957.6 Agency Negotiator: City Manager:
Unrepresented Employee: Deputy City Clerk/Human Resources Director
3. CONFERENCE WITH LABOR NEGOTIATOR- Pursuant to Government Section 54957.6 Agency Negotiator: City Manager:
Unrepresented Employees: Public Works Manager
CONFERENCE WITH LABOR NEGOTIATOR- Pursuant to Government Section 54957.6 Agency Negotiator: City Manager:
Unrepresented Employees: City Manager
ADJOURNMENT
Note:
1. In compliance with the Americans with Disabilities Act, a disabled person requesting a disability-related modification or accommodation to participate in this meeting, must contact City Hall at (209) 854-6471 or (209) 854-2127 (fax). Requests must be made as early as possible, preferably one-full business day before the start of the meeting.
2. Any document provided to a majority of the City Council regarding any open session item on this agenda is available for public inspection during normal business hours at the front counter of City Hall located at 352 5TH Street, Gustine, CA. Documents or writings received after the general distribution of the agenda are also available for inspection.
CERTIFICATION
I, Melanie Correa, Deputy City Clerk, do hereby declare under penalty of perjury that the foregoing agenda was posted at the Gustine City Hall, 352 5'h Street, Gustine CA and made available for public review on this 17th day of March, 2022, at or before 5:00 p.m.
Melanie Corred
TATE BITY CALEDIT
ITEM NO. 1
COUNCIL AGENDA ITEM
MARCH 21, 2022
PREPARED BY: Doug Dunford, City Manager
SUBJECT: City of Gustine Wastewater Treatment Plant Operation BACKGROUND/DISCUSSION:
The City of Gustine (City) owns, operates, and maintains a wastewater treatment plant (WWTP) located at the easterly end of Carnation Road. Operation of the WWTP is under the jurisdiction of the California Regional Water Quality Control Board (CRWQCB).
The City is presently in need of a California Wastewater certified grade 1 or higher operator to operate the WWTP, prepare and submit regulatory reports as required by the CRWQCB, maintain the facility, perform systems evaluation and make recommendations to the City, and assist the City with related WWTP tasks.
The City sent out a recruitment for a Waste Water Operator and received very little response and no one directly qualified for the position. Currently there are a number of cities engaging in recruitments for similar positions and everyone is experiencing a lack of qualified applicants for the positions offered.
Staff met with Mr. Gouveia regarding the possibility of contracting a qualified person.
Mr. Gouveia advised that he did have a qualified individual. Staff and Mr. Gouveia discussed the needs of the City and our requirements. Mr. Gouveia developed a task list for the operator to accomplish. This task order also allows for the operator to look at the treatment plant and make recommendations to improve and meet state standards.
The original task order allows the operator to work 40 hours a week for 3 months to get the WWTP into reasonable condition. After the initial 3 months, the operator would reduce his time to 28 - 30 hours to help maintain the WWTP. In addition to meeting the standards, the operator will also be training 1-2 City employees who have shown interest in becoming a WW Operator.
The goal is at the end of one year, either one or both of the City employees will be qualified to be the Operator and the Gouveia employee will no longer be needed.
Operators in training (OIT), a requirement in obtaining the necessary certification, need a minimum of one year "on the job" training at the WWTP to qualify for the position besides taking numerous state-proctored tests.
FISCAL IMPACT:
The fiscal impact will be in accordance with attached task order COG2022-001 and will be financed through the Sewer Fund.
RECOMMENDATION:
Staff recommends Council authorize the City Manager to enter into an additional cost for a WWTP Operator through the current agreement between Gouveia Engineering and the City and adhere to the tasks needed at the WWTP (attached).
EXHIBITS:
A) Task Order COG 2022-001
No. COG 2022-001
CITY OF GUSTINE
PO BOX 16 - 352 5TH STREET
GUSTINE CA 95322
OFFICE (209) 854-6471 - Fax (209) 854-2127
www.cityofgustine.com
TASK ORDER
CONSULTANT: Gouveia Engineering, Inc.
PROJECT: Wastewater Treatment Facilities Operation
THIS TASK ORDER, dated March 21, 2022, is an addendum to the Professional Services Agreement ("AGREEMENT") FOR City Engineer Services, dated October 01, 2009 between the City of Gustine ("CITY") and Gouveia Engineering, Inc. ("CONSULTANT").
WHEREAS, upon execution, this Task Order shall be considered a part of the AGREEMENT; and WHEREAS, this Task Order establishes the Scope of Work and compensation amounts for specific wastewater treatment facilities operation and public works support services and authorizes CONSULTANT to proceed with the project.
NOW, THEREFORE, the parties the parties mutually agree as follows:
CONSULTANT shall provide a California Wastewater Certified Grade 2 or higher Operator that will be on-site in accordance with the terms of this Task Order.
The scope of work to be performed by the operator includes, but is not limited to the following:
• Train up to two (2) Operators-In-Training (OITs)
• Serve in the capacity of Chief Plant Operator if requested by the City • Influent and effluent water quality sampling
Prepare and submit regulatory compliance documents and reports • Daily logs
• Clean bar screen a minimum of twice a week
• Weed spraying, including monthly usage form
• Update signage throughout the plant
• Mark and label all monitoring wells
Troubleshooting and systems evaluation
• Make recommendations to the Public Works Director
Be a liaison with State regulator
• Assist Public Works Director with State communication and other tasks NOW, THEREFORE, the parties the parties mutually agree as follows:
The CITY agrees to compensate CONSULTANT for the required services in accordance with the terms of payment stipulated in the AGREEMENT and this Task Order. CONSULTANT shall perform the services in the Task Order on a time and materials basis. The fees will be invoiced monthly as they are accrued, and the total fees, including reimbursable expenses, will not exceed the estimate without additional authorization. Reimbursable expenses will be invoiced in addition to professional fees and are included in the estimated fee. The cost for completion of the items of services shall be as follows:
1| Page
930.10
No. COG 2022-001
Phase 1 - Initial Three Months
40 hours per week (working days/business hours) at $90.00 per hour.
Phase 2 - After Initial Three Months
20 to 32 hours per week (working days/business days) at $100.00 per hour.
All services associated with this Task Order shall conform to the requirements of the AGREEMENT and this Task Order. The Task Order shall be completed to the satisfaction of CITY on or before March 31, 2023.
Except as herein modified, all terms and conditions in the AGREEMENT remain unchanged and are in full force and effect.
City of Gustine, CITY Gouveia Engineering, Inc. CONSULTANT By: By:
Doug Dunford Mario B. Gouveia, P.E.
Title: _City Manager Title: President
Date: Date:
2 Page
930.10
INE CITY CA ITEM NO. 2
COUNCIL AGENDA ITEM
MARCH 21, 2022
PREPARED BY: Doug Dunford, City Manager
SUBJECT: Consider Resolution to Award Solid Waste Franchise Agreement BACKGROUND/DISCUSSION:
The City recently issued a request for proposal for solid waste collection services. The City received two proposals: Mid-Valley Disposal LLC and Gilton Solid Waste Management, the incumbent hauler. After a review of the proposals, staff recommends that the City Council award the franchise agreement to Mid-Valley Disposal LLC.
The primary need for the proposed franchise is compliance with new waste diversion mandates established by State of California Senate Bill (SB) 1383. Importantly, this includes providing organic waste services to customers. Stated differently, food waste that has traditionally been landfilled must now be diverted and processed.
Both haulers proposed programs that complied with the requirements of SB 1383.
However, their approach is different. Mid-Valley Disposal proposed a three-can system where customers place solid waste, in one can, recyclables in a second, and organic waste (i.e., yard and food waste) in a third. This approach is the most common in the state, and Mid-Valley Disposal has already implemented SB 1383 programs in a number of its jurisdictions.
Gilton Solid Waste Management proposes a different method which does not segregate food waste and recyclables from solid waste. This is then subjected to a higher level of processing and sorting. Gilton's facility for this processing is still under development. In addition to their different approaches to SB 1383 compliance, there is a cost differential.
Mid-Valley Disposal's proposed rates are lower.
FISCAL IMPACT:
Mid-Valley Disposal's proposed rates are attached to this report. If approved, the City will begin a Proposition 218 process for the Council to approve the rates.
RECOMMENDATION:
To adopt by vote of the Councilmembers present, attached Resolution No. 2022-XXXX which awards the solid waste franchise to Mid-Valley Disposal LLC.
EXHIBITS:
A) Resolution 2022-XXXX
B) Draft Franchise Agreement
RESOLUTION NO. 2022-—
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GUSTINE
AWARDING AN EXCLUSIVE FRANCHISE AGREEMENT FOR
THE COLLECTION AND DISPOSAL OF SOLID WASTE
WHEREAS, the City of Gustine provides solid waste, recyclable and organic waste collection through an exclusive franchise; and
WHEREAS, the City recently conducted a request for proposals for solid waste, recyclable and organic waste collection service; and WHEREAS, Public Resources Code Section 40059 authorizes cities to award exclusive franchises for the collection of solid waste, and to determine the procedure by which such franchises will be awarded; and WHEREAS, the City wishes to award an exclusive franchise to Mid-Valley Disposal LLC.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Gustine as follows:
1. The above recitals and true and correct and shall be the findings of the City Council of the City of Gustine.
2. The City Council of the City of Gustine hereby approves and awards the Municipal Solid Waste Franchise Agreement, a copy of which is on file with the City Clerk, to Mid-Valley Disposal LLC. The City Attorney may make minor, non-substantive edits to the agreement prior to execution as necessary.
3. This Resolution is exempt from the California Environmental Quality Act as it will not have a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. (CEQA Guidelines 15378.)
4. This Resolution is effective upon its adoption.
PASSED AND ADOPTED at the special meeting of the City Council of the City of Gustine held on March 21, 2022 by the following vote:
AYES:
NOES:
ABSENT:
828859134761066.1
ABSTAIN:
Patrick Nagy, Mayor
ATTEST:
Melanie Correa, City Clerk
MUNICIPAL SOLID
WASTE FRANCHISE AGREEMENT
BETWEEN
CITY OF GUSTINE, CALIFORNIA
AND
MID-VALLEY DISPOSAL, LLC
TABLE OF CONTENTS
SECTION 1 - COVENANTS, REPRESENTATIONS AND WARRANTIES. 2 SECTION 2 - DEFINITIONS 3
SECTION 3 - GRANT AND ACCEPTANCE OF EXCLUSIVE FRANCHISE RESIDENTIAL AND COMMERCIAL FRANCHISE.. 3 SECTION 4 - TERM AND TERMINATION. 5
SECTION 5 - FRANCHISE AREA 5
SECTION 6 - SERVICES PROVIDED BY GRANTEE..... 5
SECTION 7 - OWNERSHIP OF SOLID WASTE INCLUDING RECYCLABLE MATERIALS .. 9 SECTION 8 - WASTE DELIVERY DESIGNATION .. 9
SECTION 9 - INDEMNIFICATION AND INSURANCE, AND PERFORMANCE BOND. 9 SECTION 10 - FAILURE TO PERFORM AND REMEDIES. .12
SECTION 11 - FRANCHISE TRANSFER ..15
SECTION 12 - REPORTS.. .17
SECTION 13 - COMPENSATION ...18
SECTION 14 - FORCE MAJEURE .22
SECTION 15 - OTHER PROVISIONS ..22
SECTION 16 - SEVERABILITY.. ...24
SECTION 17 - ENTIRE AGREEMENT; AMENDMENT. .24
SECTION 18 - CONSTRUCTION OF FRANCHISE.... ....24
EXHIBIT "A" - PROVIDED SERVICES ...............26
EXHIBIT "B" - SB 1383 COMPLIANCE PROGRAMS ... ...28
EXHIBIT "C" - DEFINITIONS .......31
EXHIBIT "D" - FEES ....37
MUNICIPAL SOLID WASTE FRANCHISE AGREEMENT
BETWEEN
CITY OF GUSTINE, CALIFORNIA
AND
MID-VALLEY DISPOSAL, LLC
This Franchise Agreement ("Franchise Agreement" or "Agreement") is entered into on
RECITALS
WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 ("AB 939"), has declared that it is within the public interest to authorize and require local agencies to make adequate provisions for solid waste handling within their jurisdiction; and
WHEREAS, pursuant to California Public Resources Code Section 40059 (a), the City Council has determined that that the public health, safety, and well-being require that an exclusive franchise be awarded to a qualified Solid Waste enterprise for the collection and recovery of solid waste from all residential, industrial and commercial premises in the City; and WHEREAS, in order to comply with the mandates of AB 939, SB 1383, and subsequent legislation and regulation, the City must have the ability to direct the flow of Solid Waste within the incorporated City for the purposes of reporting, processing, recovery and disposal; and WHEREAS, Grantee agrees to provide Solid Waste collection services within the City as provided for in this Franchise Agreement;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1 SECTION 1 - COVENANTS, REPRESENTATIONS AND WARRANTIES A. Covenants, Representations and Warranties of Grantee Grantee hereby makes the following covenants, representations and warranties for the benefit of the City as of the date of this Agreement.
(1) Grantee is duly organized and validly existing as a limited liability company in good standing under the laws of the State of California.
(2) Grantee has full legal right, power, and authority to execute, deliver, and perform this Agreement, and has duly authorized the execution and delivery of this Agreement. (3) Each Person signing this Agreement on behalf of Grantee has been authorized by Grantee to do so, and this Agreement has been duly executed and delivered by Grantee, and constitutes a legal, valid and binding obligation of Grantee enforceable against Grantee in accordance with its terms.
(4) To Grantee's knowledge, there is no action, suit, or proceeding before any court or governmental entity against Grantee or affecting Grantee, wherein an unfavorable decision, ruling or finding would adversely affect the validity or enforceability of this Agreement, or which would have a material adverse effect on the financial condition of Grantee.
(5) Grantee has sufficient financial resources to perform all aspects of its obligations hereunder. There has been no material adverse change in Grantee's or, if applicable, in Grantee's parent company's, financial circumstances since the date of the most recent financial statements or information, submitted to the City or reviewed by the City at the offices of Grantee.
(6) Grantee has the expert, professional, and technical capability to perform all of its obligations under this Agreement and will maintain the capability at all times during this Agreement's term.
(7) Grantee has made an independent investigation and analysis, the results of which are satisfactory to the Grantee, of the conditions and circumstances surrounding this Agreement, its content and preparation, and the work to be performed by the Grantee under this Agreement. This Agreement accurately and fairly represents the intentions of the Grantee, and the Grantee enters into this Agreement based on the findings of that independent investigation and analysis.
(8) Prior to providing any service authorized by this Agreement, Grantee will have provided to the City Manager the security instrument and certificates of insurance required by the Agreement.
(9) Prior to providing any service authorized by this Agreement, Grantee will have provided to the City Manager reasonably acceptable proof that the Grantee has obtained all necessary permits, authorizations and licenses which are required for furnishing such service.
2 B. Covenants, Representations and Warranties of the City The City hereby makes the following covenants, representations and warranties to and for the benefit of Grantee as of the date of this Agreement:
(1) The parties executing this Agreement on behalf of the City are duly authorized to do so.
This Agreement constitutes the legal, valid and binding Agreement of the City and is enforceable against the City in accordance with its terms.
The City shall reasonably consistent with its governmental duties, cooperate with Grantee in preserving the confidentiality of Grantee's proprietary information, including trade secret information, and preventing its disclosure. It will be the obligation of Grantee to designate what information it deems to be a trade secret or otherwise in need of protection at the time such information is provided to City. City shall provide Grantee with notice upon receipt of a request for the release of any proprietary information under the Public Records Act. If Grantee wishes to contest the release of such information, it shall notify City prior to the expiration of the ten-day period for the City to respond to a Public Records Act request. Upon receipt of such request, City will request a fourteen-day extension or other applicable time period under the Public Records Act. The notice is intended to afford Grantee an opportunity to seek a protective order or other action or relief to protect against the release of trade secret or proprietary information to the public. (2) The City shall use best reasonable efforts to update and amend applicable provisions of its Municipal Code to the extent the City determines, in its sole discretion, such changes are necessary to conform to this Agreement and to meet its obligations hereunder. The discretion provided to City herein does not extend to changes to the Municipal Code which have the effect of relieving the City of its obligations to Grantee under this Agreement.
SECTION 2 - DEFINITIONS
Whenever any term used in this Franchise Agreement has been defined by AB939 or in the Municipal Code, the definitions therein, as presently defined and as they may be amended in the future shall apply unless the term is otherwise defined in this Agreement. In the event of conflict between the definition found in AB939, in the City Code and this Agreement, the definition in this Agreement shall govern all other definitions, while the definition in the City Code shall take precedence over the definition contained in AB939. The definitions are set forth on the attached and incorporated Exhibit "C".
SECTION 3 - GRANT AND ACCEPTANCE OF EXCLUSIVE FRANCHISE
RESIDENTIAL AND COMMERCIAL FRANCHISE
A. Grant of Franchise
Pursuant to the provisions of the City Code and pursuant to AB939, and subject to the terms and conditions of this Agreement (including all extensions or renewals), City hereby grants to Grantee the sole and exclusive right, privilege, and franchise to provide the Solid Waste Handling services described in Exhibit "A" (Provided Services) to this Agreement to all single family units, multifamily units, and commercial, industrial, and institutional premises within the City, and to use the City streets and roads for such purpose. City shall have no obligation to enforce the exclusive rights of Grantee to provide services within the Franchise Area. City shall, however, reasonably cooperate in any enforcement activity undertaken by Grantee. Grantee shall reimburse City for 3 its third party legal and other costs and staff incurred under this subsection.
B. Acceptance of Franchise
Grantee agrees to be bound by and comply with all the requirements of this Franchise Agreement.
Grantee waives, terminates and hereby releases any right or claim to serve any part of the City under any prior grant of franchise, contract, license or permit issued or granted by any governmental entity, if any. Contractor shall reimburse the City for the cost of the Agreement solicitation, evaluation and award process in an amount equal to Fifteen Thousand Dollars ($15,000). This one-time payment is due within thirty (30) days of the Effective Date of the Agreement.
C. Exceptions to Exclusivity
The foregoing Grant of Franchise excludes the following:
(1) Self-Haul. Any Solid Waste otherwise within the Scope of this Agreement which is removed and personally transported from any premises by the owner or occupant who generated the solid waste using his or her own equipment thereof for the purpose of lawfully delivering same to a Solid Waste Facility authorized to receive and handle solid The use of a subcontractor by City is not "self-haul" within the meaning of this exception.
(2) Gardeners and Landscapers. The collection, transportation and disposal by a gardener or landscaper of green waste or yard trimmings which are generated as an incidental part of providing gardening, landscaping or landscape maintenance services, rather than as a hauling service.
(3) Sale or Gift of Recyclable Materials or Organic Materials. Source separated Recyclable Materials or Organic Materials which are either donated or sold by the generator of the materials to a party other than Grantee. A mere discount or reduction in price of the Grantee's charges for the collection and handling of such materials is not a sale or donation within the meaning of this Agreement. For purposes of this Agreement, materials shall be deemed "solid waste" within the meaning of California Public Resources Code Section 40191, and shall be regulated as such, whether or not they may be potentially recyclable, in either of the following instances: (a) when the material is mixed or commingled with other types of solid waste, or (b) where the payment of a fee, charge, or other consideration, in any form or amount, is directly or indirectly solicited or received from the generator by any person or combination of persons in exchange for collection, removal, transportation, storage, processing, handling, consulting, container rental or disposal services ("fee for service" recycling), whether or not arranged by or through a subcontractor, broker, agent, consultant, or affiliate of the provider of such service. (4) Edible food recovered for human consumption.
(5) Other persons with the right to provide Solid Waste Handling services to the extent required by Public Resources Code Section 49520 and other applicable law, if any. 4 SECTION 4 - TERM AND TERMINATION
The initial term of this Agreement shall commence at 12:00 a.m. on July 1st 2022 and expire at 12:00 a.m. on June 30, 2032 unless mutually extended. Termination of this Agreement may also occur pursuant to the section "Failure to Perform and Remedies," hereafter stated in this Agreement.
SECTION 5 - FRANCHISE AREA
The Franchise Area granted by this Agreement is the legally established geographic limits of the City, as the same now exist or may hereinafter be revised by annexation or otherwise. Grantee shall perform Solid Waste Handling services pursuant to this Agreement only in such Franchise Area. Notwithstanding the foregoing, the Franchise Area shall include any annexed territory subject to the provisions of Public Resources Code Section 49520. In such event, this Agreement shall become effective as to such area at the earliest possible date permitted by law, and City agrees that it shall cooperate with Contractor to fulfill any requirement necessary for Contractor to serve the annexed area consistent with this paragraph.
SECTION 6 - SERVICES PROVIDED BY GRANTEE
The following minimum operating requirements shall apply to Grantee, except to the extent any operating requirement is specifically eliminated or modified in Exhibit "A":
A. Employees
(1) Contractor shall furnish such qualified drivers, mechanical, supervisory, clerical, management and other personnel as may be necessary to provide the services required by this Agreement in a satisfactory, safe, economical and efficient manner. Each employee or other Person driving Grantee's vehicle shall at all times have a valid California vehicle operator's license appropriate for the vehicle being driven. (2) All Grantee employees shall wear clean clothing of a uniform type when engaged in collection operations under this Agreement.
(3) Contractor shall provide suitable operations, health and safety training on an ongoing basis for all of its drivers and other employees who use or operate equipment or who are otherwise directly involved in Handling or other related operations. (4) Each employee dealing with Customers, including without limit those engaged in collection or billing, shall at all times behave in a courteous manner. If any employee is found to be discourteous or not to be performing services in the manner required by this Agreement, Contractor shall take all necessary corrective measures including, but not limited to, transfer, discipline or termination.
(5) Contractor shall provide its employees, companies and subcontractors with identification for all individuals who may make personal contact with residents or businesses in City.
Contractor shall provide a list of current employees, companies, and subcontractors to City upon request. The City reserves the right to perform a security and identification check through its Police Department upon Contractor and all its present and future 5 employees that perform work within the City limits, in accordance with accepted procedures established by the City, or for probable cause. (6) Noncompliance with the employee items above are subject to the terms of Section 10, Failure to Perform and Remedies.
B. Hours of Collection
Grantee shall not collect Solid Waste within a residential area or within a commercial area which is contiguous to a residential area between the hours of 10:00 P.M. and 5:00 A.M. the next day.
C. Office for Inquiries and Complaints
City shall receive customer inquiries and complaints and transmit any service requests or complaints to Grantee electronically or via other mutually agreed upon method. Contractor shall log all complaints received by telephone or electronically and said log shall include the date and time the complaint was received, name, address, email address, and telephone number, description of complaint, employee recording complaint and the action taken by Contractor to respond to and remedy complaint. Missed pickups shall be included in this log. All customer complaints and inquiries shall be date-stamped when received and shall be initially responded to within one (1) business day (excluding Saturday, Sunday and holidays) of receipt. Contractor shall log action taken by Contractor to respond to and remedy the complaint. Grantee shall maintain an office at some fixed place within twenty five miles of the City and keep regular business hours and shall maintain a locally listed telephone number. Such listing shall be in the Grantee's name or in the fictitious business name under which Grantee provides Solid Waste Handling services to the Franchise Area. This Section shall not require the Grantee to maintain an office which is different than or separate from the office for inquiries and complaints maintained by Grantee. All customer service records and logs kept by Contractor shall be available to City upon request and at no cost to City. Disputes between Contractor and its customers regarding the services provided in accordance with this Agreement may be resolved by the City. The City's decision shall be final and binding.
D. Records and Reports
Grantee shall prepare, maintain and provide to the City such records and reports as required in this Agreement, as well as records related to services in this agreement required under any other applicable law.
E. Requested Service
Grantee shall provide Solid Waste Handling services to all Customers within its approved Franchise Area who request such service, except when denial or discontinuance of service is specifically authorized by this Agreement. Such service shall commence within five (5) working (waste collection) days of the Customer's request.
F. Collection Frequency
For health and safety purposes, minimum collection frequency for all Solid Waste Handling Customers shall be once per week, in accordance with Section 17331 of Title 14, California Code of Regulations. Grantee shall correct any missed collection of a Customer's Solid Waste the same day if notified by 12:00 pm and the next working (waste collection) day if notice is received after 12:00 pm.
6 G. Containers
In addition to any requirement Grantee is subject to under its Health and Safety Permit, each container shall be replaced in its proper place in a neat and orderly manner; any litter spilled from a container by Grantee's employees while emptying a container shall be cleaned up by Grantee's employees.
H. Noise
In addition to any requirement Grantee is subject to under applicable law, Grantee shall not create any noise in excess of what is reasonable and necessary in providing Solid Waste Handling services to its Customers. Equipment shall comply with US EPA noise emission regulations, currently codified at 40 CFR Part 205 and other applicable noise control regulations, and shall incorporate noise control features throughout the entire vehicle. Noise levels of equipment used for Handling shall comply with City ordinance and in no event shall the noise level exceed 75 dba when measured at a distance of 25 feet from the vehicle, five feet from the ground. Further, Grantee shall actively evaluate and strive to implement noise reduction measures on an ongoing basis, consistent with common industry practice and standards applicable in similar circumstances.
1. Collection Equipment
Grantee shall provide an adequate number of vehicles and equipment to provide the Solid Waste Handling services required under its Franchise Agreement. No vehicle shall be used for the collection and transportation of Solid Waste prior to such initial and/or periodic inspection and approval by the Department of Public Health, Division of Environmental Health Services to the extent required under the Grantee's applicable Health and Safety Permit.
All motor vehicles used by Grantee under its Franchise Agreement shall be registered with the Department of Motor Vehicles of the State of California, shall be kept clean and in good repair, and shall be uniformly painted. In addition, vehicles must be in compliance with the California Air Resources Board requirements and any other applicable state or federal laws and/or regulations pertaining to the operation of Solid Waste handling equipment.
J. Privacy
Grantee shall strictly observe and protect the rights of privacy of its Customers. Information identifying individual Customers or the composition or contents of a Customer's waste stream shall not be revealed to any Person, governmental unit, private agency, or company, unless as part of a legitimate inquiry by a governmental unit, or as authorized by a court of law or by statute, or upon written authorization of the Customer. This provision shall not be construed to preclude Grantee from preparing, participating in, or assisting in the preparation of waste characterization studies or waste stream analyses which may be required by AB 939, or the City, provided that no such analysis shall identify any person or connect any person to any particular waste. In addition, Grantee shall not market, sell, convey, or donate to any Person any list with the name or address of Customers except that Grantee may provide such lists to authorized employees and authorized representatives of the City as necessary to comply with this Franchise Agreement. Grantee shall, at all times and consistent with prevailing industry standards, utilize encryption or other security measures reasonably calculated to protect Customer information from unauthorized disclosure. 7 Grantee shall provide the City with any Customer information upon request subject to customers' privacy rights, if any..
K. Customer Complaints
Grantee shall respond to customer complaints whether received directly from customers, or by customer through City. Grantee shall designate a government liaison Person responsible for working with the City to resolve Customer complaints. The name of the liaison Person and a 24 hour availability telephone number shall be provided to the City Manager. Customer complaints shall be resolved in accordance with Section 6(C).
L. Property Damage
(1) Any physical damage caused by the act or omissions of employees, officers, or agents of the Grantee to private or public property resulting from operations under this Agreement shall be promptly repaired or replaced by Grantee at Grantee's sole expense. (2) With respect to driving surfaces, Grantee shall be responsible for damage (excluding normal wear and tear), whether or not paved, resulting from the weight of vehicles providing Solid Waste Handling services on public or private property when it can be demonstrated that such damage is the result of vehicles exceeding speed limits or maximum weight limits set by the State of California or by other negligent operation of vehicles by Grantee's employees.
M. Gratuities
Grantee shall not, nor shall it permit any officer, agent, or employee employed by it, to request, solicit or demand, either directly or indirectly, any gratuity for services authorized or required under its Agreement.
N. Laws and Licenses
Grantee shall comply with all federal, state, and City, County or local laws, ordinances, rules, and regulations applicable, from time to time and as amended, to the performance of the Solid Waste Handling services provided under this Franchise Agreement and shall obtain and maintain in full force and effect all licenses and permits necessary to perform such services throughout the term of this Franchise Agreement.
O. Services During Strikes, Lockouts or Other Labor Disturbances In the event of labor strikes, lockouts, or other labor disturbances, Grantee and City agree to cooperate tully in developing and implementing contingency plans for the continued collection and handling of Solid Waste in order to safeguard public health and avert imminent and substantial threats to public health and safety. Without limitation, these cooperation efforts may include prioritizing the collection of Solid Waste from certain businesses in order to control the accumulation of Solid Waste that may lead to more immediate threats to public health such as putrescible waste, sewage sludge, and manure or other animal waste. This subsection is intended to minimize the disruptions due to labor strikes, lockouts, or other labor disturbances and does not modify or limit the City's remedies for Contractor's failure to provide services in this Agreement, including, but limited to, liquidated damages. 8 SECTION 7 - OWNERSHIP OF SOLID WASTE INCLUDING RECYCLABLE
MATERIALS
Except as otherwise provided in state law, ownership of Solid Waste shall transfer to Grantee at such time as the Solid Waste is discarded by the Solid Waste Handling service Customer. City makes no claim of ownership to the discarded solid waste.
SECTION 8 - WASTE DELIVERY DESIGNATION
City reserves the right to designate the disposal facility or facilities to which Grantee shall deliver Solid Waste generated within City and collected by Grantee pursuant to this Agreement. This designation, when made, shall be subject to the following:
(1) Solid Waste that Grantee determines to be suitable for Processing or green composting may be delivered by Grantee to a Materials Recovery Facility or Designated Source Separated Organic Waste Facility selected by Grantee, and only the Residual Solid Waste resulting from Processing will be subject to the waste delivery designation. (2) If the City Manager or his/her designee directs Grantee to deliver residual Solid Waste collected pursuant to this Agreement to a Solid Waste Facility that is different from the facility Grantee is then using for the disposal of such waste, or in amounts that are different than the amount that Grantee is currently delivering to that facility, and this direction results in increased operating costs to the Grantee, Grantee shall be entitled to a corresponding Rate adjustment to fully compensate Grantee for the demonstrated increased costs, supporting documentation for which shall be provided by Grantee.
SECTION 9 - INDEMNIFICATION AND INSURANCE, AND PERFORMANCE BOND A. Indemnification of City
The Grantee agrees to indemnify, defend (with counsel chosen by City) and hold harmless the City and its authorized elected officials, officers, employees, contractors, consultants, attorneys, agents and volunteers from any and all claims, actions, losses, damages, and/or liability arising out or in connection with (i) violations of the commerce clause of the U.S. Constitution, AB 939, the Comprehensive Environmental Response, Compensation and Liability Act, Title 42 U.S.C. §9601 et seq. ("CERCLA"), HSAA, RCRA, any other Hazardous Waste laws, other federal, state or local statutes or regulations, or municipal ordinances, which arise from, challenge any validity of, or relate to the award of, this Agreement; (ii) the negligent performance of the work or services of Contractor, its agents, employees, subcontractors, or invitees, provided for in this Agreement; (iii) Contractor's failure to perform any term, provision, covenant or condition of this Agreement, employees, who are directly responsible to the City, (iv) the willful misconduct of Contractor in performance of or failure to perform this Agreement, (v) actions or proceedings to attack, set aside, void, annul or seek monetary damages resulting from an approval by the City of this Agreement, including but not limited to any challenge brought by referendum or to challenge the City's entry into this Agreement. Contractor's obligations under subsection (v) shall include reimbursing the City for its direct costs of conducting any election on a referendum or similar petition.
Hazardous Waste Indemnification
Without limiting the generality of the foregoing, Grantee shall indemnify, defend with counsel chosen by City, protect and hold harmless the City and its respective elected officials, officers, employees, contractors, consultants, attorneys, agents, volunteers, assigns, and any successor or successors harmless from and against all claims, actual damages including, but not limited to, special and consequential damages), natural resources damage, punitive damages, injuries, costs, response remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties, and expenses (including, but not limited to, attorneys' and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted against, City or its respective officers, employees, agents, or Grantees arising from or attributable to any repair, cleanup or detoxification, or preparation and implementation of any removal, remedial response, closure or other plan (regardless of whether undertaken due to governmental action) concerning any Hazardous Waste as to which Grantee collected, handed or transported pursuant to this Franchise Agreement, whether knowingly or unknowlingly. The foregoing indemnity does not extend to liability arising from de minimis amounts of household hazardous waste that Customers may place in solid waste receptacles, and excludes liability arising from City's decision to exercise its waste delivery designation rights under Section 8 of this Agreement. The foregoing indemnity is intended to operate and shall operate as an agreement pursuant to Section 107(e) of the Comprehensive Environmental Response, Compensation and Liability Act, "CERCLA", 42 U.S.C.
Section 9607(e) and California Health and Safety Code Section 25364, to insure, protect, indemnity, and hold the City harmless from liability. This Section 9B shall survive the termination, lapse or any change in the relationship of the Parties hereto.
B. Insurance Requirements
Insurance Requirements
(1) Commercial General Liability
i. Contractor shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than five million dollars ($5,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence Contractor's general liability policies shall be primary and shall not seek contribution from the City's coverage, and be endorsed using Insurance Services Office form CG 20 10 (or equivalent) to provide that City and its officers, officials, employees, and agents shall be additional insureds under such policies.
Any failure to comply with reporting provisions of the policies by Contractor shall not affect coverage provided the City.
10 ili. Coverage shall state that Contractor insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
iv. Coverage shall contain a waiver of subrogation in favor of the City. (2) Business Automobile Liability
Contractor shall provide auto liability coverage for owned, non-owned, and hired autos using ISO Business Auto Coverage form CA 00 01 (or equivalent) with a limit of no less than five million dollars ($5,000,000) per accident.
(3) Workers' Compensation and Employers' Liability
i. Contractor shall maintain Workers' Compensation Insurance and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000). Contractor shall submit to City, along with the certificate of insurance, a waiver of subrogation endorsement in favor of City, its officers, agents, employees, and volunteers. (4) Environmental Pollution Liability:
i. $1,000,000 per occurrence and $3,000,000 aggregate, with five (5) years tail coverage.
Coverage shall include bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants resulting from Contractor's operations.
(5) All Coverages
i. Each insurance policy required by the agreement shall be endorsed to state that coverage shall not be suspended, voided, cancelled, or reduced in limits except after thirty (30) days' prior written notice has been given to the City, except that ten (10) days' prior written notice shall apply in the event of cancellation for nonpayment of premium. ii. All self-insurance, self-insured retentions, and deductibles must be declared and approved by the City.
ill. Evidence of Insurance - Prior to commencement of work, the Contractor shall furnish the City with certificates, additional insured endorsements, and waivers of subrogation evidencing compliance with the insurance requirements above. The Contractor must agree to provide complete, certified copies of all required insurance policies if requested by the City.
iv. Acceptability of Insurers - Insurance shall be placed with insurers admitted in the State of California and with an A.M. Best rating of A- VIl or higher.
V. Subcontractors and Consultants - A category of risk and the applicable insurance requirements will be determined on a "per subcontractor" or "per consultant" basis, considering the particular work to be done by the subcontractor or consultant and the interrelationship of that work to other work being conducted by the Contractor. 11 C. Performance Guarantee
Contractor's duty to defend and indemnify herein includes all fines and/or penalties imposed by CalRecycle, if the requirements of AB 939, AB 341, AB 1826, and/or SB 1383 are not met by the Contractor with respect to the Contractor's obligations under this Agreement, and such failure is:
(i) due to the failure of Contractor to meet its obligations under this Agreement; or, (i) due to Contractor's delay in providing information to City that prevents Contractor or City from submitting reports to CalRecycle in a timely manner. Grantee makes no guarantee as to the results of the programs implemented to meet the requirements of the foregoing laws, only that said programs are designed, and will be implemented in a manner, that is intended to meet the requirements of applicable law..
D. Performance Bonds or Other Security
Grantee shall furnish to the City without additional charge a corporate surety bond, a letter of credit or other security device acceptable to the City in City's sole discretion, as security for performance under this Franchise Agreement (collectively "Security"). The amount of the Security shall be the lesser of one month's expected Gross Receipts Less Disposal Charge, or Five Hundred Thousand Dollars ($500,000.00). Adequate proof of the existence of the Security shall be provided (e.g., a certificate from the surety showing that the bond premiums have been paid in full shall accompany the bond and each renewal thereof). The surety on the bond, the bank on which the letter of credit is drawn and the surety for any other Security device shall be a company acceptable to the City and shall be authorized to do business in the State of California.
E. Modification
The requirements of this Section 9 may be modified or waived in writing by the City upon the request of Grantee, and in the City's sole discretion.
SECTION 10 - FAILURE TO PERFORM AND REMEDIES
A. Termination.
The City may terminate this Agreement, except as otherwise provided below in this Section, upon the happening of any one of the following events:
(1) Contractor takes the benefit of any present or future insolvency statute, or makes a general assignment for the benefit of creditors, or files a voluntary petition in bankruptcy (court) or a petition or answer seeking an arrangement for its reorganization or the readjustment of its indebtedness under the Federal bankruptcy laws or under any other law or statute of the United States or any State thereof, or consent to the appointment of a receiver, trustee or liquidator of all or substantially all of its property; or
12 (2) By order or decree of a court, Contractor is adjudged bankrupt or an order is made approving a petition filed by any of its creditors or by any of the stockholders of Contractor, seeking its reorganization or the readjustment of its indebtedness under the Federal bankruptcy laws or under any law or statute of the United States or of any State thereof, provided that if any such judgment or order is stayed or vacated within sixty (60) calendar days after the entry thereof, any notice of default will be and become null, void and of no effect; unless such stayed judgment or order is reinstated in which case, such default will be deemed immediate; or
(3) By, or pursuant to, or under the authority of any legislative act, resolution or rule or any order or decree of any court or governmental board, agency or officer having jurisdiction, a receiver, trustee or liquidator takes possession or control of all or substantially all of the property of Contractor, and such possession or control continues in effect for a period of sixty (60) calendar days; (4) Contractor has defaulted, by failing or refusing to pay in a timely manner the damages or other monies due City and such default is not cured within thirty (30) calendar days of receipt of written notice by City to do so; or (5) Contractor has defaulted by allowing any final judgment for the payment of money owed to City to stand against it unsatisfied and such default is not cured within thirty (30) calendar days of receipt of written notice by City to do so; or (6) In the event that the monies due City or an unsatisfied final judgment is the subject of a judicial proceeding, Contractor will not be in default if the sum of money is bonded. All bonds must be in the form acceptable to the City Attorney; Or
(7) Contractor has defaulted, by failing or refusing to perform or observe the terms, conditions or covenants in this Agreement or any of the rules and regulations promulgated by City pursuant thereto or has wrongfully failed or refused to by chanels this Ag comply with the instructions of the Manager relative thereto and such default is not cured within thirty (30) calendar days of receipt of written notice by City to do so, or if by reason of the nature of such default, the same cannot be remedied within thirty (30) calendar days following receipt by Contractor of written demand from City to do so, Contractor fails to commence the remedy of such default within such thirty (30) calendar days following such written notice or having so commenced fails thereafter to continue with diligence the curing thereof (with Contractor having the burden of proof to demonstrate (a) that the default cannot be cured within thirty (30) calendar days, and (b) that it is proceeding with diligence to cure such default, and such default will be cured within a reasonable period of time). However, notwithstanding anything contained herein to the contrary, for the failure of Contractor to provide Handling services for a period of three (3) consecutive collection days, City may 13 secure Contractor's records on the fourth (4th) collection day in order to provide interim Handling services until such time as the matter is resolved and Contractor is again able to perform pursuant to this Agreement; provided, however, if Contractor is unable for any reason or cause to resume performance at the end of thirty (30) calendar days all liability of City under this Agreement to Contractor will cease and this Agreement may be terminated by City.
(8) Violations. Notwithstanding the foregoing and as supplemental and additional means of termination of this Agreement, in the event that Contractor's record of performance shows that Contractor has defaulted in the performance of any of the covenants and conditions required herein to be kept and performed by Contractor three (3) or more times in any twenty-four (24) month period, and regardless of whether the Contractor has corrected each individual condition of default, Contractor will be deemed a "habitual violator" will be deemed to have waived the right to any further notice or grace period to correct, and all such defaults will be considered cumulative and collectively will constitute a condition of irredeemable default. City will thereupon issue Contractor a final warning citing the circumstances therefore, and any single default by Contractor of whatever nature, subsequent to the occurrence of the last of such cumulative defaults, will be grounds for immediate termination of the Agreement. In the event of any such subsequent default, City may terminate this Agreement upon giving of written final notice to Contractor, such cancellation to be effective upon the date specified in City's written notice to Contractor, and all contractual fees due hereunder plus any and all charges and interest will be payable to such date, and Contractor will have no further rights hereunder. Immediately upon the specified date in such final notice Contractor must cease any further performance under this Agreement.
B. Procedure
The City Council may only terminate the Agreement for the City. Prior to termination, the City shall provide Contractor with at least thirty days advance notice of any agenda or similar item to consider terminating this Agreement. If the Council terminates the Agreement, it shall provide written notice to the Contractor which shall include the effective date of such termination.
C. Effective Date.
In the event of any the events specified above, and except as otherwise provided in such subsections, termination will be effective upon the date specified by the City Council and upon such date this Agreement will be deemed immediately terminated and upon such termination, except for payment of services rendered up to and including the date of termination, all liability of City under this Agreement to Contractor will cease, and City will 14 have the right to call the performance bond and will be free to negotiate with other contractors for the operation of interim and long-term Handling service. Contractor must reimburse City for all direct and indirect costs of providing any interim Handling services as a result of Contractor's default in this Agreement.
B. Termination Cumulative.
City's right to terminate this Agreement is cumulative to any other rights and remedies provided by law or by this Agreement, including any liquidated damages imposed under Exhibit E
C. Alternative Service.
Should Contractor, for any reason, except the occurrence or existence of any of the events or conditions set forth in Section 14, refuse or be unable for a period of more than Torty-eight (48) hours, to collect a material portion or all of the Solid Waste which it is obligated under this Agreement to collect, and as a result, Solid Waste should accumulate in City to such an extent, in such a manner, or for such a time that the City Manager, in the reasonable exercise of the City Manager's discretion, should find that such accumulation endangers or menaces the public health, safety or welfare, then City will have the right to Agreement with another Solid Waste enterprise to Collect any or all Solid Waste which Contractor is obligated to collect pursuant to this Agreement. City must provide twenty-four (24) hours prior written notice to Contractor during the period of such event, before contracting with another Solid Waste enterprise to collect any or all Solid Waste that Contractor would otherwise collect pursuant to this Agreement for the duration of period during which Contractor is unable to provide such services. In such event, Contractor must undertake commercially reasonable efforts to identify sources from which such substitute Solid Waste services are immediately available and must reimburse City for all of its expenses for such substitute services during period in which Contractor is unable to provide Collection services required by this Agreement.
SECTION 11 - FRANCHISE TRANSFER
The rights of the Grantee in regard to the transferability of its Franchise shall be as set forth below:
(1) Neither this Franchise Agreement nor any right or privilege granted in this Agreement shall voluntarily or involuntarily be transferred, sold, hypothecated, subcontracted, assigned or leased, in whole or in part, nor shall title thereto, either legal or equitable, or any right, interest, or property therein (all collectively referred to herein as "transfer"), pass to or vest in any Person, except the Grantee, either by act of the Grantee or by operation of law, without the prior written consent of the City. Any attempt by Grantee, or by operation of law, to transfer this Franchise Agreement without the prior written consent of the City shall be void and deemed a material breach of this Agreement. Grantee shall be responsible for the actions and omissions of any subcontractor or transferee. 15 (2) This Franchise Agreement shall terminate on any Change in Ownership of Grantee, unless such Change in Ownership has been consented to, in writing, by the City prior to the effective date of such Change in Ownership.
(3) The City shall review a request by Grantee that the City approve a transfer of all or part of Grantee's interest in this Franchise Agreement, or that the City consent to a Change in Ownership of Grantee, using such criteria as it deems necessary including, but not limited to, those listed below. The City may reasonably withhold its consent to the transfer of this Franchise Agreement or to any Change in Ownership of Grantee.
If the Grantee requests that the City consider and consent to a transfer or a Change in Ownership of Grantee, the Grantee or the proposed transferee, as applicable, shall at a minimum meet each of the following requirements:
i. The Grantee shall pay the City a maximum of $150,000.00 for incurred attorney's fees and related administrative and investigation costs necessary to determine the suitability of any proposed transferee or proposed new owners, and to review and finalize any documentation required by City, in its sole and absolute discretion to determine what form of documentation will be used in terms of effecting a proper transfer, as a condition for approving any such transfer or Change in Ownership.
ii. The Grantee shall furnish the City with independently audited financial statements of the proposed transferee's operations for the immediately preceding three (3) operating years.
ili. The Grantee shall furnish the City with proof satisfactory to City, in its sole and absolute discretion:
• that the proposed transferee or the proposed management of the Grantee under the proposed new owner has at least three (3) years of solid waste management experience of a scale equal to or exceeding the scale of operations conducted by Grantee under this Agreement; that in the last five (5) years, the proposed transferee or any company managed by the proposed new owner (or by the proposed management of the Grantee under the proposed new owner) has not received any citations, Notice of Violations or other censure from any federal, state or local agency having jurisdiction over its waste management operations due to any failure to comply with state, federal or local waste management laws, where such failure either: (i) evidences a pattern of disregard for such state, federal or local waste management laws; or (i) involves actions which endangered the lives or property of any Person Grantee shall supply the City with a complete list of such citations, Notices of Violations and censures, if any;
that the proposed transferee or any company managed by the proposed new owner (or by the proposed management of the Grantee under the proposed new owner) has at all times conducted its operations in an 16 that the proposed transferee or any company managed by the proposed new owner (or by the proposed management of the Grantee under the proposed new owner) conducts its solid waste management operations in accordance with sound waste management standards and practices and in full compliance with all federal, state and local laws regulating the collection and disposal of waste;
• of the adequate financial strength of proposed transferee or of the Grantee under the proposed new ownership; and
of the ability of the proposed transferee or of the Grantee under the proposed new ownership to obtain and maintain required insurance and bonds.
SECTION 12 - REPORTS
Grantee shall provide the City Manager with such reports and information and make its records available for review as provided below:
A. General
(1) Grantee shall keep, and, maintain, and furnish copies of such operating records and reports as may be requested by City to ascertain compliance with this Agreement, and support requests for a Rate adjustment. City and Grantee agree that Grantee's financial data and operational records shall remain confidential with respect to third parties, and shall be protected from disclosure to the extent they contain proprietary information, including trade secrets, whether or not designated as such by Grantee. (2) All information required to be kept, maintained or furnished to the City shall be maintained a minimum of five (5) years after the entry of the most recent item therein; B. Reporting Requirements
During the term of this Franchise Agreement, Grantee shall submit to the City quarterly, and more often if required by law, information reasonably required by City to meet its reporting obligations imposed by AB 939 and AB 901, as amended, and the regulations implementing each, in a manner acceptable to City. Grantee agrees to submit such reports and information as reasonably requested by the City. Grantee agrees to render all reasonable cooperation and assistance to the City in meeting the requirements of the City's source reduction and recycling element and non-disposal facility element.
C. Annual and Quarterly Reports
(1) Grantee shall assist City in preparation of all Annual and Quarterly reporting required by CalRecycle, or successor agency, in accordance with this Agreement. 17 (2) Quarterly reports shall be submitted forty-five (45) days following the end of each calendar quarter. The quarterly reports shall include:
i. Amount (in tons) and type of material collected
il. Amount and types of material deposited in the Solid Waste Facility. ili. Amount and types of material recycled, processed or diverted. iv. Customer complaint log for complaints received during the quarter. v. Summary assessment of services, and identification of impediments to meeting service requirements.
vi. An annual presentation will be made to the GUSTINE City Council upon an agreed date that is acceptable to both parties.
SECTION 13 - COMPENSATION
A. Compensation and Billing
Each party shall provide/maintain accurate and complete accounting and billing. Either party may request and be entitled to review the other party's accounting and billing related to this Agreement.
(1) Billing and Payment. All requests for service, or for changes in service, shall be processed by City and promptly reported to Grantee. City shall provide billing services to all residential, commercial and industrial customers who receive service pursuant to this Agreement, except that Drop Box services will be billed and collected by Grantee.
On a monthly basis, City shall remit to Grantee the full amount of services provided based on its share of the Rates set forth on Exhibit "D." The monthly compensation payment to Grantee shall be paid by City within forty-five (45) days of the end of the applicable billing cycle. Grantee's share of the Rates are exclusive of fees collected by City for billing and customer services provided by the City, contract management, enterprise fund management, and Franchise Fees. The parties acknowledge City's right to add, modify, and retain such fees.
On a monthly basis, Grantee shall remit to the City any and all owed Franchise Fees and other City fees for any Grantee billed services. Such remittance shall include an invoice detailing the amount of services provided, the Rate charged, the Franchisee Fee and other applicable information.
Each party's accounting and billing shall be accurate and complete. Either party may request and be entitled to review the other party's accounting and billing related to this Agreement.
(2) Grantee's Rates. Grantee shall provide solid waste handling services pursuant to this Agreement at the Rates set forth in the attached Exhibit "D," the contents of which are 18 incorporated by this reference. The Exhibit "D" Rates will apply at the inception of this Agreement, and are subject to adjustment as set forth elsewhere herein.
If no Rate has been established for a service billed directly by Grantee, then Grantee shall determine with Customer the appropriate charge, subject to City approval. Grantee shall promptly notify City of any new Rates to be billed by Grantee.
The Exhibit "D" Rates are inclusive of all Solid Waste handling services to be provided, including collection, transportation, processing, composting, disposal, and cart and bin costs, and costs associated with moving bins from standard enclosures such distance as is reasonably necessary to empty them (but not including costs associated with moving bins beyond such distance in unusual circumstances or due to special requests by customers). No other charges shall be imposed by Grantee for such services unless approved by City.
B. Adjustment to Rates
The following annual and special rate adjustments shall be made to the Rates provided for in this Franchise Agreement.
(1) Annual Cost of Living Adjustment (COLA)
Beginning July 1, following the Effective Date of this Franchise Agreement, and each July 1 thereafter, the Rates shall be annually adjusted upwards by adding a cost-of-living adjustment (COLA) to the then current Rates. The COLA shall be based on the change in the annual Consumer Price Index (CPI).
An example of the CPI adjustment for July 1, 2021 is shown below:
Annual CPI-U 2019: 295.004
Annual CPI-U 2020: 300.084
Change: 5.080
% Increase: 1.72% (5.080 ÷ 295.004)
(2) Solid Waste Facility Fee Adjustment
The Solid Waste Facility Fee Adjustment shall be the pass-through of one hundred percent (100%) of any increase in the fee charged to the Grantee, applied to the "Disposal Component", and shall be effective as of the date of the change of such fee. As an example, using the increase in Solid Waste Facility Fee for July 1, 2017, compared to the fee in place July 1, 2016, the factor to be applied to all Rates is:
2017 fee $23.64 per Ton
2016 fee -23.06
Increase $0.58 per Ton
Increase, expressed as a percentage:
19 $0.58 / $23.06 × 100% = 2.51%
(3) Extraordinary Adjustment
The parties acknowledge that there may be infrequent extraordinary events which, although they do not prevent either party from performing, and thus do not implicate the Force Majeure provisions hereof, nevertheless increase the cost of providing service such that Grantee's compensation and the Rate adjustment mechanism provided in this Agreement result in Grantee's suffering losses. Accordingly, at its option, Grantee may apply to the City at any time, but not more frequently than once annually, for an extraordinary Rate adjustment should an event or circumstance arise (including a change in landfill tipping fee) that is not the result of a Change in Law or Change in Service Level which negatively impacts the economic operation of Grantee and which is in excess of the Rate adjustment resulting from the application of the annual adjustment formula set for in subparagraph (a) above. An interim adjustment in Rates will be deemed justified if it is necessary for the Grantee to make a substantial change in its operations, or substantial capital expenditure or investment in order to perform its obligations under this Agreement due to the occurrence of an event or circumstance other than a Change in Law or Change in Service Level which is beyond the reasonable control of Grantee. In the event of such an application for an extraordinary Rate increase, it is understood that the Grantee shall have the burden of demonstrating to the satisfaction of City the basis for the extraordinary increased cost. The City's may approve or deny an application for an extraordinary Rate increase in its sole discretion.
(4) Franchise Fee Adjustment
The Franchise Fee adjustment shall be the pass through of one hundred percent (100%) of any increase or decrease in the Franchise Fee, and shall be effective as of the date the Franchise Fee increase or decrease is payable by the Grantee. (5) Change in Scope Level Adjustment
i. The Rates shall be increased (or decreased) by one hundred percent (100%) of the increase (or decrease) or incremental increase (or incremental decrease), as the case may be, in the demonstrable costs (i.e., on any direct or indirect cost whether fixed or variable) associated with the change in the level of the Solid Waste Handling services which may be required of, or agreed to by, Grantee.
City shall provide Grantee ninety (90) days' notice of any requested changes in scope of this agreement. A Change in Scope Adjustment shall be effective on and after the actual date of the requirement to or agreement to change operations which results from the change in service, but, absent the consent of the Manager, not sooner than the effective date of the change in service. In no event shall any Change in Scope Adjustment be effective prior to the City's approval of an amendment to the Franchise Agreement.
ii. In the event that the City Manager and the Grantee claiming to be affected by the change in scope cannot agree on either the existence, or the effect on demonstrable costs, of a change in service level, the dispute resolution provisions of Section 13-C (1) shall apply.
20 (6) Change in Law Adjustments
i. The Rates shall be increased (or decreased) by one hundred percent (100%) of the increase (or decrease) or incremental increase (or incremental decrease), as the case may be, in the demonstrable costs (i.e., on any direct or indirect cost, whether fixed or variable) associated with the change in the manner or nature of conducting Solid Waste Handling services necessitated by a Change in Law. A Change in Law Adjustment shall be effective upon the completion of any actions necessary by City to include such adjustment in the Rates. If the Changwe in Law occurs prior to such date, the Change in Law Adjustment shall include any demonstrable costs incurred by Contractor prior to the completion of the adjustment of Rates. In no event shall any Change in Law Adjustment be effective prior to the City's approval of an amendment to the Franchise Agreement.
ii. •In the event that the City Manager and the Grantee claiming to be affected by the Change in Law cannot agree on either the existence, or the effect on demonstrable costs, of a Change in Law, the dispute resolution provisions of Section 13-C (1) shall apply.
(1) Grantee understands and agrees that any adjustment of the Rates is contingent on City's use of such Proposition 218 process as deemed necessary or advisable by the City. If, at any time, a Rate adjustment cannot be implemented for any reason, Grantee and City shall negotiate in good faith, a reduction of services equal to the value of the Rate adjustment that cannot be implemented. If City and Contractor are unable to reach agreement about such a reduction in services, then Contractor may terminate this Agreement upon one year's prior written notice to City.
C. Dispute Resolution Regarding Adjustment to Rates
(1) Any dispute regarding any Change in Service Level Adjustment or Change in Law Adjustment provided for in 13 above, which cannot be resolved between the Grantee and City within thirty (30) days of the receipt by City of such documents as City may reasonably request, shall be submitted to a mutually agreed upon expert in the subject matter area of the dispute to resolve the dispute as to either or both: (i) the existence of a Change in Service Level or a Change in Law; and/or (ii) the effect on the Grantee's demonstrable costs of a Change in Service Level or a Change in Law. The decision of the expert shall be binding on the Grantee and the City. The cost of the expert shall be borne by the If the Grantee and City cannot mutually agree upon an expert, either may petition the Superior Court of the County of Merced to have an expert chosen by the court The City and Grantee shall each have the right to suggest one expert to the court; the court shall choose one of the suggested experts. If Grantee prevails, the costs incurred by Grantee for dispute resolution shall be added to the Fees as a pass-through. (2) The most recent Rates approved by the City Manager in effect at the time a dispute is submitted to either the expert or City Manager, as the case may be, shall remain in effect pending resolution of such dispute. The effective date of any dispute resolution, whether retroactive or prospective, shall be determined by the expert, the City Manager, the City or a hearing officer, as appropriate.
21 D. Discontinuance of Service
Grantee may discontinue service for non-payment of Customer's billing (when directed by City for accounts billed by City, or in the event of non-payment by a Customer billed by Grantee), or Customer's failure to substantially comply with the requirements of the applicable provisions of state or local law which govern use, storage and collection of Solid Waste in accordance with this Agreement.
SECTION 14 - FORCE MAJEURE
Grantee shall not be in default under this Agreement in the event that the services provided by the Grantee cannot be provided for any of the following reasons: riots, wars, sabotage, acts of terrorism, civil disturbances, insurrection, explosion, pandemics, quarantines, acts of God, acts of government or governmental restraint, and natural disasters such as floods, earthquakes, landslides, and fires, severe weather or other catastrophic events which are beyond the reasonable control of Grantee and which Grantee could not reasonably be expected to have prevented or controlled. Catastrophic events do not include strikes by Grantee's or its subcontractors' employees, the financial inability of the Grantee to perform or failure of the Grantee to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility where such failure is due solely to the acts or omissions of the Grantee. Upon occurrence of any catastrophic event subject to this Section, Grantee shall (1) immediately provide written notice to the City of the event and its expected impact on services, (2) within five days provide a written plan for resolving the catastrophic event or minimizing its effect on the service, and (3) continue to provide all services to the greatest possible extent.
SECTION 15 - OTHER PROVISIONS
A. Independent Contractor
Grantee is an independent contractor and not an officer, agent, servant, or employee of City.
Grantee is solely responsible for the acts and omissions of its officers, agents, and employees, if any. Nothing in this Franchise Agreement shall be construed as creating a partnership or joint venture between City and Grantee. Neither Grantee nor its officers, agents, or employees shall obtain any rights to retirement or other benefits which accrue to City employees.
B. Right to Pass
To the extent of the City's rights and without warranting the ability to do so, Grantee shall have the right 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 its Franchise Agreement. so long as it is not in receipt of a written notice revoking permission to pass. Grantee shall have no rights greater than those then held by City.
C. Compliance with Municipal Code
Grantee shall comply with provisions of the Municipal Code that are applicable to operations hereunder, and with any and all amendments, from time to time, to such provisions during the Term of this Agreement.
D. Notices
22 Any notice, information, request or reply ("Notice") required or permitted to be given under the provisions of this Agreement shall be in writing and shall be given or served personally, by mail, or by email. If given or served by mail, such Notice shall be deemed sufficiently given if: (1) (i) deposited in the United States mail, certified mail, return receipt requested, postage prepaid, or (il) sent by overnight service provided proof of service is available; and (2) addressed to (i) the Grantee at its most recent address of record with City or (ii) to the Manager at the then-current address of City, as the case may be. If given by email, such Notice shall be deemed sufficiently given if the receiving party confirms receipt. The addresses of the parties at the time of signing this Agreement are:
To City: Attn: City Manager
City of GUSTINE
352 Fifth Street
GUSTINE, CA 95322
To Grantee: Attn: Joseph Kalpakoff
Mid-Valley Disposal, LLC
15300 West Jensen Avenue
Kerman, CA 93630
Either party may from time to time designate by Notice to the other given in accordance with this Section. Notice shall be deemed effective on the date personally served or, if mailed, three (3) business days from the date such notice is deposited in the United States mail, or if by facsimile transmission, upon receipt of confirmation of delivery which confirmation may be transmitted by the same means. Service by facsimile transmission shall not be effective unless the original of the document being served is deposited in the United States mail, postage prepaid, within twenty-four (24) hours after the facsimile transmission has been confirmed. Emails shall be deemed effective upon confirmation of receipt.
E. Exhibits Incorporated
Exhibits "A" through "D" are attached to and incorporated in this Agreement by this reference as if fully set forth.
F. Laws and Licenses
City and Grantee shall, at their own separate costs, comply with all federal, State, and City laws, ordinances, rules, and regulations applicable to the performance of the services hereunder and Grantee shall obtain and maintain in full force and effect throughout the term of this Agreement all licenses and permits necessary to perform the services hereunder.
G. Governing Law
This Agreement shall be governed by the laws of the State of California, with venue in the Superior Court of the County of Merced or the Federal District Court with jurisdiction over City.
H. Waiver
No waiver by either party of any one or more defaults or breaches by the other party in the performance of this Agreement shall operate or be construed as a waiver of any already established or future defaults or breaches, whether of a like or different character or degree. 23 I. Counterpart Signatures
This Agreement may be executed in counterpart pages (counterparts), each of which shall be deemed an original and all of which shall constitute one and the same instrument, and shall become fully executed when counterparts have been signed by each of the Parties and delivered to the other Parties; it being understood that all Parties need not sign the same signature pages of this Agreement. The exchange of copies of this Agreement and of signature pages by electronic mail in "portable document format" ("pdf") form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, or by combination of such means, shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes. Signatures of the Parties transmitted electronically shall be deemed to be their original signatures for all purposes.
J. Attorneys' Fees
In the event of any claim or action or proceeding brought by either Party against the other under or in connection with the subject matter of this Agreement, the prevailing Party shall be entitled to recover from the losing Party as part of the judgment in such action all reasonable costs, expenses, and attorneys' fees, including those costs, expenses and attorneys' fees incurred in defending any counterclaim or cross-complaint brought in such action and incurred in any appeals, all in such amount as the court shall judge reasonable.
SECTION 16 - SEVERABILITY
If any non-material provision of this Agreement shall for any reason be 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.
SECTION 17 - ENTIRE AGREEMENT; AMENDMENT
This Agreement and its incorporated Exhibits constitute the entire agreement between the parties concerning the subject matter hereof and supersede any and all other communications, representations, proposals, understandings or agreements, either written or oral, between the parties hereto with respect to such subject matter. This Agreement may not be modified or amended, in whole or in part, except by written agreement signed by both parties hereto.
Notwithstanding the forgoing, the parties acknowledge the provisions of "Chapter 6.20, Garbage and Rubbish Disposal" of the City Code as currently enacted are included herein and, further, that if and when such City Code provisions are amended, that the amended provisions shall apply to this Agreement, without any action being required of either party. The City Manager shall provide Notice to Grantee upon changes to the City Code that require a change in this Agreement.
SECTION 18 - CONSTRUCTION OF FRANCHISE
The parties hereto have negotiated this franchise at arm's length and with advice of their respective attorneys, and no provision contained herein shall be construed against either party solely because it prepared the actual physical Agreement executed by the parties. 24 WITNESS the execution of this Agreement on the day and year written above.
CITY OF GUSTINE MID-VALLEY DISPOSAL, LLC
City Manager
City Attorney Joseph Kalpakoff
Approved to Form
City Clerk President
Attest
25 EXHIBIT "A" - PROVIDED SERVICES
This Exhibit sets forth the level of services to be provided by Grantee pursuant to its Franchise, and the manner of providing such services which are in addition to the manner of providing services specified in this Agreement.
Grantee shall provide the Solid Waste Handling services in conformity with all provisions of this Agreement, including:
A. Single Family Residential
(1) Weekly 3 Cart Service - Unless otherwise required under applicable law or regulation, once per week Grantee shall collect the Solid Waste (except bulky items and Hazardous Waste), which has been separated, placed, kept, or accumulated in containers at residential units within the Franchise Area and placec at curbside prior to Grantee's normal weekly collection time. All Solid Waste mus be placed within containers at curbside without obstructions so as to permit collection, unless otherwise agreed upon by City and Grantee. Grantee shall supply containers, and shall require the use of specific containers as specified in this Exhibit "A." Grantee may provide special pickup procedures, above and beyond the services described above, with customers consistent with the Fees paid Grantee in Exhibit "D." Grantee shall notify City immediately of any Changes in Service Level, and similarly, City shall notify Grantee of any Changes in Service Level.
B. Commercial, Industrial, and Multi-Residential
(1) Multi-Residential Weekly Service - Unless otherwise required under applicable law or regulation, at least once per week Grantee shall collect the Solid Waste (including bulky items which have been placed in a closed bin, and excepting metallic white goods and Hazardous Waste) which have been placed, kept or accumulated for collection in Solid Waste Bins at Multi-Residential Units. (2) Commercial and Industrial Weekly Service - Unless otherwise required under applicable law or regulation, at least once per week Grantee shall collect the Solid Waste which have been placed, kept or accumulated for collection in Solid Waste Bins at commercial units.
C. Source Separated Materials - Contamination
Grantee shall conduct contamination monitoring as defined in Exhibit B of this Agreement.
D. Construction and Demolition Waste Temporary Drop Box Services Grantee shall provide construction and demolition debris removal, including temporary Drop Box services using Fees reflected in Exhibit "D" unless debris is generated by a declared emergency disaster such as floods, fires, earthquake or other such occurrence as deemed meeting the criteria of disaster debris. The City may provide for Rates and services solely for the timely and efficient removal of "disaster debris" with the Grantee or other qualified public or private entity.
26 E. Special Collection Programs
The following minimum special collection programs shall apply to this Franchise Agreement:
(1) City Facilities: Grantee shall provide front load commercial service to the City at no cost for the following City-owned facilities:
i. Public Works Yard -
ii. City Hall -
(2) Participate in 2 annual community clean up drop off events. The dates and times shall be agreed upon in advance between Contractor and City (3) Illegal Dumping: At Cities direction, Contractor agrees to provide targeted clean up of illegal dumping up to ten (10) tons annually.
(4) Christmas Trees: Grantee shall collect and dispose of Christmas trees left at curbside by Customers during the three regular pickups following each Christmas day.
(5) Senior and Handicapped Service: When a Customer produces evidence that he or she is at least 65 years of age or a medical practitioner's statement showing that he/she is physically unable to place his/her solid waste bins at the curb for collection, together with his/her affidavit certifying that no able-bodied person under 65 years of age on the premises is available for such purposes, Grantee will provide walk-in service to such premises.
F. Emergency Disaster Debris Removal Services
(1) In the event of a declared emergency disaster such as a fire, flood, earthquake, or other such occurrence as deemed meeting the criteria of a disaster in which debris is created, the Grantee will be given the first right of refusal in its franchise area to offer temporary bin/roll off services using Fees reflected in Exhibit "D", to transport debris to a staging area or disposal facility designated by the Manager. (2) During any period of time that Grantee is unable to service its franchise area during such declared emergency, either for loss of transportation, lack of assistance or an overabundance of debris material or other similar circumstances, the City reserves the right to contract with third-party entities for temporary bin/roll off services, including transportation of debris to a Solid Waste Facility. Grantee shall notify City when it regains its ability to recommence service in its franchise area and City will, within a reasonable time period, terminate any contract with third-party entities for the same services.
(3) The City reserves the right to direct roll off bin service to areas that have been designated as critical due to the emergency conditions. 27 EXHIBIT "B" - SB 1383 COMPLIANCE PROGRAMS
To support the City in complying with regulations under SB1383, Contractor shall implement the programs identified in this Exhibit B. These programs are designed to meet the implementation and education requirements of SB1383 and help the City achieve annual diversion requirements set by CalRecycle. The City's actual annual diversion rate depends on participation of businesses and residents, their respective adherence to program requirements and local code, the City's enforcement of applicable codes, and the City's implementation of other programs outside the scope of this Agreement. Accordingly, City shall amend or update the City code to incorporate requirements necessary for the implementation of these programs.
1. Collection Requirements and Container Labeling
Contractor shall provide a 3-container collection program for Solid Waste, Recyclables, and Mixed Organics to all customers receiving Solid Waste service as set forth in Exhibit A. Collection containers shall be Grey (MSW), Blue (Recyclables), and Green (Organic Waste). Hardware such as hinges and wheels may be different colors.
New containers or lids placed by Contractor shall include language or graphic images, or both, that indicate the primary materials accepted and the primary materials prohibited in that container. Labels shall clearly indicate items that are prohibited container contaminants for each container.
2. Education and Outreach
To promote public education about recycling requirements, Contractor shall create public education materials and conduct education programs and activities described in this Section.
Annual Notice: Contractor shall prepare and distribute to each Generator in the City a mailer that includes information specified in 14 CCR Section 18985. 1(a). Such mailer shall be distributed by Contractor to all Residential and Commercial mailing addresses including individual Multi-Family Dwelling Units. Contractor shall also make this notice available in an electronic format through the Contractor's website.
Instructional Service Guide: Contractor shall prepare a service guide that describes available services, including how to place Containers for Collection, which materials should be placed in each Container and prohibited materials, and provides Collection holidays
Property Owners and Businesses: Contractor shall annually provide Property Owners and Commercial Business owners with public education materials in electronic format for their distribution to all employees, contractors, tenants, and Customers of the properties and businesses. The Contractor's public education materials shall include, at a minimum, information about Organic Waste recovery requirements and proper sorting of Discarded Materials. A Commercial Business or Multi-Family Property Owner may request these materials more frequently than the standard annual provision if needed to comply with the requirement of 14 CCR Section 18984.10 for Commercial Businesses and Multi-Family Property Owners to provide educational information to new tenants and employees before 28 or within fourteen (14) days of occupation of the Premises. In this case, the Commercial Business or Multi-Family Property Owner may request delivery of materials by contacting the Contractor's customer service department not later than two (2) weeks in advance of the date that the materials are needed.
Technical Assistance Program: Contractor shall provide ongoing technical assistance for Commercial and Multi-family generators that are required to participate in source separated recycling under applicable laws including AB 341, AB 1826, and SB 1383 and corresponding regulations. Technical assistance may include on-site training, instructional guides, printed or electronic materials and other resources that satisfy regulation requirements.
Contamination Monitoring: Contractor shall perform contamination inspections by utilizing on-board monitoring systems or physical container inspections. For physical container inspections, Contractor's personnel shall lift the Container lid and observe the contents.
For Collection vehicles equipped with a video camera and monitoring system, Contractor's personnel shall observe, via the hopper video camera and monitoring system, the contents of the Containers as the materials are emptied into the vehicle. Upon finding Prohibited Container Contaminants in a Container, Contractor shall follow the contamination noticing procedures set forth below.
3. Waste Evaluations
Sampling Method: Contractor shall, at its sole expense, conduct waste evaluations that meet the requirements of 14 CCR Section 18984.5(c). The Contractor shall conduct waste evaluations for contaminants using the Standard-Compliance Approach or other methods approved by Cal Recycle at least twice per year and the studies shall occur in two distinct seasons of the year. Contractor shall provide adequate notice to City of when waste evaluations will occur, and City reserves the right to observe waste evaluations.
Contamination Notifications: If the sampled weight of Prohibited Container Contaminants exceeds twenty-five percent (25%) of the measured sample for any material stream, the Contractor shall notify City within fifteen (15) working days. Contractor may perform targeted waste audits to determine the source of contaminants and provide technical assistance to those generators, or notify all generators of their obligation to properly source separate materials. The Contractor may provide this information by placing a written notice on the Generators' Containers or the gate or door of the Premises; and/or by mail, e-mail, or electronic message to the applicable Generators.
Contractor will coordinate with City to develop procedures regarding alleged violations of these recycling programs.
4. Procurement
Contractor agrees to provide City with the option to receive compost and mulch annually to allow the City to meet its procurement requirements. Contractor also agrees to provide City with any available procurement credits from renewable fuel purchases used by vehicles within City. Free compost will be made available at community cleanups for residents.
29 5. Waivers
The City shall be responsible for granting waivers to commercial or multi-family generators that meet the de minimis requirements subject to the requirements under SB1383 pursuant to 14 CCR Section 1898411, or other requirements that may be specified by City. This includes physical space waivers where services may be impacted.
Contractor shall provide City with required generator information on services and activity that is needed as part of the waiver application. Contractor may also assist generators with waiver applications or submit on their behalf.
6. Edible Food Recovery
Contractor shall provide City with necessary data and reporting to determine which customers are considered tier 1 and tier 2 commercial edible food generators.
At least annually, the Contractor shall provide Commercial Edible Food Generators with the following information:
Information about the City's Edible Food Recovery program; • Information about the Commercial Edible Food Generator requirements under 14 CCR, Division 7, Chapter 12, Article 10;
• Information about Food Recovery Organizations and Food Recovery Services operating within the City, and where a list of those Food Recovery Organizations and Food Recovery Services can be found; and,
• Information about actions that Commercial Edible Food Generators can take to prevent the creation of Food Waste.
7. Reporting
Contractor will provide the data or prepare reports required to meet SB1383 requirements which includes:
• The number of generators that receive organic waste collection service The number of route reviews conducted for prohibited container contaminants • The number of times notices, violations, or targeted education materials were issued to generators for prohibited container contaminants. • The results of waste evaluations performed to meet the container contamination minimization requirements and the number of resulting targeted route reviews • The number of commercial edible food generators located within the jurisdiction 30 EXHIBIT "C" - DEFINITIONS
For the purposes of this Franchise Agreement, the following terms, when used with initial capitalization, shall have the meanings set forth in this Section:
A. AB 939. "AB 939" means the California Integrated Waste Management Act of 1989, being Division 30 of the California Public Resources Code, commencing with Section 40000 thereof, as it may be amended from time to time.
B. AB 1826. "AB 1826" means the Organic Waste Recycling Act of 2014 (Chapter 727, Statutes of 2014 modifying Division 30 of the California Public Resources Code), also commonly referred to as "AB 1826," as amended, supplemented, superseded, and replaced from time to time
C. BULKY WASTE. "Bulky Waste" means discarded furniture (including but not limited to chairs, sofas, mattresses, and rugs); appliances (including but not limited to refrigerators, ranges, washers, dryers, water heaters, dishwashers, plumbing, small household appliances, and other similar items, commonly known as "white goods"); discarded stereos, televisions, computers, VCR's, and other similar items (commonly known as "Electronic-Waste"); wood waste, tree trunks and large branches if more than six inches in diameter or four feet in length, scrap wood, rocks, sod and earth.
Bulky Waste does not include construction and demolition waste, or large items such as car bodies, Jacuzzi tubs or spas, or other items that cannot be handled by two persons. In addition, Bulky Waste does not include waste tires.
D. CHANGE IN LAW. "Change in Law" means the imposition (or removal), after the establishment of a Fee relative to a Franchise Agreement, of any duty or burden imposed upon the Grantee in the performance of the Solid Waste Handling services required of it under the Franchise Agreement which is or becomes additional to (or is subtracted from) or different from those duties required or contemplated in its Franchise Agreement, or which must be performed in a different manner from that in which it is initially contemplated to be performed, and which results from any of the following:
(1) the enactment, issuance, adoption, repeal, amendment or modification of any federal, state or local law, statute, ordinance or regulation. (2) a regulatory agency or other administrative agency interpreting a regulation, a judicial decision of a federal court interpreting federal law or statute, or a judicial decision of a court having jurisdiction within California interpreting a federal, state or local law, statute, ordinance or regulation, in a manner different from the interpretation which had previously been generally relied upon in California within the solid waste collection and hauling industry.
E. CHANGE IN LAW ADJUSTMENT. "Change in Law Adjustment" means the adjustment to Fee as determined under the provisions of Section 13-B (6) of this Agreement.
F. CHANGE IN OWNERSHIP. "Change in Ownership" occurs when either a transaction or event, results in twenty percent (20%) or more of the beneficial ownership of the Grantee being different than such ownership as of the date of the approval by the City 31 of the Franchise Agreement or, if applicable, as of the date of the most recent consent of the City to a Change of Ownership. The owners of the beneficial ownership of Grantee on the date of the approval of the Franchise Agreement or, it applicable, on the date of the most recent consent of the City to a Change of Ownership, shall be referred to in this subsection as an "Initial Owner". A Change in Ownership will be determined by application of the following:
(1) Any beneficial interest owned by an individual related by blood or marriage to an Initial Owner shall be considered as owned by an Initial Owner in determining if a Change in Ownership has occurred.
(2) Sales, transfers, issuances or pledges of non-voting shares of stock will not be considered in determining if a Change in Ownership has occurred, until and unless and only to the extent that such stock is converted into voting shares of stock. (3) The pledge of, or any other action taken relative to, voting shares of stock which results in any voting rights of such stock being exercised by other than an Initial Owner shall be considered to be a transfer of such stock for the purposes of determining if a Change in Ownership has occurred.
G. CHANGE IN SCOPE ADJUSTMENT. "Change in Scope Adjustment" means the adjustment to Fee as determined under the provisions of Section 13-B (5) of this Agreement.
H. COMMERCIAL EDIBLE FOOD GENERATORS. "Commercial Edible Food Generator" means a Businesses identified as Tier One and Tier Two edible food generators as defined in 14 CCR Section 18982.
I. CONSUMER PRICE INDEX. "Consumer Price Index" or "CPI" means the Consumer Price Index, All Items, Not Seasonally Adjusted, San Francisco-Oakland-Hayward, California, as published by the U. S. Department of Labor, Bureau of Labor Statistics, Series Id. CUURS49BSA0, Base Date 1982-84=100, or the most similar successor index if this index is no longer published
J. CITY. "City" means the City of GUSTINE, State of California.
K. CITY SOLID WASTE DISPOSAL SYSTEM. "City Solid Waste Disposal System" means at any particular time, the then-existing Solid Waste Facilities which the City owns, leases or has a contractual right to use.
L. CUSTOMER. "Customer" means any Person receiving Solid Waste Handling services pursuant to this Agreement.
M. DESIGNATED SOURCE SEPARATED ORGANIC WASTE FACILITY: "Designated Source Separated Organic Waste Facility" means a facility identified by Contractor that meets the definition of 14 CCR Section 18982(a)(33).
N. DROP BOX. "Drop Box" means a steel, open-top container holding at least eight (8) cubic yards that rolls off and on a transport truck.
O. EFFECTIVE DATE. "Effective Date" means July 1, 2022. 32 P. ELECTRONIC WASTE. "Electronic Waste" for purposes of this Agreement means electronic waste materials generated by residential or commercial Customers that render the items hazardous depending upon their condition and density, such as, but not limited to, televisions, computer monitors containing Cathode Ray Tubes (CRTs), cell phones, scanners, fax machines and other items as determined by applicable laws and regulations.
Q. EXCLUDED WASTE. "Excluded Waste" means Hazardous Substance, Hazardous Waste, Infectious Waste, Designated Waste, volatile, corrosive, Medical Waste, infectious, regulated radioactive waste, and toxic substances or material that Approved/Designated Facility operator(s) reasonably believe(s) would, as a result of or upon acceptance, Transfer, Processing, or Disposal, be a violation of local, State, or Federal law, regulation, or ordinance, including: land use restrictions or conditions, waste that cannot be Disposed of in Class I!! Landfills or accepted at the Facility by permit conditions, waste that in Contractor's reasonable opinion would present a significant risk to human health or the environment, cause a nuisance or otherwise create or expose Contractor or City to potential liability; but not including de minimis volumes or concentrations of waste of a type and amount normally found in Single- Family or Multi-Family Solid Waste after implementation of programs for the safe Collection, Processing, Recycling, treatment, and Disposal of batteries and paint in compliance with Sections 41500 and 41802 of the California Public Resources Code.
R. FOOD SCRAPS. "Food Scraps" means all discarded food such as fruits, vegetables, beans, pasta, and other materials accepted at the designated organics processing facility.
S. FRANCHISE AGREEMENT. "Franchise Agreement" means the Agreement entered into between the City and the Grantee which authorizes/requires the Grantee to provide Solid Waste Handling services in a specified Franchise Area.
T. FRANCHISE FEE. "Franchise Fee" means a defined portion of revenue from rates retained by City as compensation to City for the exclusive right assigned to Grantee to provide Solid Waste Handling services within the Franchise Area. The Parties agree that the Franchisee Fee is the result of an arm's length negotiation and reasonably related to the value of the Franchise. The initial Franchise Fee is fifteen percent (15%) of Gross Receipts.
U. GRANTEE. "Grantee" means Mid-Valley Disposal, LLC, a California Limited Liability Company.
V. GREEN WASTE. "Green Waste" means discarded Solid Waste consisting of grass clippings, leaves, branches, tree trunks and other vegetative matter not more than six (6) inches in diameter or four (4) feet in length.
W. GROSS RECEIPTS.
(1) "Gross Receipts" means all monies received by Grantee for providing the Solid Waste Handling services specified in its Franchise Agreement. (2) "Gross Receipts Less Disposal Charges" means Gross Receipts less that part of the monies received by the Grantee that are collected from Customers for payment of the fee imposed for disposing of the Solid Waste at a Solid Waste Facility.
X. HAZARDOUS WASTE. "Hazardous Waste" means any waste material or mixture of waste which is toxic, corrosive, flammable, an irritant, a strong sensitizer, or which generates pressure through decomposition, heat or other means, if such waste or mixture of waste may cause substantial personal injury, serious illness or harm to humans, domestic animals or wildlife during or as a proximate result of any disposal of such waste or mixture of wastes as defined in Article 2, Chapter 6.5, Section 25117 of the California Health and Safety Code and Title 22 of California Code of Regulations, Section 66261.3. The terms "toxic," "corrosive," "flammable," "irritant," and "strong sensitizer" shall be given the same meaning as in the California Hazardous Substances Act (Chapter 12, commencing with Section 28740.1, Division 21 of the California Health and Safety Code).
Y. MANAGER. "Manager" means the City Manager of the City of GUSTINE, or designee of City Manager.
Z. MATERIALS RECOVERY FACILITY. "Materials recovery facility" or "MRF" is a facility designed to remove recyclables and other valuable materials from the waste stream collected through a residential, commercial or industrial Solid Waste Handling program that is approved to operate by the appropriate state and local agencies.
AA. MULTI-JURISDICTION LOAD REPORT. "Multi-Jurisdiction Load Report" means a report which sets out the amount, and place of collection, of Solid Waste delivered to the City Solid Waste Disposal System.
BB. ORGANIC MATERIAL. "Organic Material" means Green Waste and Food Waste which are specifically accepted at an organics processing facility. No Discarded Material shall be considered to be Organic Materials, however, unless it is separated from Solid Waste and Recyclable Material.
CC. PERSON. "Person" includes, without limitation, individuals, associations, clubs, societies, firms, partnerships, joint ventures, sole proprietorships, corporations, limited liability companies, schools, colleges and all governmental agencies and entities.
DD. PROCESSING. "Processing" means the reduction, separation, recovery, conversion or recycling of Solid Waste.
EE. PROHIBITED CONTAINER CONTAMINANTS. "Prohibited Container Contaminants" means (i) items placed in the Blue Container that are not identified as acceptable Recyclable Materials; (il) items placed in the Green Container that are not identified as acceptable organic waste; (i) items placed in the Gray Container that are acceptable to be placed in City's Green Container and/or Blue Container; and (iv) Excluded Waste placed in any Container.
FF. RATES. "Rate" or "Rates" means rates charged by City of GUSTINE or by Grantee, as applicable, to Customers for Solid Waste Handling Services provided. The initial 34 Rate schedule is attached to this Agreement as Exhibit "D". The Rates in Exhibit D include the Franchise Fee and Solid Waste Facility Fee.
GG. RECYCLABLE MATERIALS. "Recyclable Materials" means discarded Solid Waste which may be sorted, cleansed, treated, processed, and/or reconstituted, and which is segregated for the purpose of reuse or recycling, including, but not limited to, separated paper, glass, cardboard, plastic, ferrous materials or aluminum.
HH. RESIDUAL SOLID WASTE. "Residual Solid Waste" means the solid waste destined for disposal, transformation, further transfer/processing as defined in section 17402(a)(30) or (31) of the California Code of Regulations Title 14, Article 6, which remains after processing has taken place.
Il. 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.
JJ. SECURITY. "Security" means a corporate surety bond, a letter of credit or other security device acceptable to City, as provided in Section 9-F.
KK. SOLID WASTE. Except as provided in sub-subsections (1), (2), (3) and (4), "Solid Waste" means all putrescible and nonputrescible solid, semisolid, and liquid wastes, including garbage, trash, refuse, paper, rubbish, ashes, industrial wastes, demolition and construction wastes, abandoned vehicles and parts thereof, discarded home and industrial appliances (subject to salvage and other special handling requirements under applicable law and regulation), dewatered, treated, or chemically fixed sewage sludge which is not Hazardous Waste, manure, vegetable or animal solid and semisolid wastes, and other discarded solid and semisolid wastes, including Recyclable Materials and Organic Material.
(1) "Solid Waste" does not include Hazardous Waste and does not include low-level radioactive waste regulated under Chapter 7.6 (commencing with Section 25800) of Division 20 of the California Health and Safety Code. (2) "Solid Waste" does not include medical waste (except treated medical waste) which is regulated pursuant to the Medical Waste Management Act (Chapter 6.1 (commencing with Section 25015) of Division 20 of the California Health and Safety Code).
(3) Solid Waste does not include petroleum or a petroleum product or fraction thereof at reasonably detectable levels, asbestos and, with respect to a particular Solid Waste Facility, any waste or material which a regulatory agency, the Facility's solid waste facility permit or City policy, does not allow to be accepted for transfer, Processing, composting, transformation or disposal at that Facility. (4) Solid Waste does not include items which would be Recyclable Materials but for the fact that they are personally separated from other Solid Waste by the 35 generator thereof and are donated or sold to third parties. For purposes of this section, no donation or sale shall be deemed to have occurred in any instance where a generator directly or indirectly pays the third party any sum (including without limit as a consulting fee, container rental or other fees or tangible consideration) either: (i) in lieu of being directly charged for collecting, transporting, processing or recycling such item; or (il) to offset the payment to the generator for the purported sale of such item to the third party. Nor shall the receipt of a discount of, or reduction in, the disposal service rate on un- segregated Solid Waste containing such an item be deemed to be the donation or sale of such an item to a third party.
LL. SOLID WASTE FACILITY. "Solid Waste Facility" means any facility that is designed to manage any type of Solid Waste and includes transfer, Processing, composting, transformation and disposal facilities. The Solid Waste Facility shall not include any facility owned directly or indirectly by Contractor. The initial Solid Waste Facility for purposes of this Agreement is
MM. SOLID WASTE FACILITY FEE. "Solid Waste Facility Fee" means the fee charged by a Solid Waste Facility for the disposal of Solid Waste.
NN. SOLID WASTE HANDLING. "Solid Waste Handling" means one or more of the following:
the collection of Solid Waste from a commercial, residential, construction or industrial source; the transportation of such Solid Waste to a Solid Waste Facility; and the transfer, Processing, composting, transformation or disposal of such Solid Waste at the Solid Waste OO. SPECIAL WASTES. "Special Wastes" means all the items and materials which are designated as such in a Franchise Agreement.
PP. TRANSFORMATION. "Transformation" as used in this Agreement shall have the same meaning as set forth in Public Resources Code Section 40201, as it may be amended from time to time.
36 EXHIBIT "D" - RATES
37 Exhibit E
A. Quality performance by the Contractor is of primary importance. In respect of this, Contractor agrees to pay City liquidated damages as detailed in this Exhibit should Contractor fail to meet its responsibilities under this Agreement. Should Contractor be in breach of the requirements set forth in this Agreement, it is mutually understood and agreed that the public will necessarily suffer damages and that such damages, from the nature of the default in performance will be extremely difficult and impractical to fix. City finds, and the 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 will be incurred by City as a result of a breach by Contractor of its 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 services or denied quality or reliable service; (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) services might be available at substantially lower costs than alternative services, and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the termination of this Agreement for such breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches.
B. Procedure for Review of Liquidated Damages.
The City may assess liquidated damages as specified in this Exhibit pursuant to this Agreement monthly. At the end of each month the City Manager may issue a written notice to Contractor ("Notice of Assessment") of the liquidated damages assessed for that month and the basis for each assessment.
(1) The assessment will become final unless, within thirty (30) calendar days of the date of the notice of assessment, Contractor provides a written request for a meeting with the City Manager to present evidence that the assessment should not be made.
(2) The City will schedule a meeting between Contractor and the City Manager as soon as reasonably possible after timely receipt of Contractor's request. (3) The City Manager will review Contractor's evidence and render a decision sustaining or reversing the administrative charges as soon as reasonably possible after the meeting. Written notice of the decision will be provided to Contractor. (4) In the event Contractor does not submit a written request for a meeting within ten (10) calendar days of the date of the Notice of Assessment, the City's determination will be final.
38 (5) City's assessment or collection of liquidated damages will not prevent City from exercising any other right or remedy, including the right to terminate this Agreement, for Contractor's failure to perform the work and services in the manner set forth in this Agreement.
Amount if Not If Cured in
Item Cured in 30 Days
30 Days
a. Failure to respond to each complaint within $100 per incident per Service three (3) Work Days of receipt of complaint. Recipient. b. Failure to maintain call center hours as
$100 per day. -0-
required by this Agreement.
Failure to submit to City all reports by the
deadlines required under the provisions of $100 per day. -0- this Agreement.
Failure to include all parts of quarterly and
$100 per day. -0-
annual reports
e.
f.
g. Failure for Collection Container to be $50.00/each
compliant with SB 1383 labeling Collection Container -0- requirements. not compliant.
h.
i. Failure to collect a missed collection by $1,000 per close of the next Work Day upon notice to Calendar year, plus -0- Contractor, that exceeds twenty (20) in any $10 per container Calendar Year. per day.
j. Failure to repair or replace damaged
Containers within the time required by this $1,000 per Calendar year, plus $10 Agreement, that exceeds twenty (20) in any per incident per day.
Calendar year.
Failure to maintain collection hours as
$100 per day. -0-
required by this Agreement.
1. 39
Amount if Not If Cured in
Item
Cured in 30 Days 30 Days
m. Failure of Contractor to follow Recyclable Submit for Materials and Organic Waste Contamination approval to
and Overage procedures as set forth in City and
Exhibit A and Exhibit B. $100/day for failure
to repo plan. mament
correction to
City within 30
n.
0. p.