• Collector shall provide Solid Waste, Recyclables, and Organic Waste collection services to all City owned and operated facilities and parks at no additional charge to the City. • At the City's request, Collector will provide waste containers, plus Solid Waste, Organic Waste and Recyclables removal and disposal services for three community events per year. • No less than twice per year, if requested by City, Collector will distribute informational flyers or brochures to City Customers regarding the importance of recycling and separating wastes in order to achieve greater waste diversion, as well as the applicable commercial recycling requirements set forth in AB 341, AB 1826, and SB 1383. In addition, Collector will provide technical support and assistance to City Staff in preparation of articles or newsletters related to organic waste reduction, reuse, and recycling.
• Collector agrees to assist the City in meeting SB 1383 mandates by performing the additional services (as detailed in Exhibit G in the attached agreement).
City of Livingston personnel perform the administrative duties to process all billing for refuse services.
Administrative duties for City Hall staff typically involve tasks like managing customer accounts, processing payments, handling billing inquiries and maintaining accurate records. Public Work staff duties include handling customer inquiries, scheduling illegal dumping pick-ups, cleaning debris from streets and alleys. The Public Works street sweeper duties include driving a motorized street sweeper to clean City’s streets, parking lots and alleys along an assigned route and cleaning trash debris from gutters. The Public Safety Code Enforcer performs enforcement duties such as educating residents, issuing violation notices and citations to assure compliance and enforce State laws and local ordinances.
The City has projected the required administrative fee that needs to be collected to perform the billing process and other related duties within the Refuse Enterprise.
The projected administrative fee is inclusive of the following:
• Employee allocations consist of:
o City Staff time to perform billing tasks for Solid Waste customers. o Staff time is inclusive of employee benefits.
o Staff time for sweeping of street gutters to remove trash and debris. o Staff time to perform enforcement activities.
• Expenses in the Refuse budget to account for vehicle operations & maintenance consist of o OPEB Trust Contributions
o Physical Examinations:
Cost share for annual DOT exams for employees
o Contracted Services- IT
Cost share for Microsoft 365 and annual IT contract
o Contract Service:
Consultant fee to assist with compliance of SB 1383, AB939 and AB1826 Cost share for ABS Direct, Inc. (printing utility statements, termination notices and postage)
Cost share for computer and printer lease, annual work order subscription, annual web hosting fee, GovInvest training and annual subscription for TimeClock software and credit checks
o Contract Services- Legal
Cost share to perform legal reviews
o City Audit
Cost share for city annual audit
o Computer Support Agreements
Cost share for annual Springbrook and Civic Pay software (online payment portal) o Vehicle O/M
Cost share for fuel, diesel, and vehicle maintenance for street sweeper o Equipment O/M
Cost share for trailer maintenance/ backhoe, repair and maintenance o Insurance
Cost share for annual liability program
o Comm/Cell Phones/ Telephone
Cost share for employee cell phone, laptop, and landlines o Printing
Cost share for payroll checks and door hangers
o Bank Services Fee Agreement
Cost share for bank services
o Small Tool/ Equipment
Cost share for safety equipment needed by staff
o Office Supplies
Cost share for office supplies
o Postage
Cost share for mailings not provided by ABS Direct Inc. such delinquent notices and final billing
ANALYSIS:
EMPLOYEES ALLOCATIONS WITH BENEFITS
DEPARTMENT EMPLOYEE TITLE REFUSE TIME
ALLOCATION %
FROM TOTAL
SALARY
TOTAL AMOUNT
ALLOCATED
FROM REFUSE FUND
PUBLIC WORKS PW DIRECTOR 10% $20,899.00
PUBLIC WORKS PW SUPERINTENDENT 10% $15,426.33
PUBLIC WORKS SR. ADMIN. ANALYST 20% $30,856.56
PUBLIC WORKS ADMIN. ANALYST 15% $14,897.49
PUBLIC WORKS PW ACCOUNT CLERK 15% $10,154.04
PUBLIC WORKS STREET SWEEPER 10% $14,220.06
PUBLIC WORKS LEAD MAINT. WORKER 10% $15,824.77
PUBLIC WORKS MAINTENANCE WORKER I 15% $16,184.15
PUBLIC WORKS MAINTENANCE WORKER II 15% $16,333.71
PUBLIC WORKS MAINTENANCE WORKER II 5% $6,525.71
CITY HALL INTERIM CITY MANAGER 10% $22,875.56
CITY HALL FINANCE DIRECTOR/ACM 10% $19,242.10
CITY HALL SR. ACCOUNTANT 10% $16,680.98
CITY HALL ACCOUNTANT I 10% $10,377.41
CITY HALL ACCOUNTANT II 10% $10,604.68
CITY HALL ACCOUNTING TECHNICIAN 22% $22,049.65
CITY HALL EX. ASST./DEPUTY CITY
CLERK
15% $15,430.19
CITY HALL ASST. TO DEPUTY CITY
CLERK/RECORDS
MANAGEMENT
15% $10,950.24
CITY HALL HR COORDINATOR 10% $12,253.38
CITY HALL ACCOUNT CLERK 35% $25,270.01
CITY HALL ACCOUNT CLERK 25% $14,543.13
CITY HALL OFFICE ASSISTANT I 26% $20,119.29
PUBLIC SAFETY CODE COMPLIANCE
OFFICER
10% $14,111.56
TOTAL $375,830.00
PART TIME AND OVER TIME
LIABILITY TOTAL
PART TIME SALARIES $11,939.00
OVER TIME SALARIES $4,438.00
TOTAL $16,377.00
LIABILITY
LIABILITY TOTAL
OPEB TRUST CONTRIBUTION $1,267.00
REFUSE BUDGET
REFUSE OPERATION/MAINTENANCE
BUDGET
TOTAL
PHYSICALS EXAMINATIONS $60.00
CONTRACTED SERVICES - IT $6,292.00
CONTRACT SERVICES $42,000.00
CONTRACTED SERVICES-LEGAL $8,000.00
CITY AUDIT $23,568.00
COMPUTER SUPPORT AGREEMENTS $25,000.00
VEHICLE O/M $6,981.00
EQUIPMENT O/M $500.00
INSURANCE $13,705.00
COMMS/CELL PHONES/TELEPHONE $2,500.00
PRINTING $400.00
BANK SERVICE FEE AGREEMENTS $6,461.00
SMALL TOOLS/EQUIPMENT $808.00
OFFICE SUPPLIES $700.00
POSTAGE $100.00
TOTAL $137,075.00
TOTAL EXPENDITURES
ADMINISTRATIVE FEE
RECOMMENDATION:
City staff recommends approving an Administrative Fee for billing processing for Solid Waste, Recyclables Materials and Organic Waste Collection Services within the City of Livingston.
ALTERNATIVES:
(1) Council can choose Not to adopt the Administrative Fee and direct staff to determine whether Gilton will be receptive to opening up the franchise agreement and assuming all components of the administrative fee. This will result in a revenue decrease that may impact employee positions and will trigger the meet and confer process with labor unions. (2) Council can use an alternative funding source such as the general fund to cover the administrative fee however no analysis has been performed to reflect the impact of the general fund covering the $530,549 administrative cost.
(3) Council can choose alternative action and direct City staff.
FISCAL IMPACT:
Projected revenue of $530,549 from Administrative Fee to cover City’s cost of administering Solid Waste Services to be directed to the Refuse Fund
ATTACHMENTS:
1. Resolution
2. Exhibit “A” Franchise Agreement
EMPLOYEE ALLOCATIONS $375,830.00
PART TIME & OVER TIME
SALARIES
$16,377.00
OPEB TRUST CONTRIBUTION $1,267.00
OPERATION/MAINTENANCE $137,075.00
TOTAL EXPENDITURES $530,549.00
TOTAL EXPENDITURES $530,549.00
REFUSE ACCOUNTS 3,500
ANNUAL CHARGE PER
ACCOUNT
$151.58
MONTHLY ADMINISTRATIVE
FEE PER ACCOUNT
$12.63
RESOLUTION NO. 2024-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LIVINGSTON
ESTABLISHING AN ADMINISTRATIVE FEE FOR SOLID WASTE, RECYCLING AND
ORGANICS COLLECTION SERVICES PROCESSING MAINTENANCE AND
ENFORCEMENT
WHEREAS, the California Integrated Waste Management Act of 1989 (Public Resources Code sections 40000 et seq.) requires local agencies to make adequate provision for Solid Waste handling within their jurisdictions; and
WHEREAS, the City of Livingston Municipal Code authorizes the City to enter into exclusive franchise agreements for the handling, collection, transportation and disposal of solid waste, recycling and organics; and
WHEREAS, The City Council, upon completion of the competitive bidding process, awarded Gilton an exclusive solid waste franchise for collecting, transferring, recycling, composting, and disposing solid waste from all residential and/or commercial premises in the City; and WHEREAS, Payment of the franchise fee grants Gilton the exclusive right to collect, transfer, recycle, compost, and dispose of solid waste, including receiving exclusive access to operate heavy equipment upon city streets and rights-of-way and the exclusive right to place their multiple waste containers upon city streets and rights-of-way, within the City.
WHEREAS, City personnel perform the administrative duties to process all billing for refuse services and since the State of California’s adoption of AB 939, AB 341, AB 1826 and SB 1383 requires additional services by City staff and consultants; and WHEREAS, the City administrative fee includes of the following proportional costs incurred by the City to provide solid waste, recycling and organics services for the customers of the franchisee:
• City Staff time to perform billing tasks for Solid Waste customers • Staff time is inclusive of employee benefits
• Expenses in the Refuse budget to account for vehicle operations & maintenance
• Staff time for sweeping of street gutters to remove trash and debris. • Staff time to perform enforcement activities
• Consultant fee to assist with compliance of SB 1383
WHEREAS, the City believes the administrative fee is a reasonably proportionate estimate of the cost of the services being provided to solid waste customers; and WHEREAS, the City now wishes to establish an administrative fee to cover the costs of providing solid waste, recycling and organics services to the residents and businesses within the City of Livingston.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Livingston as follows:
SECTION 1. The above recitals are incorporated are hereby by reference.
SECTION 2. The resolution is exempt from the California Environmental Quality Act (“CEQA”) because it can be seen with certainty that there is no possibility that it will have a
significant effect on the environment. (CEQA Guidelines § 15061(b)(3).) Further, the adoption and implementation of this Ordinance is not a project, as defined in CEQA Guidelines section 15378, because it has no potential for resulting in physical change to the environment, either directly or indirectly, and is therefore not subject to environmental review under CEQA pursuant to CEQA Guidelines section 15060(c)(3).
SECTION 3. The City Council of the City of Livingston hereby establishes an administrative fee in the amount of twelve dollars and sixty-three cents ($12.63).
SECTION 4. The City may adjust the administrative fee to reflect annual changes in the Consumer Price Index for All Urban Consumers (“CPI”) published by the U.S. Department of Labor for the San Francisco-Oakland-San Jose, CA statistical area. The adjustment shall become effective on the anniversary of the Effective Date of this Resolution and be based on the previous twelve-month index analysis based on the Effective Date of this Resolution.
SECTION 5. This Resolution will become effective immediately.
I hereby certify that the foregoing Resolution No. 2024-____ is a full, true and correct copy of a resolution duly passed and adopted by the City Council of the City of Livingston at a regular meeting thereof duly held on the 16th day of April 2024, by the vote recorded as follows:
AYES:
NOES:
ABSENT:
ABSTAIN:
By:
Jose A. Moran, Mayor
of City of Livingston
ATTEST
Monica Cisneros, Deputy City Clerk
Of the City of Livingston
APPROVED AS TO LEGAL FORM
________________________
Roy C. Santos, City Attorney
EXHIBIT A
FRANCHISE AGREEMENT
THIS FRANCHISE AGREEMENT ("Agreement") is made and entered into this 1st day of April 2024 (the "Effective Date") by and between the City of Livingston ("City"), a municipal corporation of the State of California, and Gilton Solid Waste Management, Inc., a California corporation ("Collector"). The parties to this Agreement may each be referred to individually as a "Party" or collectively as the "Parties". There are no other parties to this Agreement.
RECITALS
A. The California State Legislature enacted the Califonm. Integrated Waste Management Act of 1989 ("AB 939") which authorizes local jurisdictions to make adequate provisions for solid waste handling within their jurisdictions; and B. On October 6, 2011, the Legislature passed Assembly Bill 341 ("AB 341 "), amending the California Public Resources Code (the "Public Resources Code") therein requiring cities to encourage and document commercial solid waste recycling prograrr:s; and C. On September 28, 2014, the Legislature passed Assembly Bill 1826 ("AB 1826"), approved by the Governor of the State of California which added Chapter 12.9 (commencing with Section 42649.8) therein requiring cities to require businesses to separate their organic waste from the municipal waste stream for composting; and
D. On November 10, 2020, the Legisl'ature passed Senate Bill 1383, Short-Lived Climate Pollutants (SLCP): Organic Waste Methane Emissions Reductions ("SB 1383"), establishing a statewide target to decrease methane emissions at landfills by reducing the disposal of organic waste by 50% below 2014 levels by 2022 and by 75% below 2014 levels by 2025. SB 1383 establishes regulatory requirements for jurisdictions, generators, haulers, solid waste facilities, and other entities to support achievement of State-wide Organic Waste Disposal reduction targets and requires Jurisdictions to implement collection programs, meet processing facility requirements, conduct contamination monitoring, provide education, maintain records, submit reports, monitor compliance, conduct enforcement, and fulfill other requirements; and E. The collection and disposition of garbage, refuse and waste is governed and regulated by applicable provisions set forth in Title 8; Chapter 2 Municipal Code (the "Code"), which may be amended from time to time and is incorporated herein by this reference; and F. The City previously entered into a franchise agreement with Collector on April 2, 2013, wherein the City selected Collector to provide services for the collection, recycling, and disposal of solid waste within the City; and
G. The existing Agreement provides that the tenn of the agreerr:ent may be extended by mutual agreement of the Parties; and
H. The City and Collector now desire to update and extend the tern1 of the existing Agreement. The term of this Agreement shall commence on the Effective Date and shall be in
force for IO calendar years; and
I. It is the City's objective to continue to engage Collector to provide refuse collection and disposal services for residential and commercial collection. By entering into this Agreement Collector shall assist City in meeting its AB 939, AB 341, AB 1826, and SB 1383 requirements; and
J. The City's refuse program shall be consistent with the County Solid Waste and Integrated Waste Management Plan and comply with all regulations promulgated by the local Merced County enforcement agency and the Department of Resources Recycling and Recovery; and •
K. The Parties desire to rescind the existing Agreement which s:J.all be fully replaced and superseded by this Agreement as of the Effective Date.
NOW THEREFORE, in consideration of the mutual promises contained herein and other good and sufficient consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:
AGREEMENT
Section 1. Recitals. The recitals set forth above (the "Recitals") are incorporated herein by this reference and made a part of this Agreement. In the event any inconsistencies arise as between the Recitals and Sections I through 34 of this Agreement, Sections I through 34 shall prevail.
Section 2. Definitions. Unless otherwise noted in this Agreement, capitalized terms herein shall have the meanings set forth in Exhibit A. Whenever any term used in this Agreement has been defined by Division 30, Part I, Chapter 2 of the Public Resources Code or the City's Code, those definitions shall apply unless the term is otherwise defined in Exhibit A. b. the event there is a discrepancy between the definitions contained in the Public Resources Code and the City's Code, the definitions set forth in the Public Resources Code shall supersede all other definitions.
Section 3. Termination of Existing Agreement. This Agreement hereby supersedes and replaces any existing agreement(s), whether written or oral, by mutual agreement and consent of the Parties as of the Effective Date of this Agreement. Hereafter all previous agreements shall terminate and be of no further force and effect except with respect to covenants therein for acts and omissions occurring prior to the Effective Date.
Section 4. Franchise Area.
4.1 Franchise Area Defined. The franchise area granted by this Agreement shall be all residential and commercial premises located within city limits of City, as more particularly shown on Exhibit B ("Franchise Area"). As provided below, the Franchise Area may be changed by annexation, de-annexation, or re-organization.
4.2 Annexation Covered by Existing Franchise. All territories annexed during the Term 2
of this Agreement may be subject to this Agreement. However, properties served by another collector at the time of annexation, shall continue to be served by collecto: for 1 year. All new construction in the annexed area will be serviced by Gilton Solid Waste (Gilton).
Section 5. Waste Collection and Disposal.
5.1 Scope of Services. Except as set in Section 5.4, the City he:eby grants Collector the exclusive franchise, right and privilege to collect all Solid Waste, Organic Waste and Recyclables within the Franchise Area and to transport the same to a High Diversion Organic Waste Processing Facility, sanitary landfill, transfer station, compost/mulcl:ing site, or waste-toenergy facility outside the City, which has been approved by the governmental agency having jurisdiction of the territory in which said site is located (the "Services";. When transporting collected material out of Merced County, after processing, Collector will re:urn an amount equal to the residual municipal solid waste portion to a Merced County Regional Waste Management Authority (R WA) facility as required by the R WA' s flow control. Waiver requests for recyclables and organic materials must be submitted to the R WA for approval. City may designate alternative processing facilities if public health, safety, or fiscal interest is required, or compliance with applicable law necessitates the alternative and will be at cost to the Collector. Collector shall furnish all labor, supervision, materials, permits, licenses, and equipment necessary to provide residential and commercial refuse collection Services for Customers within the Franchise Area of City. Collector shall perform its obligations under this Agreement in accordance with all applicable local, state, or federal laws and in a manner that maximizes the City's Solid Waste diversion rate to the extent possible.
5.2 Residential Service. Collector shall provide Solid Waste and Organic Waste collection services to all residential premises within the City. Collector may provide Recyclables collection services to residential premises within the City. If the City elects to make residential Recyclables collection service mandatory, Collector shall provide such ser1ice to all residential premises and shall charge rates that will be amended for such services.
5.3 Commercial Service. Collector may provide Solid Waste collection services to all commercial premises within the City. In addition, pursuant to the requirements set forth in AB 341, AB 1826, and SB 1383, Collector shall provide recycling collection se:vices and/or organic collection service to any business that meets the mandatory threshold of each legislation.
5.4 Excepted Services. Collector's exclusive franchise in this Agreement shall not include governmental entities if and to the extent the City has no legal power to require such entities to use Collector's Services. The provisions of this franchise shall not preclude or prohibit the City or any officer or employee thereof or any employee of the State, :ir any governmental subdivision thereat; from collecting, removing, and disposing of Solid Waste, Recyclables, or Organic Waste from the City or State facilities.
Section 6. Collection and Bins.
6.1 Provision of Receptacles. Collector agrees to continue to provide and maintain all Carts, Bins and Roll-Off Boxes for the proper and secure storage of Solid Waste, Organic Waste 3
or Recyclables for all residential and commercial Customers. All residential Cart Customers shall be serviced once per week and commercial Bin Customers shall be serviced from one (I) to six (6) times per week as requested by the Customer. Roll-Off box Customers will be serviced as arranged between the Customer and Collector.
6.2 Hours of Collection, Collection service of all Carts, Bins, and Roll-Off Boxes in residential areas and from commercial premises adjacent to residential areas shall not start before 6:00 a.m. or continue after 6:00 p.m., subject to change by resolution of the Livingston City Council ("City Council"). However, the hours of collection may be extended temporarily as a result of extraordinary circumstances or conditions with the prior consent of the Livingston City Manager ("City Manager").
6.3 Receptacle Replacement. Collector, without expense to City or any Customer, will replace stolen carts when a police report has been filed within seventy-two (72) hours.
Collector shall clean, paint over or replace, at its discretion, graffiti-tagged Carts as needed.
Collector shall replace Carts damaged due to normal wear and tear within the time frame of one collection cycle. Collector shall maintain records oflost, stolen, damaged and graffiti-tagged Carts by specific address. Collector may charge for additional replacement Carts bE.Sed on the actual cost of the Carts and their delivery.
Section 7. Term of Agreement. The te1m of this Agreement shall commence on the Effective Date and shall remain in full force and effect for ten ( I 0) calendar years. This Agreement may be extended at the sole option of the City via two options for a five ( 5) -year extension. The City may in its sole discretion advertise for competitive bids for solid waste franchise collection services with such services to commence after the expiration of the contract term of this Agreement.
Nothing herein shall be deemed or construed to impair the rights of the City to immediately terminate this Agreement with Collector due to Collector's substantial failure to perform the services and responsibilities specified and agreed to in this Agreement.
Section 8. Acceptance; Waiver. Collector agrees to be bound by and comply with all the requirements of this Agreement. Collector waives any right or claim to serve the City or any part of the City under any prior grant of franchise, contract, license, or permit issued or granted by any governmental entity including any right under Section 49520 of the Public Resources Code.
Section 9. Maximum Rates and Fees.
9.1 Rates. The maximum rates to be charged by Collector are set forth in Exhibit C ("Rate" or "Rates") and the maximum rates may be adjusted by resolution of the City Council. For the first year of the Agreement, Collector shall charge rates that are no greater than the maximum rates as established by the City. The City will establish a separate administration fee for processing solid waste billing. In the remaining years of the Agreement Term, the City will adjust the maximum rates under this Agreement to reflect annual changes in the Consumer Price Index for All Urban Consumers ("CPI") published by the U.S. Department of Labor for the San FranciscoOakland-San Jose, CA statistical area. The adjustment shall become effective on the anniversary of the Effective Date of this Agreement and be based on the previous twelve-month index analysis based on the Effective Date of this Agreement. In all subsequent years, the Collector may request, 4
and the City Council shall consider, rate adjustments based on other adjustments provided for under subsections 9.3. and 9.4.
9.2 Tipping Fees. The Parties acknowledge and agree that the milXimum rates include compensation to Collector for tipping, gate or other disposal fees charged by any applicable disposal facilities. Notwithstanding any provision in this Agreement to the contrary, Collector, except in the case of Roll-Off Box Customers, shall not be entitled to rece:ve from City, or any Customer, a separate or additional payment for tipping or gate fees. In addition to any other rate adjustments to which Collector may be entitled, Collector may request to iccrease its rates to the extent necessary to recover increased landfill, waste-to-energy facility, transfer station, and material 'recovery facility tipping or gate fees. Collector shall provide Ci:y with notice of the proposed new rates within thirty (30) days of such notice being received from Merced County or other applicable authority and shall provide the City with a copy of any notice regarding an increase in landfill or waste-to-energy facility tipping or gate fees. Collector shall not increase the Rates to recover increased tipping or gate fees, without prior written approval from City.
9.3 Extraordinary Cost Increases. Collector may petition City for an extraordinary rate adjustment or adjustments at any time during the Term of this Agreement, provided that such petition may be made based only upon increases in fuel costs or increased costs as a result of federal, state, county mandates, increased insurance costs or other documented impacts, which require changes in Collector's Services or operations under this Agreement. Collector shall include in its petition a financial presentation which demonstrates the extraordinary increase in operating costs. Any petition shall be considered by the City Council at a public hearing held after providing any required notices pursuant to this Section and applicable law. The City Council may grant or reject any such petition in its sole and complete discretion.
Section 10. Additional Services. In exercising the right and privilege to collect Solid Waste, Organic Waste or Recyclables within the boundaries of City as herein granted, Collector agrees to act in accordance with the following:
Collector agrees to provide without additional charge to the City or its custo:ners:
10.1 Curbside Bulky Item Collection Program. Collector shall collect and dispose of bulky item wastes, as defined in Exhibit D, from residential Customers up to two (2) times per calendar year. Such collections will be made by appointment as arranged between Customer and Collector.
10.2 Curbside E-Waste Collection Program. Collector shall collect, recycle, or dispose of specified E-Wastes (as defined in Exhibit F) from residential CuEtomers up to four (4) times per calendar year. Such collections will be made by appointment as arranged between the Customer and Collector.
10.3 Christmas Tree Program. Collector will provide a residential Christmas tree collection and recycling program. Each year, during the first two (2) fuil weeks of January, Collector will pick-up Christmas trees from the front of residential properties in the City.
Collections will be scheduled to coincide with the normal waste collection days. 5
10.4 City Facilities. Collector shall provide Solid Waste, Recyclables, and Organic ytaste collection services to all City owned and operated facilities and parks at no additional charge to the City. This does not include C&D Debris generated from City owned and operated facilities.
In addition, Gilton will continue to provide recycling collection for city residents at city corporation yard.
10.5 Community Events. At the City's request, Collector will provide waste containers, plus Solid Waste, Organic Waste and Recyclables removal and disposal services for three community events per year.
10.6 Promotional/Educational Support. No less than twice per year, if requested by City, Collector will distribute informational flyers or brochures to City Customers regarding the importance of recycling and separating wastes in order to achieve greater waste diversion, as well as the applicable commercial recycling requirements set forth in AB 341, AB 1826, and SB 13 83.
In addition, Collector will provide technical support and assistance to City Staff in preparation of articles or newsletters related to organic waste reduction, reuse and recycling.
10. 7 Commercial Recycling Programs. Collector will fully coo;ierate with and assist the City with the implementation of any State mandated commercial recycling programs.
10.8 AB 939 Data. Collector agrees to continue to assist City in data collection and reporting pertaining to compliance with the Integrated Waste Management Act (AB 939), including any State required waste composition studies.
10.9 C&D Diversion Policy. When properly notified, Collector will assist City customers in their compliance with the City's C&D Debris Diversion Policy, attached at Exhibit E, as it may be amended. Collector shall comply with the City's C&D Debris Diversion Policy as applicable.
10.10 SB 1383 Services. Collector agrees to assist the City in meeti:ig SB 1383 mandates by performing the additional services as detailed in Exhibit G.
Section 11. Specific Service Requirements.
11.1 Collector Duty of Care and Diligence. Collector and Collector's employees, contractors, sub-contractors, operators, officers, directors, supervisors, owr:ers, board members, representatives, and agents ("Collector's Agents") shall exercise all reasonable care and diligence in performing their obligations under this Agreement. Every effort will be made to prevent spilling, scattering or dropping Refuse during the collection or transportation process. However, in the event that Refuse is spilled, scattered or dropped, the truck operator shall immediately clean up the material and place it in the truck. Every Cart, Bin and Roll-Off Box ( collectively, "Container") must be replaced in an upright position. It shall be fu1ther noted that Refuse collection easements are frequently co-located with other utility easements. Particular attention must be given to the location of water meters, transformers, guy wires, utility poles and irrigation structures.
Authorization to use the easement does not abrogate Collector's responsibili:y to exercise caution 6
to not infringe upon, damage, or trespass the property rights of other authorized users or property owners. Collector shall be familiar with and operate within the guidelines set forth by the Occupational Safety Health Act (29 U.S.C. section 651 el. seq.). Collector is granted the right to use dedicated streets, alleys and refuse collection easements for the purpose of performing the Services, but this right is not exclusive. The Collector shall handle the Sen, ices in a manner that will cause the least inconvenience or annoyance to the general public and to property owners.
11.2 Hazardous Waste. Under no circumstance shall Collector's employees knowingly collect Hazardous Waste or remove unsafe or poorly containerized Hazardous Waste from Customer premises. If Collector determines that material placed in a container for collection is Hazardous Waste, Excluded Waste, or other material that may not be legally accepted at an approved sanitary landfill, transfer station, compost/mulching site, waste-to-energy facility or other permitted disposal facility or that presents a hazard to Collector employees, Collector shall have the right to refuse to accept such material. Collector shall leave, at the time of non-collection, a non-collection notice with Customers indicating the reason for refusing the material. Collector shall contact the generator and request that the generator arrange for proper c.isposal service. If the Hazardous Waste, Excluded Waste, or other objectionable material is identified at time of delivery to the approved sanitary landfill, transfer station, compost/mulching site, WE.Ste-to-energy facility or other permitted disposal facility and the generator cannot be identified, Ccllector shall be solely responsible for handling and arranging transport and disposition of the Hazardous Waste, Excluded Waste, or other objectionable material.
11.3 Force Majeure. Collector shall not be in default under this Agreement in the event that the collection transportation, recycling and disposal services of Collector are temporarily interrupted or discontinued due to a "Force Majeure" event which is defined as: riots, wars, sabotage, civil disturbances, insurrections, explosion, natural disasters such ES floods earthquakes, landslides and fires, strikes, lockouts and other labor disturbances or other catastrophic events, which are beyond the reasonable control of Collector. Force Majeure does nc-t include: Collector's financial inability to perform; Collector's failure to obtain any necessary permits or licenses from other governmental agencies; or Collector's failure to obtain the right to use the facilities of any public utility where such failure is due solely to the acts or omissions of the Collector.
11.4 Independent Contractor. Collector is an independent contractor and not an officer, agent, servant or employee of City. Collector is solely responsible for the acts and omissions of its officers, agents, employees, contractors, and sub-grantees. Nothing in this Agreement shall be construed as creating a partnership or joint venture between City and Collector.
Neither Collector nor its officers, employees, agents or sub-grantees shall obtain any right to retirement or other benefits or right which accrue to City employees.
11.5 Property Damage. Collector shall be responsible for any damage to City's driving surfaces, whether or not paved, resulting from vehicles providing Services under this Agreement.
Collector shall be responsible for repairing or replacing any private or public property which is damaged due to the acts or omissions of employees, contractors, or agents of Collector to private or public property shall be repaired or replaced.
7
11.6 Right of Entry. Collector shall have the right, to enter or drive on any private street, court, place, easement, or other private property for the purpose of collecting or transporting Refuse pursuant to this Agreement. This right or entry shall last until the soo:ier of the termination of this Agreement or receipt by Collector of a written notice from City revo~ing Collector's right of entry. This right of entry is limited to carrying out the Services required by this Agreement.
Section 12. Customer Service Requirements.
12.1 Availability of Representatives. A responsible representa:ive for the Collector who is qualified to respond to public inquiries shall be available at Collector's office during office hours, excluding lunchtime closure, for communication with City, Customers or the public.
12.2 Employees. Collector shall exercise reasonable care to hire responsible employees, to supervise the work of such employees, and to discipline and, if necessary, discharge an employee failing to meet reasonable standards for performance of work set forth in this Agreement.
Collector shall comply with applicable state and federal law pertaining to employment, including, but not limited to, applicable equal opportunity employment and affirmative action requirements.
12.3 Manner of Collection. Collector shall perform all collection services in a quiet and courteous manner and ensure that all Carts are placed on the premises from which they were removed in an upright position, with lids closed, and within five (5) feet of where they were originally placed before collection.
12.4 Office Hours. Collector's office hours shall be, at a minfmum, from 8 a.m. to 5 p.m. daily, except for a lunch hour and closed on Saturdays, Sundays, and federal or State recognized holidays. A representative of Collector shall be available dujng office hours for communication with the public at Collector's principal place of business.
12.S Service Complaints. All Service complaints shall be directed to Collector.
Collector shall respond to all complaints, other than missed pickups, within tVventy-four (24) hours if the twenty-four (24) hour period ends during the office hours specified in subsection 12.5, otherwise on the next business day. Collector shall be responsible for the prompt and courteous attention to, and prompt and reasonable resolution of, all complaints and sh;ill use its best efforts to resolve any complaints within the two (2) business days following the date on which such complaint is received. Complaints that cannot be reasonably resolved may be appealed to the City Manager or designee for final resolution.
12.6 Complaint Log. Collector agrees to maintain a log of all oral and written service complaints registered with Collector from Customers or the public within :he City ("Complaint Log"). Collector shall record in the log all written and oral complaints, noting the name and address of the complainant, date and time of complaint, nature of complaint, and method and date of resolution. Such log shall be kept so that representatives of the City, upon request, may conveniently inspect it. Collector shall deliver, along with the quarterly repor:s specified in Section 13 or otherwise upon request of the City, a summary of complaints by number and type and excerpts from the log reflecting action to date.
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12.7 Missed Pickups. In the event of a missed pickup, Collector shall complete the pickup the same day if the complaint is received by 12:00 p.m. or by 12:00 p.m. the following business day if the complaint is received after 12:00 p.m.
Section 13. Reports. Collector shall provide the City with annual reports detailing Collector's operations within City during that time. Reports will contain the information required by the City for compliance with AB 939, AB 341, AB 1826 and SB 1383 and for City to measure Collector's performance of items in this Agreement. Collector agrees to provide additional reports regarding its collection services as may be reasonably requested by the City to meet future reporting requirements of the City or the State. City or a consultant to City, on request, shall have the right to review the collection records of Collector at reasonable times and upon reasonable notice.
Section 14. Vehicles.
14.I Compliance with Applicable Regulations. Collector shall at all times comply with all applicable rules, statutes, orders, and requirements adopted by any governmental agency with jurisdiction over air quality, including, but not limited to, the California Air Resources Board and the San Joaquin Valley Air Pollution Control District. In addition to any indemnification · obligations set forth in this Agreement, Collector shall defend, indemnify, and hold harmless the City against any fines, penalties, losses, or claims arising out of Collector's failure to comply with this Section. All vehicles used by Collector under this Agreement shall be registered with the Department of Motor Vehicles of the State of California, be kept clean and in good repair, shall be uniformly painted, and shall be washed at least once every seven (7) calendar days. Collector's name, phone number, and vehicle number shall be prominently displayed on its vehicles.
14.2 Fluids and Waste. Collector shall immediately clean up any fluids or waste spilled from collection vehicles and shall deploy and remove absorbent materials to the extent necessary to absorb all fluids. Collector shall provide the City with a copy of any spill report that Collector is required to provide, and at the same time it is provided, to the State Office of Spill Prevention and Response. When necessary, Collector shall apply a suitable cleaning agent to the street surface or shall employ hydraulic steam cleaning to provide adequate cleaning. Collector shall comply at all times with all reconunendations or limitations concerning laden weight of collection vehicles established by the State or any government agency, or the vehicle manufacturer.
Section 15. Collector's Employees.
15.1. Prohibition of Drugs or Alcohol. Collector will prohibit the use of intoxicating substances by Collector's Agents, including its drivers and crewmembers, while on duty or in the course of performing the Services. Upon request by City, Collector will demonstrate compliance with the federal alcohol and drug testing statutes and regulations.
15.2 Employee Uniform. Collector's employees shall be required to wear a clean uniform bearing Collector's name. Employees who normally and regularly come into direct contact with Customers, including drivers, shall bear some means of individual identification such as a name tag or identification card.
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15.3 Identification Required. Collector shall provide every employee, contractor, grantees, or sub-grantees that are in contact with the public with identification cards and badges.
Upon request of City, Collector shall notify all Customers of the form of identification that each employee shall be carrying or displaying so that all Customers may easily identify one of Collector's employees. Collector shall provide City with a list of current employees, contractors, grantees, and sub-contractors to City upon request.
15.4 Valid Driver's License. Employees driving Collector's vehicles shall at all times possess and carry a valid and appropriate vehicle operator's license issued by the State of California, including a commercial driver's license, if required.
15.5 No Employment Relationship with City. Collector's Agents are not and shall not identify themselves as being employees of the City at any time, for any reason.
15.6 Employee Behavior. All contact by Collector with Custon:ers will be done with courtesy and respect. Any incident with a Customer must be reported immediately to the City.
15. 7 Employee Conduct. All superintendents, foremen and workers, or contractors employed by the C9llector shall be capable and safety conscious workers, skiJed in their respective trades. Collector shall not employ any person who is incapable or negligent in the due and proper performance of his or her duties. Collector shall furnish such supervision, labor and equipment as is considered necessary for the fulfillment of the Services in an acceptable rrumner at a satisfactory rate of progress. City reserves the right to request for any worker of Collector to be prohibited from providing Services to City without cause for any reason.
15.8 Supervision. It is the Collector's responsibility to supervise the Services rendered and to provide direction to its employees and agents in the field. While City employees may suggest possible solutions to problems or unusual situations, Collector retains the responsibility for all Services and how the Services will be delivered and conducted to the City and the Customers.
Section 16. Franchise Fees, Billing and Reports.
16.1 Franchise Fees. Collector and the City agree that for the exclusive rights herein granted to Collector, City shall retain a sum equal to fifteen percent (15%) -:if the gross revenues from residential, commercial, and industrial accounts. Gross Revenues for :his computation will exclude the City established Administration Fee. Further, the Parties hereby agree to the fifteen percent (15%) franchise fees is a reasonable estimate of the value of the City's franchise given the number of exclusive customers being provided to the Collector as the franchise hauler. The Collector shall also pay the City fifteen percent (15%) of the gross revenues from the Collector's Debris Box and/Roll-Off container services.
16.2 Billing. The City shall provide regular billing statements to residential, commercial and industrial customers that have cart and bin service. The Collector shall provide billing statements to Debri Box/Roll-off customers.
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16.3 City and Collector Billing. As of the commencement of this Agreement, the Parties acknowledge that the City is responsible and will continue to bill residential, commercial and industrial customers that have cart and bin service. The Collector shall bill all customers that have Debris Box and/or Roll-Off Container service.
Section 17. Collector's Books and Records: Audits. The books and records of Collector shall be subject to audit and inspection for the purpose of reviewing billing operations, accounts receivable and customer service, by City, its auditors or agents. Collector sha] maintain all records relating to the Services, including, but not limited to, Customer lists, billing records, maps, AB 939 compliance records, AB 34 1 compliance records, and Customer complaints (collectively, the "Records"), for no less than three (3) years after the termination or expirati::m of the Term, or as may or any longer period required by applicable law. City shall have the right, upon five (5) business days advance notice, to inspect all Records, and other like materials of Collector which reasonably relate to Collector's compliance with the provisions of this Agreement.
Collector's Records shall be made available to City at a City facility, if reasonably practicable, or at Collector's regular place of business during regular business hours. If such audit discloses an underpayment of the Franchise Fees or other sums due under this Agreement, Collector shall promptly tender to the City the amount of such underpayment.
Section 18. Indemnification.
18.1. Indemnification of City. Collector agrees that it shall protect, defend, indemnify and hold harmless City, its elected and appointed councils, commissions, directors, officers, employees, agents, and representatives ("City's Agents") from and against any claim, action or proceeding that arises from this Agreement or any Services performed pursuant to or in connection with this Agreement ("Claim"), including but not limited to all losses, liabilities, fines, penalties, claims, damages, liabilities, judgments, attorney's fees, costs incurred for staff time, court costs, other expenses of litigation, or expenses of litigation awarded to the prevailing Party or Parties.
This indemnification does not include gross negligence or willful acts of the City, or City's Agents.
At City's discretion, Collector shall satisfy the obligation of this Section by reimbursing City for tendering its own defense. If Collector undertakes the defense of a Claim by providing Cityapproved representation, City may, participate in the defense of any such Claim.
To the extent permitted by Public Resources Code Section 40059.1, and to the extent noncompliance is caused by Collector's breach of or noncompliance with a provision of this Agreement, Collector agrees to protect and defend City or City's Agents, witli. counsel selected by the City, and to indemnify and hold harmless City or City's Agents from and against all fines or penalties imposed by the State if the waste diversion goals specified in the Public Resources Code arc not met by the City with respect to the Solid Waste collected by Collector under this Agreement. Collector shall indemnify, defend with counsel acceptable to the City, protect and hold harmless the City and City's Agents from and against all claims, damages (including but not limited to special, consequential, and natural resources damages), injuries, response mediation and removal costs, losses, demands, debts, liens, liabilities, causes of ac:ion, suits, legal or administrative proceedings, interest, fines, charges, penalties, and attorney and expert fees for the 11
adverse party and expenses (including but not limited to attorney's and expert witness fees and costs incurred in connection with defending against any of the forgoing or in enforcing this indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted against, the City or City's Agents arising from or attributable to the negligence or willful misconduct of Collector or its affiliates and their respective officers, directors, employee and shareholders in handling Hazardous Waste either knowingly or under circumstances in which a reaso:iable person would or should have known that Hazardous Waste was being handled. The foregcing indemnity is also intended to operate as an agreement pursuant to Section I 07(e) of CERCLA, 42 U.S.C. Section 9607(c) and California Health and Safety Code Section 25364, lo defend, insure, protect, hold harmless and indemnify the City from liability.
18.2. Indemnification of Collector. City shall indemnify, defend and hold Collector, its affiliates and their respective officers, directors, employees and shareholders harmless from and against any and all liabilities, losses, damages, claims, actions and causes of action, costs and expenses (including reasonable attorney's fees) arising from or in any mar_ner arising out of the negligent acts of the City or the City's employees. Subject to this indemnification, and upon demand of Collector, made by and through Collector's counsel, City shall appear in defense of Collector, and its officers, employees and agents in any claims or actions, whether judicial, administrative, or otherwise arising out of the exercise of this Agreement. Nothing in this Agreement shall alter the requirements of the Government Tort Claims Act as established within the Government Code and/or any indemnities provided to the City pursuant to any state, federal or local law, statue, or ordinance.
Section 19. Insurance. Collector will continue to carry insurance, which shall be placed with insurers with a current AM Best's rating of no less than A VII, and which shall include all of the following:
19.1 Required Insurance.
19.1.1 Worker's Compensation. Collector shall obtain and maintain in full force and effect throughout the Term, worker's compensation insurance in accor:i with the provisions and requirements of the California Labor Code. Endorsements that implement the required coverage shall be filed and maintained with the City Clerk throughout the Term. The policy providing coverage shall not be suspended, voided, canceled, reduced in coverage or in limits, except after thiliy (30) days prior written notice by certified mail, return receipt requested, has been given to the City. The policy shall also be amended to waive all rights cf subrogation against the City, its elected or appointed officials, employees, agents or representatives for losses which arise from the Services performed by the Collector pursuant to this Agreement.
19.1.2 General Commercial Liability Insurance. Collector shall carry commercial or comprehensive general liability insurance with a combined single limit of Two Million Dollars ($2,000,000.00) per occurrence/ aggregate for bodily injury, personal injury and property damage. Coverage shall be at least as broad as Insurance Services Office Commercial General Liability coverage (occurrence form GG 00 01 11 88). 12
19.1.3 Automobile Liability Insurance. Collector shall carry automobile insurance with a combined single limit of Two Million Dollars ($2,000,000.00) per occurrence for bodily injury, personal injury, and property damage, and which shall provide coverage for rented and non-owned vehicles. Coverage shall be at least as broad as Insurance Service form number CA 00 010692 covering Automobile Liability, code I (any auto).
19.1.4 Public Liability Insurance. Collector shall carry public liability insurance with a combined single limit of Two Million Dollars ($2,000,000.00) per occurrence for bodily injury, personal injury, and property damage.
19.1.5 Pollution or Environmental Liability Insurance. Collector shall carry Environmental or Pollution liability coverage appropriate for the waste activity contemplated in this Agreement, including sudden and accidental upset pollution liability for the amount of One Million Dollars ($1,000,000.00) per claim or occurrence and One Million Dollars ($1,000,000.00) in the aggregate.
19.2 Additional Insurance Requirements. Within five (5) days '.)fthe Effective Date, Collector shall provide City with certificates of insurance for all of the policies required under this Section 19 ("Certificates"), excluding the required worker's compensatior: insurance. With the exception of the worker's compensation insurance, all of the insurance po:icies required in this Section 19 shall: provide that the policy will not be cancelled, allowed to expire, or materially reduced in coverage without at least thirty (30) days' prior written notice, or ten (I 0) days' in the case of non-payment of premium by Collector ( as per insurance industry star:dard), to City of such cancellation, expiration, or reduction and each policy shall be endorsed to state such; name City, and City's Agents as additional insureds with respect to liability arising out of automobiles owned, leased, hired, or borrowed by or on behalf of Collector or operations performed by or on behalf of the Collector to perform the Services including materials, parts, or equipment furnished in connection with the Services or operations by endorsement; be primary, with respect to any insurance or self-insurance programs covering City or City's Agents and any insurance or selfinsurance maintained by City or City's Agents shall be excess of Collector's insurance and shall not contribute to it; and contain standard separation of insured provisions.
19.3 Deductibles and Self-Insured Retentions. Any deductbles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to City and City's Agents, or Collector shall provide a financial guarantee satisfactory to City guaranteeing payment of loss related investigations, claim administration and defense expenses.
19.4 Verification of Coverage. Before the Services commence, Collector shall furnish City with original Certificates and endorsements affecting coverage required by this Section 19.
The endorsements shall be on forms approved by the City which contain 2.ll of the information required in Section 19.
19.5 Subcontractors. Collector shall include all subcontractors as additional insured under its policies or shall furnish separate certificates and endorsements for each subcontractor.
All coverage for subcontractors shall be subject to all the requirements stated in this Section 19. 13
Said insurance shall protect C,ollector and City from any claim for damages for bodily injury, including accidental death, as well as from any claim for property damage which may arise from the Services, whether such operations be by Collector itself, or by its agents, employees, contractors or sub-grantees. Copies of the policies or endorsements evidencing the above insurance coverage shall be filed with the City Clerk. All of the following endorsements are required to be made a part of the insurance policies required by this Agreement.
19.6 Increase in Coverage Requirements. The limits for the insurance coverage required under this Section 19 and the ratings required for insurance companies shall be subject to review and approval by the City Attorney every year mid may be increased a: that time, at the City Attorney's discretion, to match the coverage provided by the City's own liability insurance policy.
Section 20. Title to Solid Waste. All Solid Waste, Recyclables, and Organic Waste collected pursuant to this Agreement shall remain the property of the Customer until such time as it is collected for disposal. It is expressly understood that all Solid Waste, Recyclables, and Organic Waste collected under this Agreement becomes the property of Collector upon collection, subject to the requirement of delivery to an appropriate disposal site. Collector is he~eby granted the right to retain, dispose of, and otherwise use such Solid Waste, Recyclables, and Organic Waste, or any part thereof, in any fashion or for any lawful purpose desired by Collector, and to retain any benefit or profit resulting therefrom. Solid Waste which is disposed of at a disposal site shall become the property of the owner or operator of the disposal site once deposited there by Collector.
Section 21. Rights of City to Perform During an Emergency. Should Collector, for any reason whatsoever, excluding a Force Majeure as defined in Section 11.2, be unable to perform any of the Services required by this Agreement, for a period of more than seventy-two (72) hours, and the City Manager reasonably finds that the resulting accumulation of Refuse in City endangers or menaces the public health, safety or welfare, then, City shall have the right to temporarily take possession of and use Collector's Equipment to carry out Collector's ooligations under this Agreement, upon twenty-four (24) hour prior written notice to Collector. Collector agrees that in such event it will fully cooperate with City to affect such a transfer of possession for City's use.
Collector agrees that, in such event, City may take temporary possessioi: of and use all said Equipment and facilities without paying Collector any rental or other charge, provided that when City takes possession of Collector's Equipment and facilities under this Section 21, City shall assume complete responsibility for the proper and normal use of such Equ:pment and facilities.
City agrees that it shall immediately relinquish possession of all of the above-mentioned property to Collector upon receipt of written notice from Collector stating it is able to resume its normal responsibility under this Agreement.
Section 22. Customer Confidentiality. Collector shall strictly observe and protect the right of privacy of the Customers. Information identifying individual Customers, or the composition or contents of a Customer's Refuse, shall not be revealed to m1y person, governmental unit, private agency or company, unless upon the authority of a court of law, by sutute, or upon valid authorization of the Customer. This provision shall not be construed to predude Collector from preparing, participating in, or assisting in the preparation of waste characterization studies or waste 14
stream analyses which may be required by AB 93 9 or SB I 3 83.
Collector shall not market or distribute, without City's advance written consent, which City may withhold in its sole and absolute discretion, mailing lists with the names or addresses of Customers.
The rights accorded Customers pursuant to this Section shall be in addition to any other privacy right accorded Customers pursuant to federal or state law.
Section 23. Reports and Adverse Information.
23.1 Reports. Within ninety (90) days after the close of Ccllector's fiscal year, Collector shall submit a written annual report, in a form approved by City, including, but not limited to, the following information:
23.1.1 A report on City's progress in meeting and maintaining its ability to meet its goals under AB 939 and SB 1383 as applied to the Franchise Area, along with any recommended changes. Collector shall also provide the City's Public Works Director with quarterly reports on the quantity (by weight) of all Commercial Solid Waste, Residential Solid Waste, Recyclables, and Organic Waste collected.
23.1.2 A list of Collector's officers and members of its board of directors.
23.1.3, A list of stockholders or other equity investors holding five percent (5%) or more of the voting interest in Collector and any subsidiaries.
23.1.4 The most current annual audited financial statement, upon request. To the extent permitted by the Public Records Act, this document shall remain confidential.
23.1.5 A current financial statement, upon request.
23.2 Adverse Information. Collector shall provide City two (2) copies of all reports, or other material adversely affecting this Agreement, which Collector submits to: the State or federal Environmental Protection Agency; the Department of Resources Recycling and Recovery; or any other federal, State, or local agency. Copies shall be submitted to City simultaneously with Collector's filing of such matters with said agencies. Collector's routing correspondence to said agencies need not be automatically submitted to City but shall be made available to City upon written request.
Collector shall submit to City copies of all pleadings, applications, notifications, communications and documents of any kind, submitted by Collector to any federal, state and local courts, regulatory agencies and other government bodies relating to Collector's performance of Services pursuant to this Agreement, as well as copies of all decisions, correspondence and actions by such agencies.
Any confidential data exempt from public disclosure shall be retained in confidence by City or its authorized agents and shall only be made available for public inspections, ao required by law. 15
Collector shall submit to City such other information or reports in such forn:.s and at such times as City may reasonably request or require.
All reports and records required under this, or any other section herein shall be furnished to City at the sole expense of Collector.
23.3 Failure to Report. The refusal, failure, or neglect of Collector to file any report required may be deemed a material breach of this Agreement if not corrected by Collector within ninety (90) days, and may subject Collector to all remedies, legal or equitable, which are available to City under this Agreement or otherwise.
Section 24. Bonds and Security.
24.1 Performance Bonds. Contemporaneously with the execution of this Agreement, Collector shall secure and execute a performance bond to be held by the City (the "Performance Bond") to ensure performance of Collector in an amount equal to twenty-five percent (25%) of the City's estimate of the Contractor's annual gross revenue under the Agreement. The Performance Bond shall be on terms and in a form acceptable to the City Attorney anc shall be issued by a California admitted insurer. The Performance Bond shall serve as security for the faithful performance by Collector of all the provisions and obligations of this Agreement.
Thirty (30) days following Collector's failure to pay City an amount owed under this Agreement, if ever, the Performance Bond may be assessed by City upon five (5) days prior written notice to Collector for purposes including, but not limited to:
A. Failure of Collector to pay City any sums due under the terms of the Agreement.
B. Reimbursement of costs borne by City to correct violations of this Agreement, after five (5) days' advance written notice to Collector.
C. Monetary remedies or damages assessed against Collector d·1e to a breach of this Agreement.
Section 25. Breach of Agreement.
25.1 Determination of Breach. If the City Manager reasonably determines that Collector's performance pursuant to this Agreement has not been in conformity with reasonable industry standards obtained in similar cities in Central California, the provisions of this Agreement, the requirements of the Department of Resources Recycling and Recovery, including, but not limited to, requirements for source reduction and recycling (as to the waste stream subject to this Agreement) or any other applicable federal, state or local law or regulation, including but not limited to the laws governing transfer, storage or disposal of Hazardous Waste, the City Manager may advise Collector in writing of such deficiencies. If Collector commits a material breach of this Agreement ("Breach"), City may terminate this Agreement, impose Liquidated Damages, or avail itself of any and all remedies set forth in Section 26 of this Agreement, in addition to all other 16
remedies available to the City in Jaw or equity.
25.2 Events that Constitute a Breach. A Breach includes but is not limited to the following:
25.2.1 Misrepresentation. Collector commits, or attempts to commit, any fraud, intentional material misrepresentation or deceit upon the City in relation to this Agreement or in the statements or materials submitted to City by Collector in connection with this Agreement as of the time the representation or disclosure is made.
25.2.2 Seizure or Attachment of Equipment. There is a seizure or attachment ( other than a prejudgment attachment) of, or levy affecting possession on, the operating Equipment of Collector, including without limit its vehicles, maintenance or office facilities, or any part thereof of such proportion as to impair Collector's ability to perform under this Agreement and which cannot he released, bonded, or otherwise lifted within forty-eight (48) hours excluding weekends and City-approved holidays.
25.2.3 Collector Bankruptcy. Collector files a voluntary petition for debt relief under any applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, or consents to the appointment of or taking of possession by a receiver, liquidator, assignee ( other than as a part of a transfer of equipment no longer useful to Collector or necessary for this Agreement), trustee ( other than as security for an obligation under a deed of trust), custodian, sequestrator, or similar official of Collector for a part of Collecto:' s operating assets or any substantial part of Collector's property, or shall make any general assignment for the benefit of Collector's creditors, or shall fail generally to pay Collector's debts as they become due.
25.2.4 Court Order or Decree. Any court having jurisdiction enters a decree or order for relief with respect to Collector, in any involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or hereafter in effect, or Collector consents to or fails to oppose any such proceeding, or any such court enters a decree or order appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator, or similar official of Collector or for any part of Collector's operating equipment or assets, or order the winding up or liq:iidation of the affairs of Collector.
25.2.5 Failure to Notify City. Collector fails to notify City in a timely manner of any receipt of notice of violation or official communication from those regulatory agencies regulating Solid Waste, Recyclables, and Organic Waste collection, transport, processing, or disposal activities.
25.2.6 Lapse of Financial Requirement. If Collector fails to provide or maintain in full force and in effect, the following: any of the insurance policies required pursuant to Section 16 herein; the full amount of the Performance Bond required under Section 24.1 herein; or the full amount of the Payment Bond required under Section 24.2 herein.
25.2. 7 Regulatory Violation. Collector violates any orders or filings of any regulatory body having jurisdiction over Collector relative to this Agreement, provided Collector 17
may contest any such orders or filings by appropriate proceedings conducted in good faith, in which case no breach of this Agreement shall be deemed to have occurred.
25.2.8 Cessation of Services. Collector ceases to provide collection, transportation, processing, or recycling services as required under this Agreement for a period of three (3) consecutive business days or more, for any reason within the contr-)1 of Collector.
25.2.9 Failure to Meet Payment or Reporting Requirements. Collector fails to make any payment required under this Agreement or refuses to provide City with required information, reports, or records in a timely manner as provided for in the Agreement.
25.2.10 Violation of AB 939 or SB 1383. Any other act or omission by Collector, which materially violates the terms, conditions or requirements of AB 939 and SB 1383 as may be amended from time to time; or any other directive rule or regulation issued thereunder; unless the violation is corrected or remedied within the time set on the written notice of violation; or if Collector cannot reasonably correct or remedy the violation within the time set forth in such notice, Collector commences to correct or remedy such violation within the time set forth in such notice and diligently and in good faith continues to cure, correct, or remedy such violation thereafter.
25.2.11 Unremedied Acts or Omissions. Collector commi,s any act or omission which violates the terms, conditions, or requirements of this Agreement, or any other applicable laws and which is not corrected or remedied within the time set in the written notice of the violation or, if Collector cannot reasonably correct or remedy the breach within the time set forth in such notice, Collector should fail to commence to correct or remedy such violation within the time set forth in such notice and diligently effect such correction or remedy thereafter.
25.2.12 Failure to Correct Breach. Collector fails to correct any Breach within the applicable Cure Period.
25.3 Cure Rights. Notwithstanding any other provision of this Section 25 to the contrary, City shall provide Collector with reasonable notice of and a reasonable opportunity to cure any Breach of this Agreement during the time periods set forth below (the "Cure Period").
Collector shall begin cure of any Breach as soon as it becomes aware of the Breach, whether discovered by Collector or through notice from the City. Upon becoming cognizant of the Breach, Collector shall proceed to cure such Breach as follows:
25.3.1 Immediately, if the City determines the Breach endangers the health, safety, or welfare of the public; or
25.3.2 Within fifteen (15) days of giving or rece1vmg n:itice of the Breach, provided that if the nature of the breach is such that it will reasonably require more than fifteen (15) days to cure, Collector shall have such additional time as is reasonably needed, no longer than thirty (30) days to expeditiously complete a cure. During any Cure Period, Collector shall provide City weekly written status updates infomling City of Collector's progress curing the Breach. 18
25.4 Right to Appeal. Collector may submit a response to clairr:s of Breach contained in any written notice from the City within ten (I 0) days ofreceipt of such notice. The City Manager shall review Collector's response and refer the matter to the City Council or decide the matter and notify Collector of that decision, in writing. A decision or order of City Manager shall be final and binding on Collector. Unless a governing ordinance or statute provides otherwise, if the Collector seeks further relief, the Collector shall file a petition for writ of mandate in superior court pursuant to Code of Civil Procedure Sections 1094.5 and 1094.6 within ninety (90) calendar days of the date of the decision or order.
Section 26. Termination, Liquidated Damages and other Remedies.
26.1 Termination. In the event Collector commits a Breach of this Agreement, City shall have the right to terminate this Agreement ("Termination").
26.2 Liquidated Damages.
26.2.1 City finds, and Collector agrees, that as of the Effective Date 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 Collector of its obligations under this Agreement.
Some reasons for the impracticability of ascertaining damages include but are not limited to: the difficulty in estimating the substantial damage that results to Customers who are denied Solid Waste disposal services or denied quality or reliable service; and the difficul:y valuing the damage caused from the inconvenience, anxiety, frustrations and deprivation of the benefits provided under the Agreement to individual members of the general public for whose benefit this Agreement exists. The Parties agree that these damages manifest in subjective ways and in varying degrees of intensity and are incapable of measurement in precise monetary terms. The Parties agree that any remedy for such breaches, including the te1mination of this Agreement are, at best, a means of future correction and not remedies, which can adequately make the public whole for past breaches.
26.2.2 The City Council may, at its discretion, assess liquidated damages not to exceed the sum of Two Thousand Dollars ($2,000) per day, for each calendar day that the Services are not provided by Collector in accordance with this Agreement for a period not to exceed fortyfive (45) days ("Liquidated Damages"). In addition, the City Council rr:ay order assessment against the Performance Bond and Payment Bonds required by Section 24 as set fotlh herein, the termination of this Agreement, or both.
26.2.3 The City finds, and Collector acknowledges and agrees that the abovedescribed liquidated damages provision represents a reasonable sum in light of all the circumstances. Said liquidated damage sums shall be applicable to each calendar day of delay during which Collector has been found by the City Council to be in Breach pursuant to Section 25.
Collector shall pay any Liquidated Damages assessed by the City Council ½ithin thirty (30) days after they are assessed. If they are not paid within the thirty-day (30) period, City may withdraw said amount from the Performance Bond or Payment Bond, as appropriate, pursuant to Section 24, order the Termination of the Franchise granted by this Agreement, or both. 19
26.3 Remedies Not Exclusive. The right of Termination or to impose Liquidated Damages are in addition to all other rights of City upon a failure of Collector to perform its obligations under this Agreement, including but not limited to the rights provided in Section 27.
Section 27. City's Additional Remedies. In the event Collector commits a Breach of this Agreement, and the City has tenninated this Agreement, in addition to the remedies set forth in Section 26, City shall have the following rights:
27.1 Rental of Collector Equipment. Notwithstanding the provisions set forth in Section 21 of this Agreement, City shall have the right to rent or lease Equipment from Collector for the purpose of collecting, transp011ing and disposing of Refuse which Collector is obligated to collect, transport and dispose of pursuant to this Agreement, for a period not to exceed six ( 6) months. If such Equipment is not owned by Collector, Collector shall assign to City, to the extent possible, the right to possess the Equipment. If City exercises its rights under this Section, City shall pay to Collector the reasonable rental value of the Equipment so taken for the period of City's possession thereof.
27.2 Right to License others to Provide Disposal Services for the City. City shall have the right to license others to perform the Services otherwise to be performed by Collector hereunder, or to perform such Services itself.
27.3 Right to Other Damages. City shall have the right to obtain damages or injunctive relief. The Parties recognize and agree that in the event of Breach by Collector, City may suffer irreparable injmy and incalculable damages sufficient to support injunctive relief, to enforce the provisions of this Agreement by Collector and to enjoin the Breach thereof.
Section 28. Compliance with Applicable Law.
Collector agrees that it shall comply with all applicable federal, state, and local laws and regulations, expressly including the provisions set forth in the Code which are applicable to the work or business in which it is herein franchised, and with any and all amendments to such applicable provisions during the Term.
Section 29. Assignment.
The Franchise granted by this Agreement shall not be transferred, sold, hypothecated, sublet or assigned, nor shall any of the rights or privileges herein be hypothecated, leased, assigned, sold or transferred, either in whole or in part nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person, except Collector, either by act of the Collector or by operation oflaw, without the prior written consent of City expressed by a resolution or ordinance approved by the City Council, which may be withheld for any reason, conditioned or granted in the City's sole discretion. Any attempt by Collector to assign this Franchise without the consent of City shall be null and void.
If Collector attempts to transfer the Franchise prior to obtaining City consent, all of the profits or twenty-five percent (25%) of the gross revenues received pursuant to the Services provided under 20
this Agreement, from the date of attempted transfer until the date of City consent, whichever is greater, shall be returned to City.
Section 30 . Franchise Transfer: Fees.
Any application for a Franchise transfer shall be made in a manner prescribed by the City Manager.
The application shall include a transfer fee in an amount to be set by the City by resolution or ordinance of the City Council, to cover the cost of all direct and indirect adr:iinistrative expenses, including consultants and attorneys, necessary to adequately analyze the application and to reimburse City for all direct and indirect expenses. In the event that City's actual costs exceed the amount of the transfer fee, Collector shall reimburse City for all additional costs which are not covered by the transfer fee, up to, but not exceeding Five Thousand Dollars ($5,000.00). Bills shall be supported with evidence of the expense or cost incurred. The applicant, for any such transfer, shall pay such bills within thirty (30) days of receipt. The Franchise transfer fees detailed in this Section are over and above any franchise fees specified in the other portions of this Agreement.
Section 31. City Must Approve Change in Control of Collector.
City consent is required for any change in control of Collector. Collector is a corporation, and any acquisition of more than forty-five percent ( 45%) of Collector's voting stock by a person, or group of persons acting in concert shall be deemed a change in control. Any change in control of the Collector occurring without prior City approval shall constitute a material breach of this Agreement.
Section 32. Amendment to Agreement.
This Agreement is intended to cany out City's obligations to comply with the provisions of AB 939 and SB 1383 and implemented by regulations of the Department of Resources Recycling and Recovery ("Regulations"), as they may from time to time be amended. In tl:e event that AB 939, SB 13 83 or other state or federal laws or regulations enacted after the Effective Date, prevent or preclude compliance with one or more provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comp;y with such state or federal laws or regulations. Except for Rate adjustments made pursuant to Section 9, this Agreement may be amended or modified only by a written agreement duly authorized and executed by both the City and Collector.
Section 33. General Provisions.
33.1 Governing Law and Venue. This Agreement shall be governed and construed in accordance with the laws of the State of California. Venue for all legal proceedings arising from this Agreement shall be in the Superior Court for the County of Stanislaus in the State of California.
In the event of litigation in a U.S. District Court, exclusive venue shall lie in the Eastern District of the State of California. •
33.2 Notices. Any notice or communication required hereunder between City and Collector must be in writing, and may be given either personally, by facsimile (with original 21
forwarded by regular U.S. Mail), by registered or ce Itified mail (return receipt requested), or by Federal Express, UPS or other similar couriers providing overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. If given by facsimile transmission, a notice or communication s!Bll be deemed to have been given and received upon actual physical receipt of the entire document by the receiving Party's facsimile machine. Notices transmitted by facsimile after 5:00 p.m. on a normal business day or on a Saturday, Sunday or holiday shall be deemed to have been given and received on the next normal business day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of actual receipt by any of the addressees designated below as the party to whom notices are to be sent or five (5) days after a registered or ce 1 tified letter containing such notice, properly addressed, w:th postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the da~e delivered as shown on a receipt issued by the courier. Any Party hereto may at any time, by giving ten (I 0) days written notice to the other Party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below:
To City:
With courtesy copy to:
To Collector: Gilton Solid Waste Management, Inc.
755 S. Yosemite Ave.
Oakdale CA 9536 I
Attention: President
33.3 Severability. If this Agreement in its entirety is determined by a court to be invalid or unenforceable, this Agreement shall automatically terminate as of the date of final entry of judgment. If any provision of this Agreement shall be determined by a court to be invalid or unenforceable, or if any provision of this Agreement is rendered invajd or unenforceable according to the terms of any federal or state statute, which becomes effective after the Effective Date, the remaining provisions shall continue in full force and effect and shall be construed to give effect to the intent of this Agreement.
33.4 Exhibits Incorporated. The following "Exhibits" are attached hereto and incorporated herein by this reference:
Exhibit Designation
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit Title
Definitions
Franchise Area
Rates
Bulky Item Collection Program
C&D Debris Diversion Policy
Specified E-Waste
SB 13 83 Additional Services
22
33.5 Time of Essence. Time is of the essence for the Agreement and each provision contained within and each provision is made and declared to be a material, necessary and essential part of the Agreement.
33.6 Authority. All Parties to the Agreement warrant and represent that they have the power and authority to enter into the Agreement and the names, titles and capacities herein stated on behalf of any entities, persons, states or firms represented or purportec to be represented by such entities, persons, states or firms and that all former requirements necessary or required by the state or federal law in order to cuter into the Agreement. By entering into ti-is Agreement, neither Party hereto shall have breached the terms or conditions of any other contract or agreement to which such Party is obligated, which such breach would have a material effuct hereon.
33. 7 Drafting and Ambiguities. Each Party acknowledges that it has reviewed this Agreement with its own legal counsel, and based upon the advice of that counsel, freely entered into this Agreement. Each Party has participated fully in the review and revision of the Agreement.
Any rule of construction that ambiguities are to be resolved against the d~afting party does not apply in interpreting this Agreement.
33.8 Entire Agreement. This Agreement, together with its specific references, attachments and Exhibits, constitutes the entire agreement of the Parties with respect to the subject matters hereof, and supersedes any and all prior negotiations, understanding and agreements with respect hereto, wh_ether oral or written.
33.9 Supersedes Prior Agreement. It is the intention of the Parties hereto that this Agreement shall supersede any prior agreements, discussions, commitments, representations, or agreements, written, electronic or oral, between the Parties with respect to the subject matter of this Agreement.
33.10 Captions. The captions of this Agreement are for convenience and reference only and the words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction or meaning of the provisions of this Agreement.
33.11 Mandatory and Permissive. "Shall" and "will" and "agrees" are mandatory. "May" and '~can" are permissive.
33.12 Successors and Assigns. All representations, covenants, and warranties specifically set forth in this Agreement, by or on behalf of, or for the beneft of, any or all of the Parties hereto, shall be binding upon and inure to the benefit of such Party, its successors and assigns.
33.13 Counterparts. This Agreement may be executed simultane0usly and, in several counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.
23
33.14 Attorney's Fees and Costs. If any action at law or in equity, including action for declaratory relief, is brought to enforce or interpret provisions of this Agreement, the prevailing Party shall be entitled to reasonable attorney's fees and costs, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which such Party may be entitled.
33.15 Necessary Acts and Further Assurances. The Parties shall at their own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of the Agreement.
33.16 Waiver. No covenant, term, or condition or the breach thereof shall be deemed waived, except by written consent of the Party against whom the waiver is claimed, and any waiver of the breach of any covenant, te lm, or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term, or condition.
IN WITNESS WHEREOF, this Agreement has been entered into by and between City and Collector as of the Effective Date.
CITY OF LIVINGSTON
By: _________ _
Christopher Lopez
Interim City Manager
Date: ----------
APPROVED AS TO LEGAL FORM:
By: ----------- Roy C. Santos, City Attorney
Date: ----------
GIL TON SOLID WASTE MANAGEMENT,
INC.
By:----------
Richard Gilton, President
Date: ----------
24
EXHIBIT A
Definitions
Capitalized words in the Agreement shall have the following meanings:
I. "AB" shall mean an Assembly Bill of the California Legislature.
2. "AB 341" shall mean the amendments to the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code), Chapter 476, as amended, supplemented, superseded, and replaced from time to time.
3. "AB 939" shall mean the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code), as amended, supplemented, superseded, and replaced from time to time.
4. "AB 1826" shall mean the Assembly Bill approved by the Governor of the State of California on September 28, 2014, which added Chapter 12.9 (commencing with Section 42649.8) to Part 3 of Division 30 of the Public Resources Code, relating to Solid Waste, as amended, supplemented, superseded, and replaced from time to time.
5. "Agreement" shall mean this Franchise Agreement between the City and Collector, including all exhibits and future amendments.
6. "Bin" or "Bins" shall mean receptacles provided by Collector for customers which are picked up by Collection trucks by means of a front-loading apparatus.
7. "Bulky Items" shall mean large items of Solid Waste such as appliances, furniture, branches, and other oversize wastes whose large size precludes or complicates their placement in containers or handling by normal collection, processing, or disposal methods, but excluding Excluded Waste; items larger than five cubic yards or heavier than 500 pounds; and items of excessive size or density, such as engine blocks, spas, boats, and trailers. A list of acceptable and unacceptable Bulky Items is attached as Exhibit D.
8. "Breach" shall be as defined in Section 26.1 of this Agreement.
9. "Cart" or "Carts" shall mean industry standard receptacles for disposal of Solid Waste, Organic Waste, and Recyclables, in a range of sizes. A Cart has wheels, a handle for ease of movement, and a light-fitting, attached lid and is designed to be dumped manually or mechanically into a Solid Waste collection vehicle.
10. "Certificates" shall be as defined in Section 19.2 of this Agreemen:. 1 I. "City" shall mean the City of Livingston, Merced County, State of California.
12. "City's Agents" shall be as defined in Section 18.1 of this Agreen:ent.
13. "City Attorney" shall mean the city attorney for the City of Livingston.
14. "City Council" shall mean the City Council of the City of Livingston.
15. "City Engineer" shall mean the city engineer for the City of Livingston.
16. "City Manager" shall mean the city manager for the City of Livingston.
17. "Claim"shall be as defined in Section 18.1 of this Agreement.
18. "Collector" shall be as defined in the Preamble to this Agreement.
19. "Construction_ and Demolition Debris" or "C&D Debris' shall nean waste building materials, packaging, and rubbish resulting from construction, remodeling, repair, and demolition operations on pavements and on houses, commercial buildings, and other structures, but not including any Excluded Waste.
20. "Container" or "Containers" shall be as defined in Section 11.1 of this Agreement.
21. Contamination Monitoring shall be monitoring for prohibited container contaminants and notifying generators if contamination is found.
22. "Cure Period" shall be as defined in Section 26.3. of this Agreement.
23. "Customer" or "Customers" shall mean an individual(s), emity or entities that receive any services provided by Collector pursuant to this Agreement. Customer shall also mean the person, organization, or corporation receiving services to which billing statements are sent.
24. "Effective Date" shall be as defined in the Preamble to the Agreement.
25. "Electronic Waste" or "E-Waste" shall mean waste containing or consisting of electronic devices and components, such as computers, monitors, terminals, computer cards and components, computer peripheral devices, main frame computers, keyboards, mice, printers and scanners, mini-systems, power supply units, servers, connectors/cables, storage discs, consumer electronics, printed circuit boards, televisions, chips and components, cellular and other phones, telecommunications equipment, and fax machines and copiers, but not including Excbded Waste.
26. "Equipment" shall mean Collector's vehicles, tools, and equipn:ent for the Services for which it is responsible under this Agreement.
27. "Excluded Waste" shall mean Hazardous Waste; Medical and Infectious Waste; liquid wastes; volatile, corrosive, biomedical, infectious, biohazardous, an:! toxic substances or material; waste that Collector reasonably believes would, as a result of or upon 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 III landfills; waste that in Collector's reasonable opinion would present a significant risk to human health or the environment, cause a nuisance, or otherwise create or expose Collector or the City to potential liability. Excluded Waste does not include de minimis volumes or concentrations of waste of a type and amount normally found in residential Solid Waste after implementation of programs for the safe collection, recycling, treatment, and disposal of Household Hazardous Wastes in compliance with Sections 41500 and 41802 of the Public Resources Code.
28. "Exhibits" shall be as defined in Section 34.4. of this Agreement.
29. "Force Majeure" shall be as defined in Section 11.2. of this Agreement.
30. "Franchise Area'' shall be as defined in Section 4.1. of this Agreement.
31. "Franchise Fees" shall mean both the fees retained by City and paid by Collector to City as defined in Section 16.1.
32. "Hazardous Waste" shall mean a waste, or combination of wastes, which, because of its quantity, concentration, or physical, chemical, or infectious characteristics, may do either of the followjng:
a. Cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible or incapacitating reversible illness. b. Pose a substantial present or potential hazard to human health or environment when improperly treated, stored, transported, or disposed of, or otherwise managed. (Public Resources Code Section 40141.)
33. "HDPE (High Density Polyethylene)" shall mean a recyclable plastic that includes, but is not limited to, milk jugs.
34. High Diversion Organic Waste Processing Facility shall mean a facility that is in compliance with the repo1ting requirements of SB 1383 and meets or exceeds an annual average mixed waste organic content recovery rate of 50 percent (50%) between January I, 2022, and December 31, 2024, and 75 percent (75%) after January I, 2025, as calculated pursuant to SB 1383 for Organic Waste received from the Mixed Waste.
35. "Household Hazardous Waste" shall maintain the meaning set forth in Title 14, California Code of Regulations, Section 18502 or successor laws and regulations as may be amended from time to time.
36. "Liquidated Damages" shall be as defined in Section 27.2.1 of this Agreement.
37. "Medical and Infectious Waste" shall mean biomedical waste generated at residences in excess of legal limits or at hospitals, public or private medical clinics, dental
offices, research laboratories, pharmaceutical industries, blood banks, mortuaries, veterinary facilities, and other similar establishments.
38. "Notice or Appeal" shall be as defined in Section 26.4 of this Agreement.
39. "Organic Waste" shall be all tree and plant trimmings, grass cuttings, dead plants, weeds, leaves, branches, and similar plant materials, (but not including palm fronds or items longer than five (5) feet or with a diameter greater than six (6) inches), food, food scraps, food soiled paper, wood waste, paper and cardboard.
40. "Party" or "Parties" shall be as defined in the Preamble to this Agreement.
41. "Payment Bond" shall be as defined in Section 25.2 of this Agreement.
42. "Performance Bond" shall be as defined in Section 25.1 of this Agreement.
43. "PET (Polyethylene Terephthalate)" PET means a recyclable plastic that includes, but is not limited to, 2-liter soda bottles.
44. "Rates" shall mean the rates charged by Collector or City to Customers within the City as set forth in Section 9 .I.
45. "Recitals" shall be as defined- in Section I of this Agreement.
46. "Records" shall be as defined in Section 13 or this Agreement. 4 7. "Recyclable Materials" or "Recyclables" shall mean those ma:erials that may be separated on a commercially reasonable basis from Solid Waste and returned to the economic mainstream in the fonn of raw material for new, rei:sed, or reconstituted products which meet the quality standards necessary to be used in the marketplace.
Subject to mutually agreed revision by the Parties, Recyclable Materials or Recyclables include, newspaper (including inserts, coupons, and store advcl liscments), corrugated card-board, mixed waste paper (including office paper, computer pcper, magazines, junk mail, catalogs, Kraft bags and Kraft paper, paperboard, egg containers, phone books, brown paper, grocery bags, colored paper, construction paper, envelopes, legal pad backings, shoe boxes, and cereal and other similar food boxes), glass containers (including colored glass bottles and jars), aluminum (including beverage containers, foil, food containers, and small scrap metal), plastic milk and juice containers, steel or tin cans, small scrap metal, PETE and HDPE plastic containers (natural and colored), used motor oil and oil filters, and any other commercially viable recyclable materials mutually agreed to by Collector and the City.
48. "Refuse" shall mean general term for waste, including Solid Waste,
49. "Regulations" shall be as defined- in Section 33 of this Agreement.
50. "Roll-Off Box" shall mean a container, with a minimum capacity of ten cubic yards, designed for mechanical emptying with a vehicle, and used for the storage and transportation of solid waste, Organic Waste, recyclables, and other commodities.
51. Route Review shall mean inspection and compliance review of a random sample to determine compliance and generate an electronic or written recod for each inspection.
52. "SB 1383" shall mean Senate Bill 1383, Short-Lived Climate Pollutants (SLCP):
Organic Waste Methane Emissions Reductions ("SB 1383"), establishing a statewide target to decrease methane emissions at landfills by reducing the disposal of organic waste by 50% below 2014 levels by 2022 and by 75% below 2014 levels by 2025.
53. "Services" shall be as defined in Section 5.1 of this Agreement.
54. "Solid Waste" shall mean and include all forms of residential and commercial waste generated within City limits and intended for disposal. Solid Waste as defined in Public Resources Code, Section 40191 and regulations promulgated thereunder and without limitation includes all putrescible and non-putrescible solid, semisolid, and liquid wastes, including garbage, trash, Refuse, rubbish, ashes, industrial wastes, demolition and construction wastes, abandoned vehicles and parts thereof, discarded home and industrial appliances, dewatered, treated, or chemically fixed sewage sludge which is not hazardous waste, manure, vegetable or animal solid or semisolid wastes, and other discarded solid and semisolid wastes.
Notwithstanding any provision to the contrary, "Solid Waste" may include de minim is volumes or concentrations of waste of a type and amount normally found in residential solid waste after implementation of programs for the safe collection, recycling, treatment, and disposal ofHousehold Hazardous Waste in compliance with Sections 41500 and 41802 of the Resources Code. For the purposes of this Agreement the Collector may, but is not required, to collect, haul, dispose or recycle any liquid wastes, abandoned vehicles, and parts thereof, industrial appliances; dewatered, treated or chemically fixed sewage sludge or manure.
55. "State" shall mean the State of California.
56. "Term" shall be as defined in Section 7 of this Agreement.
57. "Termination" shall he as defined in Section 27.1 of this Agreement.
58. "Universal Waste" shall mean any waste matter which the State of California classifies as 'universal waste,' including, but not limited to, items and materials listed in 22 CCR 6626 I. 9, as it may be amended, as well as any items listed below not classified by the State of California as 'universal waste.' Universal Waste includes, but is not limited to, the following:
• E-Waste;
• Batteries ( except automobile batteries);
• Thermostats;
•
•
•
•
•
Lamps with fluorescent tubes, high intensity discharge lamps, sodium vapor lamps, and other lamps with hazardous waste characteristics; Cathode ray tubes;
Aerosol cans;
Mercury-containing items, including light switches, pressure gauges, and thermometers;
Appliances, devices, and other objects containing electronic components, including (but not limited to) computers, computer monitors, cellular telephones, copiers, fax machines, DVD players, VCRs, and televisions.
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EXHIBIT B
Franchise Area
I '-'
Exhibit 1
Gilton Solid Waste Management~ Inc.
Revised Proposal for City of Livingston
Agreement for Solid Waste, Recyclable Materials, & Organic Waste Collection Services Based on Increased Passthrough costs 03/01/2024
STANDARD SERVICE - WEEKLY COLLECTION ALL CONTAINERS
Tw0 (2) Carts (1,) MSW/ Recycle .(1~ Organks,,
96 Gallon Carts
Basic Bundled Service
Additional carts availble at a Monthly rate of $10.00 per cart Carts are replaced as needed.
Standard Service Per Bin
Bin Collection Monthly
Size FrequencVt R.ate
1 Cubic Yard 1 $67.35
1 Cubic Yard 2 $134.65
1 Cubic Yard 3 $201.93
1 Cubic Yard 4 $269.21
1 Cubic Yard 5 $336.49
1 Cubic Yard 6 $403.85
2 Cubic Yard 1 $134.26
2 Cubic Yard 2 $266.1 1
2 Cubic Yard 3 $401.23
2 Cubic Yard 4 $535.41
2 Cubic Yard 5 $669.59
2 Cubic Yard 6 $803.85
3 Cubic Yard 1 $198.90
3 Cubic Yard 2 $376.21
3 Cubic Yard 3 $566.86
3 Cubic Yard 4 $764.64
3 Cubic Yard 5 $961.43
3 Cubic Yard 6 $1,160.33
4 Cubic Yard 1 $254.58
4 Cubic Yard 2 $496.10
4 Cubic Yard 3 $775.89
4 Cubic Yard 4 $1,025.84
4 Cubic Yard 5 $1,276.65
4 Cubic Yard 6 $1,452.41
6 Cubic Yard 1 $357.95
6 Cubic Yard 2 $697.76
6 Cubic Yard 3 $1,067.07
6 Cubic Yard 4 $1,419.66
6 Cubic Yard 5 $1 ,776.83
6 Cubic Yard 6 $2,134.78
96 Gallon carts are available to commercial customers
The rate for this service is $ 30 per container per month.
Mhrthty Rate
$35.25
EXHIBITD
RESIDENTIAL BULKY ITEM COLLECTION PROGRAM
• Scheduled by appointment only. To arrange a pickup, please call our office at (209) 527- 3781
• Program available to residents who currently subscribe to garbage service* • Qualifying residents can have bulky item picked up at their home two times per year • Verify that items you want to set out for pick up are Acceptable Items (see lists below) • Once appointment for pick up has been scheduled, items must be set out in front of home after 6:00 p.m. the day before scheduled appointment. Place items on the street one foot from curb. Do NOT block sidewalks, driveways or mailboxes. Items should be at least 3 feet away from garbage cart
• Do NOT place pile under low hanging wires or low hanging tree branches • Items set out for collection should not exceed a dimension of 6 feet tall, 6 feet wide and 6 feet deep
• Items will be picked up after 6:00 a.m. on scheduled pick up day
ACCEPTABLE ITEMS
✓ Refrigerators & Freezers - Doors taped shut or doors removed - Limit I ✓ Washers & Dryers - Limit I of each
✓ Water Heaters, Water Softener - drained - Limit I of each ✓ Air Conditioning Units - Limit I
✓ Dishwashers - Limit 1
✓ Toilets, Sinks, Bathtubs
✓ Hot Tubs - Limit 1
✓ Couches, Sofas, Recliners
✓ Table and Chairs
✓ Dressers, Desks
✓ Mattress, Box Springs, Bed Frame - Limit 2
✓ Barbeques, Grills - remove propane tank
✓ Patio Furniture
✓ Doors
✓ Ladders
✓ Lawn Mowers - gas & oil removed
✓ Bicycles
✓ Exercise Equipment
✓ Plywood Sheets - limit 2
✓ Wood - limit IO pieces no longer than 8 feet
✓ Carpet - rolled up
✓ Dry, flattened cardboard- Bundled
UNACCEPTABLE ITEMS
✓ Tires
✓ Automobile Parts
✓ Household Garbage-No bags, boxes or containers with small items inside
✓ Hazardous Waste, Chemicals, Toxic Materials
✓ Liquids, Paints, Solvents
✓ Plate Glass
✓ TVs
✓ Computer Monitors
✓ Concrete, Asphalt, Sheetrock
✓ Construction & Demolition Debris
✓ Fencing, Treated Wood
✓ Yard Waste
✓ Tree Stumps
✓ Items Associated with Business
✓ Dead Animals
✓ Fluorescent Light Tubes
✓ Sod, Dirt
✓ Glass, Mirrors
✓ Items Small Enough to Fit in Garbage Can
EXHIBITE
Construction & Demolition Debris Policy
The 2013 California Green Building Standards Code (CALGreen) instructs local jurisdictions to require contractors to develop and maintain a waste management plan, among other things, to verify a minimum 50 percent waste diversion. CALGreen further specifies for the WMP to be updated as necessary and shall be available for examination during construction. Sample WMP is provided in the actual CALGreen code publication under the Compliance Forms and Worksheets section. The California Department of Housing and Development's website also provides sample WMP for residential C&D projects.
EXHIBITF
Acceptable E-Waste for Curbside Collection Program
Computers
Printers
Copiers
Scanners
Fax Machines
Telephones
Cellular Telephones Stereos
DVD Units
Televisions (Cathode Ray Tubes)
Computer Monitors
Flat Screen Televisions
Lap Top Computers
Networking Equipment
Printed Circuit Boar\ls
Computer Servers
Computer Main Frame
EXHIBITG
SB 1383 Additional Services
• Gilton staff to attend city public events providing outreach and education on SB 1383 • No less than twice per year, direct mail SB 1383 requirements to both residential and commercial customers. Fliers will be in English, Spanish and Punjabi. • Annual route reviews for residential customers
• Cart and bin labels reinforcing proper separation of materials, by listing out which materials are accepted inside the container, and which are not accep:ed. • Contamination Monitoring - contractor shall perform contamir:ation inspections by utilizing on-board monitoring systems or physical container inspections. • Cart contamination tags to inform customers of contamination issues and educate with solutions to resolve.
• Procurement- Contractor to provide Organic Waste Products (OWP, such as mulch and/or compost) to the City, to meet the annual Target Goal issued by CalRecycle to the City for that reporting year.
• Reporting - contractor will provide the data or prepare reports required to meet SB 1383 requirements which include:
o The number of generators that receive organic waste collection service. o The number of route reviews conducted for prohibited container contamination. o The number of times notices, violations or targeted education materials were issued to generators for prohibited container contaminants.
STAFF REPORT
AGENDA ITEM: Resolution Establishing a City-Wide Franchise Fee for Solid Waste, Recyclable Materials, and Organic Waste Collection.
MEETING DATE: April 16, 2024
PREPARED BY: Anthony Chavarria, Director of Public Works REVIEWED BY: Christopher Lopez, Interim City Manager
RECOMMENDATION:
Staff recommends that the city Council adopt a Resolution Establishing a Fifteen (15%) Percent Franchise Fee for Exclusive Access to City Solid Waste, Recycling and Organics Collection Services and Exclusive access to City Streets and Right-of-Way.
BACKGROUND:
In anticipation of the expiration of an agreement with Gilton Solid Waste Management, Inc. (Gilton), City Staff released a Request for Proposals (RFP) for an Agreement for Solid Waste, Recyclable Materials, and Organic Waste Collection Services on December 2, 2022. This RFP included provisions necessary to assist the City in complying with the state mandates and CalRecyle regulations governing management of recyclable materials and organic waste. Assembly Bill 341 (AB 341) mandates that all commercial customers participate in a recyclable diversion program. Senate Bill 1383 (SB 1383) mandates that all customers must actively participate in an organic waste diversion program to substantially reduce organic waste being sent to landfills.
In order to allow for the RFP process to run its course, the City Council approved extensions with Gilton to ensure continuity of solid waste collection services.
The RFP included a franchise fee component that anticipated the Contractor to pay a Franchise Fee to the City that is 15% of the Contractor’s gross revenues from all operations in the franchise area within the City pursuant to the agreement for each monthly period (“Franchise Fee”).
There were three proposals submitted (1) Gilton Solid Waste Management, Inc. (Gilton), (2) Mid Valley Disposal (Mid valley), and (3) Modesto Garbage Company, Inc (WM). An evaluation team made up of City Staff and HF&H Consultants, LLC evaluated the three proposals and ranked Gilton as the topranked company.
On December 5, 2023, the City Council adopted Resolution No. 2023-83 selecting the desired SB-1383 compliant two cart collection system and selecting proposal option 2B, authorized the Interim City Manager to negotiate a new franchise agreement with Gilton for the Solid Waste, Recyclable Materials and Organic Waste Collection Services, approved an amendment to the agreement with Gilton for an additional two (2) months and authorized the Interim City Manager to negotiate minor adjustments to the contract extension. When identifying the new rates being proposed by Gilton, the exhibits included the 15% franchise fee.
On March 19, 2024, the City Council approved Resolution No. 2024-14 approving a Franchise Agreement for Solid Waste, Recyclable Materials, and Organic Waste Collection Services between the City of Livingston and Gilton Solid Waste Management, Inc. The agreement included a 15% Franchise Fee excluding the City’s established Administration Fee.
The highlights of the agreement are as follows:
• 10 year initial term with option of two 5 year extensions. • City will receive a 15% Franchise Fee from Collectors gross revenues from residential, commercial, and industrial accounts.
• City will adjust the maximum rates under this agreement to reflect annual changes in the consumer price index for all urban consumers (CPI).
• Collector will provide for two (2) curbside bulky item collection events per calendar year from residential customers.
• Collector shall collect, recycle, or dispose of specified E-Waste (as defined in Exhibit F in the attached agreement) from residential customers up to four (4) times per calendar year. • Collector will provide a residential Christmas tree collection and recycling program. Each year, during the first two full weeks of January, Collector will pick up Christmas trees from the front of residential properties in the City.
• Collector shall provide Solid Waste, Recyclables, and Organic Waste collection services to all City owned and operated facilities and parks at no additional charge to the City. • At the City's request, Collector will provide waste containers, plus Solid Waste, Organic Waste and Recyclables removal and disposal services for three community events per year. • No less than twice per year, if requested by City, Collector will distribute informational flyers or brochures to City Customers regarding the importance of recycling and separating wastes in order to achieve greater waste diversion, as well as the applicable commercial recycling requirements set forth in AB 341, AB 1826, and SB 1383. In addition, Collector will provide technical support and assistance to City Staff in preparation of articles or newsletters related to organic waste reduction, reuse, and recycling.
• Collector agrees to assist the City in meeting SB 1383 mandates by performing the additional services (as detailed in Exhibit G in the attached agreement) The franchise area granted by this Agreement shall be all residential and commercial premises located within city limits of City, as more particularly shown on Exhibit B.
DISCUSSION:
The City Council, upon completion of the competitive bidding process, awarded Gilton an exclusive solid waste franchise for collecting, transferring, recycling, composting, and disposing solid wastes from all residential and/or commercial premises in the City. Payment of the franchise fee authorizes Gilton to collect, transfer, recycle, compost, and dispose of solid waste, including receiving exclusive access to operate heavy equipment upon city streets and rights-of-way and the exclusive right to place their multiple waste containers upon city streets and rights-of-way.
Further, the City believes the franchise fee as proposed of 15% is a reasonable estimate of the value of the franchise based upon the exclusive access to city property by the franchisee, the size of the City, potential expansion of the City, and exclusive access to the franchisee of approximately 3,500 paying solid waste customers.
Lastly, neither the franchise agreement nor franchise fee authorizes Gilton to provide any other services or grant any other exclusive access within the City.
City staff recommends that the City Council adopt a resolution of the City of Livington establishing the Franchise Fee at 15%.
ALTERNATIVE:
(1) City Council may deny the Franchise Fee Resolution. (2) Council could provide alternative direction.
FISCAL IMPACT:
Projected Franchise Fee revenue is estimated to be $305,000 to be directed to the General Fund.
ATTACHMENTS:
1. Resolution
2. Exhibit “A” Franchise Agreement
3. Exhibit “B” Franchise Area Map
RESOLUTION NO. 2024-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LIVINGSTON ESTABLISHING A FIFTEEN (15%) PERCENT FRANCHISE FEE FOR EXCLUSIVE
ACCESS TO CITY SOLID WASTE, RECYCLING AND ORGANICS COLLECTION
SERVICES AND EXCLUSIVE ACCESS TO CITY STREETS AND RIGHTS-OF-WAY WHEREAS, the California Integrated Waste Management Act of 1989 (Public Resources Code sections 40000 et seq.) requires local agencies to make adequate provision for Solid Waste handling within their jurisdictions; and
WHEREAS, the City of Livingston Municipal Code authorizes the City to enter into exclusive franchise agreements for the handling, collection, transportation and disposal of solid waste, recycling and organics; and
WHEREAS, The City Council, upon completion of the competitive bidding process, awarded Gilton an exclusive solid waste franchise for collecting, transferring, recycling, composting, and disposing solid waste from all residential and/or commercial premises in the City; and
WHEREAS, Payment of the franchise fee grants Gilton the exclusive right to collect, transfer, recycle, compost, and dispose of solid waste, including receiving exclusive access to operate heavy equipment upon city streets and rights-of-way and the exclusive right to place their multiple waste containers upon city streets and rights-of-way, within the City.
WHEREAS, the City believes the franchise fee of fifteen (15%) percent is a reasonable estimate of the value of the franchise based upon the exclusive access to city property (including by not limited to city streets and rights-of-way) by the franchisee, the size of the City, potential expansion of the City, and exclusive access to the franchisee of approximately 3,500 paying solid waste customers; and
WHEREAS, the City granted to Gilton an exclusive franchise commencing April_, 2024, for the handling, collection, transportation, recycling, organics, and disposal of solid waste within the City, and the City now desires to establish and charge the franchisee a franchise fee of fifteen (15%) percent of franchisee's Gross Revenues over the life of the franchise.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Livingston as follows:
SECTION 1. The above recitals are incorporated are hereby by reference.
SECTION 2. The resolution is exempt from the California Environmental Quality Act ("CEQA") because it can be seen with certainty that there is no possibiity that it will have a significant effect on the environment. (CEQA Guidelines§ 15061(b)(3) . .) Further, the adoption and implementation of this Ordinance is not a project, as defined in CECA Guidelines section 15378, because it has no potential for resulting in physical change to the environment, either directly or indirectly, and is therefore not subject to environmental review under CEQA pursuant to CEQA Guidelines section 15060(c)(3).
SECTION 3. The City Council of the City of Livingston hereby estaclishes a franchise fee in the amount of fifteen (15%) percent of the franchisee's gross revenues for the collection, transferring, recycling, organics, and disposal of solid waste, including recei'Jing exclusive access 01424.0001/976068.1 Page 1 of 2
to operate heavy equipment upon city streets and rights-of-way and the exclusive right to place their multiple waste containers upon city streets and rights-of-way.
SECTION 4. This Resolution will become effective immediately.
I hereby certify that the foregoing Resolution No. 2024-__ is a full, true and correct copy of a resolution duly passed and adopted by the City Council of the City of Livingston at a regular meeting thereof duly held on the 16th day of April 2024, by the vote recorded as follows:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST
Monica Cisneros, Deputy City Clerk
Of the City of Livingston
APPROVED AS TO LEGAL FORM
Roy C. Santos, City Attorney
01424.0001/976068. I
By:---.,....-,------- Jose A. Moran, Mayor
of City of Livingston
EXHIBIT A
FRANCHISE AGREEMENT
THIS FRANCHISE AGREEMENT ("Agreement") is made and entered into this 1st day of April 2024 (the "Effective Date") by and between the City of Livingston ("City"), a municipal corporation of the State of California, and Gilton Solid Waste Management, Inc., a California corporation ("Collector"). The parties to this Agreement may each be referred to individually as a "Party" or collectively as the "Parties". There are no other parties to this Agreement.
RECITALS
A. The California State Legislature enacted the Califonm. Integrated Waste Management Act of 1989 ("AB 939") which authorizes local jurisdictions to make adequate provisions for solid waste handling within their jurisdictions; and B. On October 6, 2011, the Legislature passed Assembly Bill 341 ("AB 341 "), amending the California Public Resources Code (the "Public Resources Code") therein requiring cities to encourage and document commercial solid waste recycling prograrr:s; and C. On September 28, 2014, the Legislature passed Assembly Bill 1826 ("AB 1826"), approved by the Governor of the State of California which added Chapter 12.9 (commencing with Section 42649.8) therein requiring cities to require businesses to separate their organic waste from the municipal waste stream for composting; and
D. On November 10, 2020, the Legisl'ature passed Senate Bill 1383, Short-Lived Climate Pollutants (SLCP): Organic Waste Methane Emissions Reductions ("SB 1383"), establishing a statewide target to decrease methane emissions at landfills by reducing the disposal of organic waste by 50% below 2014 levels by 2022 and by 75% below 2014 levels by 2025. SB 1383 establishes regulatory requirements for jurisdictions, generators, haulers, solid waste facilities, and other entities to support achievement of State-wide Organic Waste Disposal reduction targets and requires Jurisdictions to implement collection programs, meet processing facility requirements, conduct contamination monitoring, provide education, maintain records, submit reports, monitor compliance, conduct enforcement, and fulfill other requirements; and E. The collection and disposition of garbage, refuse and waste is governed and regulated by applicable provisions set forth in Title 8; Chapter 2 Municipal Code (the "Code"), which may be amended from time to time and is incorporated herein by this reference; and F. The City previously entered into a franchise agreement with Collector on April 2, 2013, wherein the City selected Collector to provide services for the collection, recycling, and disposal of solid waste within the City; and
G. The existing Agreement provides that the tenn of the agreerr:ent may be extended by mutual agreement of the Parties; and
H. The City and Collector now desire to update and extend the tern1 of the existing Agreement. The term of this Agreement shall commence on the Effective Date and shall be in
force for IO calendar years; and
I. It is the City's objective to continue to engage Collector to provide refuse collection and disposal services for residential and commercial collection. By entering into this Agreement Collector shall assist City in meeting its AB 939, AB 341, AB 1826, and SB 1383 requirements; and
J. The City's refuse program shall be consistent with the County Solid Waste and Integrated Waste Management Plan and comply with all regulations promulgated by the local Merced County enforcement agency and the Department of Resources Recycling and Recovery; and •
K. The Parties desire to rescind the existing Agreement which s:J.all be fully replaced and superseded by this Agreement as of the Effective Date.
NOW THEREFORE, in consideration of the mutual promises contained herein and other good and sufficient consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:
AGREEMENT
Section 1. Recitals. The recitals set forth above (the "Recitals") are incorporated herein by this reference and made a part of this Agreement. In the event any inconsistencies arise as between the Recitals and Sections I through 34 of this Agreement, Sections I through 34 shall prevail.
Section 2. Definitions. Unless otherwise noted in this Agreement, capitalized terms herein shall have the meanings set forth in Exhibit A. Whenever any term used in this Agreement has been defined by Division 30, Part I, Chapter 2 of the Public Resources Code or the City's Code, those definitions shall apply unless the term is otherwise defined in Exhibit A. b. the event there is a discrepancy between the definitions contained in the Public Resources Code and the City's Code, the definitions set forth in the Public Resources Code shall supersede all other definitions.
Section 3. Termination of Existing Agreement. This Agreement hereby supersedes and replaces any existing agreement(s), whether written or oral, by mutual agreement and consent of the Parties as of the Effective Date of this Agreement. Hereafter all previous agreements shall terminate and be of no further force and effect except with respect to covenants therein for acts and omissions occurring prior to the Effective Date.
Section 4. Franchise Area.
4.1 Franchise Area Defined. The franchise area granted by this Agreement shall be all residential and commercial premises located within city limits of City, as more particularly shown on Exhibit B ("Franchise Area"). As provided below, the Franchise Area may be changed by annexation, de-annexation, or re-organization.
4.2 Annexation Covered by Existing Franchise. All territories annexed during the Term 2
of this Agreement may be subject to this Agreement. However, properties served by another collector at the time of annexation, shall continue to be served by collecto: for 1 year. All new construction in the annexed area will be serviced by Gilton Solid Waste (Gilton).
Section 5. Waste Collection and Disposal.
5.1 Scope of Services. Except as set in Section 5.4, the City he:eby grants Collector the exclusive franchise, right and privilege to collect all Solid Waste, Organic Waste and Recyclables within the Franchise Area and to transport the same to a High Diversion Organic Waste Processing Facility, sanitary landfill, transfer station, compost/mulcl:ing site, or waste-toenergy facility outside the City, which has been approved by the governmental agency having jurisdiction of the territory in which said site is located (the "Services";. When transporting collected material out of Merced County, after processing, Collector will re:urn an amount equal to the residual municipal solid waste portion to a Merced County Regional Waste Management Authority (R WA) facility as required by the R WA' s flow control. Waiver requests for recyclables and organic materials must be submitted to the R WA for approval. City may designate alternative processing facilities if public health, safety, or fiscal interest is required, or compliance with applicable law necessitates the alternative and will be at cost to the Collector. Collector shall furnish all labor, supervision, materials, permits, licenses, and equipment necessary to provide residential and commercial refuse collection Services for Customers within the Franchise Area of City. Collector shall perform its obligations under this Agreement in accordance with all applicable local, state, or federal laws and in a manner that maximizes the City's Solid Waste diversion rate to the extent possible.
5.2 Residential Service. Collector shall provide Solid Waste and Organic Waste collection services to all residential premises within the City. Collector may provide Recyclables collection services to residential premises within the City. If the City elects to make residential Recyclables collection service mandatory, Collector shall provide such ser1ice to all residential premises and shall charge rates that will be amended for such services.
5.3 Commercial Service. Collector may provide Solid Waste collection services to all commercial premises within the City. In addition, pursuant to the requirements set forth in AB 341, AB 1826, and SB 1383, Collector shall provide recycling collection se:vices and/or organic collection service to any business that meets the mandatory threshold of each legislation.
5.4 Excepted Services. Collector's exclusive franchise in this Agreement shall not include governmental entities if and to the extent the City has no legal power to require such entities to use Collector's Services. The provisions of this franchise shall not preclude or prohibit the City or any officer or employee thereof or any employee of the State, :ir any governmental subdivision thereat; from collecting, removing, and disposing of Solid Waste, Recyclables, or Organic Waste from the City or State facilities.
Section 6. Collection and Bins.
6.1 Provision of Receptacles. Collector agrees to continue to provide and maintain all Carts, Bins and Roll-Off Boxes for the proper and secure storage of Solid Waste, Organic Waste 3
or Recyclables for all residential and commercial Customers. All residential Cart Customers shall be serviced once per week and commercial Bin Customers shall be serviced from one (I) to six (6) times per week as requested by the Customer. Roll-Off box Customers will be serviced as arranged between the Customer and Collector.
6.2 Hours of Collection, Collection service of all Carts, Bins, and Roll-Off Boxes in residential areas and from commercial premises adjacent to residential areas shall not start before 6:00 a.m. or continue after 6:00 p.m., subject to change by resolution of the Livingston City Council ("City Council"). However, the hours of collection may be extended temporarily as a result of extraordinary circumstances or conditions with the prior consent of the Livingston City Manager ("City Manager").
6.3 Receptacle Replacement. Collector, without expense to City or any Customer, will replace stolen carts when a police report has been filed within seventy-two (72) hours.
Collector shall clean, paint over or replace, at its discretion, graffiti-tagged Carts as needed.
Collector shall replace Carts damaged due to normal wear and tear within the time frame of one collection cycle. Collector shall maintain records oflost, stolen, damaged and graffiti-tagged Carts by specific address. Collector may charge for additional replacement Carts bE.Sed on the actual cost of the Carts and their delivery.
Section 7. Term of Agreement. The te1m of this Agreement shall commence on the Effective Date and shall remain in full force and effect for ten ( I 0) calendar years. This Agreement may be extended at the sole option of the City via two options for a five ( 5) -year extension. The City may in its sole discretion advertise for competitive bids for solid waste franchise collection services with such services to commence after the expiration of the contract term of this Agreement.
Nothing herein shall be deemed or construed to impair the rights of the City to immediately terminate this Agreement with Collector due to Collector's substantial failure to perform the services and responsibilities specified and agreed to in this Agreement.
Section 8. Acceptance; Waiver. Collector agrees to be bound by and comply with all the requirements of this Agreement. Collector waives any right or claim to serve the City or any part of the City under any prior grant of franchise, contract, license, or permit issued or granted by any governmental entity including any right under Section 49520 of the Public Resources Code.
Section 9. Maximum Rates and Fees.
9.1 Rates. The maximum rates to be charged by Collector are set forth in Exhibit C ("Rate" or "Rates") and the maximum rates may be adjusted by resolution of the City Council. For the first year of the Agreement, Collector shall charge rates that are no greater than the maximum rates as established by the City. The City will establish a separate administration fee for processing solid waste billing. In the remaining years of the Agreement Term, the City will adjust the maximum rates under this Agreement to reflect annual changes in the Consumer Price Index for All Urban Consumers ("CPI") published by the U.S. Department of Labor for the San FranciscoOakland-San Jose, CA statistical area. The adjustment shall become effective on the anniversary of the Effective Date of this Agreement and be based on the previous twelve-month index analysis based on the Effective Date of this Agreement. In all subsequent years, the Collector may request, 4
and the City Council shall consider, rate adjustments based on other adjustments provided for under subsections 9.3. and 9.4.
9.2 Tipping Fees. The Parties acknowledge and agree that the milXimum rates include compensation to Collector for tipping, gate or other disposal fees charged by any applicable disposal facilities. Notwithstanding any provision in this Agreement to the contrary, Collector, except in the case of Roll-Off Box Customers, shall not be entitled to rece:ve from City, or any Customer, a separate or additional payment for tipping or gate fees. In addition to any other rate adjustments to which Collector may be entitled, Collector may request to iccrease its rates to the extent necessary to recover increased landfill, waste-to-energy facility, transfer station, and material 'recovery facility tipping or gate fees. Collector shall provide Ci:y with notice of the proposed new rates within thirty (30) days of such notice being received from Merced County or other applicable authority and shall provide the City with a copy of any notice regarding an increase in landfill or waste-to-energy facility tipping or gate fees. Collector shall not increase the Rates to recover increased tipping or gate fees, without prior written approval from City.
9.3 Extraordinary Cost Increases. Collector may petition City for an extraordinary rate adjustment or adjustments at any time during the Term of this Agreement, provided that such petition may be made based only upon increases in fuel costs or increased costs as a result of federal, state, county mandates, increased insurance costs or other documented impacts, which require changes in Collector's Services or operations under this Agreement. Collector shall include in its petition a financial presentation which demonstrates the extraordinary increase in operating costs. Any petition shall be considered by the City Council at a public hearing held after providing any required notices pursuant to this Section and applicable law. The City Council may grant or reject any such petition in its sole and complete discretion.
Section 10. Additional Services. In exercising the right and privilege to collect Solid Waste, Organic Waste or Recyclables within the boundaries of City as herein granted, Collector agrees to act in accordance with the following:
Collector agrees to provide without additional charge to the City or its custo:ners:
10.1 Curbside Bulky Item Collection Program. Collector shall collect and dispose of bulky item wastes, as defined in Exhibit D, from residential Customers up to two (2) times per calendar year. Such collections will be made by appointment as arranged between Customer and Collector.
10.2 Curbside E-Waste Collection Program. Collector shall collect, recycle, or dispose of specified E-Wastes (as defined in Exhibit F) from residential CuEtomers up to four (4) times per calendar year. Such collections will be made by appointment as arranged between the Customer and Collector.
10.3 Christmas Tree Program. Collector will provide a residential Christmas tree collection and recycling program. Each year, during the first two (2) fuil weeks of January, Collector will pick-up Christmas trees from the front of residential properties in the City.
Collections will be scheduled to coincide with the normal waste collection days. 5
10.4 City Facilities. Collector shall provide Solid Waste, Recyclables, and Organic ytaste collection services to all City owned and operated facilities and parks at no additional charge to the City. This does not include C&D Debris generated from City owned and operated facilities.
In addition, Gilton will continue to provide recycling collection for city residents at city corporation yard.
10.5 Community Events. At the City's request, Collector will provide waste containers, plus Solid Waste, Organic Waste and Recyclables removal and disposal services for three community events per year.
10.6 Promotional/Educational Support. No less than twice per year, if requested by City, Collector will distribute informational flyers or brochures to City Customers regarding the importance of recycling and separating wastes in order to achieve greater waste diversion, as well as the applicable commercial recycling requirements set forth in AB 341, AB 1826, and SB 13 83.
In addition, Collector will provide technical support and assistance to City Staff in preparation of articles or newsletters related to organic waste reduction, reuse and recycling.
10. 7 Commercial Recycling Programs. Collector will fully coo;ierate with and assist the City with the implementation of any State mandated commercial recycling programs.
10.8 AB 939 Data. Collector agrees to continue to assist City in data collection and reporting pertaining to compliance with the Integrated Waste Management Act (AB 939), including any State required waste composition studies.
10.9 C&D Diversion Policy. When properly notified, Collector will assist City customers in their compliance with the City's C&D Debris Diversion Policy, attached at Exhibit E, as it may be amended. Collector shall comply with the City's C&D Debris Diversion Policy as applicable.
10.10 SB 1383 Services. Collector agrees to assist the City in meeti:ig SB 1383 mandates by performing the additional services as detailed in Exhibit G.
Section 11. Specific Service Requirements.
11.1 Collector Duty of Care and Diligence. Collector and Collector's employees, contractors, sub-contractors, operators, officers, directors, supervisors, owr:ers, board members, representatives, and agents ("Collector's Agents") shall exercise all reasonable care and diligence in performing their obligations under this Agreement. Every effort will be made to prevent spilling, scattering or dropping Refuse during the collection or transportation process. However, in the event that Refuse is spilled, scattered or dropped, the truck operator shall immediately clean up the material and place it in the truck. Every Cart, Bin and Roll-Off Box ( collectively, "Container") must be replaced in an upright position. It shall be fu1ther noted that Refuse collection easements are frequently co-located with other utility easements. Particular attention must be given to the location of water meters, transformers, guy wires, utility poles and irrigation structures.
Authorization to use the easement does not abrogate Collector's responsibili:y to exercise caution 6
to not infringe upon, damage, or trespass the property rights of other authorized users or property owners. Collector shall be familiar with and operate within the guidelines set forth by the Occupational Safety Health Act (29 U.S.C. section 651 el. seq.). Collector is granted the right to use dedicated streets, alleys and refuse collection easements for the purpose of performing the Services, but this right is not exclusive. The Collector shall handle the Sen, ices in a manner that will cause the least inconvenience or annoyance to the general public and to property owners.
11.2 Hazardous Waste. Under no circumstance shall Collector's employees knowingly collect Hazardous Waste or remove unsafe or poorly containerized Hazardous Waste from Customer premises. If Collector determines that material placed in a container for collection is Hazardous Waste, Excluded Waste, or other material that may not be legally accepted at an approved sanitary landfill, transfer station, compost/mulching site, waste-to-energy facility or other permitted disposal facility or that presents a hazard to Collector employees, Collector shall have the right to refuse to accept such material. Collector shall leave, at the time of non-collection, a non-collection notice with Customers indicating the reason for refusing the material. Collector shall contact the generator and request that the generator arrange for proper c.isposal service. If the Hazardous Waste, Excluded Waste, or other objectionable material is identified at time of delivery to the approved sanitary landfill, transfer station, compost/mulching site, WE.Ste-to-energy facility or other permitted disposal facility and the generator cannot be identified, Ccllector shall be solely responsible for handling and arranging transport and disposition of the Hazardous Waste, Excluded Waste, or other objectionable material.
11.3 Force Majeure. Collector shall not be in default under this Agreement in the event that the collection transportation, recycling and disposal services of Collector are temporarily interrupted or discontinued due to a "Force Majeure" event which is defined as: riots, wars, sabotage, civil disturbances, insurrections, explosion, natural disasters such ES floods earthquakes, landslides and fires, strikes, lockouts and other labor disturbances or other catastrophic events, which are beyond the reasonable control of Collector. Force Majeure does nc-t include: Collector's financial inability to perform; Collector's failure to obtain any necessary permits or licenses from other governmental agencies; or Collector's failure to obtain the right to use the facilities of any public utility where such failure is due solely to the acts or omissions of the Collector.
11.4 Independent Contractor. Collector is an independent contractor and not an officer, agent, servant or employee of City. Collector is solely responsible for the acts and omissions of its officers, agents, employees, contractors, and sub-grantees. Nothing in this Agreement shall be construed as creating a partnership or joint venture between City and Collector.
Neither Collector nor its officers, employees, agents or sub-grantees shall obtain any right to retirement or other benefits or right which accrue to City employees.
11.5 Property Damage. Collector shall be responsible for any damage to City's driving surfaces, whether or not paved, resulting from vehicles providing Services under this Agreement.
Collector shall be responsible for repairing or replacing any private or public property which is damaged due to the acts or omissions of employees, contractors, or agents of Collector to private or public property shall be repaired or replaced.
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11.6 Right of Entry. Collector shall have the right, to enter or drive on any private street, court, place, easement, or other private property for the purpose of collecting or transporting Refuse pursuant to this Agreement. This right or entry shall last until the soo:ier of the termination of this Agreement or receipt by Collector of a written notice from City revo~ing Collector's right of entry. This right of entry is limited to carrying out the Services required by this Agreement.
Section 12. Customer Service Requirements.
12.1 Availability of Representatives. A responsible representa:ive for the Collector who is qualified to respond to public inquiries shall be available at Collector's office during office hours, excluding lunchtime closure, for communication with City, Customers or the public.
12.2 Employees. Collector shall exercise reasonable care to hire responsible employees, to supervise the work of such employees, and to discipline and, if necessary, discharge an employee failing to meet reasonable standards for performance of work set forth in this Agreement.
Collector shall comply with applicable state and federal law pertaining to employment, including, but not limited to, applicable equal opportunity employment and affirmative action requirements.
12.3 Manner of Collection. Collector shall perform all collection services in a quiet and courteous manner and ensure that all Carts are placed on the premises from which they were removed in an upright position, with lids closed, and within five (5) feet of where they were originally placed before collection.
12.4 Office Hours. Collector's office hours shall be, at a minfmum, from 8 a.m. to 5 p.m. daily, except for a lunch hour and closed on Saturdays, Sundays, and federal or State recognized holidays. A representative of Collector shall be available dujng office hours for communication with the public at Collector's principal place of business.
12.S Service Complaints. All Service complaints shall be directed to Collector.
Collector shall respond to all complaints, other than missed pickups, within tVventy-four (24) hours if the twenty-four (24) hour period ends during the office hours specified in subsection 12.5, otherwise on the next business day. Collector shall be responsible for the prompt and courteous attention to, and prompt and reasonable resolution of, all complaints and sh;ill use its best efforts to resolve any complaints within the two (2) business days following the date on which such complaint is received. Complaints that cannot be reasonably resolved may be appealed to the City Manager or designee for final resolution.
12.6 Complaint Log. Collector agrees to maintain a log of all oral and written service complaints registered with Collector from Customers or the public within :he City ("Complaint Log"). Collector shall record in the log all written and oral complaints, noting the name and address of the complainant, date and time of complaint, nature of complaint, and method and date of resolution. Such log shall be kept so that representatives of the City, upon request, may conveniently inspect it. Collector shall deliver, along with the quarterly repor:s specified in Section 13 or otherwise upon request of the City, a summary of complaints by number and type and excerpts from the log reflecting action to date.
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12.7 Missed Pickups. In the event of a missed pickup, Collector shall complete the pickup the same day if the complaint is received by 12:00 p.m. or by 12:00 p.m. the following business day if the complaint is received after 12:00 p.m.
Section 13. Reports. Collector shall provide the City with annual reports detailing Collector's operations within City during that time. Reports will contain the information required by the City for compliance with AB 939, AB 341, AB 1826 and SB 1383 and for City to measure Collector's performance of items in this Agreement. Collector agrees to provide additional reports regarding its collection services as may be reasonably requested by the City to meet future reporting requirements of the City or the State. City or a consultant to City, on request, shall have the right to review the collection records of Collector at reasonable times and upon reasonable notice.
Section 14. Vehicles.
14.I Compliance with Applicable Regulations. Collector shall at all times comply with all applicable rules, statutes, orders, and requirements adopted by any governmental agency with jurisdiction over air quality, including, but not limited to, the California Air Resources Board and the San Joaquin Valley Air Pollution Control District. In addition to any indemnification · obligations set forth in this Agreement, Collector shall defend, indemnify, and hold harmless the City against any fines, penalties, losses, or claims arising out of Collector's failure to comply with this Section. All vehicles used by Collector under this Agreement shall be registered with the Department of Motor Vehicles of the State of California, be kept clean and in good repair, shall be uniformly painted, and shall be washed at least once every seven (7) calendar days. Collector's name, phone number, and vehicle number shall be prominently displayed on its vehicles.
14.2 Fluids and Waste. Collector shall immediately clean up any fluids or waste spilled from collection vehicles and shall deploy and remove absorbent materials to the extent necessary to absorb all fluids. Collector shall provide the City with a copy of any spill report that Collector is required to provide, and at the same time it is provided, to the State Office of Spill Prevention and Response. When necessary, Collector shall apply a suitable cleaning agent to the street surface or shall employ hydraulic steam cleaning to provide adequate cleaning. Collector shall comply at all times with all reconunendations or limitations concerning laden weight of collection vehicles established by the State or any government agency, or the vehicle manufacturer.
Section 15. Collector's Employees.
15.1. Prohibition of Drugs or Alcohol. Collector will prohibit the use of intoxicating substances by Collector's Agents, including its drivers and crewmembers, while on duty or in the course of performing the Services. Upon request by City, Collector will demonstrate compliance with the federal alcohol and drug testing statutes and regulations.
15.2 Employee Uniform. Collector's employees shall be required to wear a clean uniform bearing Collector's name. Employees who normally and regularly come into direct contact with Customers, including drivers, shall bear some means of individual identification such as a name tag or identification card.
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15.3 Identification Required. Collector shall provide every employee, contractor, grantees, or sub-grantees that are in contact with the public with identification cards and badges.
Upon request of City, Collector shall notify all Customers of the form of identification that each employee shall be carrying or displaying so that all Customers may easily identify one of Collector's employees. Collector shall provide City with a list of current employees, contractors, grantees, and sub-contractors to City upon request.
15.4 Valid Driver's License. Employees driving Collector's vehicles shall at all times possess and carry a valid and appropriate vehicle operator's license issued by the State of California, including a commercial driver's license, if required.
15.5 No Employment Relationship with City. Collector's Agents are not and shall not identify themselves as being employees of the City at any time, for any reason.
15.6 Employee Behavior. All contact by Collector with Custon:ers will be done with courtesy and respect. Any incident with a Customer must be reported immediately to the City.
15. 7 Employee Conduct. All superintendents, foremen and workers, or contractors employed by the C9llector shall be capable and safety conscious workers, skiJed in their respective trades. Collector shall not employ any person who is incapable or negligent in the due and proper performance of his or her duties. Collector shall furnish such supervision, labor and equipment as is considered necessary for the fulfillment of the Services in an acceptable rrumner at a satisfactory rate of progress. City reserves the right to request for any worker of Collector to be prohibited from providing Services to City without cause for any reason.
15.8 Supervision. It is the Collector's responsibility to supervise the Services rendered and to provide direction to its employees and agents in the field. While City employees may suggest possible solutions to problems or unusual situations, Collector retains the responsibility for all Services and how the Services will be delivered and conducted to the City and the Customers.
Section 16. Franchise Fees, Billing and Reports.
16.1 Franchise Fees. Collector and the City agree that for the exclusive rights herein granted to Collector, City shall retain a sum equal to fifteen percent (15%) -:if the gross revenues from residential, commercial, and industrial accounts. Gross Revenues for :his computation will exclude the City established Administration Fee. Further, the Parties hereby agree to the fifteen percent (15%) franchise fees is a reasonable estimate of the value of the City's franchise given the number of exclusive customers being provided to the Collector as the franchise hauler. The Collector shall also pay the City fifteen percent (15%) of the gross revenues from the Collector's Debris Box and/Roll-Off container services.
16.2 Billing. The City shall provide regular billing statements to residential, commercial and industrial customers that have cart and bin service. The Collector shall provide billing statements to Debri Box/Roll-off customers.
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16.3 City and Collector Billing. As of the commencement of this Agreement, the Parties acknowledge that the City is responsible and will continue to bill residential, commercial and industrial customers that have cart and bin service. The Collector shall bill all customers that have Debris Box and/or Roll-Off Container service.
Section 17. Collector's Books and Records: Audits. The books and records of Collector shall be subject to audit and inspection for the purpose of reviewing billing operations, accounts receivable and customer service, by City, its auditors or agents. Collector sha] maintain all records relating to the Services, including, but not limited to, Customer lists, billing records, maps, AB 939 compliance records, AB 34 1 compliance records, and Customer complaints (collectively, the "Records"), for no less than three (3) years after the termination or expirati::m of the Term, or as may or any longer period required by applicable law. City shall have the right, upon five (5) business days advance notice, to inspect all Records, and other like materials of Collector which reasonably relate to Collector's compliance with the provisions of this Agreement.
Collector's Records shall be made available to City at a City facility, if reasonably practicable, or at Collector's regular place of business during regular business hours. If such audit discloses an underpayment of the Franchise Fees or other sums due under this Agreement, Collector shall promptly tender to the City the amount of such underpayment.
Section 18. Indemnification.
18.1. Indemnification of City. Collector agrees that it shall protect, defend, indemnify and hold harmless City, its elected and appointed councils, commissions, directors, officers, employees, agents, and representatives ("City's Agents") from and against any claim, action or proceeding that arises from this Agreement or any Services performed pursuant to or in connection with this Agreement ("Claim"), including but not limited to all losses, liabilities, fines, penalties, claims, damages, liabilities, judgments, attorney's fees, costs incurred for staff time, court costs, other expenses of litigation, or expenses of litigation awarded to the prevailing Party or Parties.
This indemnification does not include gross negligence or willful acts of the City, or City's Agents.
At City's discretion, Collector shall satisfy the obligation of this Section by reimbursing City for tendering its own defense. If Collector undertakes the defense of a Claim by providing Cityapproved representation, City may, participate in the defense of any such Claim.
To the extent permitted by Public Resources Code Section 40059.1, and to the extent noncompliance is caused by Collector's breach of or noncompliance with a provision of this Agreement, Collector agrees to protect and defend City or City's Agents, witli. counsel selected by the City, and to indemnify and hold harmless City or City's Agents from and against all fines or penalties imposed by the State if the waste diversion goals specified in the Public Resources Code arc not met by the City with respect to the Solid Waste collected by Collector under this Agreement. Collector shall indemnify, defend with counsel acceptable to the City, protect and hold harmless the City and City's Agents from and against all claims, damages (including but not limited to special, consequential, and natural resources damages), injuries, response mediation and removal costs, losses, demands, debts, liens, liabilities, causes of ac:ion, suits, legal or administrative proceedings, interest, fines, charges, penalties, and attorney and expert fees for the 11
adverse party and expenses (including but not limited to attorney's and expert witness fees and costs incurred in connection with defending against any of the forgoing or in enforcing this indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted against, the City or City's Agents arising from or attributable to the negligence or willful misconduct of Collector or its affiliates and their respective officers, directors, employee and shareholders in handling Hazardous Waste either knowingly or under circumstances in which a reaso:iable person would or should have known that Hazardous Waste was being handled. The foregcing indemnity is also intended to operate as an agreement pursuant to Section I 07(e) of CERCLA, 42 U.S.C. Section 9607(c) and California Health and Safety Code Section 25364, lo defend, insure, protect, hold harmless and indemnify the City from liability.
18.2. Indemnification of Collector. City shall indemnify, defend and hold Collector, its affiliates and their respective officers, directors, employees and shareholders harmless from and against any and all liabilities, losses, damages, claims, actions and causes of action, costs and expenses (including reasonable attorney's fees) arising from or in any mar_ner arising out of the negligent acts of the City or the City's employees. Subject to this indemnification, and upon demand of Collector, made by and through Collector's counsel, City shall appear in defense of Collector, and its officers, employees and agents in any claims or actions, whether judicial, administrative, or otherwise arising out of the exercise of this Agreement. Nothing in this Agreement shall alter the requirements of the Government Tort Claims Act as established within the Government Code and/or any indemnities provided to the City pursuant to any state, federal or local law, statue, or ordinance.
Section 19. Insurance. Collector will continue to carry insurance, which shall be placed with insurers with a current AM Best's rating of no less than A VII, and which shall include all of the following:
19.1 Required Insurance.
19.1.1 Worker's Compensation. Collector shall obtain and maintain in full force and effect throughout the Term, worker's compensation insurance in accor:i with the provisions and requirements of the California Labor Code. Endorsements that implement the required coverage shall be filed and maintained with the City Clerk throughout the Term. The policy providing coverage shall not be suspended, voided, canceled, reduced in coverage or in limits, except after thiliy (30) days prior written notice by certified mail, return receipt requested, has been given to the City. The policy shall also be amended to waive all rights cf subrogation against the City, its elected or appointed officials, employees, agents or representatives for losses which arise from the Services performed by the Collector pursuant to this Agreement.
19.1.2 General Commercial Liability Insurance. Collector shall carry commercial or comprehensive general liability insurance with a combined single limit of Two Million Dollars ($2,000,000.00) per occurrence/ aggregate for bodily injury, personal injury and property damage. Coverage shall be at least as broad as Insurance Services Office Commercial General Liability coverage (occurrence form GG 00 01 11 88). 12
19.1.3 Automobile Liability Insurance. Collector shall carry automobile insurance with a combined single limit of Two Million Dollars ($2,000,000.00) per occurrence for bodily injury, personal injury, and property damage, and which shall provide coverage for rented and non-owned vehicles. Coverage shall be at least as broad as Insurance Service form number CA 00 010692 covering Automobile Liability, code I (any auto).
19.1.4 Public Liability Insurance. Collector shall carry public liability insurance with a combined single limit of Two Million Dollars ($2,000,000.00) per occurrence for bodily injury, personal injury, and property damage.
19.1.5 Pollution or Environmental Liability Insurance. Collector shall carry Environmental or Pollution liability coverage appropriate for the waste activity contemplated in this Agreement, including sudden and accidental upset pollution liability for the amount of One Million Dollars ($1,000,000.00) per claim or occurrence and One Million Dollars ($1,000,000.00) in the aggregate.
19.2 Additional Insurance Requirements. Within five (5) days '.)fthe Effective Date, Collector shall provide City with certificates of insurance for all of the policies required under this Section 19 ("Certificates"), excluding the required worker's compensatior: insurance. With the exception of the worker's compensation insurance, all of the insurance po:icies required in this Section 19 shall: provide that the policy will not be cancelled, allowed to expire, or materially reduced in coverage without at least thirty (30) days' prior written notice, or ten (I 0) days' in the case of non-payment of premium by Collector ( as per insurance industry star:dard), to City of such cancellation, expiration, or reduction and each policy shall be endorsed to state such; name City, and City's Agents as additional insureds with respect to liability arising out of automobiles owned, leased, hired, or borrowed by or on behalf of Collector or operations performed by or on behalf of the Collector to perform the Services including materials, parts, or equipment furnished in connection with the Services or operations by endorsement; be primary, with respect to any insurance or self-insurance programs covering City or City's Agents and any insurance or selfinsurance maintained by City or City's Agents shall be excess of Collector's insurance and shall not contribute to it; and contain standard separation of insured provisions.
19.3 Deductibles and Self-Insured Retentions. Any deductbles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to City and City's Agents, or Collector shall provide a financial guarantee satisfactory to City guaranteeing payment of loss related investigations, claim administration and defense expenses.
19.4 Verification of Coverage. Before the Services commence, Collector shall furnish City with original Certificates and endorsements affecting coverage required by this Section 19.
The endorsements shall be on forms approved by the City which contain 2.ll of the information required in Section 19.
19.5 Subcontractors. Collector shall include all subcontractors as additional insured under its policies or shall furnish separate certificates and endorsements for each subcontractor.
All coverage for subcontractors shall be subject to all the requirements stated in this Section 19. 13
Said insurance shall protect C,ollector and City from any claim for damages for bodily injury, including accidental death, as well as from any claim for property damage which may arise from the Services, whether such operations be by Collector itself, or by its agents, employees, contractors or sub-grantees. Copies of the policies or endorsements evidencing the above insurance coverage shall be filed with the City Clerk. All of the following endorsements are required to be made a part of the insurance policies required by this Agreement.
19.6 Increase in Coverage Requirements. The limits for the insurance coverage required under this Section 19 and the ratings required for insurance companies shall be subject to review and approval by the City Attorney every year mid may be increased a: that time, at the City Attorney's discretion, to match the coverage provided by the City's own liability insurance policy.
Section 20. Title to Solid Waste. All Solid Waste, Recyclables, and Organic Waste collected pursuant to this Agreement shall remain the property of the Customer until such time as it is collected for disposal. It is expressly understood that all Solid Waste, Recyclables, and Organic Waste collected under this Agreement becomes the property of Collector upon collection, subject to the requirement of delivery to an appropriate disposal site. Collector is he~eby granted the right to retain, dispose of, and otherwise use such Solid Waste, Recyclables, and Organic Waste, or any part thereof, in any fashion or for any lawful purpose desired by Collector, and to retain any benefit or profit resulting therefrom. Solid Waste which is disposed of at a disposal site shall become the property of the owner or operator of the disposal site once deposited there by Collector.
Section 21. Rights of City to Perform During an Emergency. Should Collector, for any reason whatsoever, excluding a Force Majeure as defined in Section 11.2, be unable to perform any of the Services required by this Agreement, for a period of more than seventy-two (72) hours, and the City Manager reasonably finds that the resulting accumulation of Refuse in City endangers or menaces the public health, safety or welfare, then, City shall have the right to temporarily take possession of and use Collector's Equipment to carry out Collector's ooligations under this Agreement, upon twenty-four (24) hour prior written notice to Collector. Collector agrees that in such event it will fully cooperate with City to affect such a transfer of possession for City's use.
Collector agrees that, in such event, City may take temporary possessioi: of and use all said Equipment and facilities without paying Collector any rental or other charge, provided that when City takes possession of Collector's Equipment and facilities under this Section 21, City shall assume complete responsibility for the proper and normal use of such Equ:pment and facilities.
City agrees that it shall immediately relinquish possession of all of the above-mentioned property to Collector upon receipt of written notice from Collector stating it is able to resume its normal responsibility under this Agreement.
Section 22. Customer Confidentiality. Collector shall strictly observe and protect the right of privacy of the Customers. Information identifying individual Customers, or the composition or contents of a Customer's Refuse, shall not be revealed to m1y person, governmental unit, private agency or company, unless upon the authority of a court of law, by sutute, or upon valid authorization of the Customer. This provision shall not be construed to predude Collector from preparing, participating in, or assisting in the preparation of waste characterization studies or waste 14
stream analyses which may be required by AB 93 9 or SB I 3 83.
Collector shall not market or distribute, without City's advance written consent, which City may withhold in its sole and absolute discretion, mailing lists with the names or addresses of Customers.
The rights accorded Customers pursuant to this Section shall be in addition to any other privacy right accorded Customers pursuant to federal or state law.
Section 23. Reports and Adverse Information.
23.1 Reports. Within ninety (90) days after the close of Ccllector's fiscal year, Collector shall submit a written annual report, in a form approved by City, including, but not limited to, the following information:
23.1.1 A report on City's progress in meeting and maintaining its ability to meet its goals under AB 939 and SB 1383 as applied to the Franchise Area, along with any recommended changes. Collector shall also provide the City's Public Works Director with quarterly reports on the quantity (by weight) of all Commercial Solid Waste, Residential Solid Waste, Recyclables, and Organic Waste collected.
23.1.2 A list of Collector's officers and members of its board of directors.
23.1.3, A list of stockholders or other equity investors holding five percent (5%) or more of the voting interest in Collector and any subsidiaries.
23.1.4 The most current annual audited financial statement, upon request. To the extent permitted by the Public Records Act, this document shall remain confidential.
23.1.5 A current financial statement, upon request.
23.2 Adverse Information. Collector shall provide City two (2) copies of all reports, or other material adversely affecting this Agreement, which Collector submits to: the State or federal Environmental Protection Agency; the Department of Resources Recycling and Recovery; or any other federal, State, or local agency. Copies shall be submitted to City simultaneously with Collector's filing of such matters with said agencies. Collector's routing correspondence to said agencies need not be automatically submitted to City but shall be made available to City upon written request.
Collector shall submit to City copies of all pleadings, applications, notifications, communications and documents of any kind, submitted by Collector to any federal, state and local courts, regulatory agencies and other government bodies relating to Collector's performance of Services pursuant to this Agreement, as well as copies of all decisions, correspondence and actions by such agencies.
Any confidential data exempt from public disclosure shall be retained in confidence by City or its authorized agents and shall only be made available for public inspections, ao required by law. 15
Collector shall submit to City such other information or reports in such forn:.s and at such times as City may reasonably request or require.
All reports and records required under this, or any other section herein shall be furnished to City at the sole expense of Collector.
23.3 Failure to Report. The refusal, failure, or neglect of Collector to file any report required may be deemed a material breach of this Agreement if not corrected by Collector within ninety (90) days, and may subject Collector to all remedies, legal or equitable, which are available to City under this Agreement or otherwise.
Section 24. Bonds and Security.
24.1 Performance Bonds. Contemporaneously with the execution of this Agreement, Collector shall secure and execute a performance bond to be held by the City (the "Performance Bond") to ensure performance of Collector in an amount equal to twenty-five percent (25%) of the City's estimate of the Contractor's annual gross revenue under the Agreement. The Performance Bond shall be on terms and in a form acceptable to the City Attorney anc shall be issued by a California admitted insurer. The Performance Bond shall serve as security for the faithful performance by Collector of all the provisions and obligations of this Agreement.
Thirty (30) days following Collector's failure to pay City an amount owed under this Agreement, if ever, the Performance Bond may be assessed by City upon five (5) days prior written notice to Collector for purposes including, but not limited to:
A. Failure of Collector to pay City any sums due under the terms of the Agreement.
B. Reimbursement of costs borne by City to correct violations of this Agreement, after five (5) days' advance written notice to Collector.
C. Monetary remedies or damages assessed against Collector d·1e to a breach of this Agreement.
Section 25. Breach of Agreement.
25.1 Determination of Breach. If the City Manager reasonably determines that Collector's performance pursuant to this Agreement has not been in conformity with reasonable industry standards obtained in similar cities in Central California, the provisions of this Agreement, the requirements of the Department of Resources Recycling and Recovery, including, but not limited to, requirements for source reduction and recycling (as to the waste stream subject to this Agreement) or any other applicable federal, state or local law or regulation, including but not limited to the laws governing transfer, storage or disposal of Hazardous Waste, the City Manager may advise Collector in writing of such deficiencies. If Collector commits a material breach of this Agreement ("Breach"), City may terminate this Agreement, impose Liquidated Damages, or avail itself of any and all remedies set forth in Section 26 of this Agreement, in addition to all other 16
remedies available to the City in Jaw or equity.
25.2 Events that Constitute a Breach. A Breach includes but is not limited to the following:
25.2.1 Misrepresentation. Collector commits, or attempts to commit, any fraud, intentional material misrepresentation or deceit upon the City in relation to this Agreement or in the statements or materials submitted to City by Collector in connection with this Agreement as of the time the representation or disclosure is made.
25.2.2 Seizure or Attachment of Equipment. There is a seizure or attachment ( other than a prejudgment attachment) of, or levy affecting possession on, the operating Equipment of Collector, including without limit its vehicles, maintenance or office facilities, or any part thereof of such proportion as to impair Collector's ability to perform under this Agreement and which cannot he released, bonded, or otherwise lifted within forty-eight (48) hours excluding weekends and City-approved holidays.
25.2.3 Collector Bankruptcy. Collector files a voluntary petition for debt relief under any applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, or consents to the appointment of or taking of possession by a receiver, liquidator, assignee ( other than as a part of a transfer of equipment no longer useful to Collector or necessary for this Agreement), trustee ( other than as security for an obligation under a deed of trust), custodian, sequestrator, or similar official of Collector for a part of Collecto:' s operating assets or any substantial part of Collector's property, or shall make any general assignment for the benefit of Collector's creditors, or shall fail generally to pay Collector's debts as they become due.
25.2.4 Court Order or Decree. Any court having jurisdiction enters a decree or order for relief with respect to Collector, in any involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or hereafter in effect, or Collector consents to or fails to oppose any such proceeding, or any such court enters a decree or order appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator, or similar official of Collector or for any part of Collector's operating equipment or assets, or order the winding up or liq:iidation of the affairs of Collector.
25.2.5 Failure to Notify City. Collector fails to notify City in a timely manner of any receipt of notice of violation or official communication from those regulatory agencies regulating Solid Waste, Recyclables, and Organic Waste collection, transport, processing, or disposal activities.
25.2.6 Lapse of Financial Requirement. If Collector fails to provide or maintain in full force and in effect, the following: any of the insurance policies required pursuant to Section 16 herein; the full amount of the Performance Bond required under Section 24.1 herein; or the full amount of the Payment Bond required under Section 24.2 herein.
25.2. 7 Regulatory Violation. Collector violates any orders or filings of any regulatory body having jurisdiction over Collector relative to this Agreement, provided Collector 17
may contest any such orders or filings by appropriate proceedings conducted in good faith, in which case no breach of this Agreement shall be deemed to have occurred.
25.2.8 Cessation of Services. Collector ceases to provide collection, transportation, processing, or recycling services as required under this Agreement for a period of three (3) consecutive business days or more, for any reason within the contr-)1 of Collector.
25.2.9 Failure to Meet Payment or Reporting Requirements. Collector fails to make any payment required under this Agreement or refuses to provide City with required information, reports, or records in a timely manner as provided for in the Agreement.
25.2.10 Violation of AB 939 or SB 1383. Any other act or omission by Collector, which materially violates the terms, conditions or requirements of AB 939 and SB 1383 as may be amended from time to time; or any other directive rule or regulation issued thereunder; unless the violation is corrected or remedied within the time set on the written notice of violation; or if Collector cannot reasonably correct or remedy the violation within the time set forth in such notice, Collector commences to correct or remedy such violation within the time set forth in such notice and diligently and in good faith continues to cure, correct, or remedy such violation thereafter.
25.2.11 Unremedied Acts or Omissions. Collector commi,s any act or omission which violates the terms, conditions, or requirements of this Agreement, or any other applicable laws and which is not corrected or remedied within the time set in the written notice of the violation or, if Collector cannot reasonably correct or remedy the breach within the time set forth in such notice, Collector should fail to commence to correct or remedy such violation within the time set forth in such notice and diligently effect such correction or remedy thereafter.
25.2.12 Failure to Correct Breach. Collector fails to correct any Breach within the applicable Cure Period.
25.3 Cure Rights. Notwithstanding any other provision of this Section 25 to the contrary, City shall provide Collector with reasonable notice of and a reasonable opportunity to cure any Breach of this Agreement during the time periods set forth below (the "Cure Period").
Collector shall begin cure of any Breach as soon as it becomes aware of the Breach, whether discovered by Collector or through notice from the City. Upon becoming cognizant of the Breach, Collector shall proceed to cure such Breach as follows:
25.3.1 Immediately, if the City determines the Breach endangers the health, safety, or welfare of the public; or
25.3.2 Within fifteen (15) days of giving or rece1vmg n:itice of the Breach, provided that if the nature of the breach is such that it will reasonably require more than fifteen (15) days to cure, Collector shall have such additional time as is reasonably needed, no longer than thirty (30) days to expeditiously complete a cure. During any Cure Period, Collector shall provide City weekly written status updates infomling City of Collector's progress curing the Breach. 18
25.4 Right to Appeal. Collector may submit a response to clairr:s of Breach contained in any written notice from the City within ten (I 0) days ofreceipt of such notice. The City Manager shall review Collector's response and refer the matter to the City Council or decide the matter and notify Collector of that decision, in writing. A decision or order of City Manager shall be final and binding on Collector. Unless a governing ordinance or statute provides otherwise, if the Collector seeks further relief, the Collector shall file a petition for writ of mandate in superior court pursuant to Code of Civil Procedure Sections 1094.5 and 1094.6 within ninety (90) calendar days of the date of the decision or order.
Section 26. Termination, Liquidated Damages and other Remedies.
26.1 Termination. In the event Collector commits a Breach of this Agreement, City shall have the right to terminate this Agreement ("Termination").
26.2 Liquidated Damages.
26.2.1 City finds, and Collector agrees, that as of the Effective Date 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 Collector of its obligations under this Agreement.
Some reasons for the impracticability of ascertaining damages include but are not limited to: the difficulty in estimating the substantial damage that results to Customers who are denied Solid Waste disposal services or denied quality or reliable service; and the difficul:y valuing the damage caused from the inconvenience, anxiety, frustrations and deprivation of the benefits provided under the Agreement to individual members of the general public for whose benefit this Agreement exists. The Parties agree that these damages manifest in subjective ways and in varying degrees of intensity and are incapable of measurement in precise monetary terms. The Parties agree that any remedy for such breaches, including the te1mination of this Agreement are, at best, a means of future correction and not remedies, which can adequately make the public whole for past breaches.
26.2.2 The City Council may, at its discretion, assess liquidated damages not to exceed the sum of Two Thousand Dollars ($2,000) per day, for each calendar day that the Services are not provided by Collector in accordance with this Agreement for a period not to exceed fortyfive (45) days ("Liquidated Damages"). In addition, the City Council rr:ay order assessment against the Performance Bond and Payment Bonds required by Section 24 as set fotlh herein, the termination of this Agreement, or both.
26.2.3 The City finds, and Collector acknowledges and agrees that the abovedescribed liquidated damages provision represents a reasonable sum in light of all the circumstances. Said liquidated damage sums shall be applicable to each calendar day of delay during which Collector has been found by the City Council to be in Breach pursuant to Section 25.
Collector shall pay any Liquidated Damages assessed by the City Council ½ithin thirty (30) days after they are assessed. If they are not paid within the thirty-day (30) period, City may withdraw said amount from the Performance Bond or Payment Bond, as appropriate, pursuant to Section 24, order the Termination of the Franchise granted by this Agreement, or both. 19
26.3 Remedies Not Exclusive. The right of Termination or to impose Liquidated Damages are in addition to all other rights of City upon a failure of Collector to perform its obligations under this Agreement, including but not limited to the rights provided in Section 27.
Section 27. City's Additional Remedies. In the event Collector commits a Breach of this Agreement, and the City has tenninated this Agreement, in addition to the remedies set forth in Section 26, City shall have the following rights:
27.1 Rental of Collector Equipment. Notwithstanding the provisions set forth in Section 21 of this Agreement, City shall have the right to rent or lease Equipment from Collector for the purpose of collecting, transp011ing and disposing of Refuse which Collector is obligated to collect, transport and dispose of pursuant to this Agreement, for a period not to exceed six ( 6) months. If such Equipment is not owned by Collector, Collector shall assign to City, to the extent possible, the right to possess the Equipment. If City exercises its rights under this Section, City shall pay to Collector the reasonable rental value of the Equipment so taken for the period of City's possession thereof.
27.2 Right to License others to Provide Disposal Services for the City. City shall have the right to license others to perform the Services otherwise to be performed by Collector hereunder, or to perform such Services itself.
27.3 Right to Other Damages. City shall have the right to obtain damages or injunctive relief. The Parties recognize and agree that in the event of Breach by Collector, City may suffer irreparable injmy and incalculable damages sufficient to support injunctive relief, to enforce the provisions of this Agreement by Collector and to enjoin the Breach thereof.
Section 28. Compliance with Applicable Law.
Collector agrees that it shall comply with all applicable federal, state, and local laws and regulations, expressly including the provisions set forth in the Code which are applicable to the work or business in which it is herein franchised, and with any and all amendments to such applicable provisions during the Term.
Section 29. Assignment.
The Franchise granted by this Agreement shall not be transferred, sold, hypothecated, sublet or assigned, nor shall any of the rights or privileges herein be hypothecated, leased, assigned, sold or transferred, either in whole or in part nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person, except Collector, either by act of the Collector or by operation oflaw, without the prior written consent of City expressed by a resolution or ordinance approved by the City Council, which may be withheld for any reason, conditioned or granted in the City's sole discretion. Any attempt by Collector to assign this Franchise without the consent of City shall be null and void.
If Collector attempts to transfer the Franchise prior to obtaining City consent, all of the profits or twenty-five percent (25%) of the gross revenues received pursuant to the Services provided under 20
this Agreement, from the date of attempted transfer until the date of City consent, whichever is greater, shall be returned to City.
Section 30 . Franchise Transfer: Fees.
Any application for a Franchise transfer shall be made in a manner prescribed by the City Manager.
The application shall include a transfer fee in an amount to be set by the City by resolution or ordinance of the City Council, to cover the cost of all direct and indirect adr:iinistrative expenses, including consultants and attorneys, necessary to adequately analyze the application and to reimburse City for all direct and indirect expenses. In the event that City's actual costs exceed the amount of the transfer fee, Collector shall reimburse City for all additional costs which are not covered by the transfer fee, up to, but not exceeding Five Thousand Dollars ($5,000.00). Bills shall be supported with evidence of the expense or cost incurred. The applicant, for any such transfer, shall pay such bills within thirty (30) days of receipt. The Franchise transfer fees detailed in this Section are over and above any franchise fees specified in the other portions of this Agreement.
Section 31. City Must Approve Change in Control of Collector.
City consent is required for any change in control of Collector. Collector is a corporation, and any acquisition of more than forty-five percent ( 45%) of Collector's voting stock by a person, or group of persons acting in concert shall be deemed a change in control. Any change in control of the Collector occurring without prior City approval shall constitute a material breach of this Agreement.
Section 32. Amendment to Agreement.
This Agreement is intended to cany out City's obligations to comply with the provisions of AB 939 and SB 1383 and implemented by regulations of the Department of Resources Recycling and Recovery ("Regulations"), as they may from time to time be amended. In tl:e event that AB 939, SB 13 83 or other state or federal laws or regulations enacted after the Effective Date, prevent or preclude compliance with one or more provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comp;y with such state or federal laws or regulations. Except for Rate adjustments made pursuant to Section 9, this Agreement may be amended or modified only by a written agreement duly authorized and executed by both the City and Collector.
Section 33. General Provisions.
33.1 Governing Law and Venue. This Agreement shall be governed and construed in accordance with the laws of the State of California. Venue for all legal proceedings arising from this Agreement shall be in the Superior Court for the County of Stanislaus in the State of California.
In the event of litigation in a U.S. District Court, exclusive venue shall lie in the Eastern District of the State of California. •
33.2 Notices. Any notice or communication required hereunder between City and Collector must be in writing, and may be given either personally, by facsimile (with original 21
forwarded by regular U.S. Mail), by registered or ce Itified mail (return receipt requested), or by Federal Express, UPS or other similar couriers providing overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. If given by facsimile transmission, a notice or communication s!Bll be deemed to have been given and received upon actual physical receipt of the entire document by the receiving Party's facsimile machine. Notices transmitted by facsimile after 5:00 p.m. on a normal business day or on a Saturday, Sunday or holiday shall be deemed to have been given and received on the next normal business day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of actual receipt by any of the addressees designated below as the party to whom notices are to be sent or five (5) days after a registered or ce 1 tified letter containing such notice, properly addressed, w:th postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the da~e delivered as shown on a receipt issued by the courier. Any Party hereto may at any time, by giving ten (I 0) days written notice to the other Party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below:
To City:
With courtesy copy to:
To Collector: Gilton Solid Waste Management, Inc.
755 S. Yosemite Ave.
Oakdale CA 9536 I
Attention: President
33.3 Severability. If this Agreement in its entirety is determined by a court to be invalid or unenforceable, this Agreement shall automatically terminate as of the date of final entry of judgment. If any provision of this Agreement shall be determined by a court to be invalid or unenforceable, or if any provision of this Agreement is rendered invajd or unenforceable according to the terms of any federal or state statute, which becomes effective after the Effective Date, the remaining provisions shall continue in full force and effect and shall be construed to give effect to the intent of this Agreement.
33.4 Exhibits Incorporated. The following "Exhibits" are attached hereto and incorporated herein by this reference:
Exhibit Designation
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit Title
Definitions
Franchise Area
Rates
Bulky Item Collection Program
C&D Debris Diversion Policy
Specified E-Waste
SB 13 83 Additional Services
22
33.5 Time of Essence. Time is of the essence for the Agreement and each provision contained within and each provision is made and declared to be a material, necessary and essential part of the Agreement.
33.6 Authority. All Parties to the Agreement warrant and represent that they have the power and authority to enter into the Agreement and the names, titles and capacities herein stated on behalf of any entities, persons, states or firms represented or purportec to be represented by such entities, persons, states or firms and that all former requirements necessary or required by the state or federal law in order to cuter into the Agreement. By entering into ti-is Agreement, neither Party hereto shall have breached the terms or conditions of any other contract or agreement to which such Party is obligated, which such breach would have a material effuct hereon.
33. 7 Drafting and Ambiguities. Each Party acknowledges that it has reviewed this Agreement with its own legal counsel, and based upon the advice of that counsel, freely entered into this Agreement. Each Party has participated fully in the review and revision of the Agreement.
Any rule of construction that ambiguities are to be resolved against the d~afting party does not apply in interpreting this Agreement.
33.8 Entire Agreement. This Agreement, together with its specific references, attachments and Exhibits, constitutes the entire agreement of the Parties with respect to the subject matters hereof, and supersedes any and all prior negotiations, understanding and agreements with respect hereto, wh_ether oral or written.
33.9 Supersedes Prior Agreement. It is the intention of the Parties hereto that this Agreement shall supersede any prior agreements, discussions, commitments, representations, or agreements, written, electronic or oral, between the Parties with respect to the subject matter of this Agreement.
33.10 Captions. The captions of this Agreement are for convenience and reference only and the words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction or meaning of the provisions of this Agreement.
33.11 Mandatory and Permissive. "Shall" and "will" and "agrees" are mandatory. "May" and '~can" are permissive.
33.12 Successors and Assigns. All representations, covenants, and warranties specifically set forth in this Agreement, by or on behalf of, or for the beneft of, any or all of the Parties hereto, shall be binding upon and inure to the benefit of such Party, its successors and assigns.
33.13 Counterparts. This Agreement may be executed simultane0usly and, in several counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.
23
33.14 Attorney's Fees and Costs. If any action at law or in equity, including action for declaratory relief, is brought to enforce or interpret provisions of this Agreement, the prevailing Party shall be entitled to reasonable attorney's fees and costs, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which such Party may be entitled.
33.15 Necessary Acts and Further Assurances. The Parties shall at their own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of the Agreement.
33.16 Waiver. No covenant, term, or condition or the breach thereof shall be deemed waived, except by written consent of the Party against whom the waiver is claimed, and any waiver of the breach of any covenant, te lm, or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term, or condition.
IN WITNESS WHEREOF, this Agreement has been entered into by and between City and Collector as of the Effective Date.
CITY OF LIVINGSTON
By: _________ _
Christopher Lopez
Interim City Manager
Date: ----------
APPROVED AS TO LEGAL FORM:
By: ----------- Roy C. Santos, City Attorney
Date: ----------
GIL TON SOLID WASTE MANAGEMENT,
INC.
By:----------
Richard Gilton, President
Date: ----------
24
EXHIBIT A
Definitions
Capitalized words in the Agreement shall have the following meanings:
I. "AB" shall mean an Assembly Bill of the California Legislature.
2. "AB 341" shall mean the amendments to the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code), Chapter 476, as amended, supplemented, superseded, and replaced from time to time.
3. "AB 939" shall mean the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code), as amended, supplemented, superseded, and replaced from time to time.
4. "AB 1826" shall mean the Assembly Bill approved by the Governor of the State of California on September 28, 2014, which added Chapter 12.9 (commencing with Section 42649.8) to Part 3 of Division 30 of the Public Resources Code, relating to Solid Waste, as amended, supplemented, superseded, and replaced from time to time.
5. "Agreement" shall mean this Franchise Agreement between the City and Collector, including all exhibits and future amendments.
6. "Bin" or "Bins" shall mean receptacles provided by Collector for customers which are picked up by Collection trucks by means of a front-loading apparatus.
7. "Bulky Items" shall mean large items of Solid Waste such as appliances, furniture, branches, and other oversize wastes whose large size precludes or complicates their placement in containers or handling by normal collection, processing, or disposal methods, but excluding Excluded Waste; items larger than five cubic yards or heavier than 500 pounds; and items of excessive size or density, such as engine blocks, spas, boats, and trailers. A list of acceptable and unacceptable Bulky Items is attached as Exhibit D.
8. "Breach" shall be as defined in Section 26.1 of this Agreement.
9. "Cart" or "Carts" shall mean industry standard receptacles for disposal of Solid Waste, Organic Waste, and Recyclables, in a range of sizes. A Cart has wheels, a handle for ease of movement, and a light-fitting, attached lid and is designed to be dumped manually or mechanically into a Solid Waste collection vehicle.
10. "Certificates" shall be as defined in Section 19.2 of this Agreemen:. 1 I. "City" shall mean the City of Livingston, Merced County, State of California.
12. "City's Agents" shall be as defined in Section 18.1 of this Agreen:ent.
13. "City Attorney" shall mean the city attorney for the City of Livingston.
14. "City Council" shall mean the City Council of the City of Livingston.
15. "City Engineer" shall mean the city engineer for the City of Livingston.
16. "City Manager" shall mean the city manager for the City of Livingston.
17. "Claim"shall be as defined in Section 18.1 of this Agreement.
18. "Collector" shall be as defined in the Preamble to this Agreement.
19. "Construction_ and Demolition Debris" or "C&D Debris' shall nean waste building materials, packaging, and rubbish resulting from construction, remodeling, repair, and demolition operations on pavements and on houses, commercial buildings, and other structures, but not including any Excluded Waste.
20. "Container" or "Containers" shall be as defined in Section 11.1 of this Agreement.
21. Contamination Monitoring shall be monitoring for prohibited container contaminants and notifying generators if contamination is found.
22. "Cure Period" shall be as defined in Section 26.3. of this Agreement.
23. "Customer" or "Customers" shall mean an individual(s), emity or entities that receive any services provided by Collector pursuant to this Agreement. Customer shall also mean the person, organization, or corporation receiving services to which billing statements are sent.
24. "Effective Date" shall be as defined in the Preamble to the Agreement.
25. "Electronic Waste" or "E-Waste" shall mean waste containing or consisting of electronic devices and components, such as computers, monitors, terminals, computer cards and components, computer peripheral devices, main frame computers, keyboards, mice, printers and scanners, mini-systems, power supply units, servers, connectors/cables, storage discs, consumer electronics, printed circuit boards, televisions, chips and components, cellular and other phones, telecommunications equipment, and fax machines and copiers, but not including Excbded Waste.
26. "Equipment" shall mean Collector's vehicles, tools, and equipn:ent for the Services for which it is responsible under this Agreement.
27. "Excluded Waste" shall mean Hazardous Waste; Medical and Infectious Waste; liquid wastes; volatile, corrosive, biomedical, infectious, biohazardous, an:! toxic substances or material; waste that Collector reasonably believes would, as a result of or upon 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 III landfills; waste that in Collector's reasonable opinion would present a significant risk to human health or the environment, cause a nuisance, or otherwise create or expose Collector or the City to potential liability. Excluded Waste does not include de minimis volumes or concentrations of waste of a type and amount normally found in residential Solid Waste after implementation of programs for the safe collection, recycling, treatment, and disposal of Household Hazardous Wastes in compliance with Sections 41500 and 41802 of the Public Resources Code.
28. "Exhibits" shall be as defined in Section 34.4. of this Agreement.
29. "Force Majeure" shall be as defined in Section 11.2. of this Agreement.
30. "Franchise Area'' shall be as defined in Section 4.1. of this Agreement.
31. "Franchise Fees" shall mean both the fees retained by City and paid by Collector to City as defined in Section 16.1.
32. "Hazardous Waste" shall mean a waste, or combination of wastes, which, because of its quantity, concentration, or physical, chemical, or infectious characteristics, may do either of the followjng:
a. Cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible or incapacitating reversible illness. b. Pose a substantial present or potential hazard to human health or environment when improperly treated, stored, transported, or disposed of, or otherwise managed. (Public Resources Code Section 40141.)
33. "HDPE (High Density Polyethylene)" shall mean a recyclable plastic that includes, but is not limited to, milk jugs.
34. High Diversion Organic Waste Processing Facility shall mean a facility that is in compliance with the repo1ting requirements of SB 1383 and meets or exceeds an annual average mixed waste organic content recovery rate of 50 percent (50%) between January I, 2022, and December 31, 2024, and 75 percent (75%) after January I, 2025, as calculated pursuant to SB 1383 for Organic Waste received from the Mixed Waste.
35. "Household Hazardous Waste" shall maintain the meaning set forth in Title 14, California Code of Regulations, Section 18502 or successor laws and regulations as may be amended from time to time.
36. "Liquidated Damages" shall be as defined in Section 27.2.1 of this Agreement.
37. "Medical and Infectious Waste" shall mean biomedical waste generated at residences in excess of legal limits or at hospitals, public or private medical clinics, dental
offices, research laboratories, pharmaceutical industries, blood banks, mortuaries, veterinary facilities, and other similar establishments.
38. "Notice or Appeal" shall be as defined in Section 26.4 of this Agreement.
39. "Organic Waste" shall be all tree and plant trimmings, grass cuttings, dead plants, weeds, leaves, branches, and similar plant materials, (but not including palm fronds or items longer than five (5) feet or with a diameter greater than six (6) inches), food, food scraps, food soiled paper, wood waste, paper and cardboard.
40. "Party" or "Parties" shall be as defined in the Preamble to this Agreement.
41. "Payment Bond" shall be as defined in Section 25.2 of this Agreement.
42. "Performance Bond" shall be as defined in Section 25.1 of this Agreement.
43. "PET (Polyethylene Terephthalate)" PET means a recyclable plastic that includes, but is not limited to, 2-liter soda bottles.
44. "Rates" shall mean the rates charged by Collector or City to Customers within the City as set forth in Section 9 .I.
45. "Recitals" shall be as defined- in Section I of this Agreement.
46. "Records" shall be as defined in Section 13 or this Agreement. 4 7. "Recyclable Materials" or "Recyclables" shall mean those ma:erials that may be separated on a commercially reasonable basis from Solid Waste and returned to the economic mainstream in the fonn of raw material for new, rei:sed, or reconstituted products which meet the quality standards necessary to be used in the marketplace.
Subject to mutually agreed revision by the Parties, Recyclable Materials or Recyclables include, newspaper (including inserts, coupons, and store advcl liscments), corrugated card-board, mixed waste paper (including office paper, computer pcper, magazines, junk mail, catalogs, Kraft bags and Kraft paper, paperboard, egg containers, phone books, brown paper, grocery bags, colored paper, construction paper, envelopes, legal pad backings, shoe boxes, and cereal and other similar food boxes), glass containers (including colored glass bottles and jars), aluminum (including beverage containers, foil, food containers, and small scrap metal), plastic milk and juice containers, steel or tin cans, small scrap metal, PETE and HDPE plastic containers (natural and colored), used motor oil and oil filters, and any other commercially viable recyclable materials mutually agreed to by Collector and the City.
48. "Refuse" shall mean general term for waste, including Solid Waste,
49. "Regulations" shall be as defined- in Section 33 of this Agreement.
50. "Roll-Off Box" shall mean a container, with a minimum capacity of ten cubic yards, designed for mechanical emptying with a vehicle, and used for the storage and transportation of solid waste, Organic Waste, recyclables, and other commodities.
51. Route Review shall mean inspection and compliance review of a random sample to determine compliance and generate an electronic or written recod for each inspection.
52. "SB 1383" shall mean Senate Bill 1383, Short-Lived Climate Pollutants (SLCP):
Organic Waste Methane Emissions Reductions ("SB 1383"), establishing a statewide target to decrease methane emissions at landfills by reducing the disposal of organic waste by 50% below 2014 levels by 2022 and by 75% below 2014 levels by 2025.
53. "Services" shall be as defined in Section 5.1 of this Agreement.
54. "Solid Waste" shall mean and include all forms of residential and commercial waste generated within City limits and intended for disposal. Solid Waste as defined in Public Resources Code, Section 40191 and regulations promulgated thereunder and without limitation includes all putrescible and non-putrescible solid, semisolid, and liquid wastes, including garbage, trash, Refuse, rubbish, ashes, industrial wastes, demolition and construction wastes, abandoned vehicles and parts thereof, discarded home and industrial appliances, dewatered, treated, or chemically fixed sewage sludge which is not hazardous waste, manure, vegetable or animal solid or semisolid wastes, and other discarded solid and semisolid wastes.
Notwithstanding any provision to the contrary, "Solid Waste" may include de minim is volumes or concentrations of waste of a type and amount normally found in residential solid waste after implementation of programs for the safe collection, recycling, treatment, and disposal ofHousehold Hazardous Waste in compliance with Sections 41500 and 41802 of the Resources Code. For the purposes of this Agreement the Collector may, but is not required, to collect, haul, dispose or recycle any liquid wastes, abandoned vehicles, and parts thereof, industrial appliances; dewatered, treated or chemically fixed sewage sludge or manure.
55. "State" shall mean the State of California.
56. "Term" shall be as defined in Section 7 of this Agreement.
57. "Termination" shall he as defined in Section 27.1 of this Agreement.
58. "Universal Waste" shall mean any waste matter which the State of California classifies as 'universal waste,' including, but not limited to, items and materials listed in 22 CCR 6626 I. 9, as it may be amended, as well as any items listed below not classified by the State of California as 'universal waste.' Universal Waste includes, but is not limited to, the following:
• E-Waste;
• Batteries ( except automobile batteries);
• Thermostats;
•
•
•
•
•
Lamps with fluorescent tubes, high intensity discharge lamps, sodium vapor lamps, and other lamps with hazardous waste characteristics; Cathode ray tubes;
Aerosol cans;
Mercury-containing items, including light switches, pressure gauges, and thermometers;
Appliances, devices, and other objects containing electronic components, including (but not limited to) computers, computer monitors, cellular telephones, copiers, fax machines, DVD players, VCRs, and televisions.
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............... t
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EXHIBIT B
Franchise Area
I '-'
Exhibit 1
Gilton Solid Waste Management~ Inc.
Revised Proposal for City of Livingston
Agreement for Solid Waste, Recyclable Materials, & Organic Waste Collection Services Based on Increased Passthrough costs 03/01/2024
STANDARD SERVICE - WEEKLY COLLECTION ALL CONTAINERS
Tw0 (2) Carts (1,) MSW/ Recycle .(1~ Organks,,
96 Gallon Carts
Basic Bundled Service
Additional carts availble at a Monthly rate of $10.00 per cart Carts are replaced as needed.
Standard Service Per Bin
Bin Collection Monthly
Size FrequencVt R.ate
1 Cubic Yard 1 $67.35
1 Cubic Yard 2 $134.65
1 Cubic Yard 3 $201.93
1 Cubic Yard 4 $269.21
1 Cubic Yard 5 $336.49
1 Cubic Yard 6 $403.85
2 Cubic Yard 1 $134.26
2 Cubic Yard 2 $266.1 1
2 Cubic Yard 3 $401.23
2 Cubic Yard 4 $535.41
2 Cubic Yard 5 $669.59
2 Cubic Yard 6 $803.85
3 Cubic Yard 1 $198.90
3 Cubic Yard 2 $376.21
3 Cubic Yard 3 $566.86
3 Cubic Yard 4 $764.64
3 Cubic Yard 5 $961.43
3 Cubic Yard 6 $1,160.33
4 Cubic Yard 1 $254.58
4 Cubic Yard 2 $496.10
4 Cubic Yard 3 $775.89
4 Cubic Yard 4 $1,025.84
4 Cubic Yard 5 $1,276.65
4 Cubic Yard 6 $1,452.41
6 Cubic Yard 1 $357.95
6 Cubic Yard 2 $697.76
6 Cubic Yard 3 $1,067.07
6 Cubic Yard 4 $1,419.66
6 Cubic Yard 5 $1 ,776.83
6 Cubic Yard 6 $2,134.78
96 Gallon carts are available to commercial customers
The rate for this service is $ 30 per container per month.
Mhrthty Rate
$35.25
EXHIBITD
RESIDENTIAL BULKY ITEM COLLECTION PROGRAM
• Scheduled by appointment only. To arrange a pickup, please call our office at (209) 527- 3781
• Program available to residents who currently subscribe to garbage service* • Qualifying residents can have bulky item picked up at their home two times per year • Verify that items you want to set out for pick up are Acceptable Items (see lists below) • Once appointment for pick up has been scheduled, items must be set out in front of home after 6:00 p.m. the day before scheduled appointment. Place items on the street one foot from curb. Do NOT block sidewalks, driveways or mailboxes. Items should be at least 3 feet away from garbage cart
• Do NOT place pile under low hanging wires or low hanging tree branches • Items set out for collection should not exceed a dimension of 6 feet tall, 6 feet wide and 6 feet deep
• Items will be picked up after 6:00 a.m. on scheduled pick up day
ACCEPTABLE ITEMS
✓ Refrigerators & Freezers - Doors taped shut or doors removed - Limit I ✓ Washers & Dryers - Limit I of each
✓ Water Heaters, Water Softener - drained - Limit I of each ✓ Air Conditioning Units - Limit I
✓ Dishwashers - Limit 1
✓ Toilets, Sinks, Bathtubs
✓ Hot Tubs - Limit 1
✓ Couches, Sofas, Recliners
✓ Table and Chairs
✓ Dressers, Desks
✓ Mattress, Box Springs, Bed Frame - Limit 2
✓ Barbeques, Grills - remove propane tank
✓ Patio Furniture
✓ Doors
✓ Ladders
✓ Lawn Mowers - gas & oil removed
✓ Bicycles
✓ Exercise Equipment
✓ Plywood Sheets - limit 2
✓ Wood - limit IO pieces no longer than 8 feet
✓ Carpet - rolled up
✓ Dry, flattened cardboard- Bundled
UNACCEPTABLE ITEMS
✓ Tires
✓ Automobile Parts
✓ Household Garbage-No bags, boxes or containers with small items inside
✓ Hazardous Waste, Chemicals, Toxic Materials
✓ Liquids, Paints, Solvents
✓ Plate Glass
✓ TVs
✓ Computer Monitors
✓ Concrete, Asphalt, Sheetrock
✓ Construction & Demolition Debris
✓ Fencing, Treated Wood
✓ Yard Waste
✓ Tree Stumps
✓ Items Associated with Business
✓ Dead Animals
✓ Fluorescent Light Tubes
✓ Sod, Dirt
✓ Glass, Mirrors
✓ Items Small Enough to Fit in Garbage Can
EXHIBITE
Construction & Demolition Debris Policy
The 2013 California Green Building Standards Code (CALGreen) instructs local jurisdictions to require contractors to develop and maintain a waste management plan, among other things, to verify a minimum 50 percent waste diversion. CALGreen further specifies for the WMP to be updated as necessary and shall be available for examination during construction. Sample WMP is provided in the actual CALGreen code publication under the Compliance Forms and Worksheets section. The California Department of Housing and Development's website also provides sample WMP for residential C&D projects.
EXHIBITF
Acceptable E-Waste for Curbside Collection Program
Computers
Printers
Copiers
Scanners
Fax Machines
Telephones
Cellular Telephones Stereos
DVD Units
Televisions (Cathode Ray Tubes)
Computer Monitors
Flat Screen Televisions
Lap Top Computers
Networking Equipment
Printed Circuit Boar\ls
Computer Servers
Computer Main Frame
EXHIBITG
SB 1383 Additional Services
• Gilton staff to attend city public events providing outreach and education on SB 1383 • No less than twice per year, direct mail SB 1383 requirements to both residential and commercial customers. Fliers will be in English, Spanish and Punjabi. • Annual route reviews for residential customers
• Cart and bin labels reinforcing proper separation of materials, by listing out which materials are accepted inside the container, and which are not accep:ed. • Contamination Monitoring - contractor shall perform contamir:ation inspections by utilizing on-board monitoring systems or physical container inspections. • Cart contamination tags to inform customers of contamination issues and educate with solutions to resolve.
• Procurement- Contractor to provide Organic Waste Products (OWP, such as mulch and/or compost) to the City, to meet the annual Target Goal issued by CalRecycle to the City for that reporting year.
• Reporting - contractor will provide the data or prepare reports required to meet SB 1383 requirements which include:
o The number of generators that receive organic waste collection service. o The number of route reviews conducted for prohibited container contamination. o The number of times notices, violations or targeted education materials were issued to generators for prohibited container contaminants.
EXHIBIT B
EXHIBIT B
Franchise Area
AGENDA ITEM:
MEETING DATE:
PREPARED BY:
STAFF REPORT
Consideration of Resolution Authorizing the Interim City Manager to Execute an Agreement with HR Green, Inc. to Perform Engineering Services to Include Water Modelling, Development of a Water CIP, and Other Water Related Engineering Services as Needed
April 16, 2024
Christopher Lopez, Interim City Manager
RECOMMENDATION:
It is recommended that the City Council adopt the resolution authorizing the Interim City Manager to Execute an Agreement with HR Green, Inc. to perform Engineering Services to include water modelling, development of a water CIP, and other water related engineering services as needed.
BACKGROUND:
The City of Livingston provides potable water service to a population of approximately 15,448 residents including commercial, industrial, and public facilities within its service area boundary. The City of Livingston serves as the governing agency and sole purveyor of water within the City limits and provides water services to 2,770 metered connections based on the 202 Urban Water Management Plan.
Currently, the City utilizes eight active wells including Well Nos. 8, 9, 11, 12, 13, 14, 16, 17 which extract groundwater from the Merced Subbasbin, while Well NO. 15 serves as a standby well source.
The City's wells have individual capacities ranging from 800 gallons per minute (gpm) to 2,000 gpm.
Collectively, the wells have a combined capacity of 10,900 gpm with water being distributed by a network of lines ranging in size from two to 16-inches in diameter. Additionally, the water system includes a 1.0MG welded steels storage tank used for water storage.
The groundwater underlying the City is part of the larger San Joaquin Valley Groundwater Basin within the San Joaquin River Hydrologic Region. By way of background, the San Joaquin Valley Groundwater Basin is divided into nine subbasins, with the City extracting from the Merced subbasin, which is classified as a critical overdraft subbasin.
Following the passages of the Sustainable Groundwater Management Act (SGMA) by California Governor Edmund G. Brown Jr. in 2014, the County of Merced and water districts and cities within the Merced Subbbasin formed three Groundwater Sustainability Agencies (GSA) in accordance with SGMA of which the City of Livingston is part of the Merced Irrigation-Urban Groundwater Sustainability Agency (MIUGSA). The member agencies of this GSA include the Merced Irrigation District, City of Merced, City of Atwater, City of Livingston, Le Grand Community Services District, Plarada Community Services District, and Winton Water Sanitary District. The City and the MIUGSA are working collaboratively to achieve sustainable groundwater conditions by 2040 in accordance with SGMA.
As defined by SGMA, "a basin is subject to critical overdraft when continuation of present water management practices would probably result in significant adverse overdraft related environmental,
social, or economic impacts." The Merced Subbasin is currently considered to be in a state of critical overdraft per the DWR Bulletin 118 Interim 2016 Update.
Over the last year, and due to decades of lack of planning and preparation for replacement of infrastructure, the City has experienced an increase in the number of failures in water infrastructure.
While the City Council adopted its first CIP in several years during the FY 23/24 Budget process, the lack of planning has resulted in delayed replacement of the City's infrastructure. This has resulted in offline wells, reduction in system pressure, and challenges with meeting daily demand for water use.
This has also resulted in staff being reactionary and responding to emergencies, versus planning for system upgrades and improvements.
Staff has identified numerous challenges and during peak daily demand situations, the system is strained and struggles to meet water demand. In the instance of mechanical failures, the system struggles even more to keep up with demand. Water operations staff is well aware of these challenges.
TECHNICAL MEMORANDUM
In October 2023, the City Manager's authorized the preparation of a Technical Memorandum to provide an assessment of the capacity of the City of Livingston's municipal water supply with a purpose to determine if the City's water supply wells have adequate capacity to meet the City's maximum day demand (MOD) and peak hour demand (PHD) under current and future water supply conditions.
Based on the report, and for reliability purposes, it is desirable to maintain a firm source capacity higher than the MDD. System demand in excess of MOD required for PHD or for fire flows can come from storage. The firm source capacity of the water system is virtually the same as the MDD (7,200- gpm""?,222-gpm). The system's capacity is not adequate to meet PHD (9,200-gpm<10,883-gpm).
Additionally, based on the calculations provided in the Technical Memorandum, the City's water system would not have adequate capacity to meet the increased MDD from new developments and would not have adequate capacity to meet the projected PHD based on the firm capacity.
FUTURE SUPPLY CONDITIONS
The City is planning to construct two new wells, one of which (Well 19) will have well head TCP treatment, and two new centralized treatment facilities to remove TCP from the groundwater. The Centralized Facilities will also include water storage tanks and Booster Pumps. The following is a brief description of each facility:
1. Arakelian Park Centralized Treatment Facility
a. This facility will receive water from Well Nos. 12, 13 and 17 and treat it using GAC adsorption for the removal of TCP. Treated water will be discharged into a 1-million-gallon (MG) storage tank.
b. A 6,000-gpm booster pump station will repressurize the treated water into the distribution system.
2. Well 8 Centralized Treatment Facility
c. This facility will receive water from the new Well No. BA (Well 8 replacement) and from future Well No. 18. The production of these wells is still unknown. For purposes of this report, it is assumed that Well No. 18 will produce 1,500-gpm. Treated water will be discharged into a 1.5 MG storage tank. A 4,500-gpm booster pump station will repressurize the treated water into the distribution system.
3. Well 19 with Treatment Facility
d. This facility will consist of the new Well 19 with well head treatment for the removal of TCP.
A booster pump station will repressurize the treated water into the distribution system.
The City's total production capacity would be 11,300-gpm and the firm production capacity would be 9,300-gpm or 13.39 MGD. Therefore, the City would have adequate capacity to supply MDD to the new developments. With the new improvements, the City's PHD capacity would increase to 16,300-gpm which would also be adequate to supply the new developments.
Once the new TCP improvements are completed and based on the projected firm capacity of 9,300- gpm and 7,455-gpm MDD, the City would have approximately 25 percent remaining capacity for any future new developments beyond the presently entitled multifamily and commercial projects. The City would need to add more new wells and/or treated surface water to accommodate growth beyond that.
Existing System
There is currently no mechanism in place that allows City staff to determine available water capacity, and the respective water impacts based on various development projects. This type of information is critical and will allow staff to determine the impacts of various projects on the overall impacts to the City's supply of water.
With this information, staff would be able to make sound, rational, and data driven recommendations to the Mayor and City Council. In addition, the development community has requested this type of information to understand their respective impacts to the overall water system. This will also help in future planning.
HR Green Proposal
The HR Green proposal will accomplish the following:
1. Review existing GIS mapping and atlases of water system a. Review the City's 2007 Water Distribution System Water Plan b. Review system improvements and studies completed since 2007 c. Review studies for specific future property developments d. Review the latest Comprehensive Land-use and population projections
2. Hydraulic Analysis
a. HR Green to create and calibrate a complete water distribution system model b. Work with City staff to identify locations for additional fire hydrant flow and pressure testing as required
c. Identify shortcomings in the existing water distribution system d. Use local fire flow guidelines to determine system fire flow needs
3. Assess the water system and waste water treatment plant, compile data obtained in Item 1 and review the current documented risk and resiliency assessment to determine system failure points, system upgrades, etc. to create a Water CIP
DISCUSSION
Based on the Technical Memorandum, and the failures that continue to plague the system, staff is recommending the adoption of this resolution to identify the larger and broader system enhancements needed for the water system. This would help identify future projects, and ensure that staff has the most updated information to ensure that the existing water and wastewater systems have information related to planned projects to ensure optimal performance.
While the city is currently moving forward on additional projects to increase capacity, this item will ensure that the city is protecting its current investments, and also preparing for replacements and enhancements to its existing infrastructure.
FISCAL IMPACT
The proposed agreement for project deliverables not to exceed $124,000 which will be funded by a new appropriation from uncommitted and available reserves.
ATTACHMENTS:
1. Resolution
2. HR Green Proposal for Water Sufficiency Assessment
RESOLUTION NO. 2024-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LIVINGSTON
AUTHORIZING THE INTERIM CITY MANAGER TO EXECUTE AN AGREEMENT WITH HR GREEN, INC. TO PERFORM ENGINEERING SERVICES TO INCLUDE
WATER MODELLING, DEVELOPMENT OF A WATER COMPREHENSIVE CAPITAL
IMPROVEMENT PROGRAM (CIP), AND OTHER WATER RELATED ENGINEERING
SERVICES AS NEEDED
WHEREAS, the City Council desires to adhere to the City of Livingston Code; and WHEREAS, the City of Livingston has a responsibility to ensure its water system remains reliable, sufficient, and in an optimal condition; and
WHEREAS, the City has not updated its water model in approximately 17 years resulting in a lack of updated and reliable understanding of the City's water system; and WHEREAS, due to a series of failures over the last year, the City Is needing expertise in evaluating and recommending improvements to the existing system; and WHEREAS, staff identified and Council adopted a "One Year CIP" in order to prioritize needs for one year; and
WHEREAS, the City has lacked a comprehensive multi-year CIP to provide for long term prioritization of replacement of its existing water infrastructure; and WHEREAS, the City is seeking a water model that allows staff to identify the impacts of current and future developments on the City's ability to provide water to the community; and WHEREAS, the City is seeking information on the projects necessary to assure system reliability which will be used to pursue grant funding and other requests from its state and federal representatives; and
WHEREAS, staff needs assistance in evaluating, assessing, and making recommendations to ensure the City's infrastructure remains in an optimal operation NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Livingston as follows:
Section 1. The City Council finds a benefit in obtaining water expertise assistance and thus does hereby authorize a professional services agreement with HR Green, Inc. to complete the following:
1. Review existing GIS mapping and atlases of water system a. Review the City's 2007 Water Distribution System Water Plan b. Review system improvements and studies completed since 2007 c. Review studies for specific future property developments d. Review the latest Comprehensive Land-use and population projections
2. Hydraulic Analysis
a. HR Green to create and calibrate a complete water distribution system model
Resolution No. 2024-
b. Work with City staff to identify locations for additional fire hydrant flow and pressure testing as required
c. Identify shortcomings in the existing water distribution system d. Use local fire flow guidelines to determine system fire flow needs
3. Assess the water system and wastewater treatment plant, compile data obtained in Item 1 and review the current documented risk and resiliency assessment to determine system failure points, system upgrades, etc. to create a GIP
4. Additional water, wastewater, and other engineering work necessary to update long term plans for the viability and growth of the community Section 2. Authorize the Interim City Manager to negotiate and execute a Professional Services Agreement for Water Engineering expertise in accordance with legal concurrence with a contract amount not to exceed $144,000 for the term of the agreement.
Section 3. This Resolution will become effective immediately.
I hereby certify that the foregoing Resolution No. 2024-_ is a full, true and correct copy of a resolution duly passed and adopted by the City Council of the City of Livingston at a regular meeting thereof duly held on the 16th day of April 2024, by the vote recorded as follows:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST
Monica Cisneros, Deputy City Clerk
APPROVED AS TO LEGAL FORM
Roy C. Santos, City Attorney
By:-----------
Jose A. Moran, Mayor
of City of Livingston
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HRGreen ..
PACIFIC
April 3, 2024
Christopher Lopez
Interim City Manager
City of Livingston
1416 C Street
Livingston, CA 95334
Re: Proposal for Water Sufficiency Assessment
Dear Chris,
► 1260 Corona Pointe Court Suite 305
Corona, CA 92879
Main 855.90J.4742 Fax 713.965.0044
► rin:un.cc~.C.OM
Per your Request for a scope and fee proposal for the subject project, HR Green, Inc. (HR Green) is ready to provide the necessary services to perform the Water Sufficiency Assessment.
PROJECT UNDERSTANDING
The City of Livingston (City) water system serves approximately 15,000 residents. It is served by three well fields (eight wells with one in production), a water treatment plant, a 1.0MGD water storage tower and 36 miles of watermains. The City's water is available through groundwater aquifers. Due to the recently proposed increase in housing and a state conducted water availability study, the City seeks to evaluate the current system capacity to determine future City growth plans. The City also requests to develop a Capital Improvement Plan (CIP) to implement into the budget.
HR Green understands that the Scope of Services will be phased in three separate tas-<.s:
► Task 1: Assess the capacity of the current water system by updating the existing water model, completed in 2007
► Task 2: Assess the water system (3 well fields, 1 WTP, 1 Tower). This will be used to create a Capital Improvement Plan (CIP).
PROPOSED SCOPE OF SERVICES
A. Project Management and Coordination
a. Provide project management services for duration of the project. b. Project Kick-off Meeting: Schedule a project kick-off meeting with the City staff to discuss in detail the project tasks.
c Review existing reports related to water demand, pump capacity and past water system studies as provided by the City.
B. Assess the capacity of the current water system by updating the existing water model (Task 1) a. Review existing GIS mapping and atlases of water system. ► Based on discussions, HR Green has assumed that the City has the existing water atlases in GIS format
► Review the City's 2007 Water Distribution System Water System Plan ► Review system improvements and studies completed since the 2007 Water Distribution System Master Plan was completed. It is assumed this information will be gathered and summarized by the City and provided to HR Green
► Review studies for specific future property developments.
HR Green ' I Building Communities. Improving Lives.
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HRGreen~
l'AL1f-lC
► Christopher Lopez
April 3, 2024
► Review the latest Comprehensive Plan land-use and population projections ► Meet with the City to discuss proposed development and areas of concern in existing water system b. Hydraulic Analysis
► HR Green will create and calibrate a complete water distribution system model using WaterGEMS from the GIS database and elevations provided by the City. ► City will use the total system average and peak day demand data and also a record of the top 10 highest demands, with respective flows during the peak day, as available. Using this information, the City will input the highest users in the model at the point of use (as provided by the City). The remaining system demands for residential and commercial customers will be distributed evenly throughout the City
► HR Green will work together with the City's staff to identify locations for additional fire hydrant flow and pressure testing as required to calibrate the water model. The City will gather additional hydrant flow and pressure test data at the sites identified
► Using the existing and any additional hydrant flow test data, HR Green will calibrate the water distribution system model. HR Green will input the hydrant flows and pressures and pumping flows and pressures into the computer model and adjust the model parameters so that the model is calibrated to match the measured conditions as closely as feasible. It is assumed that the City will forward the hydrant flow testing data to HR Green.
► Using the City's population projections and land use information from the latest (Year) Comprehensive Plan, develop a population and corresponding water demand projection for the next 5- and 20-year planning periods. Include projected average day, peak day and peak hour demands. ► Using the calibrated water distribution system model, land use, and projected water demands accounting for future projected expansion/ growth objectives, develop a water distribution system model for 5 and 20 years in the future.
► Identify the shortcomings in the existing water distribution system from the calibrated water distribution system model for each planning period and provide recommendations for improvements. ► Use the local fire flow guidelines to determine system fire flow needs. Program and execute a series of fire flow model scenarios, for existing conditions and future scenarios identified above, assuming fire flows at various locations throughout the system. Locations will be geographically distributed to sufficiently evaluate all areas of the system and selected in collaboration with City's staff. Compare results with required fire flows at each location, respectively, and identify any deficiencies. Provide a database listing of the pipe segments with the following information during peak hour demands:
Pressure
Flow velocities
Head loss per 100 feet of pipe
Pressure drop relative to static system pressure
Fire flow
C. Assess the water system (3 well fields, 1 WTP, 1 Tower), compile the data obtained in item A and review the current documented risk and resiliency assessment to determine system failure points, system upgrades, etc. This will be used to create a Capital Improvement Plan (CIP) (Task 2). a. Desktop Assessment of City's water and wastewater Infrastructure ► Collect and analyze the City's records on the water and sewer system including, but not limited to, water treatment plants and water distribution system, wastewater treatment plant, GIS data, record drawings, maintenance records, sewer televising videos, flow data, sewer back-up data, water main break inventory, etc.
► Assess the City's existing staffing levels compared to current and upcoming regulatory requirements and programs. Incorporate recommendations into the CIP.
- ► Christopher Lopez
April 3, 2024
HRGreen ..
p A C I f· I C
b. Site Condition Assessment
► Conduct two (2) site visits to assess the condition of water treatment plant. wastewater treatment plant, booster stations, lift station structures, mechanical equipment, electrical equipment, ground storage tanks, wells, water towers, PRV's, and control systems. ► During the site visit, HR Green will obtain input from the City staff on the e:,cisting equipment performance and historical operational challenges.
► Review the Trichloropropane (TCP) contamination issues (due to the agriculture activities surrounding the city) and determine betterments to treatment to address the issue. Consult with treatment equipment vendors to get required treatment units sizing and budgetary cost opinions. No detailed design is included in the proposed scope of services ► The information gathered during our assessment of the water and sewer systems and site visits will be used to develop a list of capital improvements needed over the next five fiscal years c. Prioritized Project List
► Conduct virtual Teams meeting with key City staff to prioritize the list of po:ential projects ► Finalize the prioritized project list based on City input d. Develop Budgetary Cost Estimates
► Develop budgetary cost estimates for each project on the prioritized list ► Consult with treatment equipment vendors for equipment sizing to address the TCP contamination issue at one existing groundwater well and obtain budgetary cost opinions for improvements to the WTP at site. HR Green has budgeted 20 hours for this effort e. Finalize Capital Improvement Program
► Formalize the Capital Improvement Program with prioritized water/sewer p·ojects, recommended implementation timelines, and anticipated costs
► Prepare a supporting memorandum for the CIP
DELIVERABLES AND PROJECT SCHEDULE
Task 1:
► Summary report quantifying current and projected water demands, based on two multi-family development applications submitted to the City (City to provide), compared to availability of water ► Water model of the current system.
Task 2:
► Draft Capital Improvement Program and supporting memorandum ► Final Capital Improvement Program and supporting memorandum HR Green will develop a schedule in consultation with the City at project kickoff.
TASKS NOT INCLUDED IN PROPOSED SCOPE OF SERVICES
The following items are not included as part of the proposed scope of services:
► Geotechnical, Environmental, Survey, HydranUPressure Testing and Hydrogeology services. ► Water rights analysis
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HRGreen,
PACIFIC
► Water/Sewer Rate Studies
► Sewer modeling
► Christopher Lopez
Apnl3 2024
► Additional site visits or on-site meetings beyond what is described above. ► Legal services
► Engineering design and construction services
Supplemental services not included in the proposed scope can be provided by HR Green under separate agreement, if desired.
PROPOSED FEE
HR Green proposes to provide these services as follows in accordance with our attached standard fee schedule.
Task 1: Time and Materials basis with an estimated fee of $47,000 Task 2: Time and Materials basis with an estimated fee of $77,000 If you have any questions, please contact me at 951-4 75-3619 or via email at [email protected].
Sincerely,
f-lR GREEN PACIFIC, INC.
, ____ -----s~~, ;A:. __
Steve Loriso, PE, QSO/QSP
Group Leader
STAFF REPORT
AGENDA ITEM: Discussion and Direction regarding Community Facilities District (CFD) 2005-1 and the Respective Expenditure Against this Fund.
MEETING DATE: April 16, 2024
FROM: Christopher Lopez, Interim City Manager
RECOMMENDATION:
This item is included for the City Council to have a discussion and provide direction regarding Community Facilities District (CFD) 2005-1.
In preparation of the FY 24/25 budget, staff has identified approximately $200,000 in unallocated expenditures against this fund.
Staff is seeking direction on how the Council would like to allocate this funding in preparation of the FY 24/25 Budget.