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EXHIBIT B
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Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
I. General
II. Nondiscrimination
III. Non-segregated Facilities
IV. Davis-Bacon and Related Act Provisions
V. Contract Work Hours and Safety Standards Act Provisions VI. Subletting or Assigning the Contract
VII. Safety: Accident Prevention
VIII. False Statements Concerning Highway Projects
IX. Implementation of Clean Air Act and Federal Water
Pollution Control Act
X. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion
XI. Certification Regarding Use of Contract Funds for Lobbying XII. Use of United States-Flag Vessels:
ATTACHMENTS
A. Employment and Materials Preference for Appalachian
Development Highway System or Appalachian Local Access
Road Contracts (included in Appalachian contracts only) I. GENERAL
1. Form FHWA-1273 must be physically incorporated in each construction contract funded under title 23, United States Code, as required in 23 CFR 633.102(b) (excluding emergency
contracts solely intended for debris removal). The contractor (or subcontractor) must insert this form in each subcontract and further require its inclusion in all lower tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services). 23 CFR633.102(e).
The applicable requirements of Form FHWA-1273 are
incorporated by reference for work done under any purchase order, rental agreement or agreement for other services. The prime contractor shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider. 23 CFR 633.102(e).
Form FHWA-1273 must be included in all Federal-aid designbuild contracts, in all subcontracts and in lower tier subcontracts (excluding subcontracts for design services, purchase orders, rental agreements and other agreements for supplies or
services) in accordance with 23 CFR 633.102. The designbuilder shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider.
Contracting agencies may reference Form FHWA-1273 in
solicitation-for-bids or request-for-proposals documents, however, the Form FHWA-1273 must be physically incorporated (not referenced) in all contracts, subcontracts and lower-tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services related to a
construction contract). 23 CFR 633.102(b).
2. Subject to the applicability criteria noted in the following sections, these contract provisions shall apply to all work performed on the contract by the contractor's own organization and with the assistance of workers under the contractor's immediate superintendence and to all work performed on the contract by piecework, station work, or by subcontract. 23 CFR 633.102(d).
3. A breach of any of the stipulations contained in these Required Contract Provisions may be sufficient grounds for withholding of progress payments, withholding of final payment, termination of the contract, suspension / debarment or any other action determined to be appropriate by the contracting agency and FHWA.
4. Selection of Labor: During the performance of this contract, the contractor shall not use convict labor for any purpose within the limits of a construction project on a Federal-aid highway unless it is labor performed by convicts who are on parole, supervised release, or probation. 23 U.S.C. 114(b).The term Federal-aid highway does not include roadways functionally classified as local roads or rural minor collectors. 23 U.S.C. 101(a).
II. NONDISCRIMINATION (23 CFR 230.107(a); 23 CFR Part
230, Subpart A, Appendix A; EO 11246)
The provisions of this section related to 23 CFR Part 230, Subpart A, Appendix A are applicable to all Federal-aid construction contracts and to all related construction
subcontracts of $10,000 or more. The provisions of 23 CFR Part 230 are not applicable to material supply, engineering, or architectural service contracts.
In addition, the contractor and all subcontractors must comply with the following policies: Executive Order 11246, 41 CFR Part 60, 29 CFR Parts 1625-1627, 23 U.S.C. 140, Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.), and related regulations including 49 CFR Parts 21, 26, and 27; and 23 CFR Parts 200, 230, and 633.
The contractor and all subcontractors must comply with: the requirements of the Equal Opportunity Clause in 41 CFR 60-
1.4(b) and, for all construction contracts exceeding $10,000, the Standard Federal Equal Employment Opportunity Construction Contract Specifications in 41 CFR 60-4.3.
Note: The U.S. Department of Labor has exclusive authority to determine compliance with Executive Order 11246 and the policies of the Secretary of Labor including 41 CFR Part 60, and 29 CFR Parts 1625-1627. The contracting agency and the
FHWA have the authority and the responsibility to ensure compliance with 23 U.S.C. 140, Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.), and related regulations including 49 CFR Parts 21, 26, and 27; and 23 CFR Parts 200, 230, and 633.
The following provision is adopted from 23 CFR Part 230, Subpart A, Appendix A, with appropriate revisions to conform to the U.S. Department of Labor (US DOL) and FHWA
requirements.
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Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
1. Equal Employment Opportunity: Equal Employment
Opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (see 28 CFR Part 35, 29 CFR Part 1630, 29 CFR Parts 1625-1627, 41 CFR Part 60 and 49 CFR Part 27) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140, shall constitute the EEO and specific affirmative action standards for the contractor's project activities under this contract.
The provisions of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR Part 35 and 29 CFR Part 1630 are incorporated by reference in this contract. In the execution of this contract, the contractor agrees to comply with the following minimum specific requirement activities of EEO:
a. The contractor will work with the contracting agency and the Federal Government to ensure that it has made every good faith effort to provide equal opportunity with respect to all of its terms and conditions of employment and in their review of activities under the contract. 23 CFR 230.409 (g)(4) & (5).
b. The contractor will accept as its operating policy the following statement:
"It is the policy of this Company to assure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, sexual orientation, gender identity, color, national origin, age or disability. Such action shall include: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship, preapprenticeship, and/or on-the-job training."
2. EEO Officer: The contractor will designate and make known to the contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active EEO program and who must be assigned adequate authority and responsibility to do so.
3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action or are substantially involved in such action, will be made fully cognizant of and will implement the contractor's EEO policy and contractual
responsibilities to provide EEO in each grade and classification of employment. To ensure that the above agreement will be met, the following actions will be taken as a minimum:
a. Periodic meetings of supervisory and personnel office employees will be conducted before the start of work and then not less often than once every six months, at which time the contractor's EEO policy and its implementation will be reviewed and explained.
The meetings will be conducted by the EEO Officer or other knowledgeable company official.
b. All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty days following their reporting for duty with the contractor. c. All personnel who are engaged in direct recruitment for the project will be instructed by the EEO Officer in the contractor's procedures for locating and hiring minorities and women. d. Notices and posters setting forth the contractor's EEO policy will be placed in areas readily accessible to employees, applicants for employment and potential employees.
e. The contractor's EEO policy and the procedures to implement such policy will be brought to the attention of employees by means of meetings, employee handbooks, or other appropriate means.
4. Recruitment: When advertising for employees, the contractor will include in all advertisements for employees the notation: "An Equal Opportunity Employer." All such advertisements will be placed in publications having a large circulation among minorities and women in the area from which the project work force would normally be derived.
a. The contractor will, unless precluded by a valid bargaining agreement, conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minorities and women. To meet this requirement, the contractor will identify sources of potential minority group employees and establish with such identified sources procedures whereby minority and women applicants may be referred to the contractor for employment consideration.
b. In the event the contractor has a valid bargaining agreement providing for exclusive hiring hall referrals, the contractor is expected to observe the provisions of that agreement to the extent that the system meets the contractor's compliance with EEO contract provisions. Where implementation of such an agreement has the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Federal nondiscrimination provisions.
c. The contractor will encourage its present employees to refer minorities and women as applicants for employment. Information and procedures with regard to referring such applicants will be discussed with employees.
5. Personnel Actions: Wages, working conditions, and employee benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, age or disability. The following procedures shall be followed:
a. The contractor will conduct periodic inspections of project sites to ensure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel. b. The contractor will periodically evaluate the spread of wages paid within each classification to determine any evidence of discriminatory wage practices.
c. The contractor will periodically review selected personnel actions in depth to determine whether there is evidence of discrimination.
Where evidence is found, the contractor will promptly take corrective action. If the review indicates that the discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons.
d. The contractor will promptly investigate all complaints of alleged discrimination made to the contractor in connection with its obligations under this contract, will attempt to resolve such complaints, and will take appropriate corrective action within a reasonable time. If the investigation indicates that the discrimination may affect persons other than the complainant, such corrective action shall include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all of their avenues of appeal.
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Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and increasing the skills of minorities and women who are applicants for employment or current employees. Such efforts should be aimed at developing full journey level status employees in the type of trade or job classification involved.
b. Consistent with the contractor's work force requirements and as permissible under Federal and State regulations, the contractor shall make full use of training programs (i.e., apprenticeship and on-thejob training programs for the geographical area of contract performance). In the event a special provision for training is provided under this contract, this subparagraph will be superseded as indicated in the special provision. The contracting agency may reserve training positions for persons who receive welfare assistance in accordance with 23 U.S.C. 140(a).
c. The contractor will advise employees and applicants for employment of available training programs and entrance
requirements for each.
d. The contractor will periodically review the training and promotion potential of employees who are minorities and women and will encourage eligible employees to apply for such training and promotion.
7. Unions: If the contractor relies in whole or in part upon unions as a source of employees, the contractor will use good faith efforts to obtain the cooperation of such unions to increase opportunities for minorities and women. 23 CFR 230.409. Actions by the contractor, either directly or through a contractor's association acting as agent, will include the procedures set forth below:
a. The contractor will use good faith efforts to develop, in cooperation with the unions, joint training programs aimed toward qualifying more minorities and women for membership in the unions and increasing the skills of minorities and women so that they may qualify for higher paying employment.
b. The contractor will use good faith efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability.
c. The contractor is to obtain information as to the referral practices and policies of the labor union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to furnish such information to the contractor, the contractor shall so certify to the contracting agency and shall set forth what efforts have been made to obtain such information.
d. In the event the union is unable to provide the contractor with a reasonable flow of referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability; making full efforts to obtain qualified and/or qualifiable minorities and women. The failure of a union to provide sufficient referrals (even though it is obligated to provide exclusive referrals under the terms of a collective bargaining agreement) does not relieve the contractor from the requirements of this paragraph. In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the contracting agency.
8. Reasonable Accommodation for Applicants / Employees with Disabilities: The contractor must be familiar with the requirements for and comply with the Americans with Disabilities Act and all rules and regulations established thereunder. Employers must provide reasonable accommodation in all employment activities unless to do so would cause an undue hardship.
9. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment: The contractor shall not discriminate on the grounds of race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The contractor shall take all necessary and reasonable steps to ensure nondiscrimination in the administration of this contract. a. The contractor shall notify all potential subcontractors, suppliers, and lessors of their EEO obligations under this contract.
b. The contractor will use good faith efforts to ensure subcontractor compliance with their EEO obligations.
10. Assurance Required:
a. The requirements of 49 CFR Part 26 and the State DOT’s FHWA-approved Disadvantaged Business Enterprise (DBE) program are incorporated by reference.
b. The contractor, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as nonresponsible. c. The Title VI and nondiscrimination provisions of U.S. DOT Order 1050.2A at Appendixes A and E are incorporated by reference. 49 CFR Part 21.
11. Records and Reports: The contractor shall keep such records as necessary to document compliance with the EEO requirements.
Such records shall be retained for a period of three years following the date of the final payment to the contractor for all contract work and shall be available at reasonable times and places for inspection by authorized representatives of the contracting agency and the FHWA.
a. The records kept by the contractor shall document the following:
(1) The number and work hours of minority and non-minority group members and women employed in each work
classification on the project;
(2) The progress and efforts being made in cooperation with unions, when applicable, to increase employment opportunities for minorities and women; and
(3) The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minorities and women.
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Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
b. The contractors and subcontractors will submit an annual report to the contracting agency each July for the duration of the project indicating the number of minority, women, and non-minority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA-1391. The staffing data should represent the project work force on board in all or any part of the last payroll period preceding the end of July. If on-the-job training is being required by special provision, the contractor will be required to collect and report training data. The employment data should reflect the work force on board during all or any part of the last payroll period preceding the end of July.
III. NONSEGREGATED FACILITIES
This provision is applicable to all Federal-aid construction contracts and to all related construction subcontracts of more than $10,000. 41 CFR 60-1.5.
As prescribed by 41 CFR 60-1.8, the contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensure that its employees are not assigned to perform their services at any location under the contractor's control where the facilities are segregated. The term "facilities" includes waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, washrooms, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees. The contractor shall provide separate or single-user restrooms and necessary dressing or sleeping areas to assure privacy between sexes.
IV. DAVIS-BACON AND RELATED ACT PROVISIONS
This section is applicable to all Federal-aid construction projects exceeding $2,000 and to all related subcontracts and lower-tier subcontracts (regardless of subcontract size), in accordance with 29 CFR 5.5. The requirements apply to all projects located within the right-of-way of a roadway that is functionally classified as Federalaid highway. 23 U.S.C. 113. This excludes roadways functionally classified as local roads or rural minor collectors, which are exempt. 23 U.S.C. 101. Where applicable law requires that projects be treated as a project on a Federal-aid highway, the provisions of this subpart will apply regardless of the location of the project. Examples include: Surface Transportation Block Grant Program projects funded under 23 U.S.C. 133 [excluding recreational trails projects], the Nationally Significant Freight and Highway Projects funded under 23 U.S.C. 117, and National Highway Freight Program projects funded under 23 U.S.C. 167.
The following provisions are from the U.S. Department of Labor regulations in 29 CFR 5.5 “Contract provisions and related matters” with minor revisions to conform to the FHWA-1273 format and FHWA program requirements.
1. Minimum wages (29 CFR 5.5)
a. All laborers and mechanics employed or working upon the site of the work, will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph 1.d. of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be
compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under paragraph
1.b. of this section) and the Davis-Bacon poster (WH–1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers.
b. (1) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:
(i) The work to be performed by the classification requested is not performed by a classification in the wage determination; and
(ii) The classification is utilized in the area by the construction industry; and
(iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.
(2) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their
representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
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Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
(3) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount
designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination.
The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
(4) The wage rate (including fringe benefits where
appropriate) determined pursuant to paragraphs 1.b.(2) or
1.b.(3) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.
c. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. d. If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.
2. Withholding (29 CFR 5.5)
The contracting agency shall upon its own action or upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor under this contract, or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to DavisBacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the contracting agency may, after written notice to the contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.
3. Payrolls and basic records (29 CFR 5.5)
a. Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.
b. (1) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the contracting agency. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH–347 is
available for this purpose from the Wage and Hour Division Web site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the contracting agency for transmission to the State DOT, the FHWA or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the contracting agency.
(2) Each payroll submitted shall be accompanied by a
“Statement of Compliance,” signed by the contractor or
subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following:
(i) That the payroll for the payroll period contains the information required to be provided under 29 CFR
5.5(a)(3)(ii), the appropriate information is being maintained under 29 CFR 5.5(a)(3)(i), and that such information is correct and complete;
(ii) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in 29 CFR part 3;
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Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
(iii) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract.
(3) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH–347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph 3.b.(2) of this section. (4) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under 18 U.S.C. 1001 and 31 U.S.C. 231.
c. The contractor or subcontractor shall make the records required under paragraph 3.a. of this section available for inspection, copying, or transcription by authorized representatives of the contracting agency, the State DOT, the FHWA, or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the FHWA may, after written notice to the contractor, the contracting agency or the State DOT, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12.
4. Apprentices and trainees (29 CFR 5.5)
a. Apprentices (programs of the USDOL).
Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice.
The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed.
Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination.
In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.
b. Trainees (programs of the USDOL).
Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration.
The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration.
Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the
corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed.
In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. c. Equal employment opportunity. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30.
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Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
d. Apprentices and Trainees (programs of the U.S. DOT).
Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in connection with Federal-aid highway construction programs are not subject to the requirements of paragraph 4 of this Section IV. 23 CFR 230.111(e)(2). The straight time hourly wage rates for apprentices and trainees under such programs will be established by the particular programs. The ratio of apprentices and trainees to journeymen shall not be greater than permitted by the terms of the particular program.
5. Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract as provided in 29 CFR 5.5.
6. Subcontracts. The contractor or subcontractor shall insert Form FHWA-1273 in any subcontracts and also require the
subcontractors to include Form FHWA-1273 in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5.
7. Contract termination: debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12.
8. Compliance with Davis-Bacon and Related Act
requirements. All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract as provided in 29 CFR 5.5.
9. Disputes concerning labor standards. As provided in 29 CFR
5.5, disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives.
10. Certification of eligibility (29 CFR 5.5)
a. By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
b. No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). c. The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.
V. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
Pursuant to 29 CFR 5.5(b), the following clauses apply to any Federal-aid construction contract in an amount in excess of $100,000 and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall be inserted in addition to the clauses required by 29 CFR 5.5(a) or 29 CFR 4.6. As used in this paragraph, the terms laborers and mechanics include watchmen and guards.
1. Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. 29 CFR 5.5.
2. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph 1 of this section, the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph 1 of this section, in the sum currently provided in 29 CFR 5.5(b)(2)* for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph 1 of this section. 29 CFR
5.5. * $27 as of January 23, 2019 (See 84 FR 213-01, 218) as may be adjusted annually by the Department of Labor; pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990).
3. Withholding for unpaid wages and liquidated damages. The FHWA or the contacting agency shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph 2 of this section. 29 CFR 5.5.
4. Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs 1 through 4 of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs 1 through 4 of this section. 29 CFR 5.5.
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Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
VI. SUBLETTING OR ASSIGNING THE CONTRACT
This provision is applicable to all Federal-aid construction contracts on the National Highway System pursuant to 23 CFR 635.116.
1. The contractor shall perform with its own organization contract work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the contracting agency. Specialty items may be performed by subcontract and the amount of any such specialty items performed may be deducted from the total original contract price before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635.116).
a. The term “perform work with its own organization” in paragraph 1 of Section VI refers to workers employed or leased by the prime contractor, and equipment owned or rented by the prime contractor, with or without operators. Such term does not include employees or equipment of a subcontractor or lower tier subcontractor, agents of the prime contractor, or any other assignees. The term may include payments for the costs of hiring leased employees from an employee leasing firm meeting all relevant Federal and State regulatory requirements. Leased employees may only be included in this term if the prime contractor meets all of the following conditions:
(based on longstanding interpretation)
(1) the prime contractor maintains control over the supervision of the day-to-day activities of the leased employees;
(2) the prime contractor remains responsible for the quality of the work of the leased employees;
(3) the prime contractor retains all power to accept or exclude individual employees from work on the project; and
(4) the prime contractor remains ultimately responsible for the payment of predetermined minimum wages, the submission of payrolls, statements of compliance and all other Federal regulatory requirements.
b. "Specialty Items" shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid or propose on the contract as a whole and in general are to be limited to minor components of the overall contract. 23 CFR 635.102.
2. Pursuant to 23 CFR 635.116(a), the contract amount upon which the requirements set forth in paragraph (1) of Section VI is computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions.
3. Pursuant to 23 CFR 635.116(c), the contractor shall furnish (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance of the work in accordance with the contract requirements, and is in charge of all construction operations (regardless of who performs the work) and (b) such other of its own organizational resources (supervision, management, and engineering services) as the contracting officer determines is necessary to assure the performance of the contract.
4. No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent of the contracting officer, or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the contracting agency has assured that each subcontract is evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract. (based on long-standing interpretation of 23 CFR 635.116).
5. The 30-percent self-performance requirement of paragraph (1) is not applicable to design-build contracts; however, contracting agencies may establish their own self-performance requirements. 23 CFR 635.116(d).
VII. SAFETY: ACCIDENT PREVENTION
This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.
1. In the performance of this contract the contractor shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR Part 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract. 23 CFR 635.108.
2. It is a condition of this contract, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safety, as determined under construction safety and health standards (29 CFR Part 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704). 29 CFR 1926.10.
3. Pursuant to 29 CFR 1926.3, it is a condition of this contract that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704).
VIII. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS
This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.
In order to assure high quality and durable construction in conformity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppliers, and workers on Federal-aid highway projects, it is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts, Form FHWA-1022 shall be posted on each Federal-aid highway project (23 CFR Part 635) in one or more places where it is readily available to all persons concerned with the project:
18 U.S.C. 1020 reads as follows:
"Whoever, being an officer, agent, or employee of the United States, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any false statement, false representation, or false report as to the character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or
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Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
Whoever knowingly makes any false statement, false
representation, false report or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; or
Whoever knowingly makes any false statement or false
representation as to material fact in any statement, certificate, or report submitted pursuant to provisions of the Federal-aid Roads Act approved July 11, 1916, (39 Stat. 355), as amended and supplemented;
Shall be fined under this title or imprisoned not more than 5 years or both."
IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL
WATER POLLUTION CONTROL ACT (42 U.S.C. 7606; 2 CFR
200.88; EO 11738)
This provision is applicable to all Federal-aid construction contracts in excess of $150,000 and to all related subcontracts. 48 CFR 2.101; 2 CFR 200.326.
By submission of this bid/proposal or the execution of this contract or subcontract, as appropriate, the bidder, proposer, Federal-aid construction contractor, subcontractor, supplier, or vendor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal Highway Administration and the Regional Office of the Environmental Protection Agency. 2 CFR Part 200, Appendix II.
The contractor agrees to include or cause to be included the requirements of this Section in every subcontract, and further agrees to take such action as the contracting agency may direct as a means of enforcing such requirements. 2 CFR 200.326.
X. CERTIFICATION REGARDING DEBARMENT, SUSPENSION,
INELIGIBILITY AND VOLUNTARY EXCLUSION
This provision is applicable to all Federal-aid construction contracts, design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements, consultant contracts or any other covered transaction requiring FHWA approval or that is estimated to cost $25,000 or more – as defined in 2 CFR Parts 180 and 1200. 2 CFR 180.220 and 1200.220.
1. Instructions for Certification – First Tier Participants:
a. By signing and submitting this proposal, the prospective first tier participant is providing the certification set out below. b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective first tier participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective first tier participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction. 2 CFR 180.320.
c. The certification in this clause is a material representation of fact upon which reliance was placed when the contracting agency determined to enter into this transaction. If it is later determined that the prospective participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the contracting agency may terminate this transaction for cause of default. 2 CFR 180.325.
d. The prospective first tier participant shall provide immediate written notice to the contracting agency to whom this proposal is submitted if any time the prospective first tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. 2 CFR 180.345 and 180.350.
e. The terms "covered transaction," "debarred," "suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180, Subpart I, 180.900-180.1020, and 1200. “First Tier Covered Transactions” refers to any covered transaction between a recipient or subrecipient of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a recipient or subrecipient of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).
f. The prospective first tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction. 2 CFR 180.330.
g. The prospective first tier participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transactions," provided by the department or contracting agency, entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. 2 CFR 180.220 and 180.300.
h. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. 2 CFR 180.300; 180.320, and 180.325. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. 2 CFR 180.335. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the System for Award Management website
(https://www.sam.gov/). 2 CFR 180.300, 180.320, and 180.325. i. Nothing contained in the foregoing shall be construed to require the establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of the prospective participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
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Required Federal-Aid Contract Language
j. Except for transactions authorized under paragraph (f) of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. 2 CFR 180.325. * * * * *
2. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion – First Tier Participants:
a. The prospective first tier participant certifies to the best of its knowledge and belief, that it and its principals:
(1) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency, 2 CFR 180.335;.
(2) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property, 2 CFR 180.800;
(3) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (a)(2) of this certification, 2 CFR 180.700 and 180.800; and (4) Have not within a three-year period preceding this
application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default. 2 CFR 180.335(d).
(5) Are not a corporation that has been convicted of a felony violation under any Federal law within the two-year period preceding this proposal (USDOT Order 4200.6 implementing appropriations act requirements); and
(6) Are not a corporation with any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted, or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability (USDOT Order 4200.6 implementing appropriations act requirements).
b. Where the prospective participant is unable to certify to any of the statements in this certification, such prospective participant should attach an explanation to this proposal. 2 CFR 180.335 and 180.340.
3. Instructions for Certification - Lower Tier Participants:
(Applicable to all subcontracts, purchase orders, and other lower tier transactions requiring prior FHWA approval or estimated to cost $25,000 or more - 2 CFR Parts 180 and 1200). 2 CFR 180.220 and 1200.220.
a. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out below. b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
c. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. 2 CFR 180.365.
d. The terms "covered transaction," "debarred," "suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180, Subpart I, 180.900 – 180.1020, and 1200. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. “First Tier Covered Transactions” refers to any covered transaction between a recipient or subrecipient of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a recipient or subrecipient of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).
e. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. 2 CFR 1200.220 and 1200.332. f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. 2 CFR 180.220 and 1200.220.
g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the System for Award Management website (https://www.sam.gov/), which is compiled by the General Services Administration. 2 CFR 180.300, 180.320, 180.330, and 180.335.
h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
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Required Federal-Aid Contract Language
i. Except for transactions authorized under paragraph e of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. 2 CFR 180.325.
* * * * *
Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Participants:
1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals:
(a) is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency, 2 CFR 180.355;
(b) is a corporation that has been convicted of a felony violation under any Federal law within the two-year period preceding this proposal (USDOT Order 4200.6 implementing appropriations act requirements); and
(c) is a corporation with any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted, or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability. (USDOT Order 4200.6 implementing appropriations act requirements)
2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant should attach an explanation to this proposal. * * * * *
XI. CERTIFICATION REGARDING USE OF CONTRACT FUNDS
FOR LOBBYING
This provision is applicable to all Federal-aid construction contracts and to all related subcontracts which exceed $100,000. 49 CFR Part 20, App. A.
1. The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:
a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. b. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
2. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
3. The prospective participant also agrees by submitting its bid or proposal that the participant shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such recipients shall certify and disclose accordingly.
XII. USE OF UNITED STATES-FLAG VESSELS:
This provision is applicable to all Federal-aid construction contracts, design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements, or any other covered transaction. 46 CFR Part 381.
This requirement applies to material or equipment that is acquired for a specific Federal-aid highway project. 46 CFR 381.7. It is not applicable to goods or materials that come into inventories independent of an FHWA funded-contract.
When oceanic shipments (or shipments across the Great Lakes) are necessary for materials or equipment acquired for a specific Federalaid construction project, the bidder, proposer, contractor, subcontractor, or vendor agrees:
1. To utilize privately owned United States-flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to this contract, to the extent such vessels are available at fair and reasonable rates for United States-flag commercial vessels. 46 CFR 381.7.
2. To furnish within 20 days following the date of loading for shipments originating within the United States or within 30 working days following the date of loading for shipments originating outside the United States, a legible copy of a rated, ‘on-board’ commercial ocean bill-of-lading in English for each shipment of cargo described in paragraph (b)(1) of this section to both the Contracting Officer (through the prime contractor in the case of subcontractor bills-oflading) and to the Office of Cargo and Commercial Sealift (MAR620), Maritime Administration, Washington, DC 20590. (MARAD requires copies of the ocean carrier's (master) bills of lading, certified onboard, dated, with rates and charges. These bills of lading may contain business sensitive information and therefore may be submitted directly to MARAD by the Ocean Transportation Intermediary on behalf of the contractor). 46 CFR 381.7.
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The United States Department of Transportation (USDOT)
Standard Title VI/Non-Discrimination Assurances
DOT Order No. 1050.2A
The California Department of Transportation (herein referred to as the “Recipient”), HEREBY AGREES THAT, as a condition to receiving any Federal financial assistance from the U.S. Department of Transportation (DOT), through the Federal Highway Administration (FHWA), is subject to and will comply with the following:
Statutory/Regulatory Authorities
• Title VI of the Civil Rights Act of 1964 (42 U.S.C § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); • 49 C.F.R Part 21 (entitled Nondiscrimination In Federally-Assisted Programs Of The Department Of Transportation—Effectuation Of Title VI Of The Civil Rights Act Of 1964);
• 28 C.F.R. § 50.3 (U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights Act of 1964)
The preceding statutory and regulatory cites hereinafter are referred to as the “Acts” and “Regulations,” respectively.
General Assurances
In accordance with the Acts, the Regulations, and other pertinent directives, circulars, policy, memoranda, and/or guidance, the Recipient herby gives assurance that it will promptly take any measures necessary to ensure that:
“No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity,” for which the Recipient receives Federal financial assistance from DOT, including the FHWA.
The Civil Rights Restoration Act of 1987 clarified the original intent of Congress, with respect to Title VI and other Non-discrimination requirements (The Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973), by restoring the broad, institutional-wide scope and coverage of these nondiscrimination statutes and requirements to include all programs and activities of the Recipient, so long as any portion of the program is Federally assisted.
TITLE VI ASSURANCES
APPENDICES A – E
EXHIBIT C
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Specific Assurances
More specifically, and without limiting the above general Assurance, the Recipient agrees with and gives the following Assurances with respect to all programs or activities for which the Recipient receives Federal financial assistance:
1. The Recipient agrees that each “activity,” “facility,” or “program,” as defined in §§ 21.23 (b) and 21.23 € of 49 C.F.R. § 21 will be (with regard to an “activity”) facilitated, or will be (with regard to a “facility”) operated, or will be )with regard to a program”) conducted in compliance with all requirements imposed by, or pursuant to the Acts and the Regulations.
2. The Recipient will insert the following notification in all solicitations for bids, Requests For Proposals for work, or material subject to the Acts and the Regulations made in connection with all programs or activities for which the Recipient receives Federal financial assistance, and in adapted form, in all proposals for negotiated agreements regardless of funding source:
“The California Department of Transportation, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively insure that any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin for an award.”
3. The Recipient will insert the clauses of Appendix A and E of this Assurance in every contract or agreement subject to the Acts and the Regulations.
4. The Recipient will insert the clauses of Appendix B of this Assurance, as a covenant running with the land, in any deed from the United States effecting or recording a transfer of real property, structures, use, or improvements thereon or interest therein to a Recipient.
5. That where the Recipient receives Federal financial assistance to construct a facility, or part of a facility, the Assurance will extend to the entire facility and facilities operated in connection therewith. #19..
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6. That where the Recipient receives Federal financial assistance in the form, or for the acquisition of real property or an interest in real property, the Assurance will extend to rights to space on, over, or under such property.
7. That the Recipient will include the clauses set forth in Appendix C and Appendix D of this Assurance, as a covenant running with the land, in any future deeds, leases, licenses, permits, or similar instruments entered into by the Recipient with other parties:
a. for the subsequent transfer or real property acquired or improved under the applicable activity, project, or program; and b. for the construction or use of, or access to, space on, over, or under real property acquired or improved under the applicable activity, project, or program.
8. That this Assurance obligates the Recipient for the period during which Federal financial assistance is extended to the program, except where the Federal financial assistance is to provide, or is in the form of, personal property, or interest therein, or structures or improvements thereon, in which case the Assurance obligates the Recipient, or any transferee for the longer of the following periods:
a. the period during which the property is used for a purpose for which the Federal financial assistance is extended, or for another purpose involving the provision of similar services or benefits; or b. the period during which the Recipient retains ownership or possession of the property.
9. The Recipient will provide for such methods of administration for the program as are found by the Secretary of Transportation or the official to whom he/she delegates specific authority to give reasonable guarantee that it, other recipients, sub-recipients, sub-grantees, contractors, subcontractors, consultants, transferees, successors in interest, and other participants of Federal financial assistance under such program will comply with all requirements imposed or pursuant to the Acts, the Regulations, and this Assurance.
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10. The Recipient agrees that the United States has a right to seek judicial enforcement with regard to any matter arising under the Acts, the Regulations, and this Assurance.
By signing this ASSURANCE, the Recipient also agrees to comply (and require any sub-recipients, sub-grantees, contractors, successors, transferees, and/or assignees to comply) with all applicable provisions governing DOT’s access to records, accounts, documents, information, facilities, and staff. You also recognize that you must comply with any program or compliance reviews, and/or complaint investigations conducted by DOT. You must keep records, reports, and submit the material for review upon request to DOT, or its designee in a timely, complete, and accurate way. Additionally, you must comply with all other reporting, data collection, and evaluation requirements, as prescribed by law or detailed in program guidance.
The Recipient gives this ASSURANCE in consideration of and for obtaining any Federal grants, loans, contracts, agreements, property, and/or discounts, or other Federal-aid and Federal financial assistance extended after the date hereof to the recipients by the U.S. Department of Transportation under all programs or activities receiving Federal financial assistance. This ASSURANCE is binding on California, other recipients, sub-recipients, sub-grantees, contractors, subcontractors and their subcontractors’, transferees, successors in interest, and any other participants in all programs or activities receiving Federal financial assistance. The person(s) signing below is authorized to sign this ASSURANCE on behalf of the Recipient.
California Department of Transportation
(Name of Recipient)
by ____original signed by Toks Omishakin__
(Signature of Authorized Official)
DATED ____Nov. 25, 2019_______
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APPENDIX A
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “contractor”) agrees as follows:
1. Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Acts and the Regulations relative to Nondiscrimination in Federally-assisted programs of the U.S. Department of Transportation, Federal Highway Administration, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract.
2. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, national origin, age, sex, or disability in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21.
3. Solicitation for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor’s obligations under this contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, national origin, age, sex, or disability.
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4. Information and Reports: The contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Recipient or the FHWA to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certify to the Recipient or the FHWA, as appropriate, and will set forth what efforts it has made to obtain the information.
5. Sanctions for Noncompliance: In the event of a contractor’s noncompliance with the Non-discrimination provisions of this contract, the Recipient will impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
1. withholding payments to the contractor under the contract until the contractor complies; and/or
2. cancelling, terminating, or suspending a contract, in whole or in part.
6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the Recipient or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, or threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the Recipient to enter into any litigation to protect the interests of the Recipient. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States. #19..
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APPENDIX B
CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY
The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein from the United States pursuant to the provisions of Assurance 4:
NOW THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition that the California Department of Transportation will accept title to the lands and maintain the project constructed thereon in accordance with Title 23 U.S.C., the regulations for the administration of the preceding statute, and the policies and procedures prescribed by the FHWA of the U.S. Department of Transportation in accordance and in compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the California Department of Transportation all the right, title and interest of the U.S. Department of Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof. (HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto the California Department of Transportation and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding on the California Department of Transportation, its successors and assigns.
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The California Department of Transportation, in consideration of the conveyance of said lands and interest in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person will on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the California Department of Transportation will use the lands and interests in lands and interest in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended[, and (3) that in the event of breach of any of the above-mentioned non-discrimination conditions, the Department will have a right to enter or re-enter said lands and facilities on said lands, and that above described land and facilities will thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this instruction].*
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to make clear the purpose of Title VI.) #19..
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APPENDIX C
CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE
ACTIVITY, FACILITY, OR PROGRAM
The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the California Department of Transportation pursuant to the provisions of Assurance 7(a):
A. The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add “as a covenant running with the land”] that:
1. In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S. Department of Transportation activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with all requirements imposed by the Acts and Regulations (as may be amended) such that no person on the grounds of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities.
B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above Non-discrimination covenants, the California Department of Transportation will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never been made or issued.*
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C. With respect to a deed, in the event of breach of any of the above Nondiscrimination covenants, the California Department of Transportation will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities will there upon revert to and vest in and become the absolute property of the California Department of Transportation and its assigns.*
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.) #19..
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APPENDIX D
CLAUSES FOR CONSTRUCTION/USE.ACCESS TO REAL PROPERTY ACQUIRED UNDER
THE ACTIVITY, FACILITY OR PROGRAM
The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by the California Department of Transportation pursuant to the provisions of Assurance 7(b):
A. The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest ,and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, “as a covenant running with the land”) that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land, and the furnishings of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits or, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposed by or pursuant to the Acts and Regulations, as amended, set forth in this Assurance.
B. With respect to (licenses, leases, permits, etc.) in the event of breach of any of the above of the above Non-discrimination covenants, the California Department of Transportation will have the right to terminate the (license, permits, etc., as appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as appropriate) had never been made or issued.* C. With respect to deeds, in the event of breach of any of the above Nondiscrimination covenants, the California Department of Transportation will there upon revert to and vest in and become the absolute property of the California Department of Transportation and its assigns. (*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.) #19..
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APPENDIX E
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “contractor”) agrees to comply with the following non-discrimination statutes and authorities, including, but not limited to:
Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21.
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects);
• Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex;
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex);
• The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38;
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• The Federal Aviation Administration’s Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq).
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
December 6, 2022
Date: October 21, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Bill Sandhu, Director of Public Works
SUBJECT: Accept the Upgrade Advanced Traffic Management System 2017 Project CONTACT: James Ashby, Associate Engineer, [email protected], 209-571-5116 DESCRIPTION:
Consider accepting the Upgrade Advanced Traffic Management System 2017 Project as complete. (Funding Sources: Congestion Mitigation and Air Quality) STRATEGIC PLAN ELEMENT:
This item is in conformance with City of Modesto Strategic Plan Area: Service Delivery Goals and Strategies: “Build community trust in City government through responsive, transparent and efficient service delivery”; Goal J: “build a high-performance organization”.
BACKGROUND:
In May of 2014, the City of Modesto applied for Congestion Mitigation and Air Quality (CMAQ) funds to upgrade the City of Modesto’s Advanced Traffic Management System (ATMS). The City was going to upgrade some of its Closed-Circuit Television (CCTV) cameras, Traffic Operations Room, and communication equipment. However, on September 4, 2018, the City approved a Measure L project for “Traffic Signal Analysis Study System Wide” which was to complete the “Modesto Traffic Signal System Master Plan.” This plan details a roadmap for the City over the next 12 years to improve its existing traffic signal system infrastructure. On January 28, 2020, by Resolution 2020-056, Council approved the Modesto Traffic Signal System Master Plan and staff coordinated with Caltrans to adjust the scope of work for the project to be in line with elements of the master plan.
One of the Intelligent Transportation System (ITS) elements the report recommended was the move to IP addressable video detection cameras. These cameras not only detect vehicles, but also bicycles and pedestrians. They also provide data information valuable to the operation and communication of each signal, such as vehicle/bike/pedestrian recognition, vehicle/bike/pedestrian counts, turning movement counts, and provides the ability to integrate Signal Performance Measures Software.
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City Council, December 6, 2022
Accept the Upgrade Advanced Traffic Management System 2017 Project
The Video Detection Cameras will communicate back to the City’s Traffic Operations Center (TOC) at City Hall. This communication will allow the Traffic Engineers to collect counts, adjust detection zones, and make real-time adjustments from the TOC. These cameras also will help staff monitor and adjust traffic demand coordination on corridors.
DISCUSSION:
This project procured 240 cameras at 60 signalized intersections throughout the City while City staff provided the installation. This project also procured a network switch for the Traffic Operations Center to allow for communication via internet connection.
Staff recommends acceptance of the project as complete as all the materials have been procured within project contract requirements.
FISCAL IMPACT:
The total project costs were $1,059,998 which included all staff time and procurement costs.
The total project amount originally budgeted was $1,059,998. The project was funded by the CMAQ grant.
100970 – Public Works – “Upgrade ATMS Software - 2017”
PROJECT EXPENDITURES:
Construction 97.0% $1,028,252
Engineering/Design/Administration 3.0% $31,746
TOTAL EXPENDITURES: $1,059,998
Percentages shown are based on percentages of total expenditures.
COMMITTEE RECOMMENDATION:
On October 24, 2022, this item was presented to the Finance Committee, and the item was recommended to be forwarded to Council for approval.
CEQA/NEPA REQUIREMENTS:
Environmental review has been provided through a Categorical Exemption under CEQA Section 15061 (c), EA/PW 2019-014, filed July 9, 2019.
RECOMMENDED COUNCIL ACTION:
Staff Recommendation:
Resolution accepting the Upgrade Advanced Traffic Management System 2017 Project as complete.
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City Council, December 6, 2022
Accept the Upgrade Advanced Traffic Management System 2017 Project
Approved by:
Bill Sandhu, Director of Public Works
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
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1 2022-
MODESTO CITY COUNCIL
RESOLUTION NO. 2022-
RESOLUTION ACCEPTING THE UPGRADE ADVANCED TRAFFIC
MANAGEMENT SYSTEM 2017 PROJECT AS COMPLETE
WHEREAS, in May of 2014, the City of Modesto applied for Congestion Mitigation and Air Quality (CMAQ) funds to upgrade the City of Modesto’s Advanced Traffic Management System (ATMS); and
WHEREAS, on September 4, 2018, the City approved a Measure L project for “Traffic Signal Analysis Study System Wide” which was to complete the “Modesto Traffic Signal System Master Plan” which details a roadmap for the City over the next 12 years to improve its existing traffic signal system infrastructure; and WHEREAS, on January 28, 2020, by Resolution 2020-056, Council approved the Modesto Traffic Signal System Master Plan and staff coordinated with Caltrans to adjust the scope of work for the project to be in line with elements of the master plan; and WHEREAS, one of the Intelligent Transportation System (ITS) elements the report recommended was the move to IP addressable video detection cameras; and WHEREAS, this project procured 240 cameras at 60 signalized intersections throughout the City while City staff provided the installation; and WHEREAS, this project also procured a network switch for the Traffic Operations Center to allow for communication via internet connection.
NOW, THEREFORE BE IT RESOLVED, by the Council of the City of Modesto that it hereby accepts the Upgrade Advanced Traffic Management System 2017 Project as complete.
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2 2022-
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 6th day of December 2022, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers: ?
NOES: Councilmembers: ?
ABSENT: Councilmembers: ?
ATTEST:
DIANE NAYARES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY:
JOSE M. SANCHEZ, City Attorney
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
December 6, 2022
Date: November 9, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Accept Modesto Modular Building Relocation Project as Complete CONTACT: Pete Kambel, Senior Civil Engineer, 209-577-5444 DESCRIPTION:
Consider accepting the Modesto Modular Building Relocation Project as Complete, authorizing all necessary steps to file with the County Recorder, releasing securities, and releasing payments totaling $484,537 to Harris Builders, Inc., of Hilmar, CA. (Funding Source: Community Development Block Grant Funds (CDBG))
STRATEGIC PLAN ELEMENT:
The recommended action supports the 2020-2025 City of Modesto Strategic Plan Initiatives, Goal D: Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts.
BACKGROUND:
On January 26, 2016, the City of Modesto entered into a Lease Agreement with the Boys & Girls Clubs of Stanislaus County, a California Non-Profit Benefit Corporation, to allow temporary placement and use of a modular building at Dr. Martin Luther King Jr. Park, formerly known as Mellis Park, located at 601 North Martin Luther King Drive, Modesto, California.
On December 31, 2020, the five (5) year term of use expired at Dr. Martin Luther King Jr. Park and on December 8, 2021, the City was awarded Proposition 68 funding in the amount of $8,500,000 to renovate the entire park. The modular building was originally located where the splash pad amenity was sited to be installed and therefore required to be relocated. The new location is the vacant park land south of Dryden Park Golf Course parking lot.
The City assisted the Boys & Girls Clubs of Stanislaus County with the design and construction for the Modular Building move and funding these items with Community Development Block Grant (CDBG) funds through the Housing and Urban Development (HUD) Annual Action Plan. On March 23, 2021, by Purchase Order No. 198908, the City awarded the contract to complete the #21..
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City Council December 6, 2022
Accept Modesto Modular Building Relocation Project as Complete
professional design services for the Modesto Modular Building Relocation to O’Dell Engineering, Inc. The construction documentation and professional design was completed in fall 2021.
DISCUSSION:
The project was advertised for bids on November 16, 2021. Bids were publicly opened on December 14, 2021, pursuant to Modesto Municipal Code Section 8-3.403 and City Charter Section 1307, and Harris Builders, Inc., of Hilmar, CA, was the sole bidder at 3.95% over engineers estimate.
On February 08, 2022, by Resolution No. 2022-094, Council awarded a contract to Harris Builders, Inc., of Hilmar, CA for the construction of the Modesto Modular Building Relocation project for the amount of $458,896. The contractor received the Notice to Proceed with a start date of March 14, 2022. All contract work was completed on April 26, 2022.
By accepting this project as complete, the City officially accepts the improvements made and authorizes the Notice of Completion to be filed. The City Clerk is authorized to complete all necessary steps to file the appropriate notices and documents with the County Recorder, release securities, and authorize payments totaling $484,536. The work is covered by a one-year warranty for any issues that may arise.
Staff recommends the project for acceptance as the contractor has complied with all contract requirements for the project.
FISCAL IMPACT:
The total project costs were $629,394 which included design, construction, and construction administration costs. The total project amount originally budgeted was $723,964 which included $513,964 for the construction contract and contingency with Harris Builders, Inc., of Hilmar, CA.
The City’s “Change Order Approval Policy” enacted by Council Resolution No. 94-443 on July 19, 1994, and updated by Resolution No. 2019-326 on July 9, 2019, states that a contract of at least $250,000, but less than $1,000,000 allows Directors Authority not to exceed ten percent (10%) of the contract amount. By Resolution No. 2022-094, on February 8, 2022, authorization was given to the Director of Utilities to approve change orders up to the cumulative amount of $55,068 (12%) of the original contract price.
There were ten change orders resulting in an overall increase of $25,641 for change order work as listed on the attached change order log. A summary of the expenditures for the overall project is listed below.
101296 – CDBG – “Modesto Modular Building Relocation”
PROJECT EXPENDITURES:
Construction Contract (Harris Builders Inc.) $458,896
Construction Contingency (Change Orders) 5.6% $25,641
Construction Administration – City Staff Support 8.6% $39,239 Engineering Design/ (O’Dell Engineering.) 8.0% $36,710
Engineering Design/Admin. – HUD Staff 5.7% $26,054
Engineering Design/Admin. – City Staff Support/Misc. 9.3% $42,854 TOTAL CONSTRUCTION EXPENDITURES: $629,394
*Percentages are based on Construction Contract amount. #21..
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City Council December 6, 2022
Accept Modesto Modular Building Relocation Project as Complete
COMMITTEE RECOMMENDATION
This Modesto Modular Building Relocation project was presented to the Economic Development Committee on April 05, 2021, as part of a report on upcoming construction projects. The Committee approved the list of projects and recommended that staff present the award of each project to Council upon successful bidding.
CEQA/NEPA REQUIREMENTS:
City staff prepared a Notice of Exemption No. EA/PR&N 2020-04 and the project is categorically exempt from CEQA due to the fact that it includes the removal of a small structure and is an in-fill development project.
In addition, City staff completed NEPA review for the project which resulted in a Finding of No Significant Impact because the project will not result in a significant impact on the quality of the human environment.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution accepting the Modesto Modular Building Relocation Project as Complete, authorizing all necessary steps to file with the County Recorder, releasing securities, and releasing payments totaling $484,537 to Harris Builders Inc., Hilmar, CA.
Approved by: _________________________________________
William Wong, Director of Utilities
_________________________________________
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. CCO Log
3. Project Suspension
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1 MODESTO CITY COUNCIL
RESOLUTION NO. 2022-XX
RESOLUTION ACCEPTING THE MODESTO MODULAR BUILDING
RELOCATION PROJECT AS COMPLETE, AUTHORIZING ALL NECESSARY
STEPS TO FILE WITH THE COUNTY RECORDER, RELEASING SECURITIES, AND RELEASING PAYMENTS TOTALING $484,537 TO HARRIS BUILDERS, INC., HILMAR, CA
WHEREAS, on January 26, 2016 the City of Modesto entered into a Lease Agreement with the Boys & Girls Clubs of Stanislaus County, a California Non-Profit Benefit Corporation, to allow placement and use of a modular building at Dr. Martin Luther King Jr. Park, formerly known as Mellis Park, located at 601 North Martin Luther King Drive, Modesto, CA; and
WHEREAS, on December 31, 2020, the five (5) year term of use expired at Dr.
Martin Luther King Jr. Park; and
WHEREAS, on December 8, 2021, the City was awarded Proposition 68 funding in the amount of $8,500,000 to renovate the entire park; and WHEREAS, the modular building was originally located where the splash pad amenity was sited to be installed and therefore required to be relocated; and WHEREAS, the new location is the vacant park land south of Dryden Park Golf Course parking lot; and
WHEREAS, the City of Modesto assisted the Boys & Girls Clubs of Stanislaus County with the design and construction for the Modular Building move and funding these items with Community Development Block Grant (CDBG) funds through the Housing and Urban Development (HUD) Annual Action Plan; and WHEREAS, on March 23, 2021, by Purchase Order No. 198908, the City #21..
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2 awarded the contract to complete the professional design services for the Modesto Modular Building Relocation to O’Dell Engineering, Inc.; and WHEREAS, the construction documentation and professional design was completed in fall 2021; and
WHEREAS, the project was advertised for bids on November 16, 2021; and WHEREAS, bids were publicly opened on December 14, 2021, pursuant to Modesto Municipal Code Section 8-3.403 and City Charter Section 1307; and WHEREAS, Harris Builders, Inc., of Hilmar, CA, was the sole bidder; and WHEREAS, on February 08, 2022, by Resolution No. 2022-094, Council awarded a contract to Harris Builders, Inc., of Hilmar, CA for the construction of the Modesto Modular Building Relocation project for the amount of $458,896; and WHEREAS, the contractor received the Notice to Proceed with a start date of March 14, 2022. All contract work was completed on April 26, 2022; and WHEREAS, the total project costs were $629,394 which included design, construction, and construction administration costs. The total project amount originally budgeted was $723.964 which included $513,964 for the construction contract and contingency with Harris Builder, Inc., of Hilmar, CA; and WHEREAS, the City’s “Change Order Approval Policy” enacted by Council Resolution No. 94-443 on July 19, 1994, and updated by Resolution No. 2019-326 on July 9, 2019, states that a contract of less than $1,000,000 allows Directors Authority not to exceed $10% of the contract amount, and by Resolution No. 22-094 on February 8, 2022, authorization was given to the Director of Utilities to approve change orders up to the cumulative amount of $55,068 (12%) of the original contract price; and #21..
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3 WHEREAS, there were ten change orders resulting in an overall increase of $25,641; and
WHEREAS, by accepting this project as complete, the City officially accepts the improvements made and authorizes the Notice of Completion to be filed.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that the Council awarded a contract to Harris Builders, Inc., of Hilmar, CA, for the construction of the Modesto Modular Building Relocation project in the amount of $484,536, is hereby accepted as complete from contractor, Harris Builders, Inc., of Hilmar, CA., and that the City Clerk is authorized to complete all necessary steps to file the appropriate notices and documents with the County Recorder, release securities, and authorize payments totaling $484,537.
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4 The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 6th day of December, 2022, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: ________________________________
DIANE NAYARES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: _________________________________
JOSE M. SANCHEZ, City Attorney
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CHANGE
ORDER
NO. DESCRIPTION EXECUTED AMOUNT
CAUSE
UNFORSEEN
CONDITIONS
DESIGN
ISSUE
ADDED
SCOPE
CONTRACT CHANGE ORDER LOG
Date: October 21, 2022
TIME
EXT.
2022/17 - Modesto Modular Building Relocation (101296) HUD CDBG #1373 PROJECT NUMBER AND NAME:
01 Trailer Tires 06/15/22 $5,226.34 1 W.D. No Yes No
02 Metal Wheel Chair Ramp Adjustment 05/24/22 $1,172.32 1 W.D. No Yes No 03 Sewer & Water Utilities Extension 07/19/22 $2,390.00 5 W.D. Yes No No 04 Knox Box. 07/19/22 $1,352.38 0 W.D. Yes No No
05 Trim & Paint 07/19/22 $6,648.34 3 W.D. Yes No No
06 Debris Piles 08/15/22 $6,567.68 15 W.D. No Yes No
07 Additional Asphalt 08/08/22 $5,700.00 3 W.D. No Yes No 08 Remove Hydroseeding 08/05/22 -$2,599.00 0 W.D. No Yes No 09 Building Down Spout Connection To Retention Basin 08/19/22 $4,353.17 5 W.D. No Yes No 10 Balancing Change Order -$5,170.69 0 W.D. No Yes No
Total Change Orders Processed To Date: $25,640.54
Original Contract Amount: $458,895.49
IDA To: $55,068.00
Total Working Days Time Extension: 33
Original Director's CCO Authority: $45,889.60
IDA Date: 2/8/2022
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
December 6, 2022
Date: November 1, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Agreement with HSQ Technology for Parts, Service, Licenses and Support CONTACT: Jason Farnsworth, Wastewater Division Manager, [email protected] 209-577-6255
DESCRIPTION:
Consider approving an Agreement with HSQ Technology, Hayward, CA, for the Procurement of Parts, Service, Licenses and Support for a total amount not to exceed $725,000 over five years. (Funding Source: Water and Wastewater Funds)
STRATEGIC PLAN ELEMENT:
The recommended action supports the 2020-2025 City of Modesto Strategic Plan Initiatives, Goal D: Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts.
BACKGROUND:
The Wastewater and Water Divisions utilize HSQ Technology (HSQ) Remote Terminal Units (RTU’s) to transmit and receive operational data from over 200 remotely located facilities such as wells, storage tanks, sewer lift stations, storm stations; and the Sutter, Jennings and Tertiary Treatment Facilities; as part of the HSQ Miser and Supervisor Control and Data Acquisition (SCADA) System. Brands other than HSQ RTU’s are not compatible with the HSQ SCADA System.
On January 16, 2018, by Resolution No. 2018-08, Council approved the sole source Agreement with HSQ Technology, Hayward, CA, for remote terminal units and all associated circuit boards and parts for the miser supervisor control and data acquisition system, for a two-year Agreement, with three (3) one-year extension options at the sole discretion of the City, for an estimated annual cost not to exceed $60,000 and for a total cost not to exceed $300,000 over five years, and authorizing the Purchasing Manager, or her designee, to issue the Purchasing Agreement.
The current Agreement number 132462 is set to expire January 15, 2023.
Due to the age of the current HSQ system, Staff is in the process of upgrading the City’s SCADA equipment. Until the City can replace the HSQ SCADA System, staff will need to keep #22..
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City Council, December 6, 2022
Agreement with HSQ Technology for Parts, Service, Licenses, and Support
the system functioning properly to avoid catastrophic failure of the water and wastewater systems.
DISCUSSION:
The RTUs and the associated circuit boards and parts ensure that there is no interruption of service in the transmission of this operational data. HSQ has been providing service for approximately twenty-four years and has provided technical support on approximately four million dollars’ worth of equipment.
Staff is currently negotiating a Contract for the SCADA System Replacement and will return to council in the coming months for approval. It is anticipated that the replacement of the entire SCADA System will take approximately 3 years to complete and begin in early 2023. This Agreement will allow staff to purchase the parts needed. Once the new SCADA System is installed and operating, this Agreement will not be renewed or extended.
Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services to be formally bid. However, MMC 8-3.204(b) provides that a purchase may be exempted from the City’s formal bidding requirements where the Purchasing Agency’s requirements can be met solely by a single article or process. Here, brands other than HSQ RTU’s are not compatible with the City’s HSQ SCADA System. Additionally, the procurement of the RTU’s, parts, and service from HSQ Technology should be exempt from the formal bidding procedure in accordance with Modesto Municipal Code 8-3.204(b) because HSQ Technology is the original equipment manufacturer. Therefore, this purchase qualifies for exemption from the formal bidding procedures.
FISCAL IMPACT:
Expenditures over the past five years are shown below:
YEAR EXPENDED
FY2017-18 $38,179
FY2018-19 $46,632
FY2019-20 $85,675
FY2021-22 $27,879
FY2022-23 $67,298
TOTAL $265,663
Sufficient funding is available in Fiscal Year 2022/23 in the following accounts:
DIVISION ACCOUNT NUMBER AMOUNT
Water Division 4100-55090-53150 $80,000
Wastewater Division 4210-44410-53150 $65,000
Estimated Annual Cost $145,000
Staff has determined that the new estimated annual amount of $145,000 will ensure that both the Water and Wastewater division will have funds available to keep the system functioning properly to avoid catastrophic failure of the water and wastewater systems. Once the new SCADA System is installed and operating, this Agreement will not be renewed or extended. #22..
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City Council, December 6, 2022
Agreement with HSQ Technology for Parts, Service, Licenses, and Support
COMMITTEE RECOMMENDATION:
This item was considered by the Economic Development Committee at the November 7, 2022 meeting, and the committee recommended forwarding to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving an Agreement with HSQ Technology, Hayward, CA, for the Procurement of Parts, Service, Licenses and Support for two years, with three (3) one-year extension options, for an annual estimated amount of $145,000 and a total amount not to exceed $725,000 over five years, and authorizing the Director of Finance, or her designee, the ability to add parts based on the department’s needs, ensuring the total amount does not exceed the authorized total and authorizing the City Manager, or his designee, to execute the Agreement.
Approved by: _________________________________________
William Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Agreement
3. Exhibit B Pricing
4. Financial Interest Disclosure
5. Bid Waiver
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MODESTO CITY COUNCIL
RESOLUTION NO. 2022-
RESOLUTION APPROVING AN AGREEMENT WITH HSQ TECHNOLOGY,
HAYWARD, CA, FOR THE PROCUREMENT OF PARTS, SERVICE,
LICENSES AND SUPPORT FOR TWO YEARS, WITH THREE (3) ONE-YEAR
EXTENSION OPTIONS, FOR AN ANNUAL ESTIMATED AMOUNT OF
$145,000 AND A TOTAL NOT TO EXCEED $725,000 OVER FIVE YEARS, AND
AUTHORIZING THE DIRECTOR OF FINANCE, OR HER DESIGNEE, THE ABILITY TO ADD PARTS BASED ON THE DEPARTMENT’S NEEDS,
ENSURING THE TOTAL AMOUNT DOES NOT EXCEED THE AUTHORIZED
TOTAL AND AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO
EXECUTE THE AGREEMENT
WHEREAS, the Wastewater and Water Divisions utilize HSQ Technology (HSQ) Remote Terminal Units (RTU’s) to transmit and receive operational data from over 200 remotely located facilities such as wells, storage tanks, sewer lift stations, storm stations; and the Sutter, Jennings and Tertiary Treatment Facilities; as part of the HSQ Miser and Supervisor Control and Data Acquisition (SCADA) System, and WHEREAS, brands other than HSQ RTU’s are not compatible with the HSQ SCADA System, and
WHEREAS, on January 16, 2018, by Resolution No. 2018-08, Council approved the sole source Agreement with HSQ Technology, Hayward, CA, for remote terminal units and all associated circuit boards and parts for the miser supervisor control and data acquisition system, for a two-year Agreement, with three (3) one-year extension options at the sole discretion of the City, for an estimated annual cost not to exceed $60,000 and for a total cost not to exceed $300,000 over five years, and authorizing the Purchasing Manager, or her designee, to issue the Purchasing Agreement, and WHEREAS, the current Agreement number 132462 is set to expire January 15, 2023, and
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WHEREAS, due to the age of the current HSQ system, Staff is in the process of upgrading the City’s SCADA equipment. Until the City can replace the HSQ SCADA System, staff will need to keep the system functioning properly to avoid catastrophic failure of the water and wastewater systems, and
WHEREAS, Staff has determined that the new estimated annual amount of $145,000 will ensure that both the Water and Wastewater division will have funds available to keep the system functioning properly to avoid catastrophic failure of the water and wastewater systems. Once the new SCADA System is installed and operating, this Agreement will not be renewed or extended, and
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services to be formally bid. However, MMC 8-3.204(b) provides that a purchase may be exempted from the City’s formal bidding requirements where the Purchasing Agency’s requirements can be met solely by a single article or process. Here, brands other than HSQ RTU’s are not compatible with the City’s HSQ SCADA System.
WHEREAS, in additional, the procurement of the RTU’s, parts, and service from HSQ Technology should be exempt from the formal bidding procedure in accordance with Modesto Municipal Code 8-3.204(b) because HSQ Technology is the original equipment manufacturer, and
WHEREAS, this purchase qualifies for exemption from the formal bidding procedures.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves an Agreement with HSQ Technology, Hayward, CA, for the #22..
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procurement of parts, service, licenses and support for the Miser and Supervisor Control and Data Acquisition System, for two years, with three (3) one-year extension options, for an annual estimated amount of $145,000 and a total not to exceed $725,000 over five years, and authorizing the Director of Finance, or her designee, the ability to add parts based on the department’s needs, ensuring the total amount does not exceed the authorized total.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the agreement, in a form approved by the City Attorney.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 6th day of December, 2022, by Councilmember? who moved its adoption, which motion being duly seconded by Councilmember? was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANE NAYARES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY:
JOSE M. SANCHEZ, City Attorney
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1 ANNUAL AGREEMENT NO 230704
FOR REMOTE TERMINAL UNITS (RTU’S), CIRCUIT BOARDS, PARTS & SERVICE
FOR MISER SCADA SYSTEM
HSQ TECHNOLOGY
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ____ day of _________, 2022, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and HSQ Technology, Hayward, CA, hereinafter called CONTRACTOR.
W I T N E S E T H:
WHEREAS, the Modesto City Council adopted Resolution No. 2022- authorizing the Award and agreement for the purchase of Remote Terminal Units (RTU’S), circuit boards, parts and service to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the purchase of Remote Terminal Units (RTU’S), circuit boards, parts and service as described in the parts and service price list, attached hereto as Exhibit “B” and made a part hereof.
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. THE WORK:
a) CONTRACTOR shall furnish all specified request parts and or specific labor in Exhibit “B”, and in strict accordance with the conditions of the complete AGREEMENT. b) CONTRACTOR shall provide pricing quotes for additional scope for all specialized requests outside the Maintenance agreement and shall be approved by City prior to proceeding with work.
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2 c) CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative. d) CONTRACTOR shall maintain proper insurance with the CITY for the duration of the AGREEMENT.
e) CONTRACTOR shall maintain a CITY business license for the duration of the AGREEMENT.
f) CONTRACTOR shall furnish said services at the following AGREEMENT rates for an estimated annual amount $145,000. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $725,000. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown on the attached hereto as Exhibit B.
2. CITY REPRESENTATIVE:
CITY Representative Wastewater Division: Ben Koehler, WQC Superintendent, (209) 342-4502 CITY Representative Water Division: Jeremy Parnell, Water Superintendent, (209) 342-4599 Purchasing Contact: Carol Wattle, Buyer, (209) 577-5406, [email protected] The CITY Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effective only by written change to the AGREEMENT, issued by the City of Modesto, Purchasing Division.
3. CONTRACTOR CONTACT: Karen Santos, (510) 259-1334, [email protected]
4. TERM OF AGREEMENT: The term of the AGREEMENT shall be for a period of two years, with three one-year extension options at the sole discretion of CITY, for a total of up to five years.
Year 1: January 16, 2023 through January 15, 2024
Year 2: January 16, 2024 through January 15, 2025
Year 3: January 16, 2025 through January 15, 2026
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3 Year 4: January 16, 2026 through January 15, 2027
Year 5: January 16, 2027 through January 15, 2028
Pricing as set forth in Section 1.e. above shall remain firm for the first two years of the AGREEMENT.
Price increases for any subsequent AGREEMENT years following the second year, shall not exceed the percentage change in the Producers Price Index (PPI) as published by the Bureau of Labor Statistics: Industry Data for Computer & electronic product mfg (Series ID: PCU334) in any one AGREEMENT year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by CONTRACTOR in writing, ninety (90) days prior to the annual anniversary date of the AGREEMENT to be effective for the subsequent year.
5. LIABILITY INSURANCE: The CONTRACTOR shall provide, at its own expense, and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the CITY as may be required by the City Clerk of the CITY. The policies or certificates thereof shall provide that, at least 30 days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the CITY via PINS Advantage Insurance Program, for all of the following stated insurance policies.
a. General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent contractors and subcontractors; products and completed operations; and/or professional liability.
b. Automobile Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage and transportation related pollution liability. This insurance shall cover any automobile for bodily injury and property damage.
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4 c. Workers' Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000 per accident for bodily injury or disease.
If at any time any of said policies shall be unsatisfactory to the CITY, as to form or substance or if a company issuing such policy shall be unsatisfactory to the CITY, the CONTRACTOR shall promptly obtain a new policy, submit the same to the CITY’s Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the CONTRACTOR to furnish, deliver or maintain such insurance and certificates as above provided, this AGREEMENT, at the election of the CITY, may be forthwith declared suspended, or terminated. Failure of the CONTRACTOR to obtain and/or maintain any required insurance shall not relieve the CONTRACTOR from any liability under this AGREEMENT, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the CONTRACTOR concerning indemnification. The CITY, its agents, its officers, officials, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.
The Workers' Compensation insurer shall agree to waive all rights of subrogation against the CITY, its agents, its officials, officers, employees, and volunteers for losses arising from work performed by CONTRACTOR for the CITY.
The CONTRACTOR’s insurance policy(ices) shall include a provision that the coverage is primary as respects the CITY; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the CITY’s Risk Manager.
For any claims related to this AGREEMENT, the CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its agent, its officers, officials, employees, and volunteers. Any insurance or selfinsurance maintained by CITY, its agents, its officers, officials, employees, or volunteers shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.
6. PAYMENT: CONTRACTOR shall invoice CITY not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All invoices shall be paid in full #22..
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5 under the following payment terms after completion and acceptance of the SERVICES by the CITY, and receipt of a properly prepared invoice, CITY will pay CONTRACTOR Net 45 Days via manual check. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.
Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:
• This AGREEMENT number 230704
• CITY department/division name and address
• Billing period
• Service hours worked day and week
• Unit price, extended price, sales tax and total
7. INDEMNITY: The CONTRACTOR shall hold the CITY, its agents, its officials, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its agents, officials, officers, employees, or volunteers relating to or during the performance of its obligations under this AGREEMENT. CONTRACTOR’s obligation to defend, indemnify, and hold the CITY, its agents, officials, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this AGREEMENT for CONTRACTOR to procure and maintain a policy of insurance.
8. VENUE & GOVERNING LAW: Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California
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6 This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of law’s provisions or principles.
9. ATTORNEYS’ FEES: If a party to this AGREEMENT brings any action, including an action for declaratory relief, to enforce or interpret the provision of this AGREEMENT, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
10. COMMENCEMENT AND COMPLETION OF THE WORK: The work contemplated herein shall be commenced after the agreement administrator receives and has on file:
Proofs of insurance (approved by CITY Risk Manager); and Executed Agreement and all exhibits thereto.
a. Resolution No. 2022-_______;
b. CONTRACTOR’s City of Modesto business license
11. TERMINATION OF SERVICES: Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the non-performance. Within ten (10) days after receipt of notification, the breaching party shall correct any non-performance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.
Termination by City for Convenience: The CITY may also terminate this AGREEMENT the CONTRACTOR's performance under the AGREEMENT, either in whole or in part, at its own discretion and without cause.
Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
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7 a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of CITY; f. Complete performance of such part of the SERVICES as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES;
h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i. CONTRACTOR understands and agrees that CITY may, in CITY’s sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's #22..
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8 SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.
CITY will pay CONTRACTOR for SERVICES actually completed prior to the receipt of the termination notice or otherwise completed in accordance with the notice of termination. The final payment to the CONTRACTOR after termination for convenience shall be limited to amounts due and owing under the AGREEMENT at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the SERVICES such as subcontractor agreements or contracts for materials; b. The AGREEMENT price allocable to the portion of the SERVICES properly performed or goods supplied to the work site by the CONTRACTOR as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the CONTRACTOR for such SERVICES.
12. COMPLIANCE WITH ALL LAWS: CONTRACTOR hereby agrees that CONTRACTOR and its subcontractors, if any, in the performance of the SERVICES described herein, will comply with all federal, state, county and municipal laws, rules and regulations which may be applicable to the work herein contracted for, whether now in existence or hereafter adopted.
13. FAILURE TO PERFORM SATISFACTORY WORK: It is agreed and understood that if the CONTRACTOR fails to perform the SERVICES as specified herein, CITY's representative may:
a. Consent to accept such unsatisfactory service with an appropriate adjustment in contract price, based on established cost factors,
b. Have such required work done by CITY forces or otherwise, and charge the cost thereof to the CONTRACTOR, or
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9 c. Recommend termination of AGREEMENT between said the CONTRACTOR and the City of Modesto.
Those discrepancies and deficiencies in the SERVICES that remains uncorrected after the date set for correction may be the necessary justification for a billing adjustment in the month following the occurrence.
Unless otherwise negotiated, billing adjustments for this incomplete or uncorrected work shall be permanent retention of 100% of the estimated monthly cost for the SERVICES not corrected or completed.
14. ASSIGNMENT OF RIGHTS: The CONTRACTOR offers and agrees, and will require all subcontractors and suppliers to agree, to assign to the CITY all rights, title, and interest in and to all causes of action it and they may have under Section 4 of the Clayton Act (15 United States code, Section 15) or under the Cartwright Act (Business and Professions Code, Section 16700 et seq.), arising from the acquisition of goods, services, or materials pursuant to this AGREEMENT or any allowed subcontract. The assignment made by CONTRACTOR and all assignments made by subcontractors and suppliers shall be made and become effective at the time the CITY makes final payment to the CONTRACTOR, without further acknowledgment by the parties (Government Code, Sections 4550-4554).
15. CITY PROCESS/PROCEDURE APPROVALS: CITY approval of any process or procedure shall not relieve CONTRACTOR of its responsibility to furnish the required SERVICES meeting all specifications contained herein.
16. CONTRACTOR'S RESPONSIBILITY FOR DAMAGES: If CONTRACTOR damages any property belonging to the CITY or a third party, the CONTRACTOR will be required to make repairs immediately, at CONTRACTOR’s sole cost and expense, to the satisfaction of the CITY. In the event that CONTRACTOR fails to perform the necessary repairs, the CITY may either retain from the money due to CONTRACTOR an amount sufficient to repair the damage or perform the repairs and send an invoice to the CONTRACTOR for such costs, which shall be paid within thirty (30) days. #22..
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10 17. NOTICES: Any notice, payment or instrument required or permitted by this AGREEMENT to be given or delivered to either party shall be deemed to have been received when personally delivered, or one calendar week following deposit of the same in any United States Post Office, registered or certified mail, postage prepaid, addressed as follows:
CONTRACTOR: HSQ Technology
26227 Research Road
Hayward, CA 94545-3725
Attn: Chris Cornejo
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.
18. SIGNATORY(IES) FOR CONTRACTOR: Each signatory for CONTRACTOR below warrants and represents that it is legally competent to, and have full authority to, execute the AGREEMENT.
19. QUANTITIES: No minimum or maximum is guaranteed or implied.
20. FUNDING: All annual extensions are based upon continuous funding for that purpose by the City Council. Failure to fund any annual extension shall result in an immediate termination of the AGREEMENT without redress.
21. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES: If mutually agreeable to all parties, the issuance of any resultant contract/purchase order referencing these specifications and modified by mutual agreement between all parties may be extended to other government or publicly funded agencies. It shall be understood that all terms and conditions as specified herein shall apply.
22. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap #22..
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11 (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination.
The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT. e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation, and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.
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12 23. CONTRACTOR LICENSES & PERMITS: CONTRACTOR warrants and represents that it possesses and shall maintain all licenses, and shall secure and maintain all necessary permits, necessary to perform the SERVICES.
24. RECORDS: All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.
25. FACILITIES AND EQUIPMENT: Except as set forth herein, CONTRACTOR shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this AGREEMENT. CITY shall make available to CONTRACTOR only the facilities and equipment listed in EXHIBIT “B” , and only under the terms and conditions set forth herein.
26. INDEPENDENT CONTRACTOR; NOT AGENT: At all times during the term of this AGREEMENT, CONTRACTOR shall be an independent contractor and shall not be an employee of CITY. CITY shall have the right to control CONTRACTOR only insofar as the results of CONTRACTOR’s services rendered pursuant to this AGREEMENT. Except as CITY may specify in writing, CONTRACTOR shall have no authority, express or implied, to act on behalf of CITY in any capacity whatsoever as an agent. CONTRACTOR shall have no authority, express or implied, pursuant to this AGREEMENT to bind CITY to any obligation whatsoever.
27. DRUG FREE WORKPLACE: CONTRACTOR certifies that it is following and in compliance with Sections 8350 - 8355 of Chapter 5.5 of the Government Code, Drug Free Workplace Act whereby each person or organization awarded a contract/purchase order or grant for the procurement of any property or service from any state agency (city) shall certify to the contracting or granting agency that it will provide a drug free #22..
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13 workplace.
28. ASSIGNMENT: Neither this AGREEMENT nor any SERVICES hereunder shall be subcontracted or assigned by CONTRACTOR without the prior written consent of the CITY in each and every instance.
29. WAIVER: The waiver by any party to this AGREEMENT of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing.
30. HEADINGS NOT CONTROLLING: Headings used in the AGREEMENT are for reference purposes only and shall not be considered in construing this AGREEMENT.
31. MISCELLANEOUS: Time is of the essence in CONTRACTOR’s performance under each provision of this AGREEMENT.
32. ENTIRE AGREEMENT: This AGREEMENT and its exhibits contain the entire understanding between CONTRACTOR and CITY. Additional or new terms contained in this AGREEMENT which vary from CONTRACTOR’S bid are controlling and are deemed accepted by CONTRACTOR by performance of any SERVICES or other commencement of performance hereunder. All previous bids, offers and communications relative to this AGREEMENT, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this AGREEMENT. No future waiver or exception to any of the terms, conditions, and provisions of this AGREEMENT shall be considered valid unless specifically agreed to in writing by the parties.
33. PARTIAL INVALIDITY: If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way. #22..
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14 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this AGREEMENT in duplicate by its City Manager and attested by its City Clerk under authority of Resolution No. 2022-_______, adopted by the Council of the City of Modesto on the _____________ day of _____________________, 2022 and HSQ Technology has caused this AGREEMENT to be duly executed.
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An Equal Opportunity Employer Page 1 of 6 California Contractor’s License #378393 Building the Technology that Drives Smarter Systems
City of Modesto
Parts and Service Price List
Terms and Conditions
◊ All prices are FOB Hayward, California and are exclusive of sales tax. Taxes and transportation charges are prepaid and will be added to the invoice.
◊ VISA and MasterCard are accepted, subject to a 5% surcharge. ◊ Prices are subject to change. Call or email for current prices. ◊ Minimum parts order is $300.00.
◊ New items are warranted for one (1) year.
◊ Repair items are warranted for ninety (90) days.
◊ Extended warranty is available on most items.
◊ The prices on this list do not apply to parts damaged as a result of improper use or acts of God. ◊ If no part number is listed, please call. The application will dictate the specific part number. ◊ Quantity discounts are available for the 25x86 Series Interface, Expansion boards, and new parts shown below, as follows:
• Qty. 5-15 10% Discount * • Qty. 16-29 15% Discount * • 30 or More 20% Discount * * – The discount is based on meeting quantity limits for each product part number.
NOTE: Part numbers underlined and in blue are hyperlinks to datasheets with more detailed information. 26227 Research Road, Hayward, California 94545-3725
Phone: (510) 259-1334 Toll Free: (800) 486-6684
[email protected] www.hsq.com [email protected]
Effective November 1, 2022
Contacts
Chris Cornejo
Title
Parts and Production Manager
[email protected]
EXHIBIT B
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An Equal Opportunity Employer Page 2 of 6 California Contractor’s License #378393 Building the Technology that Drives Smarter Systems
Logic Processors (RTUs)
Part No. Description List Price
8600-3343F 25x86 Logic Processor – Standard (two buses with two Ethernet ports) · · · · · · · · · · · · · · · · · · $2,200.00 8600-3343L 25x86 Logic Processor – Low Power · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $2,200.00 8601 Bus Board (Replacement)··································································$650.00 8602 Control Board (Replacement) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $800.00 8600-386X Latest CPU Exchange for 386 or 486 CPU · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $900.00 8600-V8 Version 8 Software Upgrade (only available for 9579 and 9588 processors) · · · · · · · · · · · · · · · · $350.00 CPF-UP Compact Flash Upgrade · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for pricing 6000/6200 Series Remote I/O Modules for 25x86 and 1000 RTUs Part No. Description List Price
HSQ-6015 7-Channel RTD Input Module · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $675.00 HSQ-6017 8-Channel Analog Input / 2-Channel Digital Output Module · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $570.00 HSQ-6018 8-Channel Thermocouple Input / 8-Channel Digital Output Module · · · · · · · · · · · · · · · · · · · · · · · $785.00 HSQ-6050 12-Channel Digital Input / 6-Channel Digital Output Module · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $410.00 HSQ-6051 12-Channel Digital Input / 2-Channel Digital Output or 2-Channel Counter Input Module · · $410.00 HSQ-6052 8-Channel Digital Input / 8-Channel Digital Output · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $440.00 HSQ-6060 6-Channel Digital Input / 6-Channel Relay Module · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $460.00 HSQ-6066 6-Channel Digital Input / 6-Channel Power Relay Module · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $400.00 HSQ-6217 8-Channel Analog Input Module · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $605.00 HSQ-6224 4-Channel Analog Output / 4-Channel Digital Input Module · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $645.00 HSQ-6250 8-Channel Digital Input / 7-Channel Digital Output Module · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $430.00 HSQ-6256 16-Channel Digital Output Module · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $430.00 HSQ-6260 6-Channel Relay Output Module · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $430.00 HSQ-6266 4-Channel Digital Input / 4-Channel Relay Output Module · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $430.00 2500 - 25x86 Series Interface Boards
Part No. Description List Price
1046 8-Channel Digital DC Input Board · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $215.00 1047 8-Channel Digital DC Output Board · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $240.00 1332 8-Channel Relay Output Board · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $310.00 8646 12-Channel DI/12-Channel DO Termination Board (25x86 Only) · · · · · · · · · · · · · · · · · · · · · · · · · · · $450.00 #22..
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An Equal Opportunity Employer Page 3 of 6 California Contractor’s License #378393 Building the Technology that Drives Smarter Systems
2500 - 25x86 Series Expansion Boards
Part No. Description List Price
2507 4-Channel Analog Output Board · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $890.00 2535 4-Channel Digital Input to Analog Input Adapter Board · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $90.00 2508 32-Channel Analog Input Board ························································· $1,350.00 2509 32-Channel Digital Input Board · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $530.00 2534 32-Channel Intelligent Digital Input · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $1,100.00 2533 32-Channel Digital Output · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $610.00 2548 16-Channel Relay Digital Output · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $550.00 2569 16-Channel Digital Input / 16-Channel Digital Output Board · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $690.00 1368 ‡ Digital Input Conversion Expansion Board (125 VDC in) – Left Entry · · · · · · · · · · · · · · · · · · · · · · · · · $280.00 1369 ‡ Digital Input Conversion Expansion Board (125 VDC in) – Right Entry · · · · · · · · · · · · · · · · · · · · · · · $280.00 ‡ – For use with the 2509 and 2534 Expansion Boards.
System Products
Part No. Description List Price
2511 Power Box Assembly · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $150.00 2585 RTU Battery Backup Controller · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $490.00 CP10.241-S1 Power Supply ( 24 VDC / 10 Amp) – DIN Rail · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $265.00 2572 Communications Board — provides 2 serial ports and indicator lights for 6000 series RTUs and the HSQ-1110 RTU (uses 2 serial ports) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $160.00 2592 Communications Board — provides 4 serial ports and 1 Ethernet port for 25x86 RTUs (9579, 9588, and 3343 processors only) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $225.00 PTA Pulse to Analog Card — converts a DO pulse duration to an analog value · · · · · · · · · · · · · · · · · $150.00 HSQ-RX2800 HSQ Integrity rx2800 i6 Server/Workstation: w/ VMS Keyboard and Mouse, 24” LCD Monitor, HSQ-RXPWR2
HSQ-XVIEWWRKPRO
16 GB RAM, 147 GB Hard Drive, DVD/CD ROM Drive, Graphics Port, Pedestal Mount; Configured (excludes HSQ MISER license and OpenVMS Operating System software) Call for Pricing Redundant Power Supply for HSQ-RX2800 · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for Pricing MISER XView for Windows Professional Workstation · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · HSQ-SYS-146 146 GB System Disk (configured) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · HSQ-HST-300 300 GB History Disk (configured) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · HSQ-5ES Five (5) Port Ethernet Switch (Moxa) (Unmanaged Switch) · HSQ-6ES Six (6) Port Ethernet Switch (Moxa) (Managed Switch) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · HSQ-TS1 Terminal Server (Moxa) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · HSQ-TELE8HR Telephone Support, Basic (eight hours a day, five days a week) · · · · · · · · · · · · · · · · · · · · · HSQ-TELE24HR Telephone Support, Complete (twenty-four hours a day, seven days a week) · · · · · · · · Call for Pricing
Call for Pricing
Call for Pricing
Call for Pricing
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An Equal Opportunity Employer Page 4 of 6 California Contractor’s License #378393 Building the Technology that Drives Smarter Systems
Communication Cables
Part No. Description List Price
HSQ-6000R Communication Ribbon Cable (HSQ-6000 to 2572) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $100.00 HSQ-CBL1 Ribbon Cable (2 connectors, 1 foot length)················································ $100.00 RTUDIAG-CBL RTU Diagnostics Cable, connects 2500 series and x86 RTUs series to serial port··············$100.00 Software
Part No. Description List Price
HSQ-MISER-A MISER License (non-redundant server) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for pricing HSQ-MISER-B MISER License (redundant server) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for pricing HSQ-MISER-C MISER License (workstation) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for pricing MISER-DR Standard MISER Device Driver (existing NCC) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for pricing XVIEW-WIN XView for Windows (XView only, full client version) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for pricing XVIEW-UP XView for Windows Upgrade (XView only, client upgrade version) · · · · · · · · · · · · · · · · · · Call for pricing WIN-XCD XView for Windows, Exceed Edition, Full Version (XView and XServer software) · · · · · · Call for pricing WIN-XCD-UP XView for Windows, Exceed Edition, Upgrade Version (XView and XServer software) · Call for pricing HSQ-TALK MISERtalk Software (Email Notification / Text Message) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for pricing HSQ-VCL MISER VisualCL Software (Server) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for pricing HSQ-VCLW VisualCL Software for Windows (Client) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for pricing HSQ-POR MISER Web Portal · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for pricing HSQ-POR-UP MISER Web Portal Upgrade · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for pricing HSQ-SRV-WIN ODBC Server for Windows (database software) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for pricing HSQ-ODBC ODBC Bridge for MISER (database software) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for pricing HSQ-ODOC ODBC Bridge with Oracle for MISER · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for pricing HSQ-ODRD ODBC Bridge (redundant software) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for pricing RTU-DIAG RTU Diagnostic Software (CD-ROM)
(Includes software, manual, and two (2) hours telephone support.) · · · · · · · · · · · · · · · · · · · · · · $1,050.00 #22..
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An Equal Opportunity Employer Page 5 of 6 California Contractor’s License #378393 Building the Technology that Drives Smarter Systems
Documentation
Part No. Description List Price
HSQ-MOM MISER Operator Manual · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $150.00 HSQ-TRM MISER Technical Reference Manual · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $175.00 HSQ-SYS MISER System Manual · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $150.00 HSQ-VCLM VisualCL Manual · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $150.00 HSQ-XVIEW XView for Windows Installation Manual · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $150.00 HSQ-XDRAW XDraw User Manual · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $150.00 HSQ-RTU86 HSQ Logic Processor and RTU User Manual · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $200.00 HSQ-DIAG RTU Diagnostic Manual · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $125.00 HSQ-CDR MISER Manuals on DVD · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $175.00 NOTE: Customers that purchase the product and/or existing customers receive documentation at no charge.
Repair Pricing
Repair pricing for HSQ products is based on time and material at a rate of $200.00 per hour. There is a $300.00 evaluation fee for all repair items. Shipping cost shall be added, depending on the size of repair order.
All parts returned for repair require a Return Material Authorization (RMA) number and a payment authorization, in the form of a purchase order (P.O.) or credit card authorization. A copy of the HSQ RMA form can be found on our website (www.hsq.com/RMA) or can be forwarded via email upon request.
Please contact Chris Cornejo or Karen Santos at (510) 259-1334 or email: [email protected] for an RMA number. 25x86 Logic Processor units may be returned as a complete unit. The repair price is dependent on the actual board failure within the unit.
NOTE: All repairs must be accompanied by an HSQ RMA number and purchase authorization, as stated above.
Evaluations and Repairs cannot be processed without having a customer issued purchase number or credit card purchase authorization.
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An Equal Opportunity Employer Page 6 of 6 California Contractor’s License #378393 Building the Technology that Drives Smarter Systems
Service Pricing Sheet
I. Field Service (Note 1)
Senior Service/Software Engineer · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $250.00/Hour Overtime · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $375.00/Hour Service Engineer (hardware and software) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $200.00/Hour Overtime · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $300.00/Hour II. Jobsite Expenses (Note 2)
Lodging · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $225.00/Day Vehicle · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $100.00/Day Daily Stipend · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $150.00/Day III. Travel Expenses (Note 2)
Local Vehicle · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · $0.58/Mile Air Fare · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for Pricing IV. In-Transit Rates (per site visit)
Domestic (West Coast) One (1) Day · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for Pricing Domestic (East Coast) Two (2) Days · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for Pricing International Three (3) Days · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for Pricing V. Parts and Materials
A/R · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Call for Pricing Notes
1. Field service rates are based on an eight (8) hour weekday, exclusive of any travel and/or living expenses. A minimum of four (4) hours shall be billed for all field requests.
2. Jobsite/travel expenses are estimated for budgeting purposes only. Actual amount billed will be cost plus a twenty percent (20%) administration fee. #22..
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1 SOLE SOURCE # 2223-03
REMOTE TERMINAL UNITS (RTU’S), CIRCUIT
BOARDS, PARTS & SERVICE FOR MISER SCADA
SYSTEM
BID FORM F - FINANCIAL INTEREST DISCLOSURE
Any contract award to result from this IFB process and Bidder’s submission of a Bid therewith will require approval by a majority vote of the City of Modesto’s City Council. In order to have full transparency in any City of Modesto commercial actions, the City Council may not approve an agreement between the City and the Bidder until all person with a direct or indirect financial interest of greater than $2,000 in the Bidder are identified by name.
Bidder must therefore complete this Bid Form F – Financial Interest Disclosure, listing by name all parties that have a material financial interest in the agreement, contract or development right.
PLEASE NOTE, any Council action that requires a Financial Interest Disclosure cannot be considered by the City Council until the required reporting is made. That means that City Council agenda items without the disclosure will be removed from the Council agenda.
Financial Interest Disclosure to City of Modesto
The Bidder shall identify any person with a financial interest in the Bidder by name, below.
For the purposes of this disclosure, a “Financial Interest” shall have the meaning contained in Modesto Municipal Code section 2-10.02.
Persons having an aggregate economic interest in the Bidder less than two thousand dollars ($2,000.00) at all times prior to final Council action of the proposed contract are not required to be listed on the Financial Interest Disclosure.
Notwithstanding the foregoing, a Financial Interest Disclosure is not required for a Bidder meeting the financial criteria for listing on the New York or the Pacific Stock exchanges unless it is reasonably foreseeable that a City Council decision will increase or decrease that entity's gross revenues or expenses by one million dollars ($1,000,000) or more and the requirements of Modesto Municipal Code Section 2-
10.03(h) are satisfied.
It is the legal obligation of all applicants for approval of an agreement or of an application for development rights to verify in writing, under penalty of perjury, that the identity of each person having a material financial interest in the Bidder is true, correct and complete. By signing below, the applicant understands that this information is provided under penalty of perjury, and that intentionally supplying misinformation or deception may result in either invalidation of the agreement or application, or criminal prosecution for misdemeanor violation of the Modesto Municipal Code, or both. Negligent provision of misinformation shall be grounds for invalidation. In accordance with the Modesto Municipal Code, each applicant has a continuing obligation to maintain the truth, accuracy and completeness of the financial interest disclosure information provided below until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.
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2 SOLE SOURCE # 2223-03
REMOTE TERMINAL UNITS (RTU’S), CIRCUIT
BOARDS, PARTS & SERVICE FOR MISER SCADA
SYSTEM
Print Names of Persons Having a Financial Interest in Bidder Receiving this Agreement:
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
By signing this document, I agree to the information contained within.
Bidder Company Name:
Name of Bidder Signatory:
Signature of Bidder Representative:
HSQ Technology
Gus Jimenez
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
December 6, 2022
Date: November 7, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Bill Sandhu, Public Works Director
SUBJECT: Ordinance updating Title 5, Chapter 5 of the Municipal Code relating to Solid Waste Collection and updating cash security deposits for Self-Haul charges CONTACT: Rosene Salmo, Integrated Waste Program Manager [email protected] 209-577-5453
DESCRIPTION:
Public Hearing to consider an Ordinance repealing Title 5, “Sanitation and Health,” Chapter 11 “Organic Waste Disposal” of the Modesto Municipal Code in its entirety, repealing and replacing Title 5, Chapter 5 “Solid Waste” of the Modesto Municipal Code, approving an updated Cash Security Deposit Schedule for Self-Haul charges, establishing an annual 9.9% Franchise Fee in accordance with Assembly Bill 939 and rescinding Resolution No. 98-113. (Funding Source: Not Applicable)
STRATEGIC PLAN ELEMENT:
The recommended action is consistent with the Council’s Strategic Plan 2020-2025 - Quality of Life: “Engage partners across the community to ensure the safety, resilience, and attractiveness of Modesto;” Goal D: “Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts.” BACKGROUND:
Staff periodically reviews solid waste sections of the Modesto Municipal Code (MMC) to ensure that the terminology used accurately reflects current procedures and is consistent with both the solid waste industry and the Department of Resources Recycling and Recovery (CalRecycle1), the state regulatory agency overseeing recycling and waste management. 1 CalRecycle - https://calrecycle.ca.gov/
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Council Meeting December 6, 2022
Ordinance updating Title 5, Chapter 5 of the Municipal Code relating to Solid Waste Collection and updating case security deposits for Self-Haul charges
DISCUSSION:
On November 9, 2021, by Ordinance No. 3740-C.S., Council approved the addition of Chapter 11 “Organic Waste Disposal” to Title 5 “Sanitation and Health,” of the MMC. This new chapter brought the City into compliance with Senate Bill (SB) 13832.
Solid Waste staff reviewed the MMC and recommends amending Title 5, Chapter 5, to include Chapter 11 into the Solid Waste section of the MMC. Additionally, changes have been made to Title 5, Chapter 5 that standardize solid waste definitions, add the requirements of new Solid Waste Services adopted by City Council on June 14, 2022, under Resolution 2022-276, and add new codes defining the Shared Can Program, Enclosures Required, Multifamily Bulky Item Program. The following proposed changes have been reviewed and approved by the City Attorney’s Office. The list of notable changes are:
Merge Title 5, Chapter 11 into Title 5, Chapter 5
All section numbers in Title 5 Chapter 5 have changed as part of this merge 5-5.103 “Definitions”
o Modify current definitions to align with CalRecyle standards 5-5.105 (New Code) “Segregations and Disposition of Solid Waste Materials” o Clarify that generators must source separate their garbage, organics, and recycling
5-5.106 (Formerly 5-5.105) “Illegal Dumping, Depositing or Burying Solid Waste” o Update to include participation in the multi-family bulky item program 5-5.107 (Formerly 5-5.112) “Explosives or Hazardous Materials” o Add fines to align with the illegal dumping fine
5-5.108 (Formerly 5-5.106) “Accumulation of Garbage, Recycling or Organic Waste” o Add recycling container and update to reflect that the organic container and recycling container may only be service every other week at minimum 5-5.109 (Formerly 5-5.108) “Garbage, Recycling, Organic Waste and Swill Collection Requirements”
o Add recycling and define that services shall be at minimum every other week 5-5.111 (Formerly 5-5.109) “Number of Containers Required” o Add the recycling container to the required collection services 5-5.112 (New Code) “Shared Solid Waste Containers”
o Define shared service between neighbors and businesses and clarify who is eligible to share service
5-5.113 (New Code) “Enclosures Required”
o Define that commercial businesses constructed, enlarged, or structurally altered after January 1, 2023 must have enclosures and define requirements 5-5.118 (New Code) Mandatory Solid Waste, Recyclable Materials, and Organic Materials Collection
o Clarifying the minimum types of service
5-5.119 (New Code) “Ashes, stable matter and contaminate matter” o Clarify that above materials shall not be placed into garbage, recycling, or organic containers without proper handling
5-5.121 (Formerly 5-5.111) “Container Collection Locations” 2 https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB1383 #23..
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Council Meeting December 6, 2022
Ordinance updating Title 5, Chapter 5 of the Municipal Code relating to Solid Waste Collection and updating case security deposits for Self-Haul charges
o Add section c) stating the authority of the City to close alleys to solid waste service as needed due to safety concerns and/or size restrictions for collection vehicles
5-5.129 (Formally 5-5.117) “Agreement to Collect Solid Waste” o Add recycling and bulky items to the list of materials only a franchised hauler can remove
5-5.130 (Formally 5-5.118) “Self-haul requirements”
o merged with requirements under Title5, Chapter 11 “Organics Waste” to meet all the requirements set forth by CalRecycle SB1383
5-5.157 (New Code) “Multifamily Bulky Item Collection Program” o Establish the Multifamily Bulky Item Collection Program and add a list of acceptable and unacceptable material for the new program On February 24, 1998, by Resolution 1998-113, Council approved the establishing of a schedule of cash security deposits to be charged to residents and businesses for self-haul of solid waste in the City of Modesto. The security deposit is placed in trust with the City Finance Department and held until the Customer resumes garbage service, or no longer holds interest in the property for which the self-haul was requested.
Staff has reviewed the security deposit schedule and recommends updating it to bring the deposit in-line with the current maximum rate structure approved annually by Council.
The updated schedule would set the deposit for residential self-haul to be 60 months multiplied by the current maximum monthly rate at the time of approval and set the deposit for commercial self-haul to be (Maximum Rate 1 Cubic Yard) x (Number of cubic yards in bin(s)) x (number of pick-ups per week) 12 x 9.9%. The updated schedule will also establish an annual Assembly Bill 939 fee of 9.9% for both residential and commercial self-haulers to cover costs associated with integrated waste programs and will require a renewal of the self-haul program every three years.
FISCAL IMPACT:
The security deposit is placed in trust with the City Finance Department and held until the Customer resumes garbage service, or no longer holds interest in the property for which the self-haul was requested. The annual 9.9% fee (AB 939 franchise fee) will be distributed between the general fund and the streets fund.
COMMITTEE RECOMMENDATION:
This item was reviewed by the Economic Development Committee on November 7, 2022, and the Committee recommended forwarding to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Motion introducing and waiving the First Reading of an Ordinance repealing Title 5, “Sanitation and Health,” Chapter 11 “Organic Waste Disposal” of the Modesto Municipal Code in its entirety, and repealing and replacing Title 5, Chapter 5, “Solid Waste” of the Modesto Municipal Code.
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Council Meeting December 6, 2022
Ordinance updating Title 5, Chapter 5 of the Municipal Code relating to Solid Waste Collection and updating case security deposits for Self-Haul charges
Resolution updating the Schedule of Cash Security Deposits to be charged to residents and businesses for Self-Haul of Solid Waste in the City of Modesto, establishing an annual 9.9% Franchise Fee in accordance with Assembly Bill 939, and rescinding Resolution No. 98-113.
Approved by:
Bill Sandhu, Public Works Director
Joseph P. Lopez, City Manager
Attachment:
1. Resolution
2. Ordinance update to Title 5, Chapter 5
3. Solid Waste Collection Ordinance Chapter 5 – Redlines
4. Resolution No.98-113
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MODESTO CITY COUNCIL
RESOLUTION NO. 2022-
RESOLUTION UPDATING THE SCHEDULE OF CASH SECURITY DEPOSITS TO BE
CHARGED TO RESIDENTS AND BUSINESSES FOR SELF-HAUL OF SOLID WASTE IN THE CITY OF MODESTO, ESTABLISHING AN ANNUAL 9.9% FRANCHISE FEE IN ACCORDANCE WITH ASSEMBLY BILL 939, AND RESCINDING RESOLUTION NO. 98-113
WHEREAS, on February 24, 1998, by Resolution 1998-113 Council approved the establishing of a schedule of cash security deposits to be charged to residents and businesses for self-haul of solid waste in the City of Modesto; and
WHEREAS, pursuant to Section 5-5.130 of the Modesto Municipal Code cash security deposit and fees associated with AB939 for the removal of solid waste can be deposited with the City in an amount set from time to time by resolution of the City Council; and WHEREAS, the updated schedule would set the deposit for residential self-haul to be 60 months multiplied by the current maximum monthly rate at the time of approval and set the deposit for commercial self-haul to be based deposit times total number of cubic yards in bin(s) times the number of collections per week; and
WHEREAS, the updated schedule will also establish an annual Assembly Bill 939 fee of
9.9% to both residential and commercial self-haulers. Funds will be distributed to both the General and Street Funds and will require a renewal of the self-haul program every three years.
NOW THEREFORE BE IT RESOLVED, the City Council of the City of Modesto hereby approves the establishment of a schedule of cash security deposits to be charge to residents and businesses for self-haul of solid waste in the City of Modesto, a copy of said schedule is attached hereto as Exhibit “A”.
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BE IT FURTHER RESOLVED, the City Council hereby approves the establishment of an annual 9.9% franchise fee in accordance with Assembly Bill 939 to be charge to residents and businesses for self-haul of solid waste in the City of Modesto, a copy of said schedule is attached hereto as Exhibit “A”.
BE IT FURTHER RESOLVED, that Resolution 1998-113 is hereby rescinded. #23..
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The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 6th day of December 2022, by Councilmember ______, who moved its adoption, which motion being duly seconded by Councilmember _________, was upon roll call carried and the resolution.
adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: ___________________________
DIANE NAYARES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
By: _________________________
JOSE M. SANCHEZ, City Attorney
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EXHIBIT “A”
CASH SECURITY DEPOSITS FOR
SELF-HAUL RESIDENTS AND BUSINESSES
CITY OF MODESTO
Pursuant to the Modesto Municipal Code, Section 5-5.130, any person, other than a collector who has an agreement with the City, who wishes to remove and dispose of waste created or produced on premises they occupy or control must first provide a cash security deposit to the City. Such deposits shall be based on the following criteria:
Applications must be renewed every three (3) years
A security deposit shall be made for each separate residential dwelling, multifamily, or business location owned or controlled by a noncustomer.
For any residential, multifamily, or commercial property that is currently served by an authorized collector the City shall contact the collector and determine the existing service level being provided. Based on the service level, the City shall require a cash security deposit based on the formula noted and defined below.
For any residential, multifamily, or commercial property that is not currently serviced by an authorize collector, the City shall consult with the authorized collector assigned to the service address and determine an appropriate service level. The City shall require a cash security deposit based on the formula noted and defined below.
DEPOSIT
RESIDENTIAL OR COMMERCIAL – CART SERVICE
a) For any residential, multifamily, or commercial property that is, or would be served by carts, the cash security deposit shall be equal to:
60 months x 51.25 (maximum monthly rate)
RESIDENTIAL OR COMMERCIAL- BIN SERVICE
b) For any multifamily, or commercial property that is, or would be served by bins, the cash security deposit shall be equal to:
Base deposit x Multiplier= Cash Security Deposit
a) Base Deposit: $5000
b) Multiplier: Total number of cubic yards in bin(s) times the number of collections per week
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ANNUAL AB 939 FEE
RESIDENTIAL OR COMMERCIAL – CART SERVICE
Those residential, multifamily, or commercial properties participating in the Self-Haul program will be required to pay to the City of Modesto an annual AB939 Fee of 9.9% of the annual garbage rate.
a) The formula for any residential, multifamily, or commercial property that is, or would be served by carts, the annual AB939 fee will be equal to:
$51.25 (Maximum Monthly Rate) x 12 months x 9.9%
RESIDENTIAL OR COMMERCIAL- BIN SERVICE
b) The formula for any multifamily, or commercial property that is, or would be served by bin, the annual AB939 fee will be equal to:
$64.04 (Maximum Rate 1 cubic yard) x (Number of cubic yards in bin(s)) x (number of pick-ups per week) x (12 months) x 9.9%
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ORDINANCE NO. ________
ORDINANCE REPEALING TITLE 5, “SANITATION AND HEALTH,” CHAPTER 11 “ORGANIC WASTE DISPOSAL” OF THE MODESTO MUNICIPAL CODE IN ITS ENTIRETY, AND REPEALING AND REPLACING TITLE 5, CHAPTER 5, “SOLID WASTE” OF THE MODESTO MUNICIPAL CODE
WHEREAS, the accumulation, collection, removal and disposal of solid waste must be controlled by the City for the protection of the public health, safety, and welfare; and WHEREAS, the Modesto Municipal Code currently regulates solid waste in the City of Modesto; and
WHEREAS, it is the intent of the City Council to continue protecting the public health, safety, and welfare of the public by efficiently and safely regulating the disposal of solid waste, and by implementing reasonable measures to prevent illegal dumping within the City; and WHEREAS, pursuant to the City’s police powers authorized in Article XI, Section 7 of the California Constitution, the City has the power to enact regulations for the preservation of public health, safety and welfare of its residents and community. And, pursuant to Government Code section 38771, the City has the power, through its City Council to declare actions and activities that constitute a public nuisance; and
WHEREAS, Solid Waste staff has reviewed the Modesto Municipal Code and recommends repealing Title 5, “Sanitation and Health,” Chapter 11 “Organic Waste Disposal” of the Modesto Municipal Code in its entirety, and repealing and replacing Title 5, Chapter 5, “Solid Waste” of the Modesto Municipal Code.
NOW, THEREFORE, the City Council of the City of Modesto does ordain that Title 5, “Sanitation and Health,” Chapter 5, “Solid Waste” of the Modesto Municipal Code is replaced as follows:
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TITLE 5 - SANITATION AND HEALTH
Chapter 5- SOLID WASTE
Article 1. Solid Waste
5-5.101 Declaration of Policy.
The accumulation, collection, removal and disposal of solid waste must be controlled by the City for the protection of the public health, safety and welfare. The Council finds that to give effect to this policy, a comprehensive system for the periodic collection, removal and disposal of solid waste from all premises in the City is essential and benefits all occupants of premises in the City, and, therefore, all such occupants are required to provide for removal or collection of solid waste from all premises in the City in accordance with the provisions of this chapter. 5-5.102 Penalty Provisions.
A violation of any provision of this chapter shall be punishable as an infraction as set forth in Section 1-2.01 of this Code, except where provisions of this chapter specifically make such violation a misdemeanor.
5-5.103 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:
(a) "AB 341" means Assembly Bill 341 of 2011 approved by the Governor of the State of California on October 5, 2011, which amended Sections 41730, 41731, 41734, 41735, 41736, 41800, 42926, 44004, and 50001 of, and added Sections 40004, 41734.5, and 41780.01 and Chapter 12.8 (commencing with Section 42649) to Part 3 of Division 30 of, and added and repealed Section 41780.02 of, the Public Resources Code, as amended, supplemented, superseded and replaced from time to time.
a) "AB 1826" means Assembly Bill 1826 of 2014 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, as amended, supplemented, superseded, and replaced from time to time. (b) "Administrative Citation" means a document issued by an enforcement officer to a person violating the provisions of Modesto Municipal Code or applicable state codes. (c) "Annexation" means the legal process of including new territory within the incorporated boundaries of the City.
(d) “Backhaul” means generating and transporting organic waste to a destination owned and operated by the generator using the generator’s own employees and equipment. (e) "Black container" means the container used for the purpose of storage and collection of Garbage.
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(f) “Blue Container’ means the container used for the purpose of storage and collection of source separated recyclable materials.
(g) "Bulky items" means discarded: furniture; carpets; mattresses; household appliances including refrigerators, ranges, washers, dryers, water heaters, and dishwashers and other similar items (commonly known as "white goods");
i. Bulky items does not include electronic equipment such as stereos, televisions, computers, and VCRs and other similar items (commonly known as "brown goods"); clothing; tires; and any motor vehicle or any subassembly, component or part thereof.
(h) “Bulky Item Collection Program” means a program for customers of residential and multifamily units to participate twice annually by appointment in the collection of Bulky Items (i) "CalRecycle" means California's Department of Resources Recycling and Recovery, which is the Department designated with responsibility for developing, implementing, and enforcing SB 1383 Regulations.
(j) "California Code of Regulations" or "CCR" means the State of California Code of Regulations. CCR references in this ordinance are preceded with a number that refers to the relevant Title of the CCR (e.g., "14 CCR" refers to Title 14 of CCR). (k) "Cannery or food processing waste" means the solid residues resulting from canning/food processing operations, which is segregated by the generator and which is collected for reuse. (l) “Cart” means a wheeled container provided by the hauler and intended for automated solid waste collection, which is a type approved by the CITY and has a capacity of 96 gallons with an attached, tight-fitting lid.
(m)"Collection" means the collection and transport of solid waste. (n) "Collection routes" means streets or areas designated for collection on a particular day/schedule.
(o) "Collection vehicle" means any vehicle used by the collector for the collection of solid waste. (p) "Collector" or “Hauler” means a person or firm authorized by a valid service agreement with the City of Modesto to collect solid waste within the City limits. (q) "Commercial" or “Commercial Business” means occurring in a business zone. means a firm, partnership, proprietorship, joint-stock company, corporation, or association, whether forprofit or nonprofit, strip mall, industrial facility, or a multifamily residential dwelling with 5 or more units, or as otherwise defined in 14 CCR Section 18982(a)(6). (r) "Commercial Edible Food Generator" includes a Tier One or a Tier Two Commercial Edible Food Generator as defined herein or as otherwise defined in 14 CCR Section 18982(a)(73) and (a)(74). For the purposes of this definition, Food Recovery Organizations and Food Recovery Services are not Commercial Edible Food Generators pursuant to 14 CCR Section 18982(a)(7).
(s) "Commercial Waste Generator" means a business subject to subdivision (a) of Section 42649.2 of the Public Resources Code.
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(t) "Compliance Review" means a review of records by the City to determine compliance with this ordinance.
(u) "Community Composting" means any activity that composts green material, agricultural material, food material, and vegetative food material, alone or in combination, and the total amount of feedstock and Compost on-site at any one time does not exceed 100 cubic yards and 750 square feet, as specified in 14 CCR Section 17855(a)(4); or, as otherwise defined by 14 CCR Section 18982(a)(8).
(v) "Compost" has the same meaning as in 14 CCR Section 17896.2(a)(4), which stated, as of the effective date of this ordinance, that "Compost" means the product resulting from the controlled biological decomposition of organic solid wastes that are source separated from the municipal solid waste stream, or which are separated at a centralized facility. (w)"C&D" means construction and demolition debris.
ii. Recyclable and non-recyclable waste building materials, packaging and rubble resulting solely from construction, remodeling, repair and demotion operations on any house, residential property, commercial building, pavement or other structure for which the City requires a building or demolition permit issue.
iii. Rock, concrete, asphalt and dirt.
iv. Construction and Demolition Debris may include materials that have been Source Separated.
(x) "Construction and demolition sites" means sites where construction or demolition activities are taking place.
(y) "Container Contamination" or "Contaminated Container" means a container, regardless of color, that contains Prohibited Container Contaminants, or as otherwise defined in 14 CCR Section 18982(a)(55).
(z) "Customer" means any person, firm or corporation receiving service under the provisions of this chapter.
(aa) "Designee" means an entity that the City contracts with or otherwise arranges to carry out any of the City's responsibilities of this ordinance as authorized in 14 CCR Section 18981.2.
A designee may be a government entity, a hauler, a private entity, or a combination of those entities.
(bb) "Designated collection location" means Any container designated by posted signs, marked or labeled as a container for a specified material type. And any place where an authorized collector has contracted to collect Solid Waste or material segregated from other waste material, including the curbside of a Residential Premises or the service alley of a Commercial Business.
(cc) Designated recycling collection location" means the location where an authorized recycling collector has agreed with a customer to pick up segregated recyclable materials as approved by the Public Works Director.
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(dd) "Bin" means a container, watertight and with a cover, designed for direct dumping into a collection vehicle, and constructed in standard sizes with a minimum of one (1) cubic yard in capacity, as approved by the Public Works Director, and furnished by a collector. (ee) "Disposal" means the final disposition of solid waste at a solid waste facility. (ff) "Drop box container" means a metal box designed for loading upon a vehicle for transportation to a solid waste facility, with a minimum of ten (10) cubic yards' capacity, of a design approved by the Public Works Director, and furnished by a collector. (gg) "Edible Food" means food intended for human consumption, or as otherwise defined in 14 CCR Section 18982(a)(18). For the purposes of this ordinance or as otherwise defined in 14 CCR Section 18982(a)(18), "Edible Food" is not Solid Waste if it is recovered and not discarded. Nothing in this ordinance or in 14 CCR, Division 7, Chapter 12 requires or authorizes the recovery of edible food that does not meet the food safety requirements of the California Retail Food Code.
(hh) "Enforcement Action" means an action of the City to address non-compliance with this ordinance including, but not limited to, issuing administrative citations, fines, penalties, or using other remedies.
(ii) "Excluded Waste" means hazardous substance, hazardous waste, infectious waste, designated waste, volatile, corrosive, medical waste, infectious, regulated radioactive waste, and toxic substances or material that facility operator(s), which receive materials from the City and its generators, reasonably believe(s) would, as a result of or upon acceptance, transfer, processing, or disposal, be a violation of local, State, or Federal law, regulation, or ordinance, including: land use restrictions or conditions, waste that cannot be disposed of in Class III landfills or accepted at the facility by permit conditions, waste that in City's, or its designee's reasonable opinion would present a significant risk to human health or the environment, cause a nuisance or otherwise create or expose City, or its designee, to potential liability; but not including de minimis volumes or concentrations of waste of a type and amount normally found in single-family or multi-family solid waste after implementation of programs for the safe collection, processing, recycling, treatment, and disposal of batteries and paint in compliance with Sections 41500 and 41802 of the California Public Resources Code. (jj) "Exclusive Service Agreement" means an agreement held by the City for the collection of commercial and residential garbage/recyclables and containerized organic waste. As of the effective date of this ordinance, the City holds exclusive service agreements with Bertolotti Disposal Service and Gilton Solid Waste Management.
(kk) "Finance Director" means the Finance Director of the City of Modesto or his/her designee.
(ll) "Food Distributor" means a company that distributes food to entities including, but not limited to, supermarkets and grocery stores, or as otherwise defined in 14 CCR Section 18982(a)(22).
(mm) "Food Facility" has the same meaning as in Section 113789 of the Health and Safety Code.
(nn) "Food Recovery" means actions to collect and distribute food for human consumption that otherwise would be disposed, or as otherwise defined in 14 CCR Section 18982(a)(24). #23..
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(oo) "Food Recovery Organization" means an entity that engages in the collection or receipt of edible food from commercial edible food generators and distributes that edible food to the public for food recovery either directly or through other entities or as otherwise defined in 14 CCR Section 18982(a)(25), including, but not limited to:
v. A food bank as defined in Section 113783 of the Health and Safety Code; vi. A nonprofit charitable organization as defined in Section 113841 of the Health and Safety code; and,
vii. A nonprofit charitable temporary food facility as defined in Section 113842 of the Health and Safety Code.
b. A food recovery organization is not a commercial edible food generator for the purposes of this ordinance and implementation of 14 CCR, Division 7, Chapter 12 pursuant to 14 CCR Section 18982(a)(7). If the definition in 14 CCR Section 18982(a)(25) for Food Recovery Organization differs from this definition, the definition in 14 CCR Section 18982(a)(25) shall apply to this ordinance. (pp) "Food Recovery Service" means a person or entity that collects and transports edible food from a commercial edible food generator to a food recovery organization or other entities for food recovery, or as otherwise defined in 14 CCR Section 18982(a)(26). A food recovery service is not a commercial edible food generator for the purposes of this ordinance and implementation of 14 CCR, Division 7, Chapter 12 pursuant to 14 CCR Section 18982(a)(7). (qq) "Food Scraps" means all food such as, but not limited to, fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese, and eggshells. Food Scraps excludes fats, oils, and grease when such materials are source separated from other food scraps.
(rr) "Food-Soiled Paper" is compostable paper material that has come in contact with food or liquid, such as, but not limited to, compostable paper plates, paper coffee cups, napkins, pizza boxes, and milk cartons.
(ss)"Food Waste" means food scraps and food-soiled paper. (tt) "Garbage" means any solid, semisolid, cooking oil, non-organic garbage, diapers and soiled bathroom tissue, animal feces, animal litter and bedding, feminine hygiene products, plastic bags, styrofoam, or contained gaseous discarded material that is not excluded by this chapter or by regulations adopted pursuant to this chapter. Garbage does not include materials that are separated and set aside for Recycling or Composting and does not include Hazardous Material.
b) “Green container" means the container used for the purpose of storage and collection of source separated organic waste.
c) "Hauler Route" means the designated itinerary or sequence of stops for each segment of the City's collection service area, or as otherwise defined in 14 CCR Section 18982(a)(31.5).
d) "Hazardous materials, Hazardous substance or hazardous wastes" means all substances defined as hazardous waste, acutely hazardous waste, or extremely hazardous waste by the State of California in the Health and Safety Codes or in #23..
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future amendments to or recodifications of such statutes, or identified and listed as hazardous waste by the U.S. Environmental Protection Agency pursuant to the Federal Resource Conservation and Recovery Act and all future amendments thereto.
e) "Household hazardous waste" means hazardous waste generated at a residential location within the City. It includes but not limited to, leftover household products that can catch fire, react, or explode under certain circumstances, or that are corrosive or toxic as household hazardous waste. Products, such as paints, cleaners, oils, batteries, and pesticides can contain hazardous ingredients and require special care when you dispose of them.
f) "Illegal dumping" means the willful, intentional or negligent depositing, throwing, dropping, placing or dumping of solid waste or hazardous materials on public or private property that is not expressly designated for the purpose of disposal or dumping of solid or hazardous materials. "Illegal dumping" does not include littering, discarding or dropping small quantities of solid waste ordinarily carried on or about the person, or escaping from trash containers or garbage carts including but not limited to, beverage containers and closures, packaging, wrappers, wastepaper, newspapers and magazines.
g) "Industrial areas" means areas which are zoned industrial by the City's Zoning Code as defined in Title 10 of the Modesto Municipal Code.
h) "Industrial waste" means solid waste produced by any person, firm or corporation engaged in the business of processing or manufacturing agricultural products, animals, poultry, goods, wares or other products or materials, who processes or manufactures the same for the purpose of wholesale in processed or manufactured form, and shall include cannery/food processing waste. Industrial garbage also means garbage produced by any person, firm or corporation engaged in the business of building construction and/or building demolition.
i) "Industrial waste collector" means an agent or employee of the City, or any person, or the employees thereof, with whom an agreement shall have been entered under the terms of this chapter for the collection of industrial waste. j) "Initial term and any extensions" means the term of a service agreement and any extensions beyond that time period as established by the City Council. k) "Inspection" means a site visit where the City reviews records, containers, and an entity's collection, handling, recycling, or landfill disposal of organic waste or edible food handling to determine if the entity is complying with requirements set forth in this ordinance, or as otherwise defined in 14 CCR Section 18982(a)(35). l) "City" means the City of Modesto.
m) "Enforcement Official" means the City Manager, Public Works Director, or their authorized designee(s) who is/are responsible for enforcing the ordinance. n) "Local Education Agency" means a school district, charter school, or county office of education that is not subject to the control of city or county regulations related to Solid Waste, or as otherwise defined in 14 CCR Section 18982(a)(40). #23..
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o) "Large green waste" means shrubbery, brush, tree limbs, tree branches, tree trimmings and similar material, excluding tree limbs larger than six (6) feet in length or six (6) inches in diameter, and any single piece of large green waste weighing more than fifty (50) pounds.
p) “Litter” means all solid waste which has been improperly discarded or which has migrated by wind or equipment away from the operations area. Litter includes, but is not limited to, convenience food, beverage, and other product packages or containers constructed of steel, aluminum, glass, paper, plastic, and other natural and synthetic materials, thrown or deposited on the lands and waters of the state. q) "Multi-Family Residential Dwelling" or "Multi-Family" means of, from, or pertaining to residential premises with five (5) or more dwelling units. Multi-family premises do not include hotels, motels, or other transient occupancy facilities, which are considered commercial businesses.
r) "Non-Organic Recyclables" means non-putrescible and non-hazardous recyclable wastes including but not limited to bottles, cans, metals, plastics and glass, or as otherwise defined in 14 CCR Section 18982(a)(43).
s) "Notice of Violation (NOV)" means a notice that a violation has occurred that includes a compliance date to avoid an action to seek penalties, or as otherwise defined in 14 CCR Section 18982(a)(45) or further explained in 14 CCR Section 18995.4. and Title 5 Chapter 5 of the Modesto Municipal Code. t) "Organic container" means an organic container to be used for the source separation, storage and collection of small green waste and organic waste. u) Organic waste" means solid wastes containing material originated from living organisms and their metabolic waste products including, but not limited to, inedible food, small green waste, and pruning waste, lumber, wood, paper products, printing and writing paper, and cardboard.
v) “Organic waste disposal reduction target” is the statewide target to reduce the disposal of organic waste by 75 percent by 2025, based on the 2014 organic waste disposal baseline, set forth in Section 39730.6 of the Health and Safety Code. w) "Organic waste generator" means a person or entity that is responsible for the initial creation of organic waste, or as otherwise defined in 14 CCR Section 18982(a)(48). x) "Paper Products" include, but are not limited to, paper janitorial supplies, cartons, wrapping, packaging, file folders, hanging files, corrugated boxes, tissue, and toweling, or as otherwise defined in 14 CCR Section 18982(a)(51). y) "Place" or "Premises" means every dwelling house, dwelling unit, multiple-dwelling building, trailer or mobile home park, store, restaurant, rooming house, hotel, motel, hospital, office building, department store; manufacturing, processing or assembling shop or plant; warehouse; and every other property or building where any person resides or any business or activity is carried on or conducted within the City of Modesto.
z) "Printing and Writing Papers" include, but are not limited to, copy, xerographic, watermark, offset, forms, computer printout paper, white wove envelopes, manila #23..
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envelopes, book paper, note pads, writing tablets, newsprint, and other uncoated writing papers, posters, index cards, calendars, brochures, reports, magazines, and publications, or as otherwise defined in 14 CCR Section 18982(a)(54). aa) "Prohibited Container Contaminants" means the following:
(a) Discarded materials placed in an organic container that are not identified as acceptable source separated organic waste for the City's green container organic container.
(b) Discarded materials placed in the black container that are identified as acceptable source separated green container organic waste or blue container recycling waste. (c) Discarded materials placed in the blue container that are not identified as acceptable source separated recyclable materials for the blue container recycling waste.
(d) Excluded waste as defined in 5-11.102(p) placed in any container. bb) "Property value" means a worth to the extent that a person will collect the materials involved with compensation to the owner or producer, or at no cost to the owner or producer.
cc) "Public Works Director" means the Public Works Director of the City of Modesto and/or their duly authorized agent.
dd) "Recovered organic waste products" means products made from California, landfilldiverted recovered organic waste processed at a permitted or otherwise authorized facility, or as otherwise defined in 14 CCR Section 18982(a)(60). ee) "Recovery" means any activity or process described in 14 CCR Section 18983.1(b), or as otherwise defined in 14 CCR Section 18982(a)(49). ff) “Recyclables” means domestic, commercial or industrial materials which are segregated from other waste material. Recyclables are by-products which may have an economic value if recycled, which may be source separated, set aside, handled, packaged or offered for collection by the residence/business. Recyclables include, but are not limited to, glass, clean cardboard, plastics, metal, bi-metal, aluminum, and other materials.
gg) "Recycled-Content Paper" means paper products and printing and writing paper that consists of at least 30 percent, by fiber weight, postconsumer fiber, or as otherwise defined in 14 CCR Section 18982(a)(61).
hh) "Recycling" means the process of collecting, sorting, cleansing, treating, reconstituting, and/or marketing recyclable materials which would otherwise be disposed of in a landfill. The collection, transport or disposal of Solid waste which is not intended for, or capable of being, reused, shall not be construed to be Recycling. ii) "Recycling center" means a facility or site which accepts segregated or commingled recyclable materials for the purpose of recycling and shall include a facility or site established pursuant to the California Beverage Container Recycling and Litter Reduction Act, California Public Resources Code, Section 14500 et seq. #23..
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In order to be a recycling center, the facility or site must be in conformance with all applicable federal, state and local laws and regulations. jj) "Recycling collector" means a person, firm, organization or company which the City has authorized to provide recycling service in the City. kk) "Recycling container" means any container provided by an authorized Collector to a Customer for the purpose of segregating recyclable materials for collection by collector. Recycling containers shall be clearly marked to indicate purpose and to warn that theft of the container, theft of its contents, or diversion for uses other than by the collector are punishable under this Code.
ll) "Removal" means transportation and disposal of Solid waste by noncustomers in accordance with the provisions of this chapter.
mm) "Residential premises" means any dwelling unit; the occupant of which places his/her solid waste in a standard container.
nn) "Route Review" means a visual inspection of containers along a Hauler Route for the purpose of determining container contamination and may include mechanical inspection methods such as the use of cameras, or as otherwise defined in 14 CCR Section 18982(a)(65).
oo) "Rubbish" means nonputrescible, useless, unused, unwanted or discarded material or debris, either compostable or noncompostable, which by their presence may injuriously affect the health, safety and comfort of persons and property in the vicinity thereof.
pp) "SB 1383" or “SB 1383 Regulations” or “SB 1383 Regulatory” means Senate Bill 1383 of 2016 approved by the Governor on September 19, 2016, which added Sections 39730.5, 39730.6, 39730.7, and 39730.8 to the Health and Safety Code, and added Chapter 13.1 (commencing with Section 42652) to Part 3 of Division 30 of the Public Resources Code, establishing methane emissions reduction targets in a Statewide effort to reduce emissions of short-lived climate pollutants as amended, supplemented, superseded, and replaced from time to time. qq) "Salvageable waste" means matter and material which will be reused and which has a property value.
rr) "Self-Hauler" means a person, who hauls solid waste, organic waste or recyclable material they have generated to a Transfer/processing station. Self-hauler also includes a person who back-hauls waste, or as otherwise defined in 14 CCR Section 18982(a)(66). Back-haul means generating and transporting organic waste to a destination owned and operated by the generator using the generator's own employees and equipment, or as otherwise defined in 14 CCR Section 18982(a)(66)(A).
ss) "Service area" means the area of the City to be served by a collector as described in the service agreement between City and Collector.
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tt) "Single-Family" or "Single-family dwelling" means of, from, or pertaining to any residential premises with fewer than five (5) units.
uu) "Small green waste" means leaves, weeds, grass clippings, vines, twigs and other similar soft vegetative materials, and woody prunings from trees no longer than two (2) foot length or six (6) inches in diameter, except that small green waste shall not include large green waste or leaves separated and set out for collection between November 1 and December 31 of each year pursuant to Article 11 of Chapter 7 of Title 4 of this Code.
vv) "Solid waste" means all putrescible and nonputrescible solid, semisolid and liquid waste accumulated or delivered for collection and disposal within the City and includes, but is not limited to, garbage, recycling, organics, rubbish, ashes, industrial wastes, demolitions and construction wastes and bulky waste. (a) Solid waste does not include:
(a) Hazardous waste, as defined in the California Public Resources Code Section 40141.
(b) Infectious waste fecal matter such as: blood, body fluids, sharps waste, and human specimens.
(c) Medical waste regulated pursuant to the State Medical Waste Management Act (Part 14 (commencing with Section 117600) of Division 104 of the State Health and Safety Code). Untreated medical waste shall not be disposed of in a solid waste landfill, as defined in State Public Resources Code Section 40195.1. Medical waste that has been treated and deemed to be solid waste shall be regulated pursuant to Division 30 of the State Public Resources Code.
(d) Radioactive waste regulated pursuant to the State Radiation Control Law (Chapter 8 (commencing with Section 114960) of Part 9 of Division 104 of the State Health and Safety Code).
(e) Recyclable materials when recycled
(f) Sewage
(g) Abandoned automobiles.
ww)"Solid Waste Enforcement Officer" means the Solid Waste Enforcement Officer of the City of Modesto.
xx) "Solid Waste Enforcement Supervisor" means the Solid Waste Enforcement Supervisor of the City of Modesto.
yy) “Solid Waste Enclosure” means a walled structure with a solid cover for the storage of Solid Waste with a drainage system connected to the sanitary sewer and wash system that are adequate to accommodate anticipated waste generated at the Premises.
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zz) “Solid Waste Room” means an enclosed and ventilated space with a drainage system connected to the sanitary sewer and wash system that are adequate to accommodate anticipated waste generated at the Premises.
aaa) “Source Separation” or “Source Separated” means materials, including commingled recyclable materials, that have been separated or kept separate from the Solid Waste stream, at the point of generation, for the purpose of additional sorting or processing those materials for recycling or reuse in order to return them to the economic mainstream in the form of raw material for new, reused, or reconstituted products, which meet the quality standards necessary to be used in the marketplace, or as otherwise defined in 14 CCR Section 17402.5(b)(4). For the purposes of the ordinance, Source Separated shall include separation of materials by the generator, property owner, property owner’s employee, property manager, or property manager’s employee into different containers for the purpose of collection such that Source Separated materials are separated from Black Container Waste/Mixed Waste or other Solid Waste for the purposes of collection and processing. bbb) “Source Separated Blue Container for Recyclables” means Source Separated Recycling that is intended for the separate collection of recycling by the generator, excluding Organic Waste and garbage.
ccc) “Source Separated Green Container for Organic Waste” means Source Separated Organic Waste that can be placed in a Green Container that is specifically intended for the separate collection of Organic Waste by the generator, excluding Source Separated recyclables, garbage, carpets, and textiles.
ddd) “Source Separated Recyclable Materials” means Source Separated Non-Organic Recyclables and Source Separated Blue Container Organic Waste. eee) "Standard container" means a black , blue or, green, plastic cart, watertight and with a close-fitting cover, of not more than ninety (90) gallons' net capacity of a design satisfactory to the Public Works Director, or such other disposal unit approved by the Public Works Director, and supplied by the solid waste collector to its residential and commercial customers. The Public Works Director shall make the determination of what size container a residential and commercial customer receive. fff) "State" means the State of California.
ggg) "Swill" means all classes of putrescible, animal, fish, fowl, fruit or vegetable matter, and shall include matter or substances used in the preparation, cooking, dealing in or storage of meats, fowl, fish, fruits and vegetables that are subject to immediate decay and the attraction of flies or rodents, and having a property value. hhh) "Swill collector" means an agent or employee of the City, or any person, or the agents, assignees, or employees thereof, with whom an agreement shall have been entered under the terms of this chapter for the collection of swill. iii) "Tier One Commercial Edible Food Generator" means a commercial edible food generator that is one of the following:
1) Supermarkets with a full-line, self-service retail store with gross annual sales of two million dollars ($2,000,000), or more, and which sells a line of dry #23..
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grocery, canned goods, or nonfood items and some perishable items, or as otherwise defined in 14 CCR Section 18982(a)(71).
2) Grocery stores with a total facility size equal to or greater than ten thousand (10,000) square feet defined as a store primarily engaged in the retail sale of canned food; dry goods; fresh fruits and vegetables; fresh meats, fish, and poultry; and any area that is not separately owned within the store where the food is prepared and served, including a bakery, deli, and meat and seafood departments, or as otherwise defined in 14 CCR Section 18982(a)(30). 3) Food service provider defined as an entity primarily engaged in providing food services to institutional, governmental, commercial, or industrial locations of others based on contractual arrangements with these types of organizations, or as otherwise defined in 14 CCR Section 18982(a)(27). 4) Food distributor defined as a company that distributes food to entities including, but not limited to, supermarkets and grocery stores, or as otherwise defined in 14 CCR Section 18982(a)(22).
5) Wholesale food vendor defined as a business or establishment engaged in the merchant wholesale distribution of food, where food (including fruits and vegetables) is received, shipped, stored, prepared for distribution to a retailer, warehouse, distributor, or other destination, or as otherwise defined in 14 CCR Section 189852(a)(76).
jjj) "Tier Two Commercial Edible Food Generator" means a commercial edible food generator that is one of the following:
(a) Restaurant with two hundred fifty (250) or more seats, or a total facility size equal to or greater than five thousand (5,000) square feet. (b) Hotel with an on-site food facility and two hundred (200) or more rooms. (c) Health facility with an on-site food facility and one hundred (100) or more beds.
(d) Large venue defined as a permanent venue facility that annually seats or serves an average of more than two thousand (2,000) individuals within the grounds of the facility per day of operation of the venue facility. For purposes of this ordinance and implementation of 14 CCR, Division 7, Chapter 12, a venue facility includes, but is not limited to, a public, nonprofit, or privately owned or operated stadium, amphitheater, arena, hall, amusement park, conference or civic center, zoo, aquarium, airport, racetrack, horse track, performing arts center, fairground, museum, theater, or other public attraction facility. For purposes of this ordinance and implementation of 14 CCR, Division 7, Chapter 12, a site under common ownership or control that includes more than one (1) large venue that is contiguous with other large venues in the site, is a single large venue. If the definition in 14 CCR Section 18982(a)(39) differs from this definition, the definition in 14 CCR Section 18982(a)(39) shall apply to this ordinance.
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(e) Large event defined as an event, including, but not limited to, a sporting event or a flea market, that charges an admission price, or is operated by a local agency, and serves an average of more than two thousand (2,000) individuals per day of operation of the event, at a location that includes, but is not limited to, a public, nonprofit, or privately owned park, parking lot, golf course, street system, or other open space when being used for an event. If the definition in 14 CCR Section 18982(a)(38) differs from this definition, the definition in 14 CCR Section 18982(a)(38) shall apply to this ordinance. (f) A State agency with a cafeteria with two hundred fifty (250) or more seats or total cafeteria facility size equal to or greater than five thousand (5,000) square feet.
(g) A local education agency facility with an on-site food facility.
If the definition in 14 CCR Section 18982(a)(74) of Tier Two Commercial Edible Food Generator differs from this definition, the definition in 14 CCR Section 18982(a)(74) shall apply to this ordinance.
kkk) "Term" means the length of an agreement entered under the terms of this chapter. lll) "Transfer/processing station" means a facility or site where solid wastes are transferred from hauling vehicles to transfer vehicles and the solid waste or a portion thereof may undergo incidental processing, recycling or further handling before transport to a disposal facility or other waste handling facility, and includes a facility or site where solid wastes are subject to processing operations involving reduction, separation, resource recovery or conversion. The facility or site is operating pursuant to a solid waste facility permit issued pursuant to Chapter 3 of Part 4 of Division 30 of the California Public Resources Code; and the facility or site is in conformance with all applicable federal, state and local laws and regulations including without limitation the applicable provisions of the Modesto Zoning Code contained in Modesto Municipal Code.
5-5.104 Responsibility for compliance.
The primary responsibility for proper handling of solid waste generated or accumulated on any premises shall be on the generator of the solid waste. Should the generator refuse, neglect or fail to provide for the proper handling of solid waste in accordance with this chapter, the owner of the premises within or upon which the solid waste has been generated or accumulated shall provide for proper handling of the solid waste in accordance with the provisions of this chapter. 5-5.105 Segregation and Disposition of Solid Waste Materials.
Every producer of solid waste must segregate garbage, recycling, and organics ,industrial garbage, rubbish, and/or swill, and dispose of the materials as provided in this chapter. 5-5.106 Illegal Dumping, Depositing or Burying Solid Waste. (a) It is unlawful and shall constitute an abatable nuisance for any person to place garbage, recycling, organic waste, large green waste, small green waste, hazardous waste, and bulky #23..
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items as defined in Sections 5-5.103(tt) 5-5.103 (aaaa), 5-5.103 (nnn), 5-5.103(hhh), 5-
5.103(nnnn), 5-5.103(ww), and 5-5.103(g), upon any public property or private property without the consent of the property owner, unless approved by the Public Works Director.
This section does not apply to:
a. customers participating in the Bulky Item Collection Program as defined in Section 5-
5.103(h)
b. customers participating in the green waste and leaf collection as defined in Title 4, Chapter 7, Article 11 of the Modesto Municipal Code.
c. garbage, green waste, recycling, organic waste or hazardous waste dropped off at a permitted solid waste or composting facility approved for such use. d. Intent to remove the garbage, recycling organic waste or hazardous waste shall not constitute a defense to this offense.
(b) It is unlawful for any person to place hazardous waste as defined in Section 5-5.103(ww), into any waste container, street, alley or public right-of-way. (c) It is unlawful for any person to place garbage, recycling, organics, large green waste, small green waste, or hazardous waste as defined in Sections 5-5.103 (tt), 5-5.103(aaaa), 5-
5.103(nnn), 5-5.103(hhh), 5-5.103(nnnn), and 5-5.103(ww), into any garbage, recycling, or organic container without the permission or consent of the person owning, renting or having legal control of that container.
(d) Persons operating leaf blowers are to ensure that leaves, dirt and other debris are not blown onto public properties or public-right-of-way. All leaves, dirt and other debris generated by the leaf blower shall be removed and deposited into the appropriate containers. (e) The penalty for failure to comply with Section 5-5.106 is as follows:
a. One thousand dollars ($1,000.00) for the first violation b. Fifteen hundred dollars ($1,500.00) for a second violation within a twelve (12) month period of the first violation; and
c. Two thousand dollars ($2,000.00) for a third violation within a twelve (12) month period of the second violation, and for each successive violation within the same twelve (12) month period.
5-5.107 Explosives or Hazardous Materials.
No person shall deposit in any container used for solid waste, any explosive, highly flammable, radioactive or otherwise hazardous material or substance. A violation of this section shall be punishable as a misdemeanor or administrative fine. The penalty for failure to comply with Section 5-5.107 is as follows:
a. One thousand dollars ($1,000.00) plus the cost of disposal for the first violation b. Fifteen hundred dollars ($1,500.00) plus the cost of disposal for a second violation within a twelve (12) month period of the first violation; and c. Two thousand dollars ($2,000.00) plus the cost of disposal for a third violation within a twelve (12) month period of the second violation, and for each successive violation within the same twelve (12) month period.
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5-5.108 Accumulation of Garbage, Recycling, or Organic Waste Every person occupying premises, every owner of any property, and every owner of multiple-dwelling buildings shall keep the same in a clean and sanitary condition, and shall not cause, suffer, or permit any garbage, recycling, or organic waste to accumulate on such premises or property for a period in excess of two (2) calendar weeks; or cause, suffer, or permit any rubbish to accumulate on their premises for a period in excess of one (1) calendar month; provided, however, that this provision shall not be construed to prohibit any person from keeping building materials on any premises or property during the period of active construction, reconstruction, or repair of a building or structure thereon under a current valid building permit; nor the neat storage of clean recyclables intended to be taken by the occupant to a recycling center, nor the keeping of wood, neatly piled, upon such premises for household use; nor the composting of grass or trimmings in a manner allowed pursuant to the Composting Regulations of the State of California. 5-5.109 Garbage, Recycling, Organic Waste, and Swill Collection Requirements.
1. Collection or removal of garbage, recycling, and organic waste shall be made at least every other week
2. Collection of swill shall be made daily.
3. Collectors shall transfer the contents of all containers into the correct collection vehicle provided therefore without spilling any contents.
5-5.110 Containers Required.
(1) It shall be unlawful for any person occupying any premises within the City, or for any person, controlling or maintaining any premises within the City where solid waste is generated, produced, or accumulated, to fail or neglect to provide a sufficient number of each approved type of standard containers for receiving and holding, without leakage or escape of odors, all solid waste produced, generated, or accumulated upon such premises, except as hereinafter provided; and all such persons shall deposit all such solid waste in the correct containers, and all such containers shall be at all times kept in a good, usable and sanitary condition.
(2) Containers shall be kept continuously closed except when solid waste is being placed therein or removed therefrom, and shall at all times be closed against the access of flies, rodents, animals, and odors to the contents thereof.
(3) It shall be unlawful for any person to place anything other than garbage and rubbish in a black container or detachable container used for garbage. (4) It shall be unlawful for any person to place anything other than recycling in a blue container or detachable container used for recycling.
(5) It shall be unlawful for any person to place anything other than small green waste or organic waste in a green container or detachable container used for organic waste. (6) No standard container shall exceed one hundred (100) pounds in weight when filled for collection or removal, except when detachable or drop box containers are used. 5-5.111 Number of Containers Required.
All places or premises within the City shall have sufficient containers of the approved type to hold all garbage, recycling and organic waste generated, produced or accumulated on the place or premises In #23..
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determining the sufficiency of the number of containers required, the following minimum standards shall apply.
(a) single family dwellings as defined in 5-5.103 (mmmm) :
a. one (1) black standard container per dwelling unit for garbage b. one (1) blue standard container per dwelling unit for recyclables c. one (1) green standard container per dwelling unit for organic waste d. Authorization for a lesser number may be authorized by the Public Works Director or his/her designee.
(b) Multi-Family Residential Dwelling as defined in 5-5.103(jjj) and Motel, hotel, trailer park, or mobile home park:
a. One (1) container per building equivalent to one (1) black standard container per dwelling unit for garbage
b. One (1) container per building equivalent to one (1) blue standard container per dwelling unit for recyclables,
c. One (1) container per building equivalent to one (1) green standard container per dwelling unit for small green waste and organic waste
d. Authorization for a lesser number may be authorized by the Public Works Director or his/her designee.
(c) Commercial place or business:
a. One (1) container per building equivalent to one (1) black standard container per dwelling unit for garbage
b. One (1) container per building equivalent to one (1) blue standard container per dwelling unit for recyclables,
c. One (1) container per building equivalent to one (1) green standard container per dwelling unit for small green waste and organic waste
d. Authorization for a lesser number of any container(s) may be authorized by the Public Works Director or his/her designee.
e. Customers responsible for solid waste removal or collection services for multiple-dwelling buildings, commercial and industrial places or premises may arrange for the use of bins and/or drop box containers instead of standard containers. These arrangements shall be made with the collector on the basis of charges established for this purpose.
5-5.112 Shared Solid Waste Containers- Contract required. a) No person shall store Residential Solid Waste on any Premises other than the Residential Premises where the Residential Solid Waste was generated except in accordance with a contract issued pursuant to this Section.
b) No person shall collect Garbage, Organics, or Recyclables from a container shared by two (2) or more Multi-Family Dwelling units unless the Public Works Director has issued #23..
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a contract pursuant to this Section authorizing the Residential Premises to share that container.
c) The Public Works Director may issue a contract to authorize two (2) neighboring households to share Garbage, Organic, and Recyclable containers if all of the following conditions are satisfied:
a. The Owners of the adjacent residential property, or the Owners' agents, apply to the Director, in writing, for a contract to share Garbage, Organic, and recyclables containers.
b. The application for the contract includes a written statement signed by the responsible party of each of the affected households, or the Owner's agents, designating which of the responsible parties will assume full responsibility for the payment of all charges for Solid Waste collection services made available to the affected household, designating which of the responsible party shall be responsible for the maintenance of the containers and the area in which the containers are placed, and designating, by address and assessor's parcel number, which of the affected households shall be subject to the special assessment procedures.
c. The Director has determined that placement of Garbage, Organics, and Recyclable Materials in the shared containers can be accomplished without transporting the Garbage, Organics, or Recyclable Materials on or across any public street (excluding alleys between the affected Premises). d. The Director has determined that space constraints at the households makes it difficult to site Garbage, Organic Materials, or Recyclables containers in such numbers and such sizes as will accommodate the volume of Garbage, Organic Materials, or Recyclable Material generated at the Premises. e. The Director has determined that the level of service is sufficient to sustain the number of people residing at the household.
f. The Director has determined that there is a financial hardship of the non-billed customer.
g. The accounts requesting the shared service are in good standing with the City and Haulers.
d) No person shall store Commercial Solid Waste on any Premises other than the Commercial Premises where the Commercial Solid Waste was generated except in accordance with a contract issued pursuant to this Section. e) The Public Works Director may issue a contract to authorize up to four (4) neighboring commercial businesses to share Garbage, Organic, and Recyclable containers if all of the following conditions are satisfied:
a. The Owners of the adjacent Commercial Business, or the Owners' agents, apply to the Director, in writing, for a contract to share Garbage, Organic, and recyclables containers.
b. The application for the contract includes a written statement signed by the responsible party of each of the affected commercial business, or the Owner's agents, designating which of the responsible parties will assume full responsibility for the payment of all charges for Solid Waste collection services made available to the affected commercial business, designating which of the responsible party shall be responsible for the maintenance of the containers and the area in which #23..
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the containers are placed, and designating, by address and assessor's parcel number, which of the affected commercial business shall be subject to the special assessment procedures.
c. The Director has determined that placement of Garbage, Organics, and Recyclable Materials in the shared containers can be accomplished without transporting the Garbage, Organics, or Recyclable Materials on or across any public street (excluding alleys between the affected Premises). d. The Director has determined that space constraints at the commercial business makes it difficult to site Garbage, Organic Materials, or Recyclables containers in such numbers and such sizes as will accommodate the volume of Garbage, Organic Materials, or Recyclable Material generated at the Premises. e. The Director has determined that the level of service is sufficient to sustain the size of the commercial business.
f. The Director has determined that there is a financial hardship of the non-billed customer.
g. The accounts requesting the shared service are in good standing with the City and Haulers.
f) The Director may impose conditions on the contract issued pursuant to subsection a. or subsection b., as determined by the Director to be consistent with the purposes and provisions of this Chapter. Such conditions may include, but are not limited to, restrictions on the number of containers, restrictions on the size or capacity of containers, and restrictions on the placement of the containers.
g) Upon written notice to the Owners of the dwellings or commercial businesses, or to the Owners' agents, the Director may revoke any contract to share Garbage, Organics, Recyclables containers given pursuant to subsection a. or b. above if the Director finds any of the following conditions exists:
a. The ownership of any of the affected Dwellings has changed. b. The space constraints which made it difficult to site Garbage, Organics, Recyclables containers sufficient to accommodate the volume of Garbage, Organics, and Recyclables generated at the Residential Premises no longer exist. c. The sharing of containers is not in conformance with the conditions of the contract.
d. The bill for collection services made available at the Premises remains delinquent for more than ninety (90) days.
e. The Solid Waste generated or accumulated on any of the Premises is not handled in conformance with the requirements of this Chapter or applicable law. 5-5.113 Enclosures required.
a) All Solid Waste, Recyclable, or Organics produced on a Commercial Premises, or MultiFamily Dwellings with a Solid Waste Enclosure or Solid Waste Room shall be stored in the Solid Waste Enclosure or Solid Waste Room when such material is not set out for collection by an authorized Collector.
b) All Commercial Premises, or Multi-Family Dwellings constructed, enlarged, or structurally altered after January 1, 2023 shall have a Solid Waste Enclosure or Solid Waste Room. For the purposes of this Section, "structurally altered" means any change in the supporting members of a building, such as bearing walls, columns, beams, or girders.
The Director may grant waiver to this requirement.
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c) The development permit application shall show the proposed path of travel for the authorized collector to access a Solid Waste Enclosure, Solid Waste Room, or the material generated at the Premises when set out for collection. The path of travel must accommodate the required width, turning radius, and overhead clearances of the collector's vehicle. The Director may require alterations to the development application to accommodate the travel and collection activities conducted by a collector vehicle. d) The development permit application shall show the Solid Waste Enclosure or Solid Waste Room shall have sufficient capacity to accommodate containers for, at a minimum, Garbage, Recycling, and Organics Material, and containers shall be appropriately sized to accommodate the expected material that will be generated for the Commercial Premises at the proposed frequency of collection, which must be no less than allowed in Section 5-
5.113.
e) The enclosure(s) shall be secured to prevent unauthorized collection, tampering, and unlawful placement of garbage, organics, or recyclable materials, but must be accessible to collection personnel during herein before stated collection hours. Additional charges may be assessed, as determined by the solid waste collection company, for additional trips to service a previously locked enclosure.
f) Each development project, as that term is defined in Public Resources Code section 42905, for which an application for a building permit has been submitted after the effective date of this chapter, shall conform to the requirements of the model ordinance adopted by the California integrated waste management board and required by the California Solid Waste Reuse and Recycling Access Act of 1991. 5-5.114 Requirements for Single-Family Generators
Single-family generators shall comply with the following requirements except single-family generators that meet the self-hauler requirements in Section 5-5-130:
a) Shall subscribe the City’s Solid Waste collection system and shall source separate their waste as follows:
1) Generator shall place only garbage, and/or rubbish, in the black container. 2) Generator shall place only source separated organic waste in the green container. 3) Generator shall place only source separated recyclables in the blue container. b) It shall be unlawful to place anything other than the approved source separated material into a Black Container, Green Container, or Blue Container. c) City shall have the right to review the number and size of a generator's containers to evaluate adequacy of capacity provided for each type of collection service for proper separation of materials and containment of materials; and, single-family generators shall adjust its service level for its collection services as requested by the City.
Generators may additionally manage their organic waste by preventing or reducing their organic waste, managing organic waste on site, and/or using a community composting site pursuant to 14 CCR Section 18984.9(c). (Ord. No. 3740-C.S., § 2, effective 12-23-21) #23..
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5-5.115 Requirements for Commercial Businesses, Mobile Homes, Motels, Hotels and MultiFamily Dwelling Generators Generators that are commercial businesses shall:
(a) Subscribe to City's three (3) container collection services and comply with requirements of those services; except commercial businesses that meet the self-hauler requirements in Section 5-5.130 or granted a waiver from the public works director. a. City shall have the right to review the number and size of a generator's containers and frequency of collection to evaluate adequacy of capacity provided for each type of collection service for proper separation of materials and containment of materials; and, commercial businesses shall adjust their service level for their collection services as requested by the City. b. Generator shall place garbage in the container designated for garbage c. Generator shall place only source separated organic waste in the container designated for organic waste.
d. Generator shall place only source separated recyclables in the blue container. (b) Supply and allow access to adequate number, size and location of collection containers with sufficient labels or colors (conforming with subsections (d)(1) and (d)(2) below) for employees, contractors, tenants, and customers, consistent with City's black container, green container, and blue container collection service in accordance with Section 5-5.109 or, if self-hauling, per the commercial businesses' instructions to support its compliance with its self-haul program, in accordance with Section 5-5.130. (c) Excluding multi-family residential dwellings, provide containers for the collection of source separated containers in all indoor and outdoor areas where disposal containers are provided for customers, for materials generated by that business. Such containers do not need to be provided in restrooms. If a commercial business does not generate any of the materials that would be collected in one (1) type of container, then the business does not have to provide that particular container in all areas where disposal containers are provided for customers. Pursuant to 14 CCR Section 18984.9(b), the containers provided by the business shall have either:
(1) A body or lid that conforms with the container colors provided through the collection service provided by City, with either lids conforming to the color requirements or bodies conforming to the color requirements or both lids and bodies conforming to color requirements. A Commercial Business is not required to replace functional containers, including containers purchased prior to January 1, 2022, that do not comply with the requirements of the subsection prior to the end of the useful life of those containers, or prior to January 1, 2036, whichever comes first.
(2) Container labels that include language or graphic images, or both, indicating the primary material accepted and the primary materials prohibited in that container, or containers with imprinted text or graphic images that indicate the primary materials accepted and primary materials prohibited in the #23..
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container. Pursuant 14 CCR Section 18984.8, the container labeling requirements are required on new containers commencing January 1, 2022. (d) To the extent practical through education, training, Inspection, and/or other measures, prohibit employees and tenants from placing materials in a container not designated for those materials per the City's black container, green container and blue container collection service or, if self-hauling, per the Commercial Businesses' instructions to support its compliance with its self-haul program, in accordance with Section 5-5.130.
(e) All premises shall periodically inspect black container, green container and blue container for contamination and inform employees and tenants if containers are contaminated and of the requirements to keep contaminants out of those containers pursuant to 14 CCR Section 18984.9(b)(3).
(f) Annually provide information to employees, contractors, tenants, and customers about organic waste recovery requirements and about proper sorting of source separated black container, green container and blue container. (g) Provide City approved education information before or within fourteen (14) days of occupation of the premises to new tenants that describes requirements to keep source separated black container, green container and blue container and the location of containers and the rules governing their use at each property. (h) Provide or arrange access for City or its agent to their properties during all Inspections conducted in accordance with Section 5-5.150 of this ordinance to confirm compliance with the requirements of this ordinance.
(i) If a commercial business requests to self-haul, meet the Self-Hauler requirements in Section 5-5.130 of this ordinance.
(j) Nothing in this section prohibits a generator from preventing or reducing waste generation, managing organic waste on site, or using a Community Composting site pursuant to 14 CCR Section 18984.9(c).
(k) Commercial Businesses that are Tier One or Tier Two Commercial Edible Food Generators shall comply with Food Recovery requirements, pursuant to Section 5-
5.122.
5-5.116 Organic Waste Waivers for Commercial Business Generators. (a) De minimis waivers - City may waive a commercial business' obligation (including multifamily residential dwellings) to comply with some or all of the organic waste requirements of this ordinance if the Commercial Business provides documentation that the business generates below a certain amount of organic waste material as described below.
Commercial Businesses requesting a de minimis waiver shall:
a. Submit an application specifying the services that they are requesting a waiver from and provide documentation as noted below.
b. Provide documentation that either:
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i. The Commercial Business' total Solid Waste collection service is two cubic yards or more per week and organic waste subject to collection in a Green Container comprises less than 20 gallons per week per applicable container of the business' total waste; or, ii. The Commercial Business' total Solid Waste collection service is less than two cubic yards per week and organic waste subject to collection in a Green Container comprises less than 10 gallons per week per applicable container of the business' total waste. c. Notify City if circumstances change such that Commercial Business's organic waste exceeds threshold required for waiver, in which case waiver will be rescinded. d. Provide written verification of eligibility for de minimis waiver every five years, if City has approved de minimis waiver.
(b) Physical Space Waivers - City may waive a Commercial Business' or property owner's obligations (including Multi-Family Residential Dwellings) to comply with some or all of the organic waste collection service requirements if the City has evidence from its own staff, a hauler, licensed architect, or licensed engineer demonstrating that the premises lacks adequate space for the collection containers required for compliance with the organic waste collection requirements.
A Commercial Business or property owner may request a physical space waiver through the following process:
a. Submit an application form specifying the type(s) of collection services for which they are requesting a compliance waiver.
b. Provide documentation that the premises lacks adequate space for Green Containers including documentation from its hauler, licensed architect, or licensed engineer.
c. Provide written verification to City that it is still eligible for physical space waiver every five (5) years, if City has approved application for a physical space waiver. d. Review and Approval of Waivers will be completed by the Public Works Director and/or their designated agent.
5-5.117 Recycling Waste Waivers for Commercial Business Generators. a) City may waive a commercial business' obligation (including multi-family residential dwellings) to comply with some or all of the recycling waste requirements of this ordinance if the Commercial Business provides documentation that the business donates or sells recycling materials or the premises lacks adequate space for blue recycling containers including documentation from its hauler.
b) Provide written verification to City that it is still eligible for physical space waiver every five (5) years, if City has approved application for a physical space waiver. c) Review and Approval of Waivers will be completed by the Public Works Director and/or their designated agent.
5-5.118 Mandatory Solid Waste, Recyclable Materials, and Organic Materials Collection. #23..
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a) The Owner of a Commercial Premises or the Generator of Solid Waste at such Premises or the agent of the Owner or Generator shall subscribe to and pay for Solid Waste, Recyclable Materials, and Organic Materials collection services provided by a Solid Waste Collector authorized to provide Commercial Solid Waste collection services pursuant to Section 5-5.111
b) The minimum level of service to which the Owner, Generator or agent shall subscribe shall be the number and size of Solid Waste containers suitable for Garbage collection and the frequency of collection which is necessary for the removal and disposal of all Solid Waste generated at the Premises, which shall be not less than one (1) time per week. c) The minimum level of service necessary for the collection of all Solid Waste, Recyclable Materials, and Organic Materials generated at any Commercial Premises in a seven (7)-day period shall be determined by the Owner, Generator or agent and the Solid Waste Collector.
In the event the Owner, Generator or agent and the Solid Waste Collector do not agree on the minimum level of service necessary, such determination shall be made by the Director or the Health Officer and shall be a minimum of thirty-two (32) gallons of Recycling collection service and thirty-two (32) gallons of organics Recycling collection service for every one (1) cubic yard of Solid Waste generated per week. In other words, for every two (2) cubic yards of Solid Waste generated per week, there must be at least sixty-four (64) gallons of Recycling collection service and sixty-four (64) gallons or organics Recycling collection service per week. The Director or their designee may grant exemptions to this requirement if the business can demonstrate that they do not produce thirty-two (32) gallons of Organic Material or thirty-two (32) gallons of Recycling per week. d) The Director or their designee shall have the right to review the number and size of a Commercial Premises' containers and frequency of collection to evaluate adequacy of capacity provided for each type of collection service for proper separation and containment of materials. The responsible party of the commercial business shall adjust their service level for their collection services as requested by the Director or their designee. e) Nothing in this Chapter prohibits an Owner or a Generator of a commercial business from preventing or reducing discarded materials generation, managing Organic Material on site, or using a Community Composting site pursuant to 14 CCR Section 18984.9(c). 5-5.119 Ashes, stable matter and contaminated matter.
a) No person shall place or keep hot ashes, hot cinders or any burning matter in any garbage, organic or recyclables container.
b) No person shall place or keep other ashes or cinders, stable matter, or solid waste described in Section 5-5.103 (0000) in any garbage container unless such material is first wrapped in paper or other material.
5-5.120 Prohibited Storage Location of Containers.
(a) Garbage, recycling, and organic standard containers shall not be placed or allowed to remain in or on any street or alley public right-of-way, except within twenty-four (24) hours prior to and following service day or as otherwise authorized by the Public Works Director. #23..
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(b) Garbage, recycling, organic, rubbish, swill, and industrial garbage containers shall not be placed or allowed to remain in or on any street right-of-way, except on service day between the hours of service as defined in Section 5-5.126. Unless otherwise authorized by the Public Works Director.
(c) Container shall be stored inside of an enclosure or solid waste room at all times expect on collection day
5-5.121 Container Collection Locations.
(a) On single-family premises, standard garbage containers, organic, and recycling containers shall be placed by the customer on the premises and when subject to collection may be collected by the collector as follows:
a) Where alley service exists, immediately adjacent to the property and accessible from the alley without the necessity of entering the premises.
b) Where alley service does not exist, containers shall be placed in front of or on the side of the property from where the contents were generated, on the abutting asphaltic portion of the street next to the curb, or the edge of the driveway apron, or such other location as approved by the Public Works Director.
c) The Public Works Director may close alleys to service as needed due to safety concerns and/or size restrictions for collection vehicles.
d) All containers shall be placed no more than four (4) feet from an area where the collection vehicle can reasonably park. All residential containers set out for collection shall have the necessary clearance from obstructions on either side of the container as well as overhead clearance needed for the collection vehicle to empty contents of the container without causing damage to public or private property. In case of dispute, an acceptable residential container location shall be as determined by the Public Works Director.
e) All containers should be screened from public view, except within twenty-four (24) hours prior to and following service day, in a manner approved by the Public Works Director.
(b) Standard containers and bins for solid waste service to multifamily-dwellings, commercial and industrial premises shall be placed in a location no greater than fifty (50) feet from the nearest point where the collector's vehicle can reasonably be parked. Drop box containers shall be located as agreed upon between the customer and the collector. In case of dispute, the location shall be as determined by the Public Works Director. (c) Containers for solid waste may be placed on premises at locations other than described in this section if the customer is handicapped or disabled and the location is approved by the Public Works Director.
5-5.122 Requirements for Commercial Edible Food Generators. (a) Tier One Commercial Edible Food Generators must comply with the requirements commencing January 1, 2022, and Tier Two Commercial Edible Food Generators must #23..
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comply with the requirements of this section commencing January 1, 2024, pursuant to 14 CCR Section 18991.3.
(b) Large Venue or Large Event operators not providing food services, but allowing for food to be provided by others, shall require Food Facilities operating at the Large Venue or Large Event to comply with the requirements of this Section, commencing January 1, 2024. (c) Commercial Edible Food Generators shall comply with the following requirements:
(1) Arrange to recover the maximum amount of Edible Food that would otherwise be disposed.
(2) Contract with or enter into a written agreement with Food Recovery Organizations or Food Recovery Services for: (i) the collection of Edible Food for Food Recovery; or, (ii) acceptance of the Edible Food that the Commercial Edible Food Generator self-hauls to the Food Recovery Organization for Food Recovery. (3) Shall not intentionally spoil Edible Food that is capable of being recovered by a Food Recovery Organization or a Food Recovery Service.
(4) Allow City's designated Solid Waste Enforcement Officer/Supervisor or designated third party enforcement entity to access the premises and review records pursuant to 14 CCR Section 18991.4.
(5) Keep records that include the following information, or as otherwise specified in 14 CCR Section 18991.4:
a. A list of each Food Recovery Service or organization that collects or receives its Edible Food pursuant to a contract or written agreement established under 14 CCR Section 18991.3(b).
b. A copy of all contracts or written agreements between the Commercial Edible Food Generator and a Food Recovery Service or organization.
c. A record of the following information for each of those Food Recovery Services or Food Recovery Organizations:
i. The name, address and contact information of the Food Recovery Service or Food Recovery Organization.
ii. The types of food that will be collected by or self-hauled to the Food Recovery Service or Food Recovery Organization. iii. The established frequency that food will be collected or selfhauled. iv. The quantity of food, measured in pounds recovered per month, collected or self-hauled to a Food Recovery Service or Food Recovery Organization for Food Recovery.
(6) No later than April 1 of each year commencing no later than April 1, 2023 for Tier One Commercial Edible Food Generators and April 1, 2025 for Tier Two Commercial Edible Food Generators, provide an annual Food Recovery report to the City that includes the following information:
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a. The name, address and contact information of the Food Recovery Service or Food Recovery Organization.
b. The types of food that will be collected by or self-hauled to the Food Recovery Service or Food Recovery Organization.
c. The established frequency that food will be collected or selfhauled. d. The quantity of food, measured in pounds recovered per month, collected or self-hauled to a Food Recovery Service or Food Recovery Organization for Food Recovery.
(d) Nothing in this ordinance shall be construed to limit or conflict with the protections provided by the California Good Samaritan Food Donation Act of 2017, the Federal Good Samaritan Act, or share table and school food donation guidance pursuant to Senate Bill 557 of 2017 (approved by the Governor of the State of California on September 25, 2017, which added Article 13 [commencing with Section 49580] to Chapter 9 of Part 27 of Division 4 of Title 2 of the Education Code, and to amend Section 114079 of the Health and Safety Code, relating to food safety, as amended, supplemented, superseded and replaced from time to time).
5-5.123 Requirements for Food Recovery Organizations and Services. (a) Food Recovery Services collecting or receiving Edible Food directly from Commercial Edible Food Generators, via a contract or written agreement established under 14 CCR Section 18991.3(b), shall maintain the following records, or as otherwise specified by 14 CCR Section 18991.5(a)(1):
(1) The name, address, and contact information for each Commercial Edible Food Generator from which the service collects Edible Food.
(2) The quantity in pounds of Edible Food collected from each Commercial Edible Food Generator per month.
(3) The quantity in pounds of Edible Food transported to each Food Recovery Organization per month.
(4) The name, address, and contact information for each Food Recovery Organization that the Food Recovery Service transports Edible Food to for Food Recovery. (b) Food Recovery Organizations collecting or receiving Edible Food directly from Commercial Edible Food Generators, via a contract or written agreement established under 14 CCR Section 18991.3(b), shall maintain the following records, or as otherwise specified by 14 CCR Section 18991.5(a)(2):
(1) The name, address, and contact information for each Commercial Edible Food Generator from which the organization receives Edible Food. (2) The quantity in pounds of Edible Food received from each Commercial Edible Food Generator per month.
(3) The name, address, and contact information for each Food Recovery Service that the organization receives Edible Food from for Food Recovery. #23..
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(c) Food Recovery Organizations and Food Recovery Services shall inform generators about California and Federal Good Samaritan Food Donation Act protection in written communications, such as in their contract or agreement established under 14 CCR Section 18991.3(b).
(d) Food Recovery Organizations and Food Recovery Services that have their primary address physically located in the City and contract with or have written agreements with one or more Commercial Edible Food Generators pursuant to 14 CCR Section 18991.3(b) shall report to the City it is located in the total pounds of Edible Food recovered in the previous calendar year from the Tier One and Tier Two Commercial Edible Food Generators they have established a contract or written agreement with pursuant to 14 CCR Section 18991.3(b) no later than April 1, of each year.
(e) Food Recovery Capacity Planning
(1) Food Recovery Services and Food Recovery Organizations. In order to support Edible Food Recovery capacity planning assessments or other studies conducted by the County, City, special district that provides solid waste collection services, or its designated entity, Food Recovery Services and Food Recovery Organizations operating in the City shall provide information and consultation to the City, upon request, regarding existing, or proposed new or expanded, Food Recovery capacity that could be accessed by the City and its Commercial Edible Food Generators. A Food Recovery Service or Food Recovery Organization contacted by the City shall respond to such request for information within 60 days, unless a shorter timeframe is otherwise specified by the City.
5-5.124 Requirements for Haulers and Facility Operators. (a) Requirements for Haulers
(1) Exclusive Service Agreement haulers providing Residential, Commercial, or Industrial organic waste collection services to generators within the City's boundaries shall meet the following requirements and standards as a condition of approval of a contract, agreement, or other authorization with the City to collect organic waste:
(a) Through written notice to the City annually on or before April 1, of each year identify the facilities to which they will transport organic waste including facilities for Source Separating.
(b) Transport Source Separated Green Container organic waste, to the City of Modesto Composting Facility, operation, activity, or property that recovers organic waste as defined in 14 CCR, Division 7, Chapter 12, Article 2.
(c) Obtain approval from the City to haul organic waste, unless it is transporting Source Separated organic waste to a Community Composting site or lawfully transporting C&D in a manner that complies with 14 CCR Section 18989.1.
(2) Exclusive Service Agreement hauler authorization to collect organic waste shall comply with education, equipment, signage, container labeling, container color, #23..
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contamination monitoring, reporting, and other requirements contained within its service agreement, permit, license, or other agreement entered into with City. (b) Requirements for Facility Operators and Community Composting Operations (1) Owners of facilities, operations, and activities that recover organic waste, including, but not limited to, Compost facilities, in-vessel digestion facilities, and publicly-owned treatment works shall, upon City request, provide information regarding available and potential new or expanded capacity at their facilities, operations, and activities, including information about throughput and permitted capacity necessary for planning purposes. Entities contacted by the City shall respond within 60 days.
(2) Community Composting operators, upon City request, shall provide information to the City to support organic waste capacity planning, including, but not limited to, an estimate of the amount of organic waste anticipated to be handled at the Community Composting operation. Entities contacted by the City shall respond within sixty (60) days.
5-5.125 Spillage of Solid Waste.
All solid waste collected and transported by any person over public streets in the City shall be secured during the hauling thereof so as to prevent spillage or blowing. 5-5.126 Furnishing of Bins and Drop Box Containers.
Any agreement entered into by the City for garbage, recycling, or organic waste collection shall provide for the availability of approved bins and drop box containers by the collector on a rental basis. The collector shall be responsible for the general repair and upkeep of all bins and drop box containers. The customer shall maintain all rented bins and drop box containers in sanitary condition at all times.
5-5.127 Hours of Collection.
(a) No collections shall be made in residential districts (single family and multi-family dwellings), as shown on the Zoning Map of the City of Modesto, or at schools, churches, hospitals, offices or commercial establishments in or adjacent to said residential district except between the hours of 6:00 a.m. and 6:00 p.m. year-round. (b) Collections may be made in commercial areas when not adjacent to residential areas between the hours of 6:00 a.m. and 9:00 p.m. Monday through Sunday. (c) No collection shall be made from premises in residential or commercial areas other than described in subsections (a) and (b) of this section except when prior approval has been given by the Public Works Director.
5-5.128 Collection Equipment.
All collections shall be made with vehicles of a design approved by the Public Works Director.
All collections shall be made as quietly as possible, and use of any unnecessarily noisy trucks or equipment is prohibited. All vehicles shall be maintained and operated to avoid unnecessary blowing, leakage and spillage.
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5-5.129 Agreement to Collect Solid Waste.
(a) It shall be unlawful for any person or entity to engage in the business of collecting garbage, recycling, organic waste, or bulky items within the City unless such person or entity is an employee or agent of the City, or is a party to an agreement approved by the Council pursuant to this chapter, or is the employee of such a party. (b) It shall be unlawful for any commercial or industrial establishment to enter into any agreement for collection of garbage, recycling, or organic waste unless such person or entity is party to an agreement approved by the council pursuant to this chapter or is the employee of such a party unless otherwise approved by the Public Works Director. (c) It shall be unlawful for any person to interfere in any manner with the lawful operations of such a collector or their authorized agents or assignees. (d) The City may provide in any agreement pursuant to this chapter that the collector may assign a portion or portions of the solid waste collection services for which that person or entity is so contracted to one (1) or more agents or assignees upon approval of the City Council. The collector shall be responsible for the operation and conduct of such agents or assignees.
5-5.130 Self-Haul Requirements. (Contract Required)
Notwithstanding the provisions of Section 5-5.129:
a) Any person may remove or may cause to be removed from premises occupied by that person or under their control, all solid waste created or produced on such premises if all of the following conditions have been met or will be complied with:
1. Removal shall be made only by the owner or occupant personally, or by employees of such owner or occupant.
2. All vehicles used in carrying out removal shall be owned by or under the exclusive control of the owner or occupant, and such vehicles and activities shall meet all the requirements of this chapter and all other laws and ordinances of the State of California and the City relating to solid waste disposal.
3. All vehicles used in the transportation of garbage, organics, and recycling, shall be covered to prevent blowing, spillage, or leakage of material. b) Every Self-Hauler, shall Source Separate their Recyclable Materials and Organic Materials (materials that City otherwise requires Generators to separate for collection in the City's Recyclable Materials and Organic Materials collection program) generated onsite from Solid Waste in a manner consistent with 14 CCR Section 18984.1 or 18984.2 as applicable, and the City's collection program.
c) Self-Haulers shall deliver their materials to facilities as described below:
a. Source Separated Recyclable Materials shall be delivered to a facility that recovers those materials
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b. Source Separated Organic Material to a facility, operation, activity, or property that processes or recovers Source Separated Organic Material c. Garbage shall be disposed of at facility or transfer facility or operation that processes or disposes of garbage
d. Manure shall be disposed of at a facility that manages manure in conformance with 14 CCR Article 12 and such that the manure is not landfilled, used as alternative daily cover (ADC), or used as alternative intermediate cover (AIC). d) Self-Haulers that are Owners or responsible parties of commercial businesses or multifamily Premises shall keep records of the amount of Recyclable Materials, Organic Material, and garbage delivered to each facility, operation, activity, or property that processes or recovers Recyclable Materials and Organic Material and processes or disposes of Solid Waste or shall keep records of Solid Waste delivered to High Diversion Organic Waste Processing Facilities. These records shall be subject to inspection by the City or its designee. The records shall include the following information:
a. Delivery receipts and weight tickets from the entity accepting the Recyclable Materials, Organic Materials, and Garbage.
b. The amount of material in cubic yards or tons transported by the Generator or responsible party to each entity.
e) If the material is transported to an entity that does not have scales on-site or employs scales incapable of weighing the Self-Hauler's vehicle in a manner that allows it to determine the weight of materials received, the Self-Hauler is not required to record the weight of material but shall keep a record of the entities that received the Recyclable Materials, Organic Materials, and garbage.
f) Self-Haulers shall retain all records and data required to be maintained by this Section for no less than five (5) years after the Recyclable Materials, Organic Materials, and/or garbage was first delivered to the facility accepting the material. g) Self-Haulers that are commercial businesses or multi-family Premises shall provide copies of records required by this Section to City if requested by the Director or their designee and shall provide the records at the frequency requested by the Director. h) A single-family Generator or single-family responsible party that self-hauls recyclable materials, organic material, or garbage is not required to record or report information in subsections c and d.
i) Persons removing solid waste in excess of normal annual residential volume (defined herein as three thousand (3,000) pounds per year) shall comply with the following additional requirements:
a. No waste shall be permitted to leak, blow, litter or fall from any vehicle engaged in such removal.
b. All removal shall be done safely and quietly with due regard to the property of others.
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c. No person shall remove solid waste from any location within two hundred (200) feet of a public or private elementary, junior high, or high school, where such school is shown on an official map of the City, as designated by the Public Works Director, during the forty-five (45) minutes before the commencement of the regular school day and forty-five (45) minutes following the conclusion of the regular school day, where such locations are accessible to and used by children as routes to or from school.
d. Persons engaged in solid waste removal pursuant to these requirements shall be responsible for any damage in excess of normal wear and tear to the City's driving surfaces, whether or not paved, resulting from the illegal weight of, or any leakage or spillage of oils, fluids or solids by vehicles used in such solid waste removal.
e. Vehicles used shall comply with CHP and D.O.T. regulations and shall be thoroughly washed and disinfected inside the collection body following each use. f. No driver shall operate a vehicle as in subsection (b)(3)(v) of this section, without a valid and appropriate driver's license.
g. All vehicles as in subsection (b)(3)(v) of this section shall be clearly identified with the name and local telephone number of its operator affixed thereto. h. Garbage shall be disposed of at a permitted transfer facility or at the Fink Road Sanitary Landfill. If disposed of outside of Stanislaus County, the county where disposal occurs shall have an export agreement with the City of Modesto. i. Organic waste, large green waste and small green waste shall be separated from garbage and taken to a permitted composting facility or such other locations as defined in 5-5.123 as directed by the Public Works Director. j. Insurance requirements as specified from time to time by the City's Risk Manager shall be complied with.
j) A cash security deposit shall be deposited with the City in an amount set from time to time by Council resolution, to ensure prompt removal of solid waste in the event it is not removed from the premises on a regular weekly basis by a noncustomer owner or person in control of the premises. A security deposit shall be made for each separate residential property or business location owned or controlled by a noncustomer, based on the frequency and volume of past collection. Events requiring City to use a noncustomer's deposit for solid waste removal shall be treated as a public nuisance subject to immediate abatement and charged to such noncustomer. Conduct requiring City to expend noncustomer deposit moneys shall constitute a misdemeanor. k) Persons engaged in solid waste removal shall procure and retain a receipt from a permitted solid waste facility for each week they remain a noncustomer of a collector and display all such receipts for the preceding one-quarter (¼) calendar year upon reasonable request by appropriate City authority. Failure to show proof of solid waste disposal for each week that a person is a noncustomer shall constitute a public health and safety risk sufficient to permit City to administratively require such person to become a customer. #23..
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l) Any producer of industrial garbage or swill, or their employees, may transport the same upon or through any street or public place of the City for disposal at a permitted disposal facility or site.
m) It shall be unlawful for any person acting as an employee of a producer of industrial garbage or swill to collect or transport such industrial garbage or swill from more than one (1) industrial producer thereof.
n) Any person engaged in the business of gardening or tree trimming, or building demolition, or construction cleanup work, including both yards and building interiors, is authorized to remove small green waste, rubbish or salvageable waste produced as an incident to such business. It shall be unlawful to dispose of small green waste, organic waste and recyclable waste. These materials shall be taken to an approved recycling or compost facility locations as defined in 5-5.123 unless otherwise approved by the Public Works Director.
5-5.131 Rate-Setting for Solid Waste Collection Services. (a) The City shall not engage in rate-making with respect to charges for solid waste collection service, except to set maximum rates as set forth in subsection (b) of this section. (b) Inasmuch as collectors granted service agreements will have no competition with respect to customers who do not wish to be noncustomers, the City Council reserves the right to set maximum rates that may be charged for any solid waste collection services offered by collectors having agreements with the City specifying that the collector has an exclusive service agreement with respect to such service or services. No collector may charge differing rates within the same class of solid waste customer. (c) The City shall review and set the maximum rates annually or more often if requested by collectors authorized under service agreement.
5-5.132 Collection of Solid Waste and Industrial Waste.
The privilege of engaging in the businesses of collecting solid waste, industrial waste or swill is conditioned on entering into a contractual relationship with the City to provide some or all of these services.
5-5.133 Fee for Collection of Swill.
The fee for the privilege of engaging in the business of collecting swill in the City shall be the sum of twenty-five dollars ($25.00) per calendar quarter, or fraction thereof, payable in advance. 5-5.134 Collectors Delinquent Fees.
(a) Penalty: To all fees not paid within thirty (30) days following the close of the preceding quarter there shall be added a penalty of five (5) percent of the amount of fees due per month or fraction thereof until paid. The maximum penalty imposed on any one (1) #23..
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delinquency occurring heretofore or hereafter shall not exceed twenty-five (25) percent of the amount of service agreement fees due.
(b) Interest: In addition to any penalties imposed by this section, delinquent service agreement fees heretofore or hereafter occurring shall be subject to interest at the rate of seven (7) percent per annum until paid.
5-5.135 Collection Agreement Proposals.
Proposals to enter into a collection agreement with the City pursuant to this chapter shall be submitted in writing to the City Clerk. The City shall charge a reasonable fee, as determined by a resolution adopted by the City Council, to the proponent of a proposal to cover the City's costs associated with the due diligence in consideration of the proposal. Each proposal shall contain the following information:
(a) Name and Address of the Proponent. If the proponent is a firm or partnership, names of all owners and partners of all classes, limited and general, shall be listed. If the proponent is a corporation, the names and titles of each of the officers and directors shall be listed, and in addition the names of all stockholders owning, holding or controlling five (5) percent or more of corporate stock shall be listed; (b) The types of services offered;
(c) The number, kind and capacity of the vehicles and other equipment to be used for such purposes;
(d) A financial statement showing the proponent's financial status and their financial ability to conduct the collection operation proposed in their proposal; (e) Proposed consideration to the City if agreement is reached. 5-5.136 Procedure to Enter into Agreement.
Upon receipt of a proposal to enter into an agreement hereunder, the Council shall pass a resolution declaring its intention to consider the proposal, setting forth notice of the day, hour and place, when and where any and all persons may appear before the Council and be heard thereon. The time fixed for such hearing shall be not less than ten (10) days nor more than thirty (30) days after the date of the passage of said resolution.
5-5.137 Protests May Be Filed.
At any time not later than the hour set for the hearing to consider a proposal, any person interested may make written protest stating objections against the proposed agreement. Such protest must be signed by the protestant and delivered to the City Clerk.
5-5.138 Hearing.
At the time set for the hearing, the Council shall proceed to hear the matter, and all persons shall be given opportunity to be heard. The Council may adjourn said hearing from time to time. 5-5.139 Competitive Bids.
The Council may in its discretion, in lieu of considering proposals for agreements, advertise for competitive bids for agreements specified by the City.
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5-5.140 Entering Agreements.
Upon consideration of a proposal or bid for an agreement, the Council may enter into an agreement with any proponent or bidder it determines to be best qualified to render proper and efficient collection service.
The Council also has the right to reject all bids and proposals.
Every agreement entered into by the Council pursuant to the provisions of this chapter shall cover the following matters:
(a) The name and address of the person, firm or corporation with whom the agreement is made;
(b) The type of collection service authorized;
(c) Whether the agreement is exclusive or nonexclusive; limited or unlimited; (d) The term of the agreement, which in no case shall be longer than ten (10) years; (e) Such other conditions as the Council may provide.
5-5.141 Limit on Number of Agreements.
In order to preserve the health, safety and welfare of the people in the City, the Council hereby retains the authority to limit the number of agreements for the collection of solid waste, swill, and industrial waste which will be made under this chapter.
5-5.142 Insurance.
Each collector engaging in the collection of solid waste and industrial waste shall provide the Finance Director with evidence of insurance coverage in the amount and form as approved by the City's Risk Manager. Such amounts shall be set forth from time to time by resolution of the City Council and shall be the same for all collectors.
5-5.143 Faithful Performance Bond by Solid Waste Collectors.
Each party other than City to an agreement to collect solid waste pursuant to the provisions of this chapter shall file with the City Clerk a faithful performance bond or other form of security satisfactory to the City in an amount required by the agreement, and said amount shall be the same for all collectors. Said bond or security shall be conditioned upon the faithful performance of all of the terms and conditions of said agreement and the provisions of this chapter, insofar as they are applicable to said collector.
5-5.144 Assignment of Agreements.
No agreement entered into by the Council with a collector pursuant to the provisions of this chapter and no ownership interest in any party to such an agreement can be sold, gifted, transferred, leased, assigned, mortgaged, pledged, hypothecated, or otherwise encumbered or disposed of, in whole or in part, directly or indirectly, whether voluntarily or by operation of law, or through any stock transfer, transfer in trust, change in control, consolidation or merger of any company or corporation, without the prior written consent of the City Council granted after a public hearing in accordance with the procedures specified in Sections 5-5.131 through 5-5.143 of this chapter. The Council may grant or deny such a request, and may impose such conditions #23..
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as it may deem to be in the public interest including, but not limited to, conditions requiring acceptance of amendments to this service agreement and the payment to City of a reasonable transfer fee in an amount to be determined by the City Council sufficient to cover the City's costs associated with the transfer. Any attempted disposition made without such consent shall be void. (a) Proof of Financial Responsibility. In the event of any assignment duly authorized by the Council, the assignee shall assume the liability and responsibilities of the collector. Any such transfer or assignment shall be made only by an instrument in writing, such as a bill of sale or similar document, a duly executed copy of which shall be filed in the office of the City Clerk with thirty (30) days after any such transfer or assignments. Consent of the Council may not be unreasonably refused; provided, the proposed assignee shall demonstrate to the City Council the financial responsibility as required by all the provisions of this chapter and the service agreement. (b) Hypothecation. Prior consent of the Council shall be required for a transfer in trust, mortgage or other hypothecation, in whole or in part, to secure an indebtedness, when such indebtedness hypothecations shall equal or exceed fifty (50) percent of the independently appraised market value of the property used by collector in its operation.
Such consent shall not be unreasonably withheld.
(c) Acquisitions of Interest. In the event the collector is a corporation, it shall notify the Council when ownership of more than thirty (30) percent of the voting stock of the collector is acquired by a person or group of persons acting in concert, none of whom already own twenty (20) percent or more of the voting stock, singly or collectively.
Any such acquisition shall require the approval of the Council which approval shall not be unreasonably withheld. Failure to comply with this provision shall be grounds for the termination of the service agreement pursuant to the provisions of this chapter and the service agreement.
(d) Bankruptcy. In the event that collector should become insolvent or if proceedings in bankruptcy shall be instituted by or against collector, or if collector shall be adjudged bankrupt or insolvent by any court, or if a receiver or trustee in bankruptcy or a receiver of any property of collector shall be appointed in any suit or proceeding brought by or against collector, or if collector shall make an assignment for the benefit of creditors, and during the pendency of said proceeding the collector fails to maintain service levels as required herein or by any other applicable law, City may initiate termination of the service agreement.
5-5.145 Termination of Agreements.
Any agreement entered by the Council pursuant to the provisions of this chapter may be terminated by the Council, if after conducting a public hearing on said termination, the Council finds and determines that the person doing business by virtue of such agreement has failed to comply with any of its material terms, or this chapter, has failed to render satisfactory collection services, or without cause in accordance with the provisions of the agreement. (a) Termination for Cause. The City further reserves the right to terminate the service agreement or impose liquidated damages in the event of any of the following:
(1) If collector practices, or attempts to practice, any fraud or deceit upon the City.
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(2) If collector becomes insolvent, unable, or unwilling to pay its debts, or upon listing of an order for relief in favor of collector in a bankruptcy proceeding.
(3) If collector fails to provide or maintain in full and in effect, any or all of the bonds and/or coverages required by its service agreement with the City.
(4) If collector willfully and materially violates any orders or rulings of any regulatory body having jurisdiction over collector relative to its service agreement with the City, provided that the collector may contest any such orders or rulings by appropriate proceedings conducted in good faith, in which case no breach of the service agreement shall be deemed to have occurred.
(5) If collector ceases to provide collection services as required by the service agreement over all or a substantial portion of its service area for a period of seven (7) days or more, for any reason within the control of the collector.
(6) If the collector willfully fails and/or refuses to provide City with required information, reports, and/or test results related to vehicle incidents or other incidents where such tests are conducted as part of an investigation of an incident, in a timely manner as provided in its service agreement.
(7) Any other act or omission by the collector, which materially violates the terms, conditions, or requirements of its service agreement.
(b) Process for Imposing Damages for Termination. The Solid Waste Manager may file a complaint with the Public Works Director charging a failure of collector to comply with the provisions of this chapter or the service agreement. (1) Upon issuance of the Solid Waste Manager's complaint, the Public Works Director shall conduct a factual investigation thereof and render a decision relative to the justification for complaint, in writing, within ten (10) days following the decision.
(2) If the Public Works Director determines that the collector's performance pursuant to its service agreement with the City has not been in conformity with the provisions of either the service agreement, the requirements of this chapter, or the requirements of the California Integrated Waste Management Board, including, but not limited to, the laws governing transfer, storage, or disposal of special wastes, the Public Works Director may advise collector in writing of such deficiencies. The Public Works Director may set a reasonable time within which correction of all such deficiencies is to be made. Unless otherwise specified, a reasonable time for correction shall be thirty (30) days from the receipt by the collector of such written notice. The Public Works Director shall review the #23..
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collector's response and notify the collector of his/her decision, in writing.
(3) A decision or order of the Public Works Director shall be final and binding on collector if the collector fails to file a "Notice of Appeal" with the City Manager within thirty (30) days of receipt of the Director's decision. Within ten (10) working days of receipt of a Notice of Appeal, the City Manager shall either refer the appeal to the City Council for proceedings in accordance with subsection (b)(4) of this section, or refer the matter to a hearing officer. (4) The City Council shall set the appeal on the matter referred by the City Manager for hearing within sixty (60) days from receipt by the City Manager of the appeal or referral. At the hearing, the City Council shall consider the report of the Public Works Director indicating the deficiencies, and shall give the collector, or its representatives and any other interested person, a reasonable opportunity to be heard.
(5) Based on the evidence presented at the public hearing, the Council shall determine whether the service agreement should be terminated, liquidated damages imposed, or both. The City Council may also find in favor of collector. The decision of the City Council shall be final and binding. Collector's performance under the service agreement is not excused during the period of time prior to the City Council's final determination as to whether such performance is deficient.
(c) Remedies—Liquidated Damages. The City Council may, at its discretion, assess liquidated damages not to exceed the sum of five thousand dollars ($5,000.00) per day, for each calendar day that service is not provided by collector in accordance with the service agreement for a period not to exceed forty-five (45) days. (d) Additional Remedies. In addition to liquidated damages, above, the City shall have the following rights:
(1) To Rent or Lease Equipment from Collector. The City may rent or lease equipment from collector for the purpose of collecting, transporting, and disposing of solid waste which collector is obligated to collect, transport, and dispose of pursuant to its service agreement, for a period not to exceed six (6) months.
(2) To Contract with Others to Perform the Services. The City may contract others to perform the services otherwise to be performed by collector hereunder, or perform such services itself. (3) To Obtain Injunctive Relief. In the event of a breach under the terms of the service agreement by collector, City may suffer irreparable injury and incalculable damages sufficient to support injunctive relief, to enforce the provisions of the service agreement and to enjoin the breach thereof.
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(4) To Reduce the Service Area. If at the time of the annual review the total number of unresolved complaints exceeds two and one-half tenths (2.5) of one (1) percent of the total annual stops for the prior year, the City Council may determine whether it is appropriate to decrease the service area of collector because of poor performance and authorize another collector to provide services. The maximum reduction in service area for poor performance under this provision shall be ten (10) percent for each occurrence.
(5) To Invoke Eminent Domain. Nothing set forth in a service agreement entered into between City and collector shall be deemed or construed to impair or affect, in any way, to any extent, the right of the City to acquire the property of the collector, either by purchase or through the exercise of the right of eminent domain, at fair market value, or be construed to contract away or to modify or abridge, whether for a term or in perpetuity, the City's right of eminent domain.
(6) To Collect and Bill Collector. Should collector fail to provide collection services as stipulated in its service agreement, within twenty-four (24) hours of a request being communicated by the City to collector to do so, the City may collect and dispose of same and collector shall be liable for all expenses incurred including, but not limited to, disposal, operating, administration, and legal costs.
Reimbursement to City for such expenses will be paid by collector within thirty (30) days after date of invoice.
(7) To Conduct Inspections. At all reasonable times during any normal business hours, the collector shall permit the City's authorized representatives to examine all property of the collector, and to examine and copy any and all records kept or maintained by the collector under its control which pertain to the service agreement. (e) Force Majeure. Collector shall not be in default under its service agreement in the event that any of the services provided by the collector under the terms of the agreement are temporarily interrupted or discontinued for any of the following reasons:
riots, wars, sabotage, civil disturbances, insurrections, explosion, natural disasters such as floods, earthquakes, landslides, fires, strikes, lockouts, other labor disturbances or other catastrophic events which are beyond the reasonable control of collector. Other catastrophic events do not include the financial inability of the collector to perform or failure of the collector to obtain any necessary permits or licenses from other governmental agencies or the right to use the omissions of the collector. In the event a labor disturbance interrupts collection services as required by a service agreement, City may elect to exercise its rights under the service agreement. 5-5.146 Customer May Contract for Excess Collection.
Any owner or occupant of any premises may contract with a City collector, or their agents or assignees, for special haul services for the removal of solid waste or rubbish in excess of services provided by the collector under regular collection fees. #23..
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5-5.147 Collection of Solid Waste Charges.
Any agreement entered into by the Council pursuant to the provisions of this chapter for the collection of solid waste, except industrial waste, shall specify that all charges for solid waste service shall be collected solely by the collector or by the City pursuant to contract with a collector. The City may contract with a collector to perform customer billing and collection services. Nevertheless, such a contract shall not obligate the City to, and the City shall not, use its police power to collect bills remaining overdue or unpaid. 5-5.148 Records Required.
Each collector pursuant to the provisions of this chapter shall maintain detailed records of all receipts and expenditures received or incurred in the operation of such business, including all fees collected for services rendered. Records shall be kept and made available to the City for review for at least five (5) years. All records shall be kept and maintained at the approved location per the service agreement. The City, its officers and employees shall be entitled to inspect, audit and copy such books and records upon notice at all reasonable times. 5-5.149 Annual Financial Report by Solid Waste Collectors.
Each collector of solid waste or industrial waste pursuant to the provisions of this chapter shall file each year with the Finance Director a detailed financial statement, including a balance sheet and profit and loss statement. Said statement shall be filed on or before the date set forth in said agreement for the fiscal or calendar year specified in said agreement. Any collector who fails to file said statement on or before said date shall pay a penalty of one hundred dollars ($100.00) a day for each calendar day, or part thereof, until said statement is filed. This section shall not apply to swill collectors.
5-5.150 Inspection.
a) The Solid Waste Enforcement Officer, the Solid Waste Enforcement Supervisor and/or the Public Works Director may, from time to time, inspect all premises within the City to determine compliance with and to enforce the provisions of this chapter. b) City representatives and/or its designated entity, including Designees are authorized to conduct Inspections and investigations, at random or otherwise, of any collection container, collection vehicle loads, or transfer, processing, or disposal facility for materials collected from generators, or source separated materials to confirm compliance with this ordinance by organic waste generators, commercial businesses (including multifamily residential dwellings), property owners, commercial edible food generators, haulers, self-haulers, food recovery services, and food recovery organizations, subject to applicable laws. This section does not allow City to enter the interior of a private residential property for inspection.
c) Regulated entity shall provide or arrange for access during all inspections (with the exception of residential property interiors) and shall cooperate with the City's employee or its designated entity/designee during such inspections and investigations. Such inspections and investigations may include confirmation of proper placement of materials #23..
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in containers, edible food recovery activities, records, or any other requirement of this ordinance described herein. Failure to provide or arrange for:
i. Access to an entity's premises;
ii. Access to records for any inspection or investigation is a violation of this ordinance and may result in penalties described.
d) Any records obtained by the City during its inspections, and other reviews shall be subject to the requirements and applicable disclosure exemptions of the Public Records Act as set forth in Government Code Section 6250 et seq. e) City representatives, its designated entity, and/or designee are authorized to conduct any inspections, or other investigations as reasonably necessary to further the goals of this ordinance, subject to applicable laws.
f) City shall receive written or verbal complaints from persons regarding an entity that may be potentially non-compliant with SB 1383 Regulations, including receipt of anonymous complaints.
5-5.151 Enforcement.
(a) Violation of any provision of this ordinance shall constitute grounds for issuance of a notice of violation and/or assessment of a fine by the Enforcement Official or representative.
Enforcement actions under this ordinance are issuance of an administrative citation and assessment of a fine. The City's procedures on imposition of administrative fines are hereby incorporated in their entirety, as modified from time to time, and shall govern the imposition, enforcement, collection, and review of administrative citations issued to enforce this ordinance and any rule or regulation adopted pursuant to this ordinance, except as otherwise indicated in this ordinance.
(b) Other remedies allowed by law may be used, including civil action or prosecution as misdemeanor or infraction. City may pursue civil actions in the California courts to seek recovery of unpaid administrative citations. City may choose to delay court action until such time as a sufficiently large number of violations, or cumulative size of violations exist such that court action is a reasonable use of City staff and resources. (c) Responsible Entity for Enforcement.
(1) Enforcement pursuant to this ordinance may be undertaken by the Enforcement Official, which may be the City Manager, the Public Works Director, and/or their designated entity, legal counsel, or combination thereof. (2) Enforcement may also be undertaken by a Stanislaus County Enforcement Official, designated by the City, in consultation with Enforcement Official. a. Enforcement Official(s) and/or County Agency Enforcement Official, will interpret ordinance; determine the applicability of waivers, if violation(s) have occurred; implement enforcement actions; and, determine if compliance standards are met. b. Enforcement Official(s) and County Enforcement Official may issue notices of violation(s).
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(d) Process for Enforcement.
(1) Enforcement Officials or County Enforcement Officials and/or their designee will monitor compliance with the ordinance randomly and through compliance reviews, route reviews, investigation of complaints, and an inspection program. (2) City may issue an official notification to notify regulated entities of its obligations under the ordinance.
(3) For incidences of prohibited container contaminants found in containers, City will issue a notice of violation to any generator found to have prohibited container contaminants in a container. Such notice will be provided via a cart tag or other communication upon identification of the prohibited container contaminants after determining that a violation has occurred. If the City observes prohibited container contaminants in a generator's containers on more than one (1) occasion within a twelve (12) month period, the City may assess contamination penalties on the generator. (4) With the exception of violations of generator contamination of container contents addressed under subsection (d)(3) above, City shall issue a notice of violation requiring compliance within sixty (60) days of issuance of the notice. Absent compliance by the respondent within the deadline set forth in the notice of violation, City shall commence an action to impose penalties, via an administrative citation and fine, pursuant to Section 1-6.305.
(5) Absent compliance by the respondent within the deadline set forth in the notice of violation, City shall commence an action to impose penalties, via an administrative citation.
Notices shall be sent to "owner" at the official address of the owner maintained by the tax collector for the City or if no such address is available, to the owner at the address of the dwelling or commercial property or to the party responsible for paying for the collection services, depending upon available information.
(e) Compliance Deadline Extension Considerations. The City may extend the compliance deadlines set forth in a notice of violation if it finds that there are extenuating circumstances beyond the control of the respondent that make compliance within the deadlines impracticable, including the following:
(1) Acts of God such as earthquakes, wildfires, flooding, and other emergencies or natural disasters;
(2) Delays in obtaining discretionary permits or other government agency approvals; or,
(3) Deficiencies in organic waste recycling infrastructure or edible food recovery capacity and the City is under a corrective action plan with CalRecycle pursuant to 14 CCR Section 18996.2 due to those deficiencies.
(f) Appeals Process. Persons receiving an administrative citation containing a penalty for an uncorrected violation may request a hearing to appeal the citation within twenty (20) calendar days of the mailing of the citation. A hearing will be held only if it is requested within the time prescribed and consistent with City's procedures in the City's codes for #23..
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appeals of administrative citations. Evidence may be presented at the hearing. The City will appoint a hearing officer who shall conduct the hearing and issue a final written order. (g) Education Period for Non-Compliance. City will conduct inspections, route reviews or waste evaluations, and compliance reviews, depending upon the type of regulated entity, to determine compliance, and if City determines that organic waste generator, self-hauler, hauler, Tier One Commercial Edible Food Generator, food recovery organization, food recovery service, or other entity is not in compliance, it shall provide educational materials to the entity describing its obligations under this ordinance and a notice that compliance is required and that violations may be subject to administrative civil penalties. (h) Civil Penalties for Non-Compliance. Prior to or beginning on January 1, 2024, If the City determines that an organic waste Generator, self-hauler, hauler, Tier One or Tier Two Commercial Edible Food Generator, food recovery organization, food recovery service, or other entity is not in compliance with this ordinance, it shall document the noncompliance or violation, issue a notice of violation, and take enforcement action as needed. 5-5.152 Application of Other Provisions of this Code.
Except for the provisions of Article 3 thereof, the provisions of Chapter 1 of Title 6 of this Code shall not apply to collectors under the provisions of this chapter. 5-5.153 Collection.
(a) It shall be unlawful and punishable as an infraction for any person, other than an authorized curbside recycling collector, or its employees or agents, to remove salvageable waste which has been placed at a designated collection location. Placement of salvageable waste at a designated collection location shall constitute consent to its collection by an authorized recycling collector.
(b) Theft of containers or diversion of said containers to uses other than their designated purpose shall be punishable as an infraction.
5-5.154 Mandatory Commercial Recycling (AB341)
(a) Per Public Resources Code Section 42649.2, the owner or operator of a business that contracts for solid waste services and generates more than four (4) cubic yards of total solid waste per week or is a multifamily residential dwelling of five (5) units or more shall arrange for recycling services, consistent with state or local laws or requirements, including a local ordinance or agreement, applicable to the collection, handling, or recycling of solid waste, to the extent that these services are offered and reasonably available from a local service provider.
(b) A commercial waste generator shall take either of the following actions:
(1) Separate specified recyclable materials from solid waste and subscribe to a basic level of recycling service that includes the collection of those recyclable materials or specific provisions for authorized self-hauling.
(2) Subscribe to an alternative type of recycling service that may include mixed waste processing that yields diversion results comparable to source separation. #23..
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5-5.155 Mandatory Commercial Organic Recycling AB1826
Per California Public Resources Code §§ 42649 et seq., the owner or operator of a business shall comply with all state statutes and regulations, as those may be amended from time to time, specifically for commercial organic recycling in the manner specified below:
(a) A commercial waste generator shall take one of the following actions:
(1) Source separate organic waste materials from solid waste and subscribe to a basic level of recycling service that includes the collection of organic and green waste materials.
(2) Recycle its organic waste onsite
(3) Partake in specific provisions for authorized self-hauling its own organic waste for recycling to a permitted composting facility or donation of edible food
(4) Sell or donate its organic waste by subscribing to a service that may include mixed waste processing that specifically recycles organic waste that yields diversion results comparable to source separation.
(5) Backhaul material to a central or corporate location to be collected for organic processing.
(6) When arranging for gardening or landscaping services, the contract or work agreement between a business subject to this section and a gardening or landscaping service shall require that the organic waste generated by those services be managed in compliance with this chapter.
5-5.156 Residential Bulky Item Collection Program.
The City, through the Public Works Director, may establish a Bulky Item Collection Program, to receive requests for and provide for the collection of certain bulky items from residential customers of the City who shall request such service.
(a) Bulky items consist of items which are too large or heavy to be prepared for regular solid waste collection, and may include the following: furniture and large appliances such as washers, dryers, stoves, refrigerators, freezers, and air conditioners; carpet and padding; water heaters or tanks; doors; automotive fenders, bumpers, hoods and seats; toilets and toilet tanks, tubs and sinks; and bicycles, tricycles, swing sets, portable pools, pool covers, and pool heaters.
(b) Items unacceptable for bulky item collection include, but are not limited to, glass, liquids, tires, engine parts, large and small green waste, hazardous waste, items over eight (8) feet in length; items weighing in excess of five hundred (500) pounds; building materials from private contractors; lumber/wood, tree trimmings, and Christmas trees.
(c) No bulky item will be collected on private property. All bulky items shall be placed in the street no more than twelve (12) hours before the scheduled bulky item collection appointment. Bulky items shall be placed adjacent to the property which #23..
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requested the bulky item collection, and must be a minimum of five (5) feet away from any fixed object or parked vehicle. There shall be only one (1) bulky item collection location for each residence.
(d) Only bulky items present at the residential customer's service address at the time the bulky item collection is scheduled, may be placed on the street for collection. (e) Any person found to be in violation of this section, shall be subject to the penalty provisions of Sections 5-5.106(e) and 1-2.01 of this Code. 5-5.157 Multi-Family Bulky Item Collection Program.
The City, through the Public Works Director, may establish a Bulky Item Collection Program, to receive requests for and provide for the collection of certain bulky items from multi-family customers of the City who shall request such service.
(a) Bulky items consist of items which are too large or heavy to be prepared for regular solid waste collection, and may include the following: furniture and large appliances such as washers, dryers, stoves, refrigerators, freezers, and air conditioners; carpet and padding; water heaters or tanks; doors; automotive fenders, bumpers, hoods and seats; toilets and toilet tanks, tubs and sinks; and bicycles, tricycles, swing sets, portable pools, pool covers, and pool heaters.
(b) Items unacceptable for bulky item collection include, but are not limited to, glass, liquids, tires, engine parts, large and small green waste, hazardous waste, items over eight (8) feet in length; items weighing in excess of five hundred (500) pounds; building materials from private contractors; lumber/wood, tree trimmings, and Christmas trees.
(c) No bulky item will be collected on private property, unless prior authorization has been received by the Public Works Director. All bulky items shall be placed in the street no more than twelve (12) hours before the scheduled bulky item collection appointment. Bulky items shall be placed adjacent to the property which requested the bulky item collection, and must be a minimum of five (5) feet away from any fixed object or parked vehicle. There shall be only one (1) bulky item collection location for each multi-family dwelling.
(d) Only bulky items present at the multi-family service address at the time the bulky item collection is scheduled.
(e) Any person found to be in violation of this section, shall be subject to the penalty provisions of Sections 5-5.106(e) and 1-2.01 of this Code.
Article 2. Unauthorized Entry into Waste Containers.
5-5.201 Definitions.
The following words and phrases, whenever used in this article, shall be construed as defined in this section: (a) "Waste container(s)" means any and all containers defined or identified in Article 1 of this chapter, including but not limited to automated collection container, carts, bins, and drop box container.
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5-5.202 Unauthorized Entry into Waste Containers.
(a) The City Council recognizes that there is an increasing problem both nationally and locally involving persons who forage waste containers.
The City Council finds that there is risk to the public health and safety when:
(1) Waste is strewn about;
(2) Waste containers are left open to animals;
(3) Waste containers and lids are left in roadways or walkways. (b) The City Council further finds that entry into waste containers by unauthorized individuals may subject owners to public nuisance liabilities for which they have no remedy unless provided by an addition to the Modesto Municipal Code.
(c) The Council hereby finds that an ordinance is needed for the preservation of the public peace, health, safety and general welfare of the residents of the City of Modesto based upon the finding of facts declared by the City Council hereinabove stated. 5-5.203 Unlawful Search and Entry—Penalty.
(a) It shall be unlawful for any person, except the owner or someone with the owner's consent or authorized City, County, State, or Federal personnel, or employees of the solid waste company that owns the waste container, in the performance of their duties, to rummage, explore, tamper with, move, remove, tip, deface, destroy, scavenge or otherwise search a waste container or the contents thereof.
(b) Any and each violation of subsection (a) of this section shall constitute a separate and distinct offense punishable as provided in Section 5-5.205 of this chapter. #23..
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5-5.204 Public Nuisance.
Rummaging, exploring, scavenging, or otherwise searching a waste container is a violation of the provisions of this article and is hereby declared a public nuisance.-5.205 Violation and Penalty. (a) Any person in violation of this article shall be guilty of a misdemeanor and shall be punishable by a fine of not more than five hundred dollars ($500.00) or imprisonment in the Stanislaus County jail for not more than six (6) months, or both. (b) Any person that continues in violation of this article shall be guilty of a separate and distinct offense for each and every violation.
SECTION 3. SEVERABILITY.
If any portion of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid, unenforceable, or unconstitutional by a court of competent jurisdiction, that portion shall be deemed severable, and such invalidity, unenforceability, or unconstitutionality shall not affect the validity or enforceability of the remaining portions of the Ordinance, or its application any other person or circumstance. The City Council or the City of Modesto hereby declares that it would have adopted each section, sentence, clause, or phrase of this Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses, or phrases of this Ordinance be declared invalid, unenforceable, or unconstitutional.
SECTION 4. EFFECTIVE DATE.
This Ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption.
SECTION 5. PUBLICATION.
At least two (2) days prior to its final adoption, copies of this Ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in the Modesto Bee, the official newspaper of the City of Modesto, setting forth the title of this Ordinance, the date of its introduction and the places where this Ordinance is posted. #23..
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The foregoing Ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the _____th day of December, 2022, by Council Member _________, who moved its introduction and passage to print, which motion being duly seconded by Council Member_____, was upon roll call carried and ordered, printed, and published by the following vote:
AYES: Councilmembers:
NAYS: Councilmembers:
ABSENT: Councilmembers:
APPROVED:_________________________
SUE ZWAHLEN, Mayor
ATTEST:
BY: __________________________________
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: __________________________________
JOSE M. SANCHEZ, City Attorney
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FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the th day of December, 2022, Councilmember ______________moved its final adoption, which motion being duly seconded by Councilmember ________________, was upon roll call carried and the ordinance adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED: __________________________
MAYOR SUE ZWAHLEN
ATTEST: ____________________________
DIANE NAYARES-PEREZ, City Clerk
Effective Date: _________________, 2022
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TITLE 5 - SANITATION AND HEALTH
Chapter 5 SOLID WASTE
Modesto, California, Code of Ordinances Created: 2022-04-07 15:16:19 [EST] (Supp. No. 60)