Attachment C
NON-EXCLUSIVE FRANCHISE AGREEMENT
BETWEEN
THE CITY OF OAKLAND
AND
«BUSINESS_NAME» FOR
CONSTRUCTION AND DEMOLITION DEBRIS
COLLECTION SERVICES
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City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021)
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS ......................................................................................................................2 ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE FRANCHISEE ................................................8
2.1 REPRESENTATIONS AND WARRANTIES ............................................................................ 8 ARTICLE 3 TERM OF AGREEMENT........................................................................................................9
3.1 EFFECTIVE DATE ................................................................................................................ 9
3.2 CONDITIONS TO EFFECTIVENESS OF AGREEMENT ........................................................... 9
3.3 INITIAL TERM .................................................................................................................. 10
3.4 CITY OPTION TO EXTEND ................................................................................................ 10 ARTICLE 4 SCOPE OF AGREEMENT..................................................................................................... 11
4.1 SCOPE OF AGREEMENT ................................................................................................... 11
4.2 LIMITATIONS TO SCOPE .................................................................................................. 12
4.3 CITY’S RIGHT TO GRANT MULTIPLE AGREEMENTS ......................................................... 13
4.4 AGREEMENT CONSISTENT WITH APPLICABLE LAW ........................................................ 13
4.5 OWNERSHIP OF MATERIALS ........................................................................................... 14
4.6 NOTIFICATION TO CITY OF NON-FRANCHISED HAULERS ............................................... 14 ARTICLE 5 COLLECTION, TRANSPORT, PROCESSING, AND DISPOSAL SERVICES .................................... 14
5.1 COLLECTION AND TRANSPORT ....................................................................................... 14
5.2 PROCESSING .................................................................................................................... 14
5.3 DISPOSAL ........................................................................................................................ 15
5.4 BILLING ............................................................................................................................ 15
5.5 PUBLIC EDUCATION, OUTREACH AND TECHNICAL ASSISTANCE .................................... 16 ARTICLE 6 STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT, AND PERSONNEL ............. 16
6.1 OPERATING DAYS, HOURS, AND SCHEDULES ................................................................. 16
6.2 COLLECTION STANDARDS ............................................................................................... 17
6.3 VEHICLE REQUIREMENTS ................................................................................................ 18
6.4 CONTAINER REQUIREMENTS .......................................................................................... 19
6.5 PERSONNEL ..................................................................................................................... 20
6.6 UNPERMITTED MATERIALS INSPECTION AND HANDLING ............................................. 20
6.7 COMMUNICATION AND COOPERATION WITH CITY ....................................................... 21 ARTICLE 7 RECORD KEEPING AND REPORTING .................................................................................. 22
7.1 GENERAL ......................................................................................................................... 22
7.2 RECORDS ......................................................................................................................... 22
7.3 GENERAL REPORTING REQUIREMENTS .......................................................................... 23
7.4 REPORTS.......................................................................................................................... 24
7.5 CITY C&D CONTRACT MANAGER .................................................................................... 25 ARTICLE 8 FRANCHISE FEES AND OTHER FEES .................................................................................... 26
8.1 GENERAL ......................................................................................................................... 26
8.2 APPLICATION FEE ............................................................................................................ 26
8.3 FRANCHISE FEE ............................................................................................................... 26 [Type here]
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page ii
8.4 ADMINISTRATIVE FEE ..................................................................................................... 26
8.5 OTHER FEES ..................................................................................................................... 26
8.6 ADJUSTMENT TO FEES .................................................................................................... 26
8.7 PAYMENT SCHEDULE AND LATE FEES ............................................................................. 26
8.8 OVERPAYMENT OF FEES ................................................................................................. 27 ARTICLE 9 FRANCHISEE’S COMPENSATION AND RATES ...................................................................... 27
9.1 FRANCHISEE’S COMPENSATION ..................................................................................... 27
9.2 CITY’S RIGHT TO SET MAXIMUM RATES ......................................................................... 27
9.3 FRANCHISEE’S RATES ...................................................................................................... 28 ARTICLE 10 INDEMNITY AND INSURANCE ......................................................................................... 28
10.1 INDEMNIFICATION .......................................................................................................... 28
10.2 INSURANCE ..................................................................................................................... 29 ARTICLE 11 DEFAULT AND REMEDIES ................................................................................................ 29
11.1 EVENTS OF DEFAULT ....................................................................................................... 29
11.2 RIGHT TO TERMINATE UPON DEFAULT .......................................................................... 30
11.3 CITY’S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE ............................................ 30
11.4 LIQUIDATED DAMAGES ................................................................................................... 30
11.5 CONDITIONS UPON TERMINATION ................................................................................ 31 ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES ............................................................................ 32
12.1 RELATIONSHIP OF PARTIES ............................................................................................. 32
12.2 PERMITS AND LICENSES .................................................................................................. 32
12.3 COMPLIANCE WITH LAW ................................................................................................ 33
12.4 GOVERNING LAW ............................................................................................................ 33
12.5 JURISDICTION .................................................................................................................. 33
12.6 BINDING ON SUCCESSORS .............................................................................................. 33
12.7 ASSIGNMENT .................................................................................................................. 33
12.8 PARTIES IN INTEREST ...................................................................................................... 33
12.9 WAIVER ........................................................................................................................... 33
12.10 NOTICE PROCEDURES ..................................................................................................... 34
12.11 REPRESENTATIVES OF THE PARTIES ................................................................................ 34
12.12 PUBLIC RESOURCES CODE SECTION 49523 NOTICE ....................................................... 35 ARTICLE 13 MISCELLANEOUS AGREEMENTS ...................................................................................... 35
13.1 ENTIRE AGREEMENT ....................................................................................................... 35
13.2 SECTION HEADINGS ........................................................................................................ 35
13.3 REFERENCES TO LAWS .................................................................................................... 35
13.4 INTERPRETATION ............................................................................................................ 35
13.5 PRONOUNS AND PLURALS; TENSE .................................................................................. 35
13.6 TEXT TO CONTROL .......................................................................................................... 35
13.7 AMENDMENT .................................................................................................................. 35
13.8 SEVERABILITY .................................................................................................................. 35
13.9 COUNTERPARTS .............................................................................................................. 36
13.10 EXHIBITS .......................................................................................................................... 36
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List of Exhibits
A Schedule for Liquidated Damages
B Secretary’s Certification
C Statement of Applicant’s Understanding and Representations D Business Tax Certificate
E Insurance Documents (as required by Schedule Q)
F Standard Reporting Template
Schedule Q – Insurance Requirements
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 1 NON-EXCLUSIVE FRANCHISE AGREEMENT 1
BETWEEN 2
THE CITY OF OAKLAND 3
AND 4
«BUSINESS_NAME» FOR CONSTRUCTION AND 5
DEMOLITION DEBRIS COLLECTION SERVICES 6
This non- exclusive franchise agreement (Agreement) is made and entered into this 7 «Agreement_Start_Date» day of «Agreement_Start_Date», 20«Agreement_Start_Date», by and between 8 the City of Oakland, (CITY) and «Business_Name» (hereinafter referred to as the FRANCHISEE). 9 RECITALS 10
This Agreement is entered into with reference to the following facts and circumstances: 11 WHEREAS, the legislature of the state of California (“State”), by enactment of the California Integrated 12 Waste Management Act of 1989 (“AB 939”) and subsequent additions and amendments (codified at 13 California Public Reso urces Code section 40000 et se q.), has declared that it is in the public interest to 14 authorize and require local agencies to make adequate provisions for solid waste Collection within their 15 jurisdiction; 16
WHEREAS, the State, through enactment of the California Integrated Waste Management Act of 1989 17 (California Public Resources Code section 40000, et seq.) also recognizes the important health and safety 18 consideration to long- term planning for local government's adequate Disposal needs. The California 19 Integrated Waste Management Act of 1989 declares that the responsibility for management of solid waste 20 is a shared responsibility between the State and local governments. The State requires local governments 21 to make adequate provision for at least fifteen (15) years of garbage Disposal capacity to preserve the 22 health, safety and well- being of the public. The California Integrated Waste Management Act of 1989, 23 Oakland City Charter Article X and Oakland Municipal Code Chapter 8.28 also authorize local governments 24 to enter into exclusive franchise contracts to provide garbage handling services for the health, safety and 25 well-being of its citizens (California Public Resources Code section 40059); 26 WHEREAS, in 1990 the Alameda County Waste Reduction and Recycling Initiative Charter Amendment 27 established a county-wide solid waste diversion rate goal of seventy-five (75) percent by 2010; 28 WHEREAS, in 2002 the City Council of the City of Oakland passed Resolution No. 77500 C.M.S., to adopt a 29 goal of seventy-five (75) percent reduction of waste going to landfills by 2010 in support of the Measure 30 D goal, and the implementation date established by the Alameda County Source Reduction and Recycling 31 Board; 32
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 2 WHEREAS, in 2006 the City Council of the City of Oakland approved Resolution No . 79774 C.M.S. which 33 adopted a Zero Waste Goal by 2020; 34
WHEREAS, in 2006 the City Council of the City of Oakland passed Resolution No. 80286 C.M.S., adopting 35 a Zero Waste Strategic Plan; 36
WHEREAS, in 2012 the City Council of the City of Oakland passed Resolution No. 83689 C.M.S., adopting 37 a Zero Waste System Design; 38
WHEREAS, it is the intent of CITY to provide for the Collection and Processing of Construction and 39 Demolition Debris through this Agreement; 40
WHEREAS, CITY has entered into separate exclusive contracts to provide r esidential and c ommercial 41 mixed materials collection and processing, residential recycling collection and processing, and disposal 42 services within the Service Area; 43
WHEREAS, Customers may voluntarily subscribe to and cancel Construction and Demolition Debris 44 Collection Services from FRANCHISEE, and re-subscribe to Construction and Demolition Debris Services 45 with any other company holding a similar non -exclusive franchise agreement with the City for such 46 service, in accordance with Chapter 8.28.100 of the City of Oakland Municipal Code; 47 WHEREAS, the City Council has determined through an application and review process for Construction 48 and Demolition Debris Collection Services that FRANCHISEE is qualified to provide for the Collection of 49 Construction and Demolition Debris within the corporate limits of CITY, the transportation of such 50 material to appropriate places for Processing, Recycling, and/or Disposal; and City Council desires that 51 FRANCHISEE be engaged to perform such services on the basis set forth in this Agreement; 52 WHEREAS, FRANCHISEE, through its application to CITY , has proposed and represented that it has the 53 ability and capacity to provide for the Collection of Construction and Demolition Debris within the 54 corporate limits of CITY; and the transportation of such material to appropriate places for Processing, 55 Recycling, and/or Disposal; 56
WHEREAS, CITY wishes to engage FRANCHISEE to provide the services specified within this Agreement, in 57 accordance with the terms and conditions of this Agreement; and 58 WHEREAS, this Agreement has been developed by and is satisfactory to CITY and FRANCHISEE. 59 NOW THEREFORE, in consideration of the mutual covenants, conditions and consideration contained 60 herein, CITY and FRANCHISEE hereby agree as hereinafter set forth: 61 ARTICLE 1 62
DEFINITIONS 63
For purposes of this Agreement, unless a different meaning is clearly required, the following words and 64 phrases shall have the following meanings respectively ascribe d to them by this Article and shall be 65 capitalized throughout this Agreement. It is the CITY’s intent that the terms as defined by this Article will, 66 wherever possible, align and correspond with terms defined and used in Sections 8.28 and 15.34 of the 67
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 3 OMC. In the event of a conflict between the definition of a term in the OMC, as it may be amended from 68 time to time, and in this Agreement, the definition in the OMC shall prevail. 69 “AB 341” means the California legislation (Stats. 2006, Ch. 476), as it may be amended from time to time, 70 that, among other things, added Chapter 12.8 of Part 3 of Division 30 of the Public Resources Code 71 (commencing with section 42649) imposing mandatory commercial recycling requirements and 72 requirements that each jurisdiction imp lement an outreach and education program and monitor 73 compliance with the mandatory commercial Recycling requirements. 74 “AB 939” means the California Integrated Waste Management Act (Public Resources Code section 40000 75 et seq.), as amended from time to time. 76
“Agreement” means this written document and all amendments thereto, between CITY and FRANCHISEE, 77 governing the provision of the services provided herein, including all exhibits hereto, as it may be 78 amended from time to time. 79
“Applicable Law” means all federal, State, and local laws, regulations, rules, orders, judgments, degrees, 80 permits, approvals, or other requirements of any governmental agency having jurisdiction over the 81 Collection, Transportation, Recycling, Processing, and Disposal of Construction and Demolition Debris that 82 are in force on the Effective Date and as they may be enacted, issued, or amended during the Term of this 83 Agreement. 84
“Bin” means a watertight metal or plastic Container with a hinged plastic lid and a capacity of between 85 one (1) and seven (7) cubic yards, designed or intended to be mechanically dumped into a packer type 86 truck, which is approved by CITY and labeled as specified by CITY. Bins may also include Compactors that 87 are owned or leased by the Customer, contingent upon confirmation of compatibility from FRANCHISEE. 88 “Cart” means a watertight heavy plastic receptacle with a rated capacity of approximately twenty (20), 89 thirty-two (32), sixty -four (64) or ninety -six (96) gallons, having a hinged tight -fitting lid, and two (2) 90 wheels, that is approved by CITY and is labeled as specified by CITY. 91 “Change in Law” means the adoption, promulgation, or modification of any generally applicable and 92 enforceable federal, state, local joint power authority (JPA), or foreign rule, law, regulation, ordinance, 93 order, judgment, decree, permit or administrative agency guidelines (excluding orders, judgments, and 94 decrees specific to a particular facility) (collectively, “Laws”) duly adopted and promulgated officially in 95 writing for uniform application occurring after the Effective Date. Change in Law does not include changes 96 initiated by FRANCHISEE. Change in Law shall not include (i) Laws enacted or adopted prior to the Effective 97 Date, or (ii) Laws particular to the solid waste , recycling, and C&D collection, hauling, processing and 98 disposal industry that are enacted or finally adopted or approved prior to the E ffective Date of this 99 Agreement but initially become effective after such date. 100 “CITY” means the City of Oakland, California, a municipal corporation. 101 “City C&D Contract Manager” means the City representative specified in Section 7.5, who is the main 102 point of contact for this Agreement. 103
“Collect or Collection (or variation thereof)” means the act, by FRANCHISEE, of picking up and transporting 104 Construction and Demolition Debris from the place of generation in the Service Area. 105
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 4 “Compactor” means any Roll-Off Box or Bin which has a compaction mechanism, whether stationary or 106 mobile, contingent upon confirmation of compatibility from FRANCHISEE. 107 “Construction and Demolition Debris (C&D)” Materials resulting from construction, remodeling, repair 108 or demolition operations on any house, r esidential property, commercial building, pavement or other 109 structure for which CITY requires a building or demolition permit, or from a non -permitted municipal 110 project. Construction and Demolition Debris includes but is not limited to rocks, soils, tree remains and 111 other plant debris which results from land clearing or land development operations in preparation for 112 construction. C onstruction and Demolition Debris may include materials that have been Source 113 Separated. 114
“Container(s)” means a Bin, Cart, Roll- Off Box, Compactor, or other item approved by CITY for use in 115 containing materials set out for Collection under the terms of this Agreement. 116 “County” means the County of Alameda, California. 117
“Customer” means the Person or Persons initiating construction, remodeling, repair or demolition 118 operations on any house, residential property, commercial building, pavement or other structure for 119 which CITY requires a building or demolition permit, who generates Construction and Demolition Debris, 120 and who has arranged for Collection s ervices as provided under this Agreement . The definition of 121 Customer also includes any agent, contractor, or other Persons working on Customer’s behalf. 122 “Disposal or Dispose (or variation thereof)” means the disposition of Construction and Demolition Debris 123 and Residuals received at a Disposal Site under the terms of this Agreement, or (a) the placement of any 124 materials Collected pursuant to this Agreement in landfills, including as “beneficial reuse” as defined by 125 California Code of Regulations Title 27, Chapter 3, Article 1, section 20686; or (b) disposition to 126 “incinerators” as defined by Alameda County Waste Reduction and Recycling Initiative Charter 127 Amendment (Measure D) Subsection 64.150 T. 128
“Disposal Site(s)” means the Disposal site(s) selected by the FRANCHISEE or its Subcontractor(s) for 129 Disposal of material intended by Customer for Disposal consistent with its obligations under Chapter 15.34 130 of the OMC, and for Disposal of Residuals from Processing of Construction and Demolition Debris . Any 131 Disposal Site selected by FRANCHISEE shall be permitted and operated in full compliance with all 132 Applicable Laws. 133
“Divert or Diversion (or variation thereof)” means the avoidance of Disposal at a Disposal Site or other 134 landfill, or through “transformation” as defined by Public Resources Code section 40201, of any materials 135 Collected pursuant to this Agreement, through Processing. 136 “Effective Date” means the date set forth in the introductory paragraph of this Agreement. 137 “Fixed Body Vehicle” means any wheeled motor vehicle that does not rely on a Roll -Off Box or other 138 detachable Container to Collect, contain and Transport material. 139 “FRANCHISEE” means «Business_Name» 140
“Hazardous Waste” for purposes of this Agreement, Hazardous Waste shall include those wastes defined 141 as Hazardous Waste in Oakland Municipal Code section 8.28.010 or as subsequently amended. Section 142
8.28.010 currently defines Hazardous Waste as any hazardous waste, material, substance or combination 143
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 5 of materials which because of its quantity, concentration or physical, chemical or infectious characteristics 144 may cause or significantly contribute to an increase i n mortality or an increase in serious irreversible or 145 incapacitating reversible illness or may pose a substantial present or potential risk to human health or the 146 environment when improperly treated, stored, Transported, Disposed or otherwise managed and which 147 requires special handling under any present or future federal, S tate or local law excluding de minimis 148 quantities of waste of a type and amount normally found in residential g arbage after implementation of 149 programs for the safe Collection, Recycling, treatment and Disposal of Household Hazardous Waste in 150 compliance with sections 41500 and 41802 of the California Public Resources Code. Hazardous Waste 151 shall include but not be limited to: (a) substances that are toxic, corrosive, inflammable or ignitable; (b) 152 petroleum products, crude oil (or any fraction thereof) and their derivatives; (c) explosives, asbestos, 153 radioactive materials, toxic substances or related hazardous materials; and (d) substances defined, 154 regulated or listed (directly or by referenc e) by applicable local, state or federal law as “hazardous 155 substances,” “hazardous materials,” “hazardous wastes,” “pollutant,” “reproductive toxins,” “toxic 156 waste” or “toxic substances” or similarly identified as hazardous to human health or the environme nt, 157 including those so defined in or pursuant to any of the following statutes: (i) the Comprehensive 158 Environmental Response, Compensation and Liability Act (“CERCLA”) of 1980, 42 USC section 9601 et seq. 159 (CERCLA); (ii) the Hazardous Materials Transportation Act, 49 USC section 1802, et seq.; (iii) the Resource 160 Conservation and Recovery Act, 42 USC section 6901 et seq.; (iv) the Clean Water Act, 33 USC section 1251 161 et seq.; (v) California Health and Safety Code section 25115 -25117, 25249.8, 25281 and 25316; (vi) the 162 Clean Air Act, 42 USC section 7901 et seq.; and (vii) California Water Code section 13050. All rules and 163 regulations adopted and promulgated pursuant to such statutes and future amendments to or 164 recodifications of such statutes and any regulations adopted pursuant to these statutes after the date of 165 this Agreement, as well as any subsequently enacted federal or California statute relating to the use, 166 release or disposal of toxic or hazardous substances, or to the remediation of air, surface waters , 167 groundwater, soil or other media contaminated with such substances any other hazardous or toxic 168 substance, material, chemical, waste or pollutant identified as hazardous or toxic or regulated under any 169 other applicable federal, state or local environment al laws currently existing or hereinafter enacted, 170 including, without limitation, friable asbestos, polychlorinated biphenyl’s (“PCBs”), petroleum, natural gas 171 and synthetic fuel products and by-products. The parties intend that this definition not be limited to any 172 particular statutory or regulatory regime and that it be construed as broadly as possible. 173 “Liquidated Damages” means the amounts due by FRANCHISEE to CITY for failure to meet specific 174 quantifiable standards of performance as described in Section 11.4 and Exhibit A. 175 “Oakland Municipal Code (OMC)” means the City of Oakland Municipal Code, as the same may be 176 amended, supplemented, or modified from time to time. 177 “Party or Parties” refers to CITY and FRANCHISEE, individually or together. 178 “Person(s)” means an individual, association, partnership, corporation, joint venture, school, the United 179 States, the State of California, any municipality or other political subdivision thereof or any other entity 180 whatsoever. 181
“Process, Processed or Processing (or any variation thereof)” means an operation or series of operations, 182 whether involving equipment, manual labor, or mechanical or biological processes that sorts, enhances, 183 upgrades, concentrates, decontaminates, packages or otherwise prepares Construction and Demolition 184 Debris and returns marketable elements thereof to the economic mainstream in the form of raw material 185 for new, reused or reconstituted products. Processing begins at the time the Construction and Demolition 186
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 6 Debris is delivered to the Processing Site and ends when the finished P rocessed materials are sold or 187 reused and the Residual material is properly Disposed. 188 “Processing Site(s)” means the facility(ies) selected by FRANCHISEE for Processing that meet s the 189 Diversion obligations of specific Customers as provided in Chapter 15.34 of the OMC. Any Processing Site 190 selected by FRANCHISEE shall be permitted and operated in full compliance with all Applicable Laws. 191 “Processor” means the operator of a Processing Site. 192 “Rates” means the charges and fees FRANCHISEE bills and collects from each Customer receiving service 193 pursuant to this Agreement. 194
“Recycle or Recycling (or any variation thereof) ” means the process of C ollecting, sorting, cleansing, 195 treating, and reconstituting materials for the purpose of using the altered form in the manufacture of a 196 new product. Recycling does not include burning, incinerating, or thermally destroying Construction and 197 Demolition Debris. “Recycle” or “Recycling” are included within the definition of Processing. 198 “Residual or Residue” means materials remaining after the Processing of Construction and Demolition 199 Debris that cannot reasonably be Diverted. 200
“Roll-Off Box” means a metal Container of between six (6) and fifty (50) cubic yards that is normally 201 loaded onto a Roll-Off Collection Truck and transported to an appropriate facility. A Roll-Off Box may be 202 open topped or covered at the discretion of CITY with or without a compaction unit. Roll-Off Boxes shall 203 also include Trailers. 204
“Roll-Off Collection Truck” means a Collection vehicle with a mechanical device such as a winch that pulls 205 or loads a Roll-Off Box onto the truck bed or attached trailer and separately transports each Roll-Off Box 206 to a Processing Site. 207
“Service Address” means the physical location of the property receiving Collection services. 208 “Service Area” means that area within the corporate limits of the City of Oakland. 209 “Source Separated” means materials that have been segregated from Construction and Demolition 210 Debris, for the purpose of Diversion, by or for the Customer at the Service Address at which the materials 211 were generated. 212
“State” means the State of California. 213
“Subcontractor” means a party who has entered into a contract, express or implied, with the FRANCHISEE 214 for the performance of an act that is necessary for the FRANCHISEE ’s fulfillment of its obligations under 215 this Agreement. 216
“Term” means the Term of this Agreement, including extension periods if granted, as provided for in 217 Article 3. 218
“Tonnage” means the total weight in t ons Collected, Recycled, Diverted, or Disposed of, as the context 219 requires, where a ton is equivalent to two thousand (2,000) standard pounds. 220
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 7 “Trailer” means any unpowered vehicle that is designed to be detached from another, powered, vehicle 221 and is used for the purposes of holding and/or transporting Construction and Demolition Debris. 222 “Transport or Transportation (or any variation thereof) ” means the act of moving materials from one 223 place to another by means of a vehicle. 224
“Unpermitted Materials” means wastes or other materials that the Disposal Site(s) may not receive under 225 their permits, including: 226
(1) All materials that the Disposal Site (s) are not permitted to accept, excluding white goods with 227 chlorinated fluorocarbons and capacitors removed, and other materials that FRANCHISEE accepts 228 and safely handles, Recycles, or Disposes; 229
(2) Asbestos, including friable materials that can be crumbled with pressure and are therefore likely to 230 emit fibers, being a naturally occurring family of carcinogenic fibrous mineral substances, which may 231 be Hazardous Materials if it contains more than one percent (1%) asbestos; 232 (3) Auto shredder “fluff” consisting of upholstery, paint, plastics, and other non -metallic substances, 233 which remain after the shredding of automobiles; 234
(4) Hazardous Materials; 235
(5) Infectious wastes that have disease transmission potential and are classified as Hazardous Wastes 236 by the State Department of Health Services, including pathological and surgical wastes, medical 237 clinic wastes, wastes from biological laboratories, syringes, needles, blades, tubing, bottles, drugs, 238 patient care items that as linen or personal or food service items from contaminated areas, 239 chemicals, personal hygiene wastes, and carcasses used for medical purpos es or with known 240 infectious diseases, where “Infectious Waste” means biomedical waste generated at hospitals, 241 public or private medical clinics, dental offices, research laboratories, pharmaceutical industries, 242 blood banks, mortuaries, veterinary facilities and other similar establishments that are identified in 243 the California Health and Safety Code Section 25117.5; 244 (6) Liquid wastes that are not spadeable, usually containing less than fifty percent (50%) solids, 245 including cannery and food Processing wastes , landfill leachate and gas condensate, boiler 246 blowdown water, grease trap pumpings, oil and geothermal field wastes, septic tank pumpings, 247 rendering plant byproducts, sewage sludge not meeting certain quality criteria (i.e., unclassified 248 sludge less than B), and those liquid wastes that may be Hazardous Wastes; 249 (7) Radioactive wastes under Chapter 7.6 (commencing with Section 25800) of Division 20 of the State 250 Health and Safety Code, and any waste that contains a radioactive material, the storage or Disposal 251 of which is subject to any other State or federal regulation; 252 (8) Non-hazardous waste that may pose special Disposal problems because of its potential to 253 contaminate the environment and which may be Disposed of only in Class II disposal sites or C lass 254 III disposal sites pursuant to a variance issued by the California Department of Health Services, if 255 not permitted at the Disposal Site under Applicable Law, including permits. 256 This definition will be promptly amended to reflect any applicable changes in permits or Applicable Law. 257
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 8 “Work Day” means any day, Monday through Saturday excluding New Year’s Day, Thanksgiving Day, and 258 Christmas Day. 259
ARTICLE 2 260
REPRESENTATIONS AND WARRANTIES OF THE FRANCHISEE 261
2.1 REPRESENTATIONS AND WARRANTIES 262
The FRANCHISEE, by execution of this Agreement, represents and warrants the following to the CITY, for 263 the purpose of inducing CITY to enter into this Agreement and to consummate the transactions 264 contemplated hereby: 265
A. Corporate Status. FRANCHISEE is duly organized, validly existing and in good standing under the 266 laws of the State. It is qualified to transact business in the Service Area and State and has the power 267 to own its properties and to carry on its business as now owned and operated and as required by 268 this Agreement. 269
B. Authorization. FRANCHISEE has the authority to enter into this Agreement and to perform its 270 obligations under this Agreement. The Council of FRANCHISEE (or the shareholders, if necessary), 271 sole proprietor, or partners have taken all actions required by law, its articles of incorporation, its 272 bylaws, or otherwise, to authorize the execution of this Agreement. The Person signing this 273 Agreement on behalf of FRANCHISEE represents and warrants that they have authority to do so and 274 the Secretary’s Certification in Exhibit B confirms this. This Agreement constitutes the legal, valid, 275 and binding obligation of the FRANCHISEE. 276
C. Agreement Will Not Cause Breach. To the best of FRANCHISEE 's knowledge after reasonable 277 investigation, the execution or delivery of this Agreement or the performance by FRANCHISEE of its 278 obligations hereunder does not conflict with, violate, or result in a breach: (i) of any law or 279 governmental regulation applicable to FRANCHISEE ; (ii) any term or condition of an y judgment, 280 order, or decree of any court, administrative agency or other governmental authority; or, (iii) any 281 Agreement or instrument to which FRANCHISEE is a party or by which FRANCHISEE or any of its 282 properties or assets are bound, or constitute a default thereunder. 283 D. No Litigation. To the best of FRANCHISEE 's knowledge after reasonable investigation, there is no 284 action, suit, proceeding or investigation, at law or in equity, before or by any court or governmental 285 authority, commission, board, agency or instrumentality decided, pending or threatened against 286 FRANCHISEE wherein an unfavorable decision, ruling or finding, in any single case or in the 287 aggregate, would: 288
1. Materially adversely affect the performance by FRANCHISEE of its obligations hereunder; 289
2. Adversely affect the validity or enforceability of this Agreement; or, 290
3. Have a material adverse effect on the financial condition of FRANCHISEE, or any surety or entity 291 guaranteeing FRANCHISEE's performance under this Agreement. 292
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 9 E. No Adverse Judicial Decisions. To the best of FRANCHISEE ’s knowledge after reasonable 293 investigation, there is no judicial decision that would prohibit this Agreement or subject this 294 Agreement to legal challenge. 295
F. No Legal Prohibition. To the best of FRANCHISEE’s knowledge after reasonable investigation, there 296 is no Applicable Law in effect on the date FRANCHISEE signed this Agreement that would prohibit 297 FRANCHISEE’s performance of it s obligations under this Agreement and the transactions 298 contemplated hereby. 299
G. FRANCHISEE’s Statements. FRANCHISEE’s application and any other supplementary information 300 submitted to the CITY, which CITY has relied on in entering this Agreement, do not: (i) contain any 301 untrue statement of a material fact ; or, (ii) omit to state a material fact that is necessary in order 302 to make the statements made, in light of the circumstances in which they were made, not 303 misleading. 304
H. FRANCHISEE’s Investigation. FRANCHISEE has made an independent investigation (satisfactory to 305 it) of the conditions and circumstances surrounding the Agreement and the work to be performed 306 hereunder. FRANCHISEE has considered such matters in entering this Agreement to provide 307 services in exchange for the compensation provided for under the terms of this Agreement. 308 I. Ability to Perform. FRANCHISEE possesses the business, professional, and technical expertise to 309 Collect, Transport, Recycle, Process, and Dispose Construction and Demolition Debris generated in 310 the Service Area . FRANCHISEE possesses the equipment, facility(ies), and employee resources 311 required to perform its obligations under this Agreement. 312 ARTICLE 3 313
TERM OF AGREEMENT 314
3.1 EFFECTIVE DATE 315
FRANCHISEE may provide the Collection, Transportation, Processing, and Disposal services authorized by 316 this Agreement commencing on the Effective Date of «Agreement_Start_Date». 317
3.2 CONDITIONS TO EFFECTIVENESS OF AGREEMENT 318
The obligation of CITY to permit this Agreement to become effective and to perform its undertakings 319 provided for in this Agreement is subject to the satisfaction of all the conditions below, each of which may 320 be waived, in written form, in whole or in part by CITY. 321 A. Accuracy of Representations. The representations and warranties made in Article 2 of this 322 Agreement are true and correct on and as of the Effective Date. 323 B. Absence of Litigation. There is no litigation pending on the Effective Date in any court challenging 324 the award or execution of this Agreement or seeking to restrain or enjoin its performance. 325 C. Furnishings of Insurance. FRANCHISEE has furnished evidence of the insurance required by Article 326 10 that is satisfactory to CITY. 327
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 10 D. Effectiveness of City Council Action. The City Council’s action approving the form of this 328 Agreement shall have become effective and all Parties shall have signed the Agreement pursuant 329 to Applicable Law prior to or on the Effective Date, provided that no restraining order of any kind 330 has been issued. 331
3.3 TERM 332
The Term of this Agreement shall commence on the Effective Date and continue in full force until 333 «Agreement_End_Date_» unless terminated earlier as set forth in Section 3.5 hereof, or the Term 334 may be extended pursuant to Section 3.4 or terminated early for default in accordance with 335 Section 11.2. 336
3.4 CITY OPTION TO EXTEND 337
A. General. Subject to the approval of the City Administrator, CITY shall have the option to extend the 338 Term of this Agreement in increments of twelve (12) months. CITY may, in its sole discretion, grant 339 multiple extensions to the Term of this Agreement. FRANCHISEE must be in full compliance with 340 the terms of the Agreement in order to be offered an extension. If CITY extends the Agreement, it 341 shall give written notice to FRANCHISEE at least ninety (90) calendar days prior to expiration of the 342 initial Term or of any subsequent extension . CITY ’s written notice shall specify the revised 343 expiration date of the Agreement. Any su ch extension shall not become effective unless 344 FRANCHISEE agrees to the extension, in writing, at least thirty (30) calendar days prior to expiration 345 of the i nitial Term or of any subsequent extension . In entering into this Agreement, FRANCHISEE 346 understands and agrees that FRANCHISEE is solely responsible for managing its direct business 347 obligations and responsibilities to its Customers regardless of whether or not C ITY offers an 348 extension(s) of this Agreement as provided in this Section 3.4. 349 B. CITY Reserved Rights. In offering an extension, CITY reserves the right and FRANCHISEE expressly 350 acknowledges CITY right, to include modified or additional requirements including, but not limited 351 to: 352
1. Changes to the definition of Construction and Demolition Debris or to related definitions. 353
2. Changes to minimum requirements related to vehicles, Containers, signage, reporting, 354 outreach and education, insurance, Liquidated Damages, etc. 355
3. Requiring that FRANCHISEE designate and CITY approve of Processing and/or Disposal Sites to 356 be utilized for Construction and Demolition Debris. CITY may require that FRANCHISEE choose 357 its designated facilities from a list of “certified” or otherwise pre-selected approved facilities. 358
4. Requiring Processing of all Construction and Demolition Debris Collected by FRANCHISEE, 359 unless demonstrated by FRANCHISEE that Processing will not result in Diversion. 360
5. Placing requirements on the marketing of materials recovered through Processing. 361
6. Changes to the limitations defined in Section 4.2. 362
7. New or modified fees as provided in Section 8.5. 363
8. Establishment of maximum rates FRANCHISEE may bill Customers as provided in Section 9.2. 364
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 11
9. Any changes that are required or deemed necessary by CITY due to a Change in Law. 365
10. Modifying Customer permit requirements under Chapter 15.34 of the OMC, or other relevant 366 portions of the OMC. 367
11. Any other changes for management of Construction and Demolition Debris in support of the 368 Zero Waste Strategic Plan or other CITY policies or programs. 369
3.5 CITY EARLY TERMINATION OPTION 370
CITY shall have the option to terminate this Agreement prior to the term date established in Section 3.3 371 provided that this Agreement may be replaced with a subsequent agreement of no less than two years or 372 to a term agreed to by the parties hereto and conting ent on the purposes, goals, and requirements of 373 CITY’s Non Exclusive Franchise system for Construction and Demolition Debris Collection being met by 374 Franchisee during the franchise period, to be determined by CITY in its sole discretion. 375 ARTICLE 4 376
SCOPE OF AGREEMENT 377
4.1 SCOPE OF AGREEMENT 378
This Agreement, granted to FRANCHISEE , authorizes FRANCHISEE to Collect, Transport, Process, and 379 Dispose of Construction and Demolition Debris placed for Collection , provided that the Customer has 380 voluntarily arranged for FRANCHISEE to provide Collection services. Customer s may provide their own 381 Containers as long as they are in substantial compliance with the Container requirements of Section 6.4. 382 FRANCHISEE shall be responsible for the following services: 383 A. Collecting Construction and Demolition Debris placed by Customer s for temporary or ongoing 384 Collection of Construction and Demolition Debris as requested by Customer, consistent with 385 Customer’s obligations under Chapter 15.34 of the OMC, as applicable. 386 B. Providing each Customer, upon delivery of requested Container(s), a printed list that specifies the 387 Construction and Demolition Debris allowed in the Container and Unpermitted Materials that 388 cannot be placed in the Container ( e.g., Hazardous Wastes) . Such list shall be reviewed and 389 approved by the City C&D Contract Manager. 390
C. Transporting Collected Construction and Demolition Debris to the appropriate Processing or 391 Disposal Site(s). 392
D. Furnishing all labor, supervision, vehicles, Containers (except as Customer may provide its own 393 Containers), other equipment, materials, supplies, and all other items and services necessary to 394 perform its obligations under this Agreement. 395
E. Paying or ensu ring payment of all expenses related to provision of services required by this 396 Agreement including, but not limited to, fees, taxes, regulatory fees, Collection costs, 397 Transportation costs, Processing costs, Disposal costs, utilities, etc.. 398
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 12 F. Providing all services required by this Agreement in a thorough and professional manner so that 399 Customers are provided timely, reliable, courteous and high-quality service at all times. 400 G. Performing all services in substantial accordance with this Agreement and with the requirements 401 of Chapter 15.34 of the OMC, as applicable, at all times using best industry practice for comparable 402 operations. 403
H. Complying with Applicable Law. 404
I. Performing or providing all other services necessary to fulfill its obligations under this Agreement. 405 The enumeration and specification of particular aspects of service, labor, or equipment requirements shall 406 not relieve FRANCHISEE of the duty of accomplishing all other aspects necessary to fulfill its obligations 407 under this Agreement whether such requirements are enumerated elsewhere in the Agreement or not. 408 Nothing in this Agreement shall be interpreted to grant to FRANCHISEE an exclusive or non-exclusive right 409 to Collect, Transport, Dispose and/or Process Construction and Demolition Debris from a Service Address 410 that was not generated as a result of construction, remodeling, repair or demolition operations which are 411 directly related to any project for which the City requires a building or demolition permit at the Service 412 Address. By way of example and without any limitation, this Agreement does not authorize FRANCHISEE 413 to Collect, Transport, Dispose and/or Process Construction and Demolition Debris generated by activities 414 at a Service Address which are not directly related to a permitted construction or demolition project (by 415 way of further example, Collection of materials generated by construction activities on the third floor of 416 a building wherein only the third floor is under construction is included in the scope of this Agreement, 417 however Collection of materials generated by other activities on the fourth floor is not). 418
4.2 LIMITATIONS TO SCOPE 419
The scope of the Agreement shall be non-exclusive. Construction and Demolition Debris may be Collected 420 and Transported by other Persons provided that such Persons do so in accordance with the Oakland 421 Municipal Code, including but not limited to the following: 422 A. Construction and Demolition Debris Collected by Other Approved Parties . Construction and 423 Demolition Debris Collected by any other party that has executed an Agreement with the CITY for 424 Construction and Demolition Debris Collection Services. 425 B. Donated Materials. Construction and Demolition Debris generated in the Service Area that are 426 donated by the Customer. 427
C. Materials Hauled by Owner or its Contractor. Construction and Demolition Debris that is removed 428 from any Service Address and Transported to a Processing Site or Disposal Site by: 429
1. T he owner of such Service Address; 430
2. The full-time employee of the owner that uses the owner’s equipment to transport materials; 431 or, 432
3. A construction contractor performing construction work at the Service Address , whose 433 Collection and Transport of the Construction and Demolition Debris is incidental to the service 434 being performed, provided that such contractor uses a Fixed -Body Vehicle for the Collection 435
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 13 and Transportation of the Construction and Demolition Debris , and such contractor Collects 436 and Transports the materials at no additional or separate fee using contractor’s employees and 437 contractor’s equipment. For the purposes of this section, except as set forth below, the term 438 “incidental to the service being performed” shall mean that the material requiring Collection 439 and Transport is generated by the activity of the contractor performing the hauling. 440 i. For example, a construction contractor who remodels a kitchen can Collect and 441 transport those materials related to such construction in a Fixed Body Vehicle for no 442 additional fee without infringing on the scope of this Agreement. 443 ii. A s an additional example, a contractor whose sole responsibility with relation to the 444 project is to clean up a site and remove materials generated by other contractors or 445 the owner/occupant is subject to the requirements of this Agreement, and the 446 Collection and Transport of such materials from the site by such contractor is not 447 considered as “incidental to the service being performed”. 448 iii. Nothing in this agreement shall authorize a demolition contractor performing 449 demolition services in relation to a City -approved building or demolition permit to 450 Collect and Transport Construction and Demolition Debris without an executed non-451 exclusive franchise agreement with CITY for Construction and Demolition Debris 452 Collection Services. 453
In the event of a dispute between the FRANCHISEE and City C&D Contract Manager 454 regarding the applicability of this section, the City Administrator, or its designee, shall make 455 all final determinations. 456
D. State Government Facilities. Construction and Demolition Debris generated by public schools, 457 cities, the County, or federal facilities (with the exception of facilities subject to 42 U.S.C. S ection 458 6961(a)). 459
E. Projects on City Property. Construction and Demolition Debris removed from a project site by CITY 460 employees, provided that the Construction and Demolition Debris being removed is generated from 461 a City-owned property. 462
Nothing in this Agreement shall prevent other Persons from Collecting, Transporting, Processing and/or 463 marketing materials that have been Source Separated (as defined in Article 1) by material type. 464
4.3 CITY’S RIGHT TO GRANT MULTIPLE AGREEMENTS 465
CITY may grant to any number of additional Persons similar non- exclusive franchise agreements for 466 Collection, Transportation, Processing, and Disposal of Construction and Demolition Debris. 467
4.4 AGREEMENT CONSISTENT WITH APPLICABLE LAW 468
This Agreement and scope of this franchise shall be interpreted to be consistent with Applicable Law, now 469 and during the Term. If future judicial interpretations of current law or new laws, regulations, or judicial 470 interpretations limit the ability of CITY to lawfully provide for the scope of services as specifically set forth 471 herein, FRANCHISEE agrees that the scope of the Agreement will be limited to those services and materials 472 which may be lawfully provided and that CITY shall not be responsible for any lost profits or losses claimed 473 by FRANCHISEE to arise out of limitations of the scope of the Agreement set forth herein. In such an 474
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 14 event, it shall be the responsibility of FRANCHISEE to minimize the financial impact of such future judicial 475 interpretations or new laws. 476
4.5 OWNERSHIP OF MATERIALS 477
Once Construction and Demolition Debris is placed for Collection by FRANCHISEE, ownership and the right 478 to possession of such materials shall transfer directly from the Customer to FRANCHISEE. 479 On a short-term basis not to exceed more than five (5) calendar days per year, CITY may obtain ownership 480 or possession of Construction and Demolition Debris placed for Collection, for purposes of waste 481 characterization studies, upon written notice to FRANCHISEE of its intent to do so. However, nothing in 482 this Agreement shall be construed as giving rise to any inference that CITY has such ownership or 483 possession unless such written notice has been given to FRANCHISEE. 484
4.6 NOTIFICATION TO CITY OF NON-FRANCHISED HAULERS 485
If FRANCHISEE can produce evidence that other Perso ns are Collecting Construction and Demolition 486 Debris and do not have rights to do so as granted by an Agreement with CITY or otherwise, or in a manner 487 that is not consistent with the Oakland Municipal Code, FRANCHISEE shall notify CITY in writing, within 488 five (5) calendar days of FRANCHISEE witnessing such circumstances. FRANCHISEE’s notice shall include 489 the name and telephone number of the Person or company Collecting Construction and Demolition Debris 490 (if known) , the date FRANCHISEE witnessed the event, the location and/or service address of the 491 Container along with FRANCHISEE ’s evidence of the violation of the rights granted by this Agreement. 492 CITY may in its sole discretion take action in response to specific notification by FRANCHISEE . Nothing in 493 this Agreement shall prohibit FRANCHISEE from enforcing its rights under this Agreement. 494 ARTICLE 5 495
COLLECTION, TRANSPORT, PROCESSING, AND DISPOSAL 496
SERVICES 497
5.1 COLLECTION AND TRANSPORT 498
FRANCHISEE is hereby authorized to Collect and Transport Construction and Demolition Debris from 499 Service Addresses in the Service Area. FRANCHISEE shall Collect Construction and Demolition Debris from 500 Customers that voluntarily subscribe to or request Construction and Demolition Debris Collection services 501 from FRANCHISEE. FRANCHISEE shall provide its Customers with one or more Containers for Construction 502 and Demolition Debris Collection or shall allow its Customers to provide Containers. FRANCHISEE shall 503 provide requested service to its Customers and shall charge Customers for service at Rates mutually 504 agreed in writing by Customer and FRANCHISEE. 505
FRANCHISEE shall Transport Construction and Demolition Debris Collected pursuant to this Agreement to 506 a Processing or Disposal Site that has been selected by FRANCHISEE or required by any Customer of 507 FRANCHISEE. 508
5.2 PROCESSING 509
A. Processing Services. FRANCHISEE agrees to Transport and deliver all Construction and Demolition 510 Debris that it: 1) Collects in the Service Area; and, 2) represents to a Customer will be Processed; to 511 a Processing Site. Residue from the Construction and Demolition Debris Processing and Recycling 512
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 15 activities shall be Disposed of by FRANCHISEE or its Processor at a Disposal Site in accordance with 513 Section 5.3. 514
FRANCHISEE or its Processor(s) shall possess all permits and approvals necessary to maintain the 515 Processing Site(s) in full regulatory compliance. FRANCHISEE shall, upon CITY request, provide or 516 request from its Processor(s) copies of notices of violation or permits to CITY. 517 B. Processing Costs. FRANCHISEE shall pay or ensure payment of all expenses related to Processing 518 and marketing and/or Disposal of Construction and Demolition Debris including, but not limited to, 519 fees, taxes, regulatory fees, Collection costs, Transportation costs, Processing costs, Disposal costs, 520 utilities, etc. 521
C. Compliance with Regulations. FRANCHISEE shall observe and comply with all regulations in effect 522 regarding the Processing of materials including, but not limited to, the Alameda County Waste 523 Management Authority Mandatory Recycling Ordinance 2012 -01, the Alameda County Waste 524 Management Authority Plant Debris Landfill Ban Ordinance 2008-01 and Chapter 15.34 of the OMC, 525 as they apply to this Agreement. FRANCHISEE shall also observe and comply with all regulations in 526 effect at any Proc essing Site(s) and cooperate with the operator thereof including directions to 527 unload vehicles in designated areas, accommodating operations and maintenance activities, and 528 complying with Hazardous Waste exclusion programs. 529
5.3 DISPOSAL 530
A. Disposal Services. FRANCHISEE shall, or shall require its Processor(s) to, Dispose of Construction 531 and Demolition Debris and Residue Collected within the Service Area, that is not Diverted through 532 Processing activities, by Transporting the Construction and Demolition Debris and Residue to a 533 Disposal Site that is lawfully authorized to accept such material. FRANCHISEE, or its Processor, shall 534 not Dispose of materials by depositing on any public or private land, in any river, stream, or other 535 waterway, or in any sanitary sewer or storm drainage system or in any other manner which violates 536 Applicable Laws. 537
B. Permitted Site. FRANCHISEE or its Processor shall only Dispose of mate rials at a Disposal Site (s) 538 that is in full regulatory compliance. FRANCHISEE , or its Processor (s), shall keep or confirm all 539 existing permits and approvals necessary for use of a Disposal Site(s) in full regulatory compliance. 540 FRANCHISEE shall, upon request, provide copies of notices of violation or permits to CITY. 541 C. Compliance with Regulations. FRANCHISEE shall observe and comply with all regulations in effect 542 regarding the Disposal of materials including, but not limited to, the Alameda County Waste 543 Management Authority Mandatory Recycling Ordinance 2012 -01, the Alameda County Waste 544 Management Authority Plant Debris Landfill Ban Ordinance 2008-01 and Chapter 15.34 of the OMC, 545 as they apply to this Agreement. FRANCHISEE shall also observe and comply with all regulations in 546 effect at any Disposal Site(s) and cooperate with the operator thereof including directions to unload 547 vehicles in designated areas, accommodating operations and maintenance activities, and 548 complying with Hazardous Waste exclusion programs. 549
5.4 BILLING 550
FRANCHISEE shall bill all Customers and collect billings in accordance with FRANCHISEE-established Rates, 551 which are set in a manner consistent with provisions of Section 9.3. FRANCHISEE shall prepare, issue, and 552
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 16 collect bills (or shall issue written receipts for cash payments) for Collection services provided by 553 FRANCHISEE. FRANCHISEE shall be responsible for collection of payment from Customers with past due 554 accounts. 555
FRANCHISEE shall maintain copies of all billings and receipts, each in chronological order, for five (5) years 556 after expiration or termination of this Agreement. FRANCHISEE shall retrieve and make available to CITY 557 copies of the billings and receipts within thirty (30) Work Days of the City C&D Contract Manager’s written 558 request for the billings and receipts. FRANCHISEE may, at its option, maintain those records electronically, 559 on microfiche, or in any other manner, provided that the records can be preserved and retrieved for 560 inspection and verification in a timely manner. 561
5.5 PUBLIC EDUCATION, OUTREACH AND TECHNICAL ASSISTANCE 562 FRANCHISEE shall provide Customers with education, outreach and technical assistance to aid them in 563 complying with the ir obligations under the Construction and Demolition Debris Waste Reduction and 564 Recycling Requirements Ordinance of Chapter 15.34 of the Oakland Municipal Code, as provided by CITY. 565 FRANCHISEE must notify Customers of the services it provides, the services provided through CITY’s other 566 franchises, through the N on-Exclusive Commercial Recycling Ordinance, and of services available for 567 Unpermitted Materials Collection and Processing, which are not acceptable in Collection Containers under 568 this Agreement. If FRANCHISEE fails to perform some or all of the requirements described in this Section 569
5.5, FRANCHISEE shall pay CITY Liquidated Damages as described in Section 11.4 and Exhibit A. 570
5.6 PUBLIC ACCESS BY EMAIL AND TELEPHONE 571
FRANCHISEE shall maintain an active email address and a 24 -hour telephone serv ice with recording 572 capability, where the public may report issues with FRANCHISEE’S trucks, Containers, and services. 573 574
ARTICLE 6 575
STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT, 576 AND PERSONNEL 577
6.1 OPERATING DAYS, HOURS, AND SCHEDULES 578
A. Days and Hours of Collection. Except as expressly authorized by the C&D Contract Manager, 579 FRANCHISEE shall not Collect or deliver Containers between 7:00 p.m. and 7:00 a.m. on weekdays, 580 and between 6:00 p.m. and 10:00 a.m. on weekends. In addition, FRANCHISEE shall conform days 581 and hours of Collection and Container delivery to the schedule and limitations specified in the 582 Customer’s building or demolition permit issued by CITY, or as specified by the City C&D Contract 583 Manager, and in accordance with the Oakland Municipal Code. 584 B Failure to Comply. If FRANCHISEE fails to comply with the Collection hours described in this Section, 585 the FRANCHISEE shall pay CITY Liquidated Damages as described in Section 11.4 and Exhibit A. 586
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6.2 COLLECTION STANDARDS 587
6.2.1 Instructions to Customer 588
FRANCHISEE shall instruct Customers as to any preparation of Construction and Demolition Debris 589 necessary prior to placing for Collection. FRANCHISEE shall, in written form, inform all Customers as to 590 the Construction and Demolition Debris that can be placed for Collection and any Unpermitted Materials 591 not allowed for Collection. 592
6.2.2 Care of Private Property 593
FRANCHISEE shall not damage private property. CITY shall refer complaints about damage to private 594 property to FRANCHISEE. FRANCHISEE shall repair all damage to private and public property caused by 595 its employees to its previous condition. 596
6.2.3 Litter Abatement 597
A. Minimization of Spills. FRANCHISEE shall use due care to prevent vehicle oil, fuel, hydraulic fluid, 598 and other substances that may leak from vehicles from being spilled or scattered during Collection 599 and Transportation operations , in accordance with Ap plicable Law . If any Construction and 600 Demolition Debris is spilled or scattered during Collection or Transportation operations, 601 FRANCHISEE shall promptly clean up all spilled and scattered materials. 602 FRANCHISEE shall not transfer loads from one vehicle to another on any public street, unless it is 603 necessary to do so because of mechanical failure, hot load (combustion of material in the truck), 604 accidental damage to a vehicle, or unless approved by CITY. 605 If FRANCHISEE fails to perform some or all of the requirements described in this Section, 606 FRANCHISEE shall pay CITY Liquidated Damages as described in Section 11.4 and Exhibit A. 607 B. Clean-Up. Each Collection vehicle shall carry protective gloves, a broom, and shovel at all times for 608 cleaning up litter and absorbent material for cleaning up liquid spills. FRANCHISEE shall discuss 609 instances of repeated spillage not caused by FRANCHISEE with the Customer of the Service Address 610 where spillage occurs, and FRANCHISEE shall report such instances to CITY . If FRANCHISEE has 611 attempted to have a Customer stop creating spillage but is unsuccessful, CITY may attempt, upon 612 notice by FRANCHISEE, to rectify such situation with the Customer. 613 C. Covering of Roll-Off Loads. FRANCHISEE shall cover all Roll-Off Boxes at the pickup location before 614 Transporting Construction and Demolition Debris and until it is unloaded to prevent Construction 615 and Demolition Debris from escaping during Transportation. 616
6.2.4 Noise 617
All Collection operations shall be conducted as quietly as possible and must comply with U.S. EPA noise 618 emission regulations currently codified at 40 CFR Part 205, California Vehicle Code Section 27207, and 619 other applicable State, County, and CITY (OMC 8.18.010) noise control regulations. If FRANCHISEE fails to 620 comply with the noise requirements of this Section, FRANCHISEE shall pay CITY Liquidated Damages in 621 accordance with Section 11.4 and Exhibit A. 622
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6.3 VEHICLE REQUIREMENTS 623
A. General. Vehicles used to provide services under this Agreement shall be kept in a safe, neat, clean, 624 and operable condition , and shall at all times be maintained and utilized in accordance with 625 Applicable Law. If FRANCHISEE fails to keep Collection vehicles in a safe and sanitary condition, 626 FRANCHISEE shall pay CITY Liquidated Damages as described in Section 11.4 and Exhibit A. 627 B. Specifications. FRANCHISEE shall register all vehicles with the California Department of Motor 628 Vehicles. All such vehicles shall comply with California Environmental Protection Agency (EPA) 629 noise emission and air quality regulations and other applicable noise control regulations. 630 C. Vehicle Identification. FRANCHISEE's name, local telephone number, and a unique identification 631 number for each vehicle used to provide services under this Agreement, shall be prominently 632 displayed on all vehicles, in letters and numbers that are a minimum of three (3) inches high. All 633 vehicles shall be uniformly painted. FRANCHISEE shall not place CITY's logo on its vehicles. 634 D. Cleaning and Maintenance 635
1. Cleaning. Collection vehicles shall be cleaned and painted as necessary to present a clean 636 appearance of the exterior and interior compartment of the vehicle at all times. 637
2. Maintenance. FRANCHISEE shall inspect each vehicle daily to ensure that all equipment is 638 operating properly. Vehicles that are not operating properly shall be taken out of service until 639 they are repaired and operating properly. FRANCHISEE shall perform all scheduled 640 maintenance functions in accordance with the manufacturer's specifications and schedule and 641 as required by Applicable Law . FRANCHISEE shall keep accurate records of all vehicle 642 maintenance, recorded according to date and mileage, and shall make such records availab le 643 to CITY upon request to the extent necessary to perform the inspections described in Sections 644
6.3.F and 6.7.B. 645
3. Repairs. FRANCHISEE shall repair, or arrange for the repair of, all of its vehicles and equipment 646 for which repairs are needed because of accident, breakdown, or any other cause, so as to 647 maintain all equipment in a safe and operable condition. FRANCHISEE shall maintain accurate 648 records of repair, which shall include the date/mileage, nature of repair and the signature of a 649 maintenance supervisor that the repair has been properly performed. 650
4. Storage. FRANCHISEE shall arrange to store all vehicles and other equipment in safe and secure 651 location(s) in accordance with CITY's applicable zoning regulations. 652 E. Operation. Vehicles shall be ope rated in compliance with the California Vehicle Code, and all 653 applicable safety and local ordinances. FRANCHISEE shall not load vehicles in excess of the 654 manufacturer's recommendations or limitations imposed by State or local weight restrictions for 655 vehicles and roads. 656
F. Vehicle Inspection. CITY may inspect vehicles at any time to determine compliance with the 657 requirements of this Agreement. FRANCHISEE shall make vehicles available to CITY and/or Alameda 658 County Health Department for inspection, at any frequency CITY reasonably requests. The 659 FRANCHISEE may have such inspection s conducted by the California Highway Patrol, or other 660 designated agency, and shall provide the results of such inspection to the City C&D Contract 661
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 19 Manager within ten (10) Work Days of receipt. FRANCHISEE shall maintain, at its local business 662 offices, a record of daily vehicle inspection reports for all Collection-related vehicles and shall make 663 such reports available to the City C&D Contract Manager for review at all times. 664
6.4 CONTAINER REQUIREMENTS 665
A. General. All Containers shall meet applicable federal, State, County and local regulations for safety, 666 and shall at all times be maintained and utilized in accordance with Applicable Law. 667 B. Prevent Leakage. If the type of mate rials placed in the Container may result in leakage of liquids, 668 FRANCHISEE shall take precautions to prevent the leakage of liquids. 669 C. Container Identification. All FRANCHISEE-provided Containers shall prominently display 670 FRANCHISEE’s name, local telephone number, a unique Container identification number , the 671 volume of the container, and a list of acceptable materials. 672 D. Cleaning, Painting, and Maintenance. FRANCHISEE shall make reasonable business efforts to 673 maintain all Containers in a safe, fully serviceable and functional condition, and shall steam clean 674 and repaint Containers in a frequency adequate to present a clean, graffiti-free appearance. 675 E. Container Inspections. CITY may inspect Containers at any time to determine compliance with 676 sanitation requirements. FRANCHISEE shall make Containers available to CITY at any frequency it 677 requests. CITY shall have the right to prohibit the use of any Container that fails to comply with the 678 provisions in this Section 6.4. 679
F. Abandoned Containers. FRANCHISEE shall not abandon any Container used to provide 680 Construction and Demolitio n Debris Collection services under this Agreement. If FRANCHISEE 681 abandons a FRANCHISEE-owned Container, CITY or its agent may remove the Container and Process 682 and Dispose of the contents. If CITY or its agent removes a Container abandoned by FRANCHISEE, 683 CITY may charge FRANCHISEE for CITY’s costs incurred by removing such Container, Transporting, 684 Processing, and Disposing of its contents, and/or the cost of storing such Container. FRANCHISEE 685 shall reimburse CITY for such costs within fourteen (14) calendar days of the date of CITY’s invoice 686 to FRANCHISEE for such costs. If FRANCHISEE does not pay the invoice amount within fourteen (14) 687 calendar days, CITY may assume ownership of the Container. 688 For the purposes of this Section 6.4.F, “abandon" means the following: 689
1. FRANCHISEE’s failure to remove a FRANCHISEE-owned Container within five (5) calendar days 690 of receiving a written request from a Customer or the CITY or within five (5) calendar days after 691 the termination of the customer service agreement betw een FRANCHISEE and the Customer; 692 or, 693
2. FRANCHISEE’s failure to remove a FRANCHISEE-owned Container within ten (10) calendar days 694 upon expiration or termination of this Agreement, except in the case where FRANCHISEE has 695 been granted an extension of the Term of the Agreement or FRANCHISEE has been granted a 696 subsequent agreement authorizing FRANCHISEE to Collect and transport the type or types of 697 materials for which the Container was used pursuant to this Agreement. 698
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 20
6.5 PERSONNEL 699
A. General. FRANCHISEE shall furnish such qualified drivers, maintenance, supervisory , Customer 700 service, clerical and other personnel as may be necessary to provide the services required by this 701 Agreement in a safe and efficient manner. 702
B. Driver Qualifications. All drivers shall be trained and qualified in the operation of Collection 703 vehicles, and must have in effect a valid license, of the appropriate class, and with appropriate 704 endorsements, issued by the California Department of Motor Vehicles. All drivers must comply with 705 all regulations and requirements set forth by the California Department of 706 Motor Vehicles and the California Vehicle Code , as they apply to the services provided under this 707 Agreement. 708
C. Safety Training. FRANCHISEE shall provide suitable operational and safety training for all of its 709 employees who operate Collection vehicles or equipment or who are otherwise directly involved in 710 such Collection, Disposal, or Processing. FRANCHISEE shall train its employees involved in 711 Collection to identify, and not to collect, Hazardous Waste or Unpermitted Materials. Upon CITY’s 712 request, FRANCHISEE shall provide a copy of its safety policy , using best industry practices, and 713 safety training program, the name of its safety officer, and the frequency of its trainings. 714 D. Employee Conduct and Courtesy. FRANCHISEE shall use its best efforts to ensure that all 715 employees present a neat appearance and conduct themselves in a courteous manner. 716 FRANCHISEE shall regularly train its employees in Customer courtesy, shall prohibit the use of loud 717 or profane language, and shall instruct Collection employees to perform the work as quietly as 718 possible. If any employee is found not to be courteous or not to be performing services in the 719 manner required by this Agreement, FRANCHISEE shall take all appropriate corrective measures 720 and shall pay CITY Liquidated Damages as described in Section 11.4 and Exhibit A. 721 E. Employee Identification. While performing services under this Agreement, all of FRANCHISEE ’s 722 employees performing field service shall be dressed in clean clothes and shall wear identification 723 that include the employee’s name and/or employee number, and FRANCHISEE’s name, as approved 724 by CITY. 725
F. Non-Smoking. While performing services u nder this Agreement, all of FRANCHISEE’s employees 726 performing field service shall refrain from smoking, in accordance with Chapter 8.30.055 of the 727 OMC and in support of LEED IEQp2 standards. 728
6.6 UNPERMITTED MATERIALS INSPECTION AND HANDLING 729
A. Response to Unpermitted Materials Identified during Collection. If FRANCHISEE determines that 730 material placed in any Container for Collection is a Hazardous Waste and/or Unpermitted Material 731 that may not legally be Disposed of at a Disposal Site or handled at a Processing Site, or presents a 732 hazard to FRANCHISEE's employees, FRANCHISEE shall refuse to accept such material. FRANCHISEE 733 shall contact the Customer and request the Customer to arrange proper Disposal. If the Customer 734 cannot be reached immediately, FRANCHISEE shall, before leaving the Service Address, leave a tag 735 at least eight and one half inches by eleven inches (8.5" x 11") in size, which indicates the reason 736 for refusing to Collect the material and lists a phone number for obtaining information on proper 737 Disposal of the Hazardous Waste and/or Unpermitted Material. Under no circumstances shall 738 FRANCHISEE’s employees knowingly Collect Hazardous Waste and/or Unpermitted Material. 739
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 21 If Hazardous Waste s and/or Unpermitted Materials are found in a Container that could possibly 740 result in imminent danger to people or property, FRANCHISEE shall immediately notify CITY’s Fire 741 Department using the 911 emergency number. 742
FRANCHISEE shall notify CITY of any Hazardous Waste and/or Unpermitted Materials identified in 743 Containers or left at any Service Address within twenty-four (24) hours of identification of such 744 material. 745
B. Response to Hazardous Wastes Identified at Processing Site(s). FRANCHISEE, or its Processor, shall 746 provide load checkers and equipment operators at the Processing Site (s) to identify Hazardous 747 Waste and/or Unpermitted Material for storage in approved, on -site, Hazardous Waste and/or 748 Unpermitted Material storage container(s). FRANCHISEE shall make reasonable efforts to identify 749 and notify the Customer. FRANCHISEE shall arrange for removal of the Hazardous Waste and/or 750 Unpermitted Material by permitted haulers in accordance with Applicable Laws and regulatory 751 requirements. 752
If the Hazardous Waste and/or Unpermitted Material is delivered to a Processing Site by 753 FRANCHISEE before its presence is detected, and the Customer cannot be identified or fails to 754 remove the material after being requested to do so, FRANCHISEE shall arrange for its proper 755 Disposal. FRANCHISEE may make a good faith effort to recover the cost of Disposal from the 756 Customer, and the cost of this effort, as well as the cost of Disposal shall be chargeable to the 757 Customer. 758
C. Regulations and Record Keeping. FRANCHISEE shall comply with emergency notification 759 procedures required by Applicable Laws and regulatory requirements. All records required by 760 regulations shall be maintained at FRANCHISEE ’s facility. These records shall include: waste 761 manifests, waste inventories, waste characterization records, inspection records, incident reports, 762 and training records. 763
6.7 COMMUNICATION AND COOPERATION WITH CITY 764
A. Communications. When requested, FRANCHISEE shall meet with CITY or its agent to discuss service 765 issues. FRANCHISEE will make available for such meetings a representative with the authority and 766 knowledge to direct FRANCHISEE resources as needed to resolve matters of concern to the CITY. 767 B. Inspection by CITY. CITY , or its designated representatives, shall have the right to observe and 768 review FRANCHISEE operations and Processing Site(s) used by FRANCHISEE and enter FRANCHISEE’s 769 premises for the purposes of such observation and review during reasonable hours without 770 advance notice. 771
C. Cooperate with CITY-Initiated Studies. FRANCHISEE shall cooperate with and assist CITY or its 772 agent with the performance of CITY -initiated studies of Construction and Demolition Debris such 773 as, but not limited to, waste characterization and composition studies. 774
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 22 ARTICLE 7 775
RECORD KEEPING AND REPORTING 776
7.1 GENERAL 777
7.1.1 Maintenance of Records 778
FRANCHISEE shall maintain full and complete financial and accounting records, pertaining to cash, billing, 779 Processing and Disposal transactions for this Agreement, prepared in accordance with generally accepted 780 accounting principles. Such records shall be made available by FRANCHISEE at a location within Alameda 781 County. Such records shall be subject to audit and inspection, for the primary purpose of reviewing billing 782 operations, accounts receivable, Disposal and Processing fee charges, Diversion reporting, and compliance 783 with service classifications by CITY and its authorized officers, agents or employees, at any reasonable 784 time at FRANCHISEE's principal office. 785
The gross receipts derived from the s ervices provided for under this Agreement , whether such services 786 are performed by FRANCHISEE or by a Subcontractor or Subcontractors, shall be recorded as revenues in 787 the accounts of FRANCHISEE. FRANCHISEE shall maintain and preserve all cash, billing and disposal records 788 for a period of not less than three (3) years following the expiration or termination of the Agreement. At 789 the request of CITY, reports submitted by FRANCHISEE shall be audited and certified by an independent 790 third party selected by CITY, at CITY’s expense. This audit may include a Customer billing audit in order to 791 verify that each Customer is receiving the level of service for which they are being billed. 792 To the extent such requirements are set out in this and other Articles of this Agreement, they shall not be 793 considered limiting or necessarily complete. 794
7.1.2 Retention of Records 795
Unless otherwise required in this Article, FRANCHISEE shall retain all records and data required to be 796 maintained by this Agreement for the Term of this Agreement plus five (5) years after its expiration or 797 earlier termination. Records and data shall be in chronological order and readily and easily interpreted. 798
7.1.3 Inspection of Records 799
All records required to be maintained by this Agreement (including, but not limited to cash receipts, billing 800 and disposal records) shall be made available by FRANCHISEE at a location within Alameda County for 801 inspection and audit by the City C&D Contract Manager or their designee during the T erm of this 802 Agreement and for a period of three (3) years following the expiration or termination of the Agreement. 803
7.1.4 Record Security 804
FRANCHISEE shall maintain adequate record security to preserve records from events that can be 805 reasonably anticipated such as fire, theft, and earthquake. Electronically maintained data and records 806 shall be protected and backed-up. 807
7.2 RECORDS 808
7.2.1 Financial and Operational Records 809
At a minimum, the following operational records shall be maintained by FRANCHISEE for CITY relating to 810 provision of services to Customers as defined in this Agreement: 811
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 23 A. Customer account information and loads hauled information by building or demolition permit, and 812 billing records; 813
B. Tonnage of Construction and Demolition Debris Collected, listed by the Processing or Disposal Site 814 where such materials were delivered. 815
C. Tonnage of Construction and Demolit ion Debris Diverted from Disposal by building or demolition 816 permit, project, and generator and supporting documentation. 817 D. Weight tickets from each Processing and Disposal Site, documenting the Tonnages delivered from 818 the CITY for Processing or Disposal by material type and disposition. All weight tickets shall be 819 provided listing a unique vehicle number, date, and time. 820 FRANCHISEE shall make records available to CITY upon request. 821
7.2.2 Customer Records 822
FRANCHISEE shall maintain accurate and complete records containing the number and types of accounts 823 served by FRANCHISEE . The records shall contain, at a minimum, the Customer’s name, building or 824 demolition permit number, project number, type of business or identification that the service is provided 825 to a residential Service Address , phone number, address of Container delivery and Collection location, 826 date of delivery and Collection, itemized lis ting of services performed, type of Construction and 827 Demolition Debris Collected, tonnage Collected, and the amount charged to provide services. The 828 information shall be provided to CITY upon request. 829
7.2.3 CERCLA Defense Records 830
CITY views its ability to defend itself against Comprehensive Environmental Response, Compensation and 831 Liability Act (CERCLA), and related litigation as a matter of great importance. For this reason, CITY regards 832 its ability to prove where Construction and Demolition Debris Collected by FRANCHISEE are taken for 833 Processing, Recycling, Transfer, or Disposal, as well as where they are not taken, to be matters of concern. 834 FRANCHISEE shall maintain, retain and preserve records which can establish where Construction and 835 Demolition Debris Collected were Processed, Recycled and Disposed (and therefore establish where they 836 were not). This provision shall survive the expiration or earlier termination of this Agreement. 837 FRANCHISEE shall maintain these records for a minimum of ten ( 10) years beyond expiration or earlier 838 termination of the Agreement. FRANCHISEE shall provide these records to CITY (upon request or at the 839 end of the record retention period) in an organized and indexed manner rather than destroying or 840 disposing of them. 841
7.3 GENERAL REPORTING REQUIREMENTS 842
The format of each report shall be designated by CITY. FRANCHISEE may propose alternative report 843 formats if FRANCHISEE can demonstrate to the satisfaction of the City C&D Contract Manager that the 844 alternative report formats will achieve CITY’s objectives and reduce the effort for both FRANCHISEE and 845 CITY. FRANCHISEE agrees to submit all reports electronically , in a format prescribed by CITY, at no 846 additional charge to CITY. FRANCHISEE will provide a certification statement, under penalty of perjury, by 847 the responsible FRANCHISEE official, that the report being submitted is true and correct to the best 848 knowledge of such official after their reasonable inquiry. 849
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 24 FRANCHISEE shall submit reports within thirty (30) calendar days of the end of each calendar quarter 850 (January-March, April -June, July -September, October-December). If FRANCHISEE does not submit the 851 reports by the dates required in this Article, FRANCHISEE shall pay the CITY Liquidated Damages as 852 described in Section 11.4 and Exhibit A. 853
FRANCHISEE shall submit all reports to: 854
City C&D Contract Manager 855
Email: C&[email protected] 856
Environmental Services Division, OPW 857
(510) 238-SAVE (7283) 858
7.4 REPORTS 859
The report shall be specific to provision of services to Customers as defined in this Agreement, and shall 860 present the following information. 861
A. Tonnage. Using the form supplied by CITY in Exhibit F (Standard Reporting Template), FRANCHISEE 862 shall report the Total Construction and Demolition Debris tonnage Collected by FRANCHISEE within 863 the Service Area during the previous quarter. 864
B. Collection Locations and identification as Construction and Demolition Materials. Using the form 865 supplied by CITY in Exhibit F (Standard Reporting Template), FRANCHISEE shall report the collection 866 address for each load Collected by FRANCHISEE within the Service Area during the previous quarter. 867 For each load Collected, FRANCHISEE shall report the construction or demolition permit number 868 provided by the Customer. 869
C. Disposal and Processing Locations. Using the form supplied by CITY in Exhibit F (Standard Reporting 870 Template), FRANCHISEE shall provide a list of the names and addresses of Processing and Disposal 871 Sites where Construction and Demol ition Debris Collected within the Service Area during the 872 previous quarter was delivered. 873
D. Customer Billings and Revenues. Using the form supplied by CITY in Exhibit F (Standard Reporting 874 Template), FRANCHISEE shall report the total billed amounts and gross revenues (e.g., cash 875 receipts) resulting from Collection, Transportation, Processing, Recycling, and/or Disposal services 876 provided to Customers by FRANCHISEE within the Service Area under this Agreement during the 877 previous month. 878
E. Account Information. Using the form supplied by CITY in Exhibit F (Standard Reporting Template), 879 FRANCHISEE shall provide a quarterly listing of the services provided to each Customer within the 880 Service Area under this Agreement during the previous quarter. 881 F. Insurance. FRANCHISEE shall provide updated insurance certificates, in the event that any of 882 FRANCHISEE’s insurance required by this Agreement has changed during the previous quarter (refer 883 to Section 10.2.6 for additional details on insurance requirements). 884 G. FRANCHISEE Officers and Board Members. FRANCHISEE shall provide a list of FRANCHISEE ’s 885 officers and members of its board of directors (only required with the January-March quarterly 886 report, or in the event of a change in the officers or board members). 887
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 25 CITY reserves the right to request additional reports from FRANCHISEE , and upon CITY ’s request, 888 FRANCHISEE shall provide information required above for the time period requested by the CITY. It is the 889 desire of CITY to track the above required information on an ongoing basis throughout the Term of this 890 Agreement. 891
7.5 CITY C&D CONTRACT MANAGER 892
CITY has designated staff, the City C&D Contract Manager, to be responsible for the monitoring and 893 administration of this Agreement. 894
City C&D Contract Manager 895
Environmental Services Division, OPW 896
City of Oakland 897
250 Frank Ogawa Plaza, Suite 5301 898
Oakland, CA 94612 899
Email: C&[email protected] 900
(510) 238-SAVE (7283) 901
FRANCHISEE shall meet and confer with the City C&D Contract Manager to resolve differences of 902 interpretation and to implement and execute the requirements of this Agreement in an efficient and 903 effective manner that is consistent with the stated objectives of this Agreement. 904 From time to time the City C&D Contract Manager may designate other agents of CITY to work with 905 FRANCHISEE on specific matters. In such cases, those individuals should be considered design ees of the 906 City C&D Contract Manager for those matters to which they have been engaged. Such designees shall be 907 afforded all of the rights and access granted thereto. In the event of a dispute between the City C&D 908 Contract Manager’s designee and FRANCHISEE, the City C&D Contract Manager’s determination shall be 909 conclusive. 910
In the event of dispute between the City C&D Contract Manager and FRANCHISEE regarding the 911 interpretation of or the performance of Services under this Agreement, the City C&D Contract Manager’s 912 determination shall be conclusive except where such determination results in a material impact to 913 FRANCHISEE’s revenue and/or cost of operations. In the event of a dispute between the City C&D Contract 914 Manager and FRANCHISEE results in such material impact to FRANCHISEE, FRANCHISEE may appeal the 915 determination of the City C&D Contract Manager to the City Administrator, or City Administrator’s 916 designee, whose determination shall be conclusive. For the purposes of this section, “material impact” is 917 an amount equal to or greater than one-quarter (1/4) of one percent (1%) of FRANCHISEE’s annual gross 918 receipts under this Agreement. 919
City C&D Contract Manager or their designate shall have the right to observe and review FRANCHISEE 920 operations and Processing Facilities and enter premises for the purposes of such observation and review, 921 including review of FRANCHISEE’s records, during reasonable hours with reasonable notice. In no event 922 shall FRANCHISEE prevent access to such premises for a period of more than three (3) calendar days after 923 receiving such a request. 924
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 26 ARTICLE 8 925
FRANCHISE FEES AND OTHER FEES 926
8.1 GENERAL 927
FRANCHISEE shall collect the fees described in this Section from Customers through FRANCHISEE’s regular 928 billings and remit collected amounts to CITY on a quarterly basis as described in Section 8.7. 929
8.2 APPLICATION FEE 930
FRANCHISEE shall submit to CITY, along with its application for this Agreement, an Application Fee of five 931 hundred dollars ($500). CITY shall use the Application Fee to offset its expenses in reviewing FRANCHISEE’s 932 application for this Agreement and all supporting documentation required therewith. 933
8.3 FRANCHISE FEE 934
FRANCHISEE shall pay CITY a Franchise Fee equal to one percent (1%) of the sum of the total amount billed 935 to Customers of FRANCHISEE for all non-exclusive services provided for under this Agreement herein and 936 for any other services performed under this Agreement. Fr anchise Fees shall be paid within thirty ( 30) 937 days of the end of each calendar quarter (January-March, April-June, July-September, October-December) 938 for the total amount billed and sold in that quarter. 939
8.4 ADMINISTRATIVE FEE 940
FRANCHISEE shall pay an Administrative Fee to CITY each quarter. The amount of the Administrative Fee 941 shall be ten dollars ( $10.00) per load of Construction and Demolition Debris Collected from Customer 942 Service Addresses and shall be paid within thirty (30) days of the end of each calendar quarter (January-943 March, April-June, July-September, October-December). CITY shall use the Administrative Fee to offset 944 expenses including staffing costs related to contract management, compliance, and monitoring, and to 945 enforce the Agreement with respect to any violations by third parties, including initiating and/or assisting 946 in prosecuting enforcement actions. CITY shall retain the sole right to set priorities for its contract 947 monitoring and enforcement among CITY personnel. This fee shall be a pass-through cost. 948
8.5 OTHER FEES 949
CITY may set other fees or adjust the fees established in this Section from time- to-time during the Term 950 of this Agreement. 951
8.6 ADJUSTMENT TO FEES 952
CITY may adjust the fees established in this Article at any time during the Term of this Agreement. 953
8.7 PAYMENT SCHEDULE AND LATE FEES 954
On or before the thirtieth (30th) day following the end of the quarter of January-March 2017 and each 955 quarter thereafter during the Term of this Agreement, FRANCHISEE shall remit to CITY all fees as described 956 in this Article. If such remittance is not paid to CITY on or before the thirtieth (30th) day following each 957 quarter, FRANCHISEE shall pay, in addition to the amount owed to CITY, two percent (2%) of the amount 958 owing for that quarter ; plus an additional two percent (2%) owing on any unpaid balance for each 959 following thirty (30) calendar day period the fee remains unpaid. 960
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 27 Each quarterly remittance to CITY shall be accompanied by a statement itemizing each fee paid; detailing 961 calculation of all fees consistent with FRANCHISEE’S submittal of Exhibit F (Standard Reporting Template); 962 and stating actual gross revenues (e.g., cash receipts) for the quarterly period collected from all operations 963 conducted or permitted by this Agreement. Each remittance including all supporting documentation shall 964 be provided to: 965
City C&D Contract Manager 966
Environmental Services Division, OPW 967
City of Oakland 968
250 Frank Ogawa Plaza, Suite 5301 969
Oakland, CA 94612 970
Email: C&[email protected] 971
8.8 OVERPAYMENT OF FEES 972
If FRANCHISEE believes it has paid fees described in this Article in excess of the fees due to CITY , 973 FRANCHISEE may submit a request for refund to the CITY C&D Contract Manager. If proof of overpayment 974 is satisfactory to the CITY C&D Contract Manager, the City C&D Contract Manager shall authorize CITY to 975 refund the overpayment to FRANCHISEE. FRANCHISEE shall not apply any overpayment as a credit against 976 any fee or other amounts payable to CITY, unless specifically authorized to do so by the City C&D Contract 977 Manager in writing. 978
ARTICLE 9 979
FRANCHISEE’S COMPENSATION AND RATES 980
9.1 FRANCHISEE’S COMPENSATION 981
FRANCHISEE’s compensation for performance of all its obligations under this Agreement shall be: (i) cash 982 receipts paid by Customers that obtained FRANCHISEE ’s Collection services less fees dues to CITY in 983 accordance with Article 8; and, (ii) revenues generated by the sale of Collected materials Diverted from 984 Disposal. 985
FRANCHISEE’s compensation provided for in this Article shall be the full, entire, and complete 986 compensation due to FRANCHISEE pursuant to this Agreement for all labor, equipment, materials and 987 supplies, Processing, Recycling and Disposal fees, regulatory fees, CITY fees, taxes, insurance, bonds, 988 overhead, operations, profit and all other things necessary to perform all the services in the manner 989 required by this Agreement. 990
If FRANCHISEE’s costs are more than FRANCHISEE’s compensation, FRANCHISEE shall not be compensated 991 for the difference in costs and revenues. If FRANCHISEE’s costs are less than FRANCHISEE’s compensation, 992 FRANCHISEE shall retain the difference. 993
9.2 CITY’S RIGHT TO SET MAXIMUM RATES 994
CITY reserves the right to establish maximum Rates for Construction and Demolition Debris Collection 995 services provided under this Agreement in the event that: (a) there are four (4) or fewer companies 996 holding non-exclusive franchise agreements for Collection of Construction and Demolition Debris , or (b) 997 the Rates charged by the companies holding non -exclusive franchise agreements for Collection of 998 Construction and Demolition Debris are no longer comparable to those of other jurisdictions , as 999
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 28 reasonably determined by CITY . If CITY chooses to exercise its right to set maximum Rates, CITY shall 1000 notify FRANCHISEE at least one hundred eighty (180) calendar days prior to the date that maximum Rates 1001 become effective. In such case, CITY will set maximum Rates with consider ation of reasonable and 1002 necessary costs for Collection, Processing, and Disposal and with the intention of setting maximum Rates 1003 that will enable parties, including FRANCHISEE, that have executed non-exclusive franchise agreements 1004 with the CITY for Collection of Construction and Demolition Debris the ability to recover reasonable and 1005 necessary costs and a reasonable profit. 1006
9.3 FRANCHISEE’S RATES 1007
FRANCHISEE shall set the Rates it charges its Customers for Collection services by mutual written 1008 agreement between the FRANCHISEE and Customer . FRANCHISEE’s Rates shall not exceed CITY-1009 established maximum Rates, if CITY exercises its rights under Section 9.2. 1010 ARTICLE 10 1011
INDEMNITY AND INSURANCE 1012
10.1 INDEMNIFICATION 1013
FRANCHISEE shall indemnify, defend with counsel acceptable to CITY, protect and hold harmless CITY and 1014 each of its officers, officials, employees, volunteers, and agents (collectively, indemnitees) from and 1015 against all claims, damages (including but not limited to special, consequential, natural resources and 1016 punitive damages), injuries, costs, (including without limit any and all response, remediation and removal 1017 costs), losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, 1018 interest, fines, charges, penaltie s, and expenses (including without limit attorneys’ expert witness fees 1019 and costs incurred in connection with defending against any of the foregoing or in enforcing this 1020 indemnity), (collectively, “Damages”) of any kind whatsoever paid, incurred or suffered by, or asserted 1021 against, indemnitees arising from or attributable to the acts or omissions of FRANCHISEE whether or not 1022 negligent or otherwise culpable, in connection with or related to the performance of this Agreement, 1023 except such loss or damage which was caused by the sole negligence or willful misconduct of CITY. 1024 FRANCHISEE’s duty to defend and indemnify herein shall include Damages arising from or attributable to 1025 any operations, repairs, clean-up or detoxification, or other plan (regardless of whethe r undertaken due 1026 to governmental action) concerning any Hazardous Waste Collected in the Service Area. FRANCHISEE 1027 shall be required to indemnify CITY for the costs for any claims arising from the Processing, Recycling, or 1028 Disposal of Construction and Demo lition Debris, including, but not limited to, claims arising under the 1029 Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The foregoing is 1030 intended to operate as an agreement to defend and indemnify and hold harmless indemnitees to the full 1031 extent permitted for liability pursuant to Section 107(e) of CERCLA, 42 U.S.C. Section 9607(e) and 1032 California Health and Safety Code Section 25364. 1033
In addition, FRANCHISEE’s duty to defend and indemnify herein includes all fines and/or penalties imposed 1034 by the California Department of Resources Recycling and Recovery, subject to the restrictions set forth in 1035 Public Resources Code Section 40059.1, if the requirements of the AB 939 or AB 341 are not met by the 1036 FRANCHISEE with respect to the Construction and Demolition Debris Collected under this Agreement, and 1037 such failure is due to FRANCHISEE delays in providing information that prevents FRANCHISEE or CITY from 1038 submitting reports required by the AB 939 or AB 341 in a timely manner. 1039
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 29 This provision will survive the expiration or earlier termination of this Agreement and shall not be 1040 construed as a waiver of rights by CITY to contribution or indemnity from third parties. 1041
10.2 INSURANCE 1042
Unless a waiver is obtained from the City’s Risk Manager, FRANCHISEE must provide the insurance listed 1043 in Schedule Q Insurance Requirements. Schedule Q is attached and incorporated herein by reference. 1044 ARTICLE 11 1045
DEFAULT AND REMEDIES 1046
11.1 EVENTS OF DEFAULT 1047
Each of the following shall constitute an event of default (“Event of Default”) hereunder: 1048 A. FRANCHISEE fails to perform its obligations under this Agreement, or future amendment to this 1049 Agreement, including, but not limited to, FRANCHISEE’s failure to pay CITY fees in accordance with 1050 Article 8 of this Agreement, and/or use fully p ermitted Processing and Disposal Sites, and the 1051 breach continues for or repeats after more than ten (10) Work Days after written notice from the 1052 CITY for the correction thereof; 1053
B. Any representation, warranty, or disclosure made to CITY by FRANCHISEE in connection with or as 1054 an inducement to entering into this Agreement or any future amendment to this Agreement, which 1055 proves to be false or misleading in any material respect as of the time such representation or 1056 disclosure is made, whether or not any such representation, warranty, or disclosure appears as part 1057 of this Agreement; 1058
C. There is a seizure or attachment (other than a pre- judgment attachment) of, or levy affecting 1059 possession on, the operating equipment of FRANCHISEE , including without limit its vehicles, 1060 maintenance or office facilities, or any part thereof of such proportion as to substantially impair 1061 FRANCHISEE’s ability to perform under this Agreement and which cannot be released, bonded, or 1062 otherwise lifted within two (2) Work Days; 1063
D. FRANCHISEE files a voluntary petition for debt relief under any applicable bankruptcy, insolvency, 1064 debtor relief, or other similar law now or hereafter in effect, or shall consent to the appointment 1065 of or taking of possession by a receiver, liquidator, assignee (other than as a part of a transfer of 1066 equipment no longer useful to FRANCHISEE or necessary for this Agreement), trustee (other than 1067 as security for an obligation under a deed of trust), custodian, sequestrator (or similar official) of 1068 FRANCHISEE for any part of FRANCHISEE’s operating assets or any substantial part of FRANCHISEE’s 1069 property, or shall make any general assignment for the benefit of FRANCHISEE’s creditors, or shall 1070 fail generally to pay FRANCHISEE’s debts as they become due or shall take any action in furtherance 1071 of any of the foregoing; 1072
E. A court having jurisdiction shall enter a decree or order for relief in respect of FRANCHISEE, in any 1073 involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or 1074 hereafter in effect, or FRANCHISEE shall consent to or shall fail to oppose any such proceeding, or 1075 any such court shall enter a decree or order appointing a receiver, liquidator, assignee, custodian, 1076
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 30 trustee, sequestrator (or similar official) of FRANCHISEE or for any part of FRANCHISEE’s operating 1077 equipment or assets, or orders the winding up or liquidation of the affairs of FRANCHISEE; 1078 F. FRANCHISEE performance under the Agreement evidences a repeated pattern of inadequate or 1079 untimely compliance and/or noncompliance with the terms of the Agreement, including b ut not 1080 limited to repeated CITY assessment, or consideration of assessment of L iquidated Damages as 1081 provided in Section 11.4. 1082
11.2 RIGHT TO TERMINATE UPON DEFAULT 1083
Upon a default by FRANCHISEE, CITY may terminate this Agreement within ten (10) calendar days of the 1084 default but no later than one hundred eighty (180) calendar days after the default. Such termination shall 1085 be effective ten (10) calendar days following CITY’s written notice to FRANCHISEE, and such termination 1086 shall be effective without the need for any hearing, suit, or legal action. 1087
11.3 CITY’S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE 1088 CITY’s right to terminate the Agreement under Section 11.2 is not exclusive, and CITY’s termination of the 1089 Agreement and/or the imposition of Liquidated Damages shall not constitute an election of remedies. 1090 Instead, these rights shall be in addition to any and all other legal and equitable rights and remedies which 1091 CITY may have. 1092
By virtue of the nature of this Agreement, the urgency of timely, continuous and high quality service, the 1093 lead time required to effect alternative service, and the rights granted by CITY to FRANCHISEE, the remedy 1094 of damages for a breach hereof by FRANCHISEE is inadequate and CITY shall be entitled to injunctive relief. 1095
11.4 LIQUIDATED DAMAGES 1096
A. General. The Parties find that as of the time of the execution of this Agreement, it is impractical, if 1097 not impossible, to reasonably ascertain the extent of damages which shall be incurred by CITY as a 1098 result of a breach by FRANCHISEE of its obligations under this Agreement. The factors relating to 1099 the impracticability of ascertaining damages include, but are not limited to, the fact that: (i ) 1100 substantial damage results to members of the public who are denied services or denied quality or 1101 reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the 1102 benefits of the Agreement to individual members of the general public for whose benefit this 1103 Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of 1104 measurement in precise monetary terms; (iii) that services might be available at substantially lower 1105 costs than alternative services and the monetary loss resulting from denial of services or denial of 1106 quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the 1107 termination of this Agreement for such breaches, and other remedies are, at best, a means of future 1108 correction and not remedies which make the public whole for past breaches. 1109 B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The Parties 1110 further acknowledge that consistent, reliable Collection, Proc essing, and Disposal service is of 1111 utmost importance to CITY and that CITY has considered and relied on FRANCHISEE’s 1112 representations as to its quality of service commitment in executing this Agreement. The Parties 1113 recognize that some quantified standards of performance are necessary and appropriate to ensure 1114 consistent and reliable service and performance. The Parties further recognize that if FRANCHISEE 1115 fails to achieve the performance standards, or fails to submit required documents in a timely 1116 manner, CITY and its residents and businesses will suffer damages, and that it is, and will be, 1117
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 31 impractical and extremely difficult to ascertain and determine the exact amount of damages that 1118 CITY will suffer. Therefore, without prejudice to CITY ’s right to treat such non-performance as an 1119 event of default under this Article, the Parties agree that the Liquidated Damages amounts 1120 established in Exhibit A of this Agreement and the following Liquidated Damage amounts represent 1121 a reasonable estimate of the amount of such damages considering all of the circumstances existing 1122 on the Effective Date of this Agreement, including the relationship of the sums to the range of harm 1123 to CITY that reasonably could be anticipated and the anticipation that proof of actual damages 1124 would be costly or impractical. 1125
FRANCHISEE agrees to pay (as Liquidated Damages and not as a penalty) the amounts set forth in 1126 the Schedule of Liquidated Damages, Exhibit A. 1127
CITY may determine the occurrence of events giving rise to Liquidated Damages thro ugh the 1128 observation of its own employees or representative or investigation of complaints by Customers or 1129 occupants. 1130
Before assessing Liquidated Damages, CITY shall give FRANCHISEE notice of its intention to do so. 1131 The notice will include a brief descrip tion of the incident(s) and/or non -performance. CITY may 1132 review (and make copies at its own expense) all information in the possession of FRANCHISEE 1133 relating to incident(s) and non-performance. CITY may, within ten (10) calendar days after issuing 1134 the notice, request a meeting with FRANCHISEE . CITY may present evidence of non-performance 1135 in writing and through testimony of its employees and others relevant to the incident(s) and non -1136 performance. CITY will provide FRANCHISEE with a written explanation of its determination on 1137 each incident(s) and non-performance prior to authorizing the assessment of Liquidated Damages 1138 under this Section 11.4. The decision of CITY shall be final and CITY shall not be subject to, or 1139 required to exhaust, any further administrative remedies. 1140 C. Amount. CITY may assess Liquidated Damages for each calendar day or event, as appropriate, that 1141 FRANCHISEE is determined to be liable in accordance with this Agreement in the amounts specified 1142 in Exhibit A. 1143
D. Timing of Payment. F RANCHISEE shall pay any Liquidated Damages assessed by CITY within ten 1144 (10) calendar days of the date the Liquidated Damages are assessed. If they are not paid within the 1145 ten (10) day period, CITY may order the termination of the rights or “franchise” granted by this 1146 Agreement. 1147
1148
11.5 CONDITIONS UPON TERMINATION 1149
In the event this Agreement is terminated under the provisions of this Article, the following conditions 1150 shall be effective: 1151
A. Prohibit Collection Services. FRANCHISEE shall have no right or authority to engage in Construction 1152 and Demolition Debris Collection services in the Service Area for a period of five (5) years from the 1153 date of termination , unless otherwise waived by CITY . After five (5) years, should FRANCHISEE 1154 provide proof that the event causing FRANCHISEE to default under this Agreement has been 1155 corrected, FRANCHISEE may reapply for a non -exclusive Construction and Demolition Debris 1156
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 32 Collection service franchise, and CITY , at the sole and complete discretion o f CITY, may reinstate 1157 FRANCHISEE based on review of its reapplication. 1158
B. Continuing Liabilities. FRANCHISEE shall remain liable to CITY for: 1159
1. Fees due in accordance with Article 8 that would otherwise be payable by FRANCHISEE. 1160
2. Liquidated Damages assessed pursuant to Section 11.4. 1161
3. Reports required by Article 7 for Collection activities performed by FRANCHISEE up to and 1162 including the date of termination. 1163
4. Indemnity obligations under Section 10.1. 1164
5. Record keeping and retention obligations under Sections 7.1 and 7.2. 1165 C. Release Customers from Obligations. FRANCHISEE shall allow Construction and Demolition Debris 1166 Customers served by FRANCHISEE to arrange for Construction and Demolition Debris Collection 1167 services with a hauler authorized to perform such services, without penalty or liability for breach 1168 of any contract between FRANCHISEE and its Customers. 1169 D. Remove Containers. FRANCHISEE shall remove all of FRANCHISEE ’s Containers from all of 1170 FRANCHISEE’s Collection locations and shall properly Recycle, Process, or Dispose of Construction 1171 and Demolition Debris in such Containers. 1172
ARTICLE 12 1173
OTHER AGREEMENTS OF THE PARTIES 1174
12.1 RELATIONSHIP OF PARTIES 1175
The Parties intend that FRANCHISEE shall perform the services required by this Agreement as an 1176 independent FRANCHISEE engaged by CITY and neither as an officer nor employee of CITY, nor as a partner 1177 of, or joint venture with, CITY. No employee or agent of FRANCHISEE shall be, or shall be deemed to be, 1178 an employee or agent of CITY. Except as expressly provided herein, FRANCHISEE shall have control over 1179 the manner and means of conducting the Collection, and Transportation services performed under this 1180 Agreement. FRANCHISEE shall be solely responsible for the acts and omissions of its officers, employees, 1181 Subcontractors, and agents. Neither FRANCHISEE nor its officers, employees, Subcontractors and agents 1182 shall obtain any rights to retirement benefits, workers ’ compensation benefits, or any other benefits 1183 which accrue to CITY employees by virtue of their employment with CITY. 1184
12.2 PERMITS AND LICENSES 1185
FRANCHISEE shall obtain and maintain, at FRANCHISEE ’s sole cost and expense, all permits and licenses 1186 applicable to FRANCHISEE ’s operations under this Agreement which are required by any governmental 1187 agency. 1188
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 33
12.3 COMPLIANCE WITH LAW 1189
In the performance of this Agreement, FRANCHISEE shall comply with all Applicable Law, regulations, 1190 ordinances and codes of the federal, state and local governments, including without limitation the 1191 Municipal Code of the City of Oakland . CITY shall provide written notice to FRANCHISEE of any planned 1192 amendment of CITY ordinances that would affect the performance of FRANCHISEE ’s services or 1193 obligations pursuant to this Agreement, Such notice shall be provided at least thirty (30) calendar days 1194 prior to the Council’s consideration of such an amendment. 1195
12.4 GOVERNING LAW 1196
This Agreement shall be governed by, and construed and e nforced in accordance with, the laws of the 1197 State of California. 1198
12.5 JURISDICTION 1199
Any lawsuits between the Parties arising out of this Agreement shall be brought and concluded in the 1200 courts of Alameda County in the State of California, which shall have ex clusive jurisdiction over such 1201 lawsuits. 1202
With respect to venue, the Parties agree that this Agreement is made in and will be performed in Alameda 1203 County. 1204
12.6 BINDING ON SUCCESSORS 1205
The provisions of this Agreement shall inure to the benefit to, and be bind ing on, the successors and 1206 permitted assigns of the Parties. 1207
12.7 ASSIGNMENT 1208
Neither Party shall assign its rights nor delegate or otherwise transfer its obligations under this Agreement 1209 to any other Person without the prior written consent of the other Pa rty. Any such assignment made 1210 without the consent of the other Party shall be void and the attempted assignment shall constitute a 1211 material breach of this Agreement. Under no circumstances shall any assignment be considered by CITY 1212 if FRANCHISEE is in default at any time during the period of consideration. 1213
12.8 PARTIES IN INTEREST 1214
Nothing in this Agreement, whether express or implied, is intended to confer any rights on any Persons 1215 other than the Parties to it and their representatives, successors and permitted assigns. 1216
12.9 WAIVER 1217
The waiver by either Party of any breach or violation of any provisions of this Agreement shall not be 1218 deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach of 1219 violation of the same or any other provision. The subsequent acceptance by either Party of any monies 1220 which become due hereunder, shall not be deemed to be a waiver of any pre -existing or concurrent 1221 breach or violation by the other Party of any provision of this Agreement. 1222
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 34
12.10 NOTICE PROCEDURES 1223
All notices, demands, requests, proposals, approvals, consents, and other communications which this 1224 Agreement requires, authorizes or contemplates, shall be in writing and shall either be personally 1225 delivered to a representative of the Parties at the address below or deposited in the United States mail, 1226 first class postage prepaid, addressed as follows: 1227 A. If to CITY: 1228
City C&D Contract Manager 1229
Environmental Services Division, OPW 1230
City of Oakland 1231
250 Frank Ogawa Plaza, Suite 5301 1232
Oakland, CA 94612 1233
1234
B. If to FRANCHISEE: 1235
1236
«Designated_Representative» 1237
«Business_Name» 1238
«Address_for_Section_1210_» 1239
«City_for_Section_1210», « State_for_Section_1210» «ZIP_for_Section_1210» 1240 Initial: 1241
1242
The address to which communications may be delivered may be changed from time to time by a notice 1243 given in accordance with this Section. 1244
Notice shall be deemed given on the day it is personally delivered or, if mailed, three (3) calendar days 1245 from the date it is deposited in the mail. 1246
12.11 REPRESENTATIVES OF THE PARTIES 1247
References in this Agreement to “CITY” shall mean the City Council and all actions to be taken by CITY 1248 shall be taken by the City Council except as provided below. The City Council may delegate, in writing, 1249 authority to the City C&D Contract Manager and/or to other CITY officials and may permit such officials, 1250 in turn, to delegate in writing some or all of such authority to subordinate officers. FRANCHISEE may rely 1251 upon actions taken by such delegates if they are within the scope of the authori ty properly delegated to 1252 them. 1253
FRANCHISEE shall, by the Effective Date, designate in writing a responsible officer who shall serve as the 1254 representative of FRANCHISEE in all matters related to the Agreement and shall inform CITY in writing of 1255 such designation and of any limitations upon his or her authority to bind FRANCHISEE. CITY may rely upon 1256 action taken by such designated representative as actions of FRANCHISEE unless they are outside the 1257 scope of the authority delegated to him/her by FRANCHISEE as communicated to CITY. 1258
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 35
12.12 PUBLIC RESOURCES CODE SECTION 49523 NOTICE 1259
Nothing in this Agreement shall be construed as providing FRANCHISEE with the five (5) year noticing 1260 rights required under PRC 49520. The parties agree that the provisions of PRC 49523 apply instead. 1261 ARTICLE 13 1262
MISCELLANEOUS AGREEMENTS 1263
13.1 ENTIRE AGREEMENT 1264
This Agreement, including the exhibits, represents the full and entire Agreement between the Parties with 1265 respect to the matters covered herein. 1266
13.2 SECTION HEADINGS 1267
The article headings and section headings in this Agreement are for convenience of reference only and 1268 are not intended to be used in the construction of this Agreement nor to alter o r affect any of its 1269 provisions. 1270
13.3 REFERENCES TO LAWS 1271
All references in this Agreement to laws shall be understood to include such laws as they may be 1272 subsequently amended or recodified, unless otherwise specifically provided. 1273
13.4 INTERPRETATION 1274
This Agreement shall be interpreted and construed reasonably and neither for nor against either Party, 1275 regardless of the degree to which either Party participated in its drafting. 1276
13.5 PRONOUNS AND PLURALS; TENSE 1277
When not inconsistent with the context, words and phrases used in the present tense include the future, 1278 and words and phrases used in the singular number include the plural number. Whenever the context 1279 may require, any pronoun used in this Agreement shall include the corresponding m asculine, feminine 1280 and neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice 1281 versa. 1282
13.6 TEXT TO CONTROL 1283
The captions of the Articles or Sections in this Agreement are for convenience only and in no way define, 1284 limit, extend or describe the scope or intent of any of the provisions hereof, shall not be deemed part of 1285 this Agreement and shall not be used in construing or interpreting this Agreement. 1286
13.7 AMENDMENT 1287
This Agreement may not be modified or amended in any respect except in writing signed by the Parties. 1288
13.8 SEVERABILITY 1289
If any non-material provision of this Agreement is for any reason deemed to be invalid and unenforceable, 1290 the invalidity or unenforceability of such provision shall not affect any of the remaining provisions of this 1291
City of Oakland Non-Exclusive C&D Agreement (v. 2.0, 2021) Page 36 Agreement, which shall be enforced as if such invalid or unenforceable provision had not been contained 1292 herein. 1293
13.9 COUNTERPARTS 1294
This Agreement may be executed in counterparts, each of which shall be considered an original. 1295
13.10 EXHIBITS 1296
Each of the exhibits identified as Exhibit “A” through “E” is attached hereto and incorporated herein and 1297 made a part hereof by this reference. 1298
IN WITNESS WHEREOF, the Parties have caused the Agreement to be executed on the day and year first 1299 above written. 1300
1301
CITY OF OAKLAND FRANCHISEE 1302
APPROVED AS TO FORM: 1303
Signature 1304
«Designated_Representative» 1305
City Attorney Name 1306
«Designated_Rep_Title» 1307
1308
OPW Director Title 1309
1310
1311
1312
1313
1314
1315
1316
1317
1318
EXHIBIT A
SCHEDULE FOR LIQUIDATED DAMAGES
City of Oakland Non-Exclusive C&D Agreement A-1
FRANCHISEE may be assessed Liquidated Damages if FRANCHISEE fails to fulfill its obligations with regards 1319 to the events listed in this Exhibit in accordance with the terms and conditions of the Agreement with 1320 regards to the time frame for accomplishing eac h event and nature of the responsibility associated with 1321 the event unless otherwise stated in this Exhibit. 1322
1. Leaks, Litter, or Spills. For each occurrence over five during a calendar year of leaks, litter, or spills of Construction and Demolition Debris within ten feet of the public right of way and failure to pick up or clean up such material prior to FRANCHISEE’s vehicle leaving such location.
$300/ event
2. Unauthorized Collection Hours. For each occurrence over five during a calendar year of Collecting Construction and Demolition Debris during unauthorized hours.
$300/ event
3. Excessive Noise. For each occurrence over 10 during a calendar year of excessive noise, as defined by the requirements of Chapter
8.18.010 of the OMC.
$300/ event
4. Cleaning Collection Vehicles. For each occurrence over five during a calendar year for failure to keep Collection vehicles in a safe and sanitary condition (in accordance with Section 6.3.E).
$150/ event
5. Labeling of Containers. For each occurrence of FRANCHISEE’s failure to correctly label FRANCHISEE-owned Containers (in accordance with Section 6.4.C).
$500/ event
6. Reports. Failure to submit reports in the timeframe specified in this Agreement.
$300/ day*
7. Report Unpermitted Material. For each failure to notify the appropriate authorities of reportable quantities of Unpermitted Material.
$500/ event
8. Failure to Divert Material. For each failure to deliver Construction and Demolition Debris for Processing and Diversion consistent with the FRANCHISEE’s agreement with a Customer.
$500/ event
9. Failure to Perform Public Education and Outreach. For each failure to perform public education and outreach activities as required by Section 5.5 of this Agreement.
$300/ event
10. Failure of Other Obligations. Failure to perform any of the obligations set forth in this Agreement not specifically stated above and not corrected or proceeding in good faith to correct within 24 hours upon notification by CITY.
$150/ for each
obligation per day until
obligation is performed
11. Repeated Failure. Repeated failure to perform any required activity, obligation, or service described herein.
$50/ occurrence, in
addition to any other
applicable Liquidated
Damage amounts
1323
* Quarterly reports shall be considered late until such time as a correct and complete 1324 quarterly report is received by CITY. For each calendar day a report is late, the daily 1325 Liquidated Damage shall be as indicated in the quarterly reports section above. 1326
EXHIBIT A
SCHEDULE FOR LIQUIDATED DAMAGES
City of Oakland Non-Exclusive C&D Agreement A-2
1327
In placing Designee’s initials at the places provided, each Party specifically confirms the accuracy of the 1328 statements made above and the fact that each Party has had ample opportunity to consult with legal 1329 counsel and obtain an explanation of Liquidated Damage provisions of the time that the Agreement was 1330 made. 1331
FRANCHISEE CITY 1332
1333
Initial Here: Initial Here: 1334
EXHIBIT B
SECRETARY’S CERTIFICATION
City of Oakland Non-Exclusive C&D Agreement B-1
The undersigned, being the Secretary of «Business_Name» , a 1335 Company Name 1336
California corporation (“the Company”), do hereby certify that the following resolution was adopted by 1337 the Board of Directors of the Company and that such resolution has not been amended, modified or 1338 rescinded and is in full force and effect as of the date hereof: 1339 1340
RESOLVED, that «Designated_Representative» be, and hereby is, authorized 1341 to 1342
Name of Designated Representative 1343
execute by and on behalf of the Company any and all agreements, instruments, documents or papers, as 1344 he/she may deem appropriate or necessary, pertaining to or relating to the Non-Exclusive Franchise 1345 Agreement between the City of Oakland and Company for Collection of Construction and Demolition 1346 Debris and that any such action taken to date is hereby ratified and approved. 1347 1348
__________________ ____________________________ 1349 Date Signature 1350
1351
«Designated_Representative» 1352
Name 1353
1354
«Designated_Rep_Title» 1355
1356
Title 1357
EXHIBIT C
STATEMENT OF APPLICANT’S UNDERSTANDING
AND REPRESENTATIONS
City of Oakland Non-Exclusive C&D Agreement C-1
The undersigned (who is duly authorized to bind the company submitting this application) has reviewed 1358 the requirements of the non -exclusive franchise agreement for Collection services for Construction and 1359 Demolition Debris, its exhibits, and reference documents. In addition, the undersigned attests that this 1360 application and any other supplementary information submitted with this application do not: (i) contain 1361 any untrue statement of a material fact, (ii) contain inaccurate or misleading information, or (iii) omit to 1362 state a material fact that is necessary to make the statements made, in light of the circumstances in which 1363 they were made, not misleading. 1364
«Designated_Representative» 1365
1366
Print Name Date 1367
«Designated_Rep_Title» 1368
Title 1369
«Business_Name» 1370
Company Name 1371
1372
Signature 1373
EXHIBIT D
BUSINESS TAX CERTIFICATE
City of Oakland Non-Exclusive C&D Agreement D-1
1374
{To be inserted by Franchisee}1375
EXHIBIT E
INSURANCE DOCUMENTS
City of Oakland Non-Exclusive C&D Agreement E-1
1376
1377
{To be inserted by Franchisee}1378
EXHIBIT E
INSURANCE DOCUMENTS
City of Oakland Non-Exclusive C&D Agreement E-2
To be provided separately by the City electronically
EXHIBIT F
STANDARD REPORTING TEMPLATE
City of Oakland Non-Exclusive C&D Agreement - F-1
1 EXHIBIT F
STANDARD REPORTING TEMPLATE
City of Oakland Non-Exclusive C&D Agreement - F-2
Total Loads of C&D Collected -
Administrative Fee Per Load 34.50$
Administrative Fee Payment Due
C. Total Tons
Total Tons of C&D Collected -
D. Total Fees (per "A" and "B" above)
Franchise Fees
Administrative Fees
Total Fee Payments Due to City*
Spreadsheet Users
To submit your quarterlyREPORT - please EMAIL this Excel spreadsheet to C&[email protected]
To submit your quarerty PAYMENT - please print this page and mail it with a certified or cashier's check, or money order payable to “City of Oakland” tothis address:
City of Oakland
OPW Fiscal Services Division
250 Frank H. Ogawa Plaza, Ste. 3341
Oakland, CA 94612
Recycling Hotline: (510) 238 SAVE (7283)
C&[email protected]
https://www.oaklandca.gov/topics/construction-and-demolition-recycling 2 SCHEDULE Q – INSURANCE REQUIREMENTS
City of Oakland Non-Exclusive C&D Agreement - Schedule Q-1
INSURANCE REQUIREMENTS
Construction & Demolition Debris Collection
(Revised 8/8/19, removes Pollution Liability requirement)
1. Required Insurance Coverage
Contractor shall procure, prior to commencement of service, and keep in force for the term of this contract, at Contractor's own cost and expense, the following policies of insurance or certificates or binders as necessary to represent that coverage as specified below is in place with companies doing business in California and acceptable to the City. If requested, Contractor shall provide the City with copies of all insurance policies. The insurance shall at a minimum include:
A. Commercial General Liability insurance shall cover bodily injury, property damage and personal injury liability for premises operations, independent contractors, products - completed operations personal & advertising injury and contractual liability. Coverage shall be at least as broad as Insurance Services Office Commercial General Liability coverage (occurrence Form CG 00 01).
Limits of liability: Contractor shall maintain commercial general liability (CGL) and, if necessary, commercial umbrella insurance with a limit of not less than $2,000,000 each occurrence. If such CGL insurance contains a general aggregate limit, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
B. Automobile Liability Insurance. Contractor shall maintain automobile liability insurance for bodily injury and property damage liability with a limit of not less than $1,000,000 each accident. Such insurance shall cover liability arising out of any auto (including owned, hired, and non- owned autos). Coverage shall be at least as broad as Insurance Services Office Form Number CA 0001.
C. Worker's Compensation insurance as required by the laws of the State of California, with not less than $1,000,000 each accident, $1,000,000 policy limit bodily injury by disease, and $1,000,000 each employee bodily injury by disease. The Contractor certifies that he/she is aware of the provisions of section 3700 of the California Labor Code, which requires every employer to provide Workers' Compensation coverage, or to undertake self-insurance in accordance with the provisions of that Code. The Contractor shall comply with the provisions of section 3700 of the California Labor Code before commencing performance of the work under this Agreement and thereafter as required by that code.
SCHEDULE Q – INSURANCE REQUIREMENTS
City of Oakland Non-Exclusive C&D Agreement - Schedule Q-2
2. Terms Conditions and Endorsements
The aforementioned insurance shall be endorsed and have all the following conditions:
A. Insured Status (Additional Insured): Contractor shall provide insured status naming the City of Oakland, its Councilmembers, directors, officers, agents, employees and volunteers as insured’s under the Commercial General Liability Policy. General Liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10 (11/85) or both CG 20 10 and CG 20 37 forms, if later revisions used). If Contractor submits the ACORD Insurance Certificate, the insured status endorsement must be set forth on an ISO form CG 20 10 (or equivalent). A STATEMENT OF ADDITIONAL INSURED STATUS ON
THE ACORD INSURANCE CERTIFICATE FORM IS INSUFFICIENT AND WILL BE REJECTED AS PROOF OF MEETING THIS REQUIREMENT; and
B. Coverage afforded on behalf of the City, Councilmembers, directors, officers, agents, employees and volunteers shall be primary insurance. Any other insurance available to the City Councilmembers, directors, officers, agents, employees and volunteers under any other policies shall be excess insurance (over the insurance required by this Agreement); and
C. Cancellation Notice: Each insurance policy required by this clause shall provide that coverage shall not be canceled, except with notice to the Entity; and
D. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the contractor, its employees, agents and subcontractors; and E.
F. Certificate holder is to be the same person and address as indicated in the “Notices” section of this Agreement; and
G. Insurer shall carry insurance from admitted companies with an A.M. Best Rating of A VII, or better.
In the case of the breach of any of the insurance provisions of this Agreement, the City may, at the City's option, take out and maintain at the expense of Contractor, such insurance in the name of Contractor as is required pursuant to this Agreement, and may deduct the cost of taking out and maintaining such insurance from any sums which may be found or become due to Contractor under this Agreement.
SCHEDULE Q – INSURANCE REQUIREMENTS
City of Oakland Non-Exclusive C&D Agreement - Schedule Q-3
3. Deductibles and Self-Insured Retentions
Any deductible or self-insured retention must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductible or self-insured retentions as respects the City, its Councilmembers, directors, officers, agents, employees and volunteers; or the Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses.
4. Replacement of Coverage
In the case of the breach of any of the insurance provisions of this Contract, the City may, at the City's option, take out and maintain at the expense of Contractor, such insurance in the name of Contractor as is required pursuant to this Contract, and may deduct the cost of taking out and maintaining such insurance from any sums which may be found or become due to Contractor under this Contract.
5. Insurance Interpretation
All endorsements, certificates, forms, coverage and limits of liability referred to herein shall have the meaning given such terms by the Insurance Services Office as of the date of this Agreement.
6. Proof of Insurance
Contractor will be required to provide proof of all insurance required for the work prior to execution of the contract, including copies of Contractor’s insurance policies if and when requested. Failure to provide the insurance proof requested or failure to do so in a timely manner shall constitute ground for rescission of the contract award.
7. Subcontractors
Should the Contractor subcontract out the work required under this agreement, they shall include all subcontractors as insured’s under its policies or shall maintain separate certificates and endorsements for each subcontractor. As an alternative, the Contractor may require all subcontractors to provide at their own expense evidence of all the required coverages listed in this Schedule. If this option is exercised, both the City of Oakland and the Contractor shall be named as additional insured under the subcontractor’s General LIability policy. All coverages for subcontractors shall be subject to all the requirements stated herein. The City reserves the right to perform an insurance audit during the course of the project to verify compliance with requirements.
SCHEDULE Q – INSURANCE REQUIREMENTS
City of Oakland Non-Exclusive C&D Agreement - Schedule Q-4
8. Waiver of Subrogation
Contractor waives all rights against the City of Oakland and its Councilmembers, officers, directors, employees and volunteers for recovery of damages to the extent these damages are covered by the forms of insurance coverage required above.
9. Evaluation of Adequacy of Coverage
The City of Oakland maintains the right to modify, delete, alter or change these requirements, with reasonable notice, upon not less than ninety (90) days prior written notice.
10. Higher Limits of Insurance
If the contractor maintains higher limits than the minimums shown above, the City shall be entitled to coverage for the higher limits maintained by the contractor.
<< END OF INSURANCE REQUIREMENTS >>