WHEREAS, this Ordinance shall be reviewed by the City Council at least annually and based on an annual military equipment report that will be submitted to the City Council pursuant to AB 481, the City Council shall determine whether each type of military equipment identified in the report has complied with the standards for continued approval.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. RECITALS
The City Council finds that all recitals, facts, findings, and conclusions set forth above are true and correct and hereby incorporated by reference.
SECTION 2. FINDINGS
Pursuant to Government Code section 7071(d)(1), as may be amended or renumbered from time to time, the City Council hereby makes the following findings in support of its adoption of the Policy:
A. The military equipment identified in the Policy is necessary because there is no reasonable alternative that can achieve the same objective of officer and civilian safety.
B. The proposed Policy will safeguard the public’s welfare, safety, civil rights, and civil liberties.
C. If the Department purchases military equipment pursuant to the Policy, the equipment is reasonably cost effective compared to available alternatives that can achieve the same objective of officer and civilian safety.
D. Prior military equipment use complied with the military equipment use policy that was in effect at the time, or if prior uses did not comply with the accompanying military equipment use policy, corrective action has been taken to remedy nonconforming uses and ensure future compliance.
E. The Department shall evaluate its stock of military equipment and reduce the amount of military equipment where possible.
SECTION 3. ADOPTION OF MILITARY EQUIPMENT POLICY
The City Council hereby adopts Policy No. 709, Military Equipment Policy, along with any related Attachments, which are all attached hereto as Attachment “A”.
SECTION 4. CEQA.
The City Council finds that this Ordinance is not subject to the California Environment al Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) Item 3B - 21
Ordinance No. _____
(the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.
SECTION 5. EFFECTIVE DATE.
This ordinance shall be effective thirty (30) days from and after its final passage.
SECTION 6. SEVERABILITY.
If any section, subsection, subdivision, sentence, clause, phrase, or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, then such decision shall not affect the validit y of the remaining portions of this ordinance. The City Council of the City of Palm Springs hereby declare they would have adopted this ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions. sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.
SECTION 7. PUBLICATION.
The City Clerk is authorized and directed to cause this ordinance to be published within fifteen (15) days after its passage in a newspaper of general circulation and circulated within the City in accordance with Government Code Section 36933(a) or, to cause this ordinance to be published in the manner required by law using the alternative summary and posting procedure authorized under Government Code Section 36933 (c).
PASSED, APPROVED, AND ADOPTED BY THE PALM SPRINGS CITY
COUNCIL THIS 26
TH DAY OF MAY, 2022.
LISA MIDDLETON
MAYOR
ATTEST:
MONIQUE M. LOMELI, CMC
INTERIM CITY CLERK
Item 3B - 22
Ordinance No. _____
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, MONIQUE M. LOMELI, Interim City Clerk of the City of Palm Springs, California, do hereby certify that Ordinance No. ____ is a full, true, and correct copy, and was introduced at a regular meeting of the Palm Springs City Council on _________ and adopted at a regular meeting of the City Council held on __________ by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Springs, California, this ______ day of ______________, _________.
MONIQUE M. LOMELI, CMC
INTERIM CITY CLERK
Item 3B - 23
CITY COUNCIL STAFF REPORT
05/26/2022 3. C.
City Clerk -
SUBJECT
ADOPTION OF ORDINANCE AMENDING CHAPTER 1.06 OF THE PALM SPRINGS
MUNICIPAL CODE (COMMUNITY IMPROVEMENT AND ADMINISTRATIVE CITATIONS) AND SECTION 11.72.200 OF THE PALM SPRINGS MUNICIPAL
CODE (COMMENCEMENT OF ABATEMENT PROCEEDINGS)
RECOMMENDATION:
Introduce and, by separate motion, waive full reading of an ordinance, entitled, “AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING CHAPTER 1.06 OF THE PALM SPRINGS MUNICIPAL CODE, RELATIVE TO COMMUNITY IMPROVEMENT AND ADMINISTRATIVE CITATIONS, AND SECTION 11.72.200 OF THE PALM SPRINGS MUNICIPAL CODE, RELATIVE TO COMMENCEMENT OF ABATEMENT PROCEEDINGS.”
Attachments
Item 3C
CITY COUNCIL STAFF REPORT
DATE: May 26, 2022 BUSINESS & LEGISLATIVE
SUBJECT: ADOPTION OF ORDINANCE AMENDING CHAPTER 1.06 OF THE PALM
SPRINGS MUNICIPAL CODE (COMMUNITY IMPROVEMENT AND
ADMINISTRATIVE CITATIONS) AND SECTION 11.72.200 OF THE PALM
SPRINGS MUNICIPAL CODE (COMMENCEMENT OF ABATEMENT
PROCEEDINGS)
FROM: Justin Clifton, City Manager
BY: Jeffrey S. Ballinger, City Attorney
SUMMARY:
The proposed ordinance would revise the City of Palm Springs’ administrative citation and nuisance abatement ordinances in order to provide the City with more flexibility in the administration of its nuisance abatement proceedings and administrative citation process, bring these ordinances in line with current case law, streamline the ordinances, and remove inconsistencies among Municipal Code sections.
RECOMMENDATION:
Introduce and, by separate motion, waive full reading of an ordinance, entitled,
“ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING CHAPTER 1.06 OF THE PALM SPRINGS
MUNICIPAL CODE, RELATIVE TO COMMUNITY IMPROVEMENT AND
ADMINISTRATIVE CITATIONS, AND SECTION 11.72.200 OF THE PALM
SPRINGS MUNICIPAL CODE, RE LATIVE TO COMMENCEMENT OF
ABATEMENT PROCEEDINGS.”
BACKGROUND:
The City of Palm Springs is authorized to enforce its ordinances in a variety of ways, including the following:
• Seeking a civil court order;
• Seeking criminal prosecution;
• Abatement of nuisances by the City; and
• Administrative citations/fines (similar to parking tickets).
Item 3C - 1
City Council Staff Report
May 26, 2022 – Page 2
Ordinance Amending Chapter 1.06 of the Palm Springs Municipal Code
This proposed ordinance addresses the processes for the latter two options – administrative citations and abatement by the City of nuisances. The process for administrative citations is contained in Chapter 1.06 of the Palm Springs Municipal Code, while the process for abatement by the City of nuisances is generally contained in Chapter
11.72 of the Palm Springs Municipal Code.
In 1995, the California legislature added California Government Code section 53069.4, which allows cities and counties to adopt an ordinance to make any violation of any ordinance enacted by the local agency subject to an administrative fine or penalty, similar to parking tic kets. In 2005, the City adopted Chapter 1.06, dealing with administrative citations.
As far back as 1883, the California legislature has authorized cities to abate nuisances, and more recently, to collect the costs of such abatements against the subject properties and property owners. In 1993, the City adopted the applicable portions of Chapter 11.72, dealing with the abatement of nuisances by the City.
In addition to this statutory authority, as a charter city, Palm Springs possesses independent and broader authority to adopt an ordinance such as this.
STAFF ANALYSIS:
Since the adoption of the subject ordinances, in 1993 and 2005, City S taff and the City Attorney’s office have identified various ways that the ordinances can be improved and streamlined. In addition, courts have rendered decisions that affect how these ordinances are implemented. Finally, City S taff and the City Attorney’s Office have identified some code section references that should be reconciled. Below is a summary of some of t he changes proposed.
Administrative Citation Chapter
The City’s Municipal Code Chapter dealing with administrative citations is being amended to:
• Authorize issuance of warning notices and citations for violations of emergency orders.
• Authorize issuance of warning notices and citations for violations of land use conditions of approval.
• Distinguish from “continuing” violations that can be corrected, such as building, plumbing, electrical or similar structural or zoning violation, from immediate violation, such as drinking in public or lighting a fire in public. The former, correctible violations will require a notice to correct prior to the City being able to issue an administrative fine. When immediate violations are encountered, the City will be able to issue an administrative fine without first providing a notice to correct.
In addition, even for building, plumbing, electrical, or similar zoning violations, if such violation creates an immediate danger to health or safety, an administrative Item 3C - 2
City Council Staff Report
May 26, 2022 – Page 3
Ordinance Amending Chapter 1.06 of the Palm Springs Municipal Code
citation may be issued, without first providing a warning. This distinction between “continuing” violations and “immediate” violations is consistent with the Sta te statute dealing with administrative citations, cited above. • Removes the distinction between code enforcement officers and public safety officers and authorizes both to issue notices to correct and administrative citations. • Removed a provision that requires certain violations to be referred to other City Departments. While such referrals will still be able to be made, they won’t be required by the ordinance.
• Expands who will be held responsible for code violations, to also include those who “aid and abet” and “allowing” code violations, for instance by a tenant of a property owned by the landlord.
• Removes a 15-day time period between issuance of a warning notice and a first administrative citation fine, and a 10- day time period between subsequent administrative citation fines. Such a hard and fast timeline is not conducive to the wide variety of code violations that the City encounters. For instance, at one end of the spectrum, for fairly minor and easily correctable violations (for example a small amount of graffiti), the City and its residents might well expect that the correction be made in just a few days. Likewise, for more serious violations (for example a leaking private sewer line), even if more work is involved to correct, the City and its residents would not expect to have to wait 15 days for such a correction to be made. In the place of a hard and fast number of days, the proposed ordinance requires the City to provide the responsible person with a reasonable time frame, as determined by the code enforcement officer.
• Identifies how the pre-citation warning and administrative citations are to be served on responsible parties.
• Removes repetitive language in the sections dealing with first, second and subsequent violations, so that it is said just once.
• Removes overly-detailed language from the sections dealing with first, second and subsequent violations, which does not legally need to be in the ordinance. • Removes a requirement that additional extensions of time be granted by the City Manager, and instead allows the City’s Code Enforcement Officers to grant such extensions, based on the unique facts and circumstances of each case. • Allows a person who receives a pre-citation warning to appeal that warning to the hearing officer.
• Allows for service of administrative appeal documents to be done by email, if the appealing party wishes.
• Removes a requirement that appeal hearings be held once every month. While the City may still hold as many hearings as are necessary, this amendment will provide the flexibility to not hold meetings if and when no appeals are ready to be heard. • Clarified that the hearing officer selection process contained in the administrative citation ordinance takes precedence over the Municipal Code chapter dealing with the Administrative Appeal Board. That chapter states that the AAB hears appeals of “code enforcement orders”. Without this clarification, it may be unclear as to whether the AAB is required to hear appeals of all code enforcement administrative Item 3C - 3
City Council Staff Report
May 26, 2022 – Page 4
Ordinance Amending Chapter 1.06 of the Palm Springs Municipal Code
citations. To be clear, the City Manager would still have the authority under this revised ordinance to refer administrative citation appeals to the AAB. • Removes a provision that mandates that all appeal costs be paid from appeal hearing fees and administrative fines. While the City may still use those appeal fees and administrative fines for covering such fees, it may be necessary to use general funds to cover some appeal costs.
• Allows an appellant to pay, if the appellant wishes, appeal costs. This optional authority avoids any due process argument by appellants that the hearing officer may be biased because such hearing officer is being paid for by the City. • Removes language that authorizes the hearing officer, on appeal, to modify the amount of the administrative fines. This language is at odds with language in the Administrative Appeals Board code provisions, which states that the AAB is only to determine facts and is not authorized to reduce or waive fines when violations exist.
• Removes language in the current code that says that the City cannot appeal to court a hearing officer decision that rules in favor of a property owner. • Authorizes appeals of hearing officer decisions to superior court, in accordance with recent case law.
• Removes language that would allow collection of administrative fines by way of a special assessment, in accordance with a recent court of appeals case. • Removes language that makes failure to pay a fine a misdemeanor. Such a provision is highly unusual and harkens back to the days of debtors prisons of the 19 th Century.
• Removes language that seems to mandate the City Manager to cooperate with Neighborhood Organizations in the implementation of the administrative citation chapter. While the City would still be authorized to cooperate with such Neighborhood Organizations, this amendment would remove a legal requirement to do so.
• Authorizes the City Manager to issue administrative regulations that are consistent with this ordinance and expressly makes violations of those regulations enforceable as code violations.
Nuisance Abatement Chapter
In addition to being able to issue administrative citation fines, the City is legally authorized, when necessary, to abate nuisances. For instance, if a private property owner has allowed junk, trash, and debris to accumulate on his/her property, and following notice to the property owner and an opportunity to correct, the law allows the City to enter the property and remove the junk, trash, and debris. The City can then collect the costs of that abatement against the owner or the property itself.
The proposed amendment, as with the administrative ordinance amendment, removes a hard and fast 10-day timeline for abatement by the property owner. As with when issuing an administrative citation fine, the City and its residents may well expect that a nuisanc e be abated by the property owner sooner than ten days. For instance, if vulgar or inciting Item 3C - 4
City Council Staff Report
May 26, 2022 – Page 5
Ordinance Amending Chapter 1.06 of the Palm Springs Municipal Code
graffiti is found on private property, we would not want to wait 10 days before being able to paint over it.
Therefore, City Staff and the City Attorney’s Office recommend adoption of this ordinance, in order to provide more flexibility in administering the City’s code enforcement program, streamline that administration, update the ordinance to reflect current case law, and to remove inconsistencies between Municipal Code provisions.
ENVIRONMENTAL ASSESSMENT
:
This ordinance concerns mostly administrative changes to the processes for obtaining code compliance. As such, the ordinance is not likely to have any significant effect on the environment.
ALIGNMENT WITH STRATEGIC PLANNING:
The adoption of this ordinance aligns with the following Strategic Planning Goals and Objectives:
• Focus on Issues that Most Impact Quality of Life – Code enforcement is, fundamentally about improving the quality of life for the City’s residents and visitors.
FISCAL IMPACT:
The adoption of this ordinance is not likely to have a significant financial impact, although the streamlining of the processes may have an as -yet uncalculated positive financial impact for the City.
REVIEWED BY:
City Attorney: Jeffrey S. Ballinger
City Manager: Justin Clifton
ATTACHMENTS:
A. Ordinance Amending Chapter 1.06 and Section 11.72.200
Item 3C - 5
ORDINANCE NO. ____
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF PALM SPRINGS, CALIFORNIA, AMENDING CHAPTER
1.06 OF THE PALM SPRINGS MUNICIPAL CODE,
RELATIVE TO COMMUNITY IMPROVEMENT AND
ADMINISTRATIVE CITATIONS, AND SECTION 11.72.200
OF THE PALM SPRING S MUNICIPAL CODE, RE LATIVE
TO COMMENCEMENT OF ABATEMENT PROCEEDINGS
City Attorney’s Summary
This ordinance revises the City of Palm Springs’
administrative citation and nuisance abatement ordinances in order to provide the City with more flexibility, brin g the ordinances into accord with current case law, streamline the ordinances, and remove inconsistencies among Municipal
Code sections.
WHEREAS, in 1995, the California legislature added California Government Code section 53069.4, which allows cities and counties to adopt an ordinance to make any violation of any ordinance enacted by the local agency subject to an administrative fine or penalty, similar to parking tickets; and
WHEREAS, in 1883, the California legislature adopted what is now contained in California Government Code section 38773, which allows cities to provide for the administrative (or summary) abatement of any nuisance at the expense of the persons creating, causing, committing, or maintaining it and by ordinance may make the expense of abatement of nuisances a lien against the property on which it is maintained and a personal obligation against the property owner or as a special assessment against the property; and
WHEREAS, pursuant to Article XI, Section 5 of the California Constitution, the City of Palm Springs may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in its charter; and
WHEREAS, in accordance with the City’s above-referenced charter city authority, the City Council wishes to amend its Municipal Code provisions regarding community improvement/administrative citations and nuisance abatement proceedings.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1
. Chapter 1.06 of the Palm Springs Municipal Code is hereby amended to read as set forth in Exhibit “A”, attached hereto and incorporated by reference herein.
Item 3C - 6
Ordinance No. _____
SECTION 2. Section 11.72.200 of the Palm Springs Municipal Code is hereby amended to read as follows:
“11.72.200 Commencement of proceedings—Notice of violation.
In addition to any other method authorized by law, the director may commence nuisance abatement proceedings by issuing a notice of violation to the responsible party. This notice shall be headed: “NOT ICE OF VIOLATION” in letters not less than one inch in height and shall, in legible characters, contain the following:
(1) The street address and a legal description sufficient for identification of the property at issue;
(2) A statement specifying the condition(s) constituting the violation with citation to the specific provision which has been violated and a statement that the property so maintained constitutes a public nuisance;
(3) A directive that the condition or violation be abated and a statement of the specific action required to do so;
(4) A statement specifying the applicable procedure for appeal of any determination made pursuant to the notice as appropriate pursuant to Section 11.72.220;
(5) A st atement indicating that if the condition is not voluntarily corrected the violation may be abated by the city through judicial process or by entry upon the property by city employees or contractors for purposes of effecting those actions necessary to correct the violation;
(6) A statement specifying that, should the violation not be remedied within a time period specified in the notice,
with such time being as
reasonably determined by the enforcement officer but not less than ten days from the date of giving notice of t he violation, the party responsible for the violation will be charged a fee equal to the city’s actual cost and expense of abatement which shall include all fees and costs incurred by the city in obtaining voluntary or involuntary compl iance, including but not limited to subsequent inspection costs, staff time, overhead, and legal expenses including attorneys’ fees. The notice of violation shall include a current schedule displaying fees for enforcement activities.”
SECTION 3. CEQA. The adoption of this O rdinance is exempt from further review under the California Environmental Quality Act (Cal. Pub. Res. Code 21000 et seq.) because it ca be seen with certainty that the adoption of this Ordinance is not reasonably foreseeable to lead to any environmental impact.
Item 3C - 7
Ordinance No. _____
PASSED, APPROVED, AND ADOPTED BY THE PALM SPRINGS CITY
COUNCIL THIS _____ DAY OF ______________, 2022.
LISA MIDDLETON
MAYOR
ATTEST:
MONIQUE LOMELI
INTERIM CITY CLERK
Item 3C - 8
Ordinance No. _____
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, MONIQUE LOMELI, Interim City Clerk of the City of Palm Springs, California, do hereby certify that Ordinance No. ____ is a full, true, and correct copy, and was introduced at a regular meeting of the Palm Springs C ity Council on _________ and adopted at a regular meeting of the City Council held on __________ by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS WHEREOF , I have hereunto set my hand and affixed the official seal of the City of Palm Springs, California, this ______ day of ______________, _________.
MONIQUE LOMELI
INTERIM CITY CLERK
Item 3C - 9
Ordinance No. _____
EXHIBIT “A”
AMENDED CHAPTER 1.06
COMMUNITY IMPROVEMENT AND ADMINISTRATIVE CITATIONS
Item 3C - 10
55575.18155\34295556.4
Chapter 1.06 COMMUNITY IMPROVEMENT AND ADMINISTRATIVE CITATIONS 1.06.010 Intent.
1.06.020 Definitions.
1.06.030 Administrative citation and pre-citation or courtesy notice procedures. 1.06.040 Imposition of penalties.
1.06.050 Action required upon receipt of an administrative citation. 1.06.060 Hearing procedure.
1.06.070 Collection of fines.
1.06.080 Civil or criminal actions not affected.
1.06.090 Administrative Rules and RegulationsNeighborhood involvement.
1.06.010 Intent.
(a) This chapter provides for administrative citation remedies, which are in addition to all other legal remedies, criminal or civil, which may be pursued by the city to address any violation of this code, including any codes adopted by reference, administrative regulations, emergency orders, conditions of approval, or other public nuisance. (b) This chapter establishes an administrative citation process and monetary penalties to encourage and expedite compliance with the provisions of the Palm Springs Municipal Code. This chapter encourages voluntary compliance through the implementation of a process that informs responsible parties of correctable violations by giving a written warning before taking action and allowing reasonable time lines for compliance. (c) The goals of this chapter focus on minimizing the number of code violations made by property owners, renters, business owners, and other stakeholders of the city by instituting a citation process and promoting a positive city image. The goals of this chapter are as follows:
(1) To improve the quality of life for Palm Springs residents and business owners by reducing the number of code violations through the encouragement of expedient compliance;
(2) To protect the health, safety, and welfare of the general public by minimizing potentially harmful municipal code violations;
(3) To provide a simplified administrative citation process in order to encourage its implementation;
(4) To minimize the time and expense associated with code enforcement action; (5) To provide a methodology to hold noncompliant parties responsible for continuous violations; and
Item 3C - 11
55575.18155\34295556.4
(6) To provide for the enhanced collection of delinquent code enforcement fines, costs, fees and penalties by conditioning issuance and renewal of city licenses and permits upon payment of such delinquent code enforcement fines, costs, fees and penalties. (d) The council finds that the enforcement throughout the city of the provisions of this code, including such codes as have been incorporated by reference and any applicable state codes, is an important public service. Code enforcement is vital to the protection of the public’s health, safety, and quality of life. The council recognizes that code enforcement depends upon the codification and implementation of fair, reasonable, and consistent regulations that can be effectively applied in administrative and judicial proceedings. The council further finds that a comprehensive code enforcement system that uses a combination of judicial and administrative remedies is critical to gain compliance with this code and the regulations contained in this code.
1.06.020 Definitions.
In construing the provisions of this chapter, the following definitions shall apply:
“Administrative citation” means a monetary penalty issued after failure to abate a Code violation of the Palm Springs Municipal Code.
“City manager” means the city manager of the city or the city manager’s designee or designees.
“Code” means the codified Palm Springs Municipal Code, including any codes adopted by reference, any City ordinance, administrative regulation, emergency order, condition of approval, or any public nuisance.
“Continuing violation” means a Code violation that pertains to building, plumbing, electrical, or other similar structural or zoning issues, and that does not create an immediate danger to health or safety.
“Enforcement officer” means a code compliance officer, police officer, building inspector, or any other city employee designated by the city manager to enforce the provisions of the Palm Springs Municipal Code and granted authority to issue notices and administrative citations pursuant to this title. The term “enforcement officer” also includes any city employee or official expressly provided enforcement authority pursuant to the provisions of this code.
“Hearing” means a hearing conducted by a hearing officer regarding an appeal of the issuance of an administrative citation submitted by a responsible party. “Hearing officer” means an individual or board (including, but not limited to, the administrative appeals board) as may be designated by the city manager to conduct hearings, including appeals hearings, and make decisions as provided in this chapter.
Item 3C - 12
I -
55575.18155\34295556.4
“Public safety officer” means a police officer or the fire chief of the city or the fire chief’s designee authorized under the laws of the State of California or this code to enforce the provisions of the Palm Springs Municipal Code. A “public safety officer” is an “enforcement officer” as defined in this chapter.
“Immediate violation” means a code violation that does not pertain to building, plumbing, electrical, or other similar structural or zoning issues, or a code violation of any nature that creates an immediate danger to health or safety. “Responsible party” means theany owner of property upon which a violation of the Palm Springs Municipal Code existsoccurs. This term shall also include any non-owner, occupant, or other person or entity in control or charge of the property who is creating, permitting, causing, aiding, abetting, suffering or maintaining any condition inCode violation of the Palm Springs Municipal Code.
1.06.030 Administrative Pre-citation and administrative citation and pre-citation or courtesy noticeprocess.
(a) Whenever an Enforcement Officer charged with the enforcement of any provision of this Code determines that a Code violation of that provision has occurred, either by receiving a complaint or being witness to the violation, the Enforcement Officer has the authority to take the actions identified in this Section and issue an administrative citation to a responsible party for the violation, as provided herein, unless the violation is deemed to be an immediate threat to life and safety, at which time the matter shall be referred to the Building Official, Police Department, Fire Department, or other applicable agency, depending on the nature of the violation, for immediate action. A Public Safety Officer shall not be required to issue a pre-citation or courtesy notice as provided in Subsection (b) of this Section; however, a Public Safety Officer, in the discretion of such officer, may issue such courtesy notice. The City Manager may by administrative rule or regulation or by direction or order authorize an Enforcement Officer to issue an administrative citation without first complying with the pre-citation or courtesy notice requirements as otherwise required pursuant to Subsection (b) of this Section..
(b) Prior to issuing an administrative citation for a continuing violation of this code that does not create an immediate danger to health or safety , the enforcement officer shall serve a pre-citation or courtesy notice on the responsible party for the violation containing the following information:
(1) The date of the Code violation was observed;
(2) The address or a definite description of the location where the Code violation was observedoccurred;
(3) The section of this codethe Code violated and a brief description of the Code violation;
Item 3C - 13
55575.18155\34295556.4
(4) An order requiring the correction of, or prohibiting the continuation or repeated occurrence of, the Code violation;
(45) The compliance date by which the Code violation shallmust be corrected or otherwise remedied, which shall be no less than fifteen days and no more than sixty days from the date the pre-citation notice is given, compliance date shall be such reasonable time as determined to be reasonable by the code enforcement officialofficer; (56) A statement that if the Code violation is not corrected by the specified compliance date, that an administrative citation willmay be issued whichthat imposes a fine , for the amount of which will be specified; and
(67) The name, signature and department of the enforcement officer issuing the pre- citation notice.
(c) Each administrative citation shall contain the following information:
(1) The date of the Code violation;
(2) The address or a definite description of the location where the Code violation occurred;
(3) The section of this codethe Code violated and a brief description of the Code violation;
(4) The amount of the fine for the code violation;
(5) A description of the fine payment process, including a description of the time within which and the place to which the fine shall be paid;
(64) An order requiring the correction of, or prohibiting the continuation or repeated occurrence of, the codeCode violation described in the administrative citation; (7) A description of the administrative citation review process, including the time within which the administrative citation may be contested and the place from which a request for hearing form to contest the administrative citation may be obtained; and (5) The compliance date by which the Code violation must be corrected or otherwise remedied, which compliance date shall be such reasonable time as determined by the enforcement officer;
(6) A statement that if the Code violation is not corrected by the specified compliance date, that an additional administrative citation may be issued that imposes a fine; (87) The name, signature, and department of the citing enforcement officer. issuing the administrative citation;
Item 3C - 14
55575.18155\34295556.4
(8) The amount of the administrative fine;
(9) A description of the processes for fine payment, administrative appeal or extension of time for compliance.
(d) An pre-citation notice or administrative citation shall be issued and served in accordance with Section 1.06.0401.06.040(e).
1.06.040 Imposition of penalties.
(a) First Administrative Citation. If the Code violation is not abated by the date set forth in the courtesypre-citation notice, or in the case of an immediate violation, an enforcement officer shall have the authority to issue a first administrative citation shall be issued. The first administrative citation shall carry a fine of one hundred dollars ($100), or such amount as the city council may establish by resolution, and shall require abatement of the violation within ten calendar days from the date of the first administrative citation. If an extension of the compliance date set forth in the first administrative citation is requested and approved in accordance with Section 1.06.050, the fine must be paid prior to the city’s grant of the extension. The first administrative citation shall warn the responsible party of an additional two hundred fifty dollar penalty, or such amount as the city council may establish by resolution, for not abating the violation by the compliance date set forth in the first administrative citation or the extension period granted by the city.a reasonable time period, as determined by the enforcement officer.
(b) Second Administrative Citation. If thea continuing violation continues after the compliance date in the first administrative citation or any extension period granted by the city, or a second violation of the same provision of this codeCode occurs within one year of the compliance date of the first such violation, or in the case of a second immediate violation within one year of the first violation, an enforcement officer shall have the authority to issue a second administrative citation shall be issued . The second administrative citation shall carry a fine of two hundred fifty dollars ($250), or such amount as the city council may establish by resolution, and shall require abatement of the violation within ten calendar days from the date of the second administrative citation, and shall clearly indicate “SECOND ATTEMPT TO OBTAIN COMPLIANCE.” If an extension of the compliance date set forth in the second administrative citation is requested and approved in accordance with Section 1.06.050, the full amount of all fines must be paid prior to the city’s grant of the extension. The second administrative citation shall warn the responsible party of an additional five hundred dollars penalty for not abating the violation by the compliance date set forth in the second administrative citation or the extension period granted by the city.a reasonable time period, as determined by the enforcement officer. (c) Third Administrative Citation. If thea continuing violation continues after the compliance date in the second administrative citation or any extension period granted by the city, or a third or subsequent violation of the same Code provision of this code occurs within one year of the compliance date of the first such violation, or in the case of a third immediate violation within one year of the second violation, the enforcement officer shall Item 3C - 15
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have the authority to issue a third administrative citation shall be issued . The third administrative citation shall carry a fine of five hundred dollars ($500), or such amount as the city council may establish by resolution, and shall require abatement of the violation within ten calendar days from the date of the third administrative citation, and shall clearly indicate “FINAL ATTEMPT TO OBTAIN COMPLIANCE – FAILURE TO COMPLY MAY
RESULT IN PUBLIC NUISANCE PROCEEDINGS AND OTHER ENFORCEMENT ACTIONS – ALL COSTS ASSOCIATED WITH PUBLIC NUISANCE PROCEEDINGS
MAY BE LIENED AGAINST THE SUBJECT PROPERTY IF NOT PAID BY THE RESPONSIBLE PARTY.”a reasonable time period, as determined by the enforcement officer.
(d) If an extension of the compliance date set forth in the thirdan administrative citation is requested and approved in accordance with Section 1.06.0501.06.050, the full amount of all finesfine must be paid prior to the city’s grant of the extension. (e) Service of any citation or pre-citation notice may be accomplished in one of the following ways:
(i) By personal delivery; or
(ii) By both posting at the subject property and mailing to the responsible person by certified mail, return receipt request, to the address shown on the most recent County Tax Assessor’s information available to the City.
Service under paragraph (ii) shall be deemed effective upon the earlier of the following:
(A) the date of posting; or (B) three calendar days following the date of deposit in the mail.
1.06.050 Action required upon receipt of an administrative citation. (a) Upon receipt of ana pre-citation notice or administrative citation, the responsible party must take one of the following actions to avoid additional penalties:
(1) Correct the violation, pay the correspondingany applicable fine(s) , if any , and contact the city to request a re-inspection, prior to the compliance date specified in the pre-citation notice or administrative citation; or
(2) Request an extension of time in writing, which shows a reasonable hardship pursuant to subsection (b) of this section, prior to the compliance date specified in the administrative citation; or
(3) Request a hearing to appeal the pre-citation or administrative citation, pursuant to subsection (c) of this section.
(b) All requests for extensions must be made in writing, submitted to the enforcement officer, and present a reasonable hardship. The enforcement officer may grant a one- time or more extensions at his/her discretion after payment of theany fine due . The Item 3C - 16
55575.18155\34295556.4
extension shall not exceed thirty days unless the matter is referred to the city manager for additional time. The city manager may grant additional time as determined in the city manager’s reasonable discretion, considering all relevant facts and circumstances of the hardship. If the case has been referred or appealed to the hearing officer, extensionsan extension may not be granted.
(c) A responsible party receiving a pre-citation notice or an administrative citation may appeal such pre-citation or administrative citation within ten (10) calendar days fromfollowing the date the citation is deemed served, or such extended date, if an extension is granted pursuant to Section 1.06.0501.06.050. (1) The appeal must be in writing and must indicate the appellant’s full name and mailing address, including, if the appellant chooses, any electronic mail address. It must be accompanied by the penalty amount and appeal fee, which shall be set by city council resolution, must specify the basis for the appeal in detail, and must be filed with the city clerk’s office. If the appeal deadline falls on a day City Hall is closed, then the deadline shall be extended until the next regular business day.
(2) As soon as practicable after receiving the written notice of appeal, the city manager shall fix a date, time, and place for the hearing before a hearing officer. Hearings shall take place once per month at a set time and date, unless the city finds it necessary to conduct hearings more frequently. Written notice of the time and place for the hearing may be served by first class mail, or electronic mail, at the mailing address indicated on the written appeal. Service of the appeal notice must be made at least ten (10) calendar days prior to the date of the hearing to the party appealing the administrative citation. (3) The failure of any person with an interest in the property, or other responsible party, to receive such properly addressed notice of the hearing shall not affect the validity of any proceedings under this chapter. Service by first class mail, postage prepaid, or electronic mail, shall be effective on the date of mailing.
(4) Failure of any responsible party to file an appeal in accordance with the provisions of this section within the time required shall constitute a waiver of that responsible party’s rights to administrative determination of the merits of the pre-citation or administrative citation and the amount of the penalty. If no appeal is timely filed, the pre-citation notice or administrative citation shall be deemed a final administrative order and a failure to exhaust the responsible party’s administrative remedies.
1.06.060 Hearing procedure.
(a) TheNotwithstanding section 2.50.020, the city manager shall designate aany hearing officer or hearing officers to conduct appeals under this chapter. Each hearing officer shall be an individual or appointed person or board, subject to the provisions of the Political Reform Act of 1974 and all other laws, ordinances, or regulations of the state or the city relating to conflicts of interest. All costs associated with the hearing officer shall be paid from the appeal hearing fees and fines collected from administrative citations.
Item 3C - 17
55575.18155\34295556.4
TheUnless an appellant requests, in writing, to be partially responsible party may request the city manager to excuse afor payment of the costs of that appellant’s appeal hearing officer upon a showing of actual prejudice against the party’s cause . The hearing officer shall conduct an orderly fair hearing and accept evidence on which persons would commonly rely in the conduct of their ordinary business affairs as follows:
(1) A valid citation shall be prima facie evidence of the violation. (2) The hearing officer shall administer oaths and accept testimony by declaration under penalty of perjury relating to the violation and the appropriate means of correcting the violation. Technical rules of evidence shall not apply to the administrative hearing, and the hearing officer may rely upon hearsay evidence if such evidence is of the type that is customarily relied upon in society’s ordinary affairs. (3) The owner, agent, person responsible for the violationparty, or any other interested person, may present testimony or evidence concerning the violation and the means and time frame for correction.
(b) The city manager shall establish all appropriate administrative regulations for implementing this chapter, including the conduct of hearings and rendering decisions pursuant to this section.
(c) The hearing officer may modify the penalties stated in an administrative citation depending upon the circumstances of each case and the evidence presented and the hearing officer provides specific grounds for such modification in the written decision. The hearing officer has authority to reduce, conditionally reduce, or increase the amount of any penalties, subject to the fine amounts or limits established by the council by resolution. The hearing officer may impose conditions and deadlines for correction of Code violations or payment of outstanding penalties.
(d) The failure of the responsible party or duly authorized representative to appear at the hearing shall constitute a forfeiture of the fine and appeal fees and a failure to exhaust the responsible party/appellant’s administrative remedies. (e) The hearing officer shall make findings based on the record of the hearing and make a written decision based on the findings. The city shall preserve all exhibits submitted by the parties and shall serve the decision by first class mail or electronic mail on the appellant within ten thirty (30) calendar days after the hearing. The decision of the hearing officer dismissing the pre-citation notice or administrative citation is final and conclusive. The decision of the hearing officer affirming the administrative citation is final and conclusive, subject only to review by the Superior Court in accordance with state law pursuant to an appeal to Superior Court filed by the appellant within twenty days of the date that the administrative citation is served upon the appellant. There are no appeals tosubsection (g), below. There shall be no appeal to the city council.
Item 3C - 18
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(f) If the hearing officer dismisses the administrative citation, all fines and appeal fees shall be refunded to the responsible party/appellant within thirty (30) calendar days. (g) The responsible party who requested the hearing may obtain review of the hearing officer’s administrative decision regarding the administrative citation by filing a petition for judicial review pursuant to the provisions of California Government Code Government Code Section 53069.4 or pursuant to a writ of administrative mandamus, in accordance with California law.
1.06.070 Collection of fines.
(a) The failure of any person to pay a fine assessed by administrative citation within the time specified on the administrative citation constitutes a debt to the city and a personal charge against the responsible party and the affected property if the citation was issued to the property owner. To enforce that debt, the city manager may file a civil action, impose a special assessment as set forth below, or pursue any other legal or administrative remedy to collect such debt, including reasonable costs of collection and attorneys’ fees.
(b) The city council may impose a special assessment against the property that is the subject of a citation if the citation has been issued to the property owner. The city manager shall record a notice of lien in the office of the county recorder when the special assessment procedure is used. When so made and confirmed, the cost shall constitute a lien on that property for the amount of the assessment. (c) After confirmation and recordation, a copy shall be turned over to the Riverside County tax collector. At that point, it will be the duty of the tax collector to add the amounts of the respective assessments to the next regular property tax bills levied against the lots and parcels of land for municipal purposes. Those amounts shall be collected at the same time and in the same manner as ordinary property taxes are collected, and shall be subject to the same penalties and procedures under foreclosure and sale as provided for with ordinary municipal taxes. Or, after recording, the lien may be foreclosed by judicial or other sale in the manner and means provided by law. (db) Non-payment of fines whichthat the city has made reasonable effort to collect shall be deemed a misdemeanor for which the responsible party may be prosecuted. (e) Administrative citation fines collected pursuant to this chapter shall be deposited into a an appropriate fund to be administered in furtherance of the purposes of this chapter and to fund such code enforcement and public nuisance abatement actions and proceedings as the city council may identify or proscribe.
1.06.080 Civil or criminal actions not affected.
Item 3C - 19
55575.18155\34295556.4
Any administrative citations pursuant to this chapter shall not prejudice or adversely affect any other action, civil or criminal, that may be brought to abate the public nuisance or violation or to seek compensation for damages suffered. A civil or criminal action may be brought concurrently with any other process regarding the same public nuisance or violation.
1.06.090 Neighborhood involvementAdministrative Rules and Regulations.
The city manager shall cooperate with neighborhood organizations and the neighborhood involvement committee, as may be organized pursuant to the provisions of Chapter 2.55 of this code, in the implementation of this chapter. Such cooperation may include the provision of information and the establishment of forums for dialogue and communication on the requirements of the city’s code and the city’s enforcement of the code. Nothing in this chapter shall be construed as authorizing the city manager to appoint or designate any member of any neighborhood organization or the neighborhood involvement committee as an enforcement officer.
Consistent with the intent and goals of this chapter, the city manager may adopt administrative rules and regulations for implementation and furtherance of the requirements of this chapter. Such rules and regulations may be enforced as an ordinance in any manner permitted by this Municipal Code.
Item 3C - 20
CITY COUNCIL STAFF REPORT
05/26/2022 3. D.
City Clerk -
SUBJECT
APPROVAL OF THREE TRAFFIC CALMING REQUESTS IN THE AMOUNT OF $250,000 AND AUTHORIZATION TO PURCHASE AND IMPLEMENT TRAFFIC
CALMING MEASURES
RECOMMENDATION:
Approve the following traffic-calming requests:
a) Desert Highland Gateway Estates Neighborhood: Installation of two sets of rubberized speed cushions (“speed humps”), associated signage, and striping on Eastgate Road between Tramview Road and Rosa Parks Road; b) Melody Ranch Neighborhood: Installation of two electronic speed feedback signs, one on the north side and one on the south side of Seven Lakes Drive, between Cherokee Way and Gene Autry Trail; and
c) Little Tuscany Neighborhood: Modification of existing traffic-calming devices from temporary to permanent chicanes using raised curbs, and appropriate signage. Or, alternatively, approve installation of three roundabouts as preferred by the neighborhood workgroup. The permanent design of chicanes would be done through one of the City’s on-call Traffic Engineering Consultants with community input. Design and construction of roundabouts may require prioritization with other larger-scale capital improvement projects.
Attachments
Item 3D
CITY COUNCIL STAFF REPORT
DATE: May 26, 2022 NEW BUSINESS
SUBJECT: APPROVAL OF THREE TRAFFIC CALMING REQUESTS IN THE AMOUNT OF $ 250,000 AND AUTHORIZATION TO PURCHASE AND
IMPLEMENT TRAFFIC CALMING MEASURES
FROM: Justin Clifton, City Manager
BY: Engineering Division
SUMMARY:
The City adopted a Neighborhood Traffic Calming Program (Program) in 2002 to facilitate a cooperative process with neighborhoods that have identified traffic concerns warranting review and resolution by the City.
The Engineering Division is currently coordinating with several neighborhood organizations on various traffic calming requests, primarily related to speeding traffic and/or “cut -through” traffic. The range of traffic calming solutions include radar speed feedback signage, traffic striping, speed cushions, or traffic circles.
This item presents three different traffic calming requests that have followed the procedures outlined in the City’s Neighborhood Traffic Calming Program and are now recommended for approval by the City Council and implementation by the City.
RECOMMENDATION:
1. Approve the following traffic calming requests:
a) Desert Highland Gateway Estates N eighborhood: Install ation of two sets of rubberized speed cushions (“speed humps”), associated signage, and striping on Eastgate Road between Tramview Road and Rosa Parks Road;
b) Melody Ranch Neighborhood: Install ation of two electronic speed feedback signs, one on the north side and one on the south side of Seven Lakes Drive, between Cherokee Way and Gene Autry Trail; and
c) Little Tuscany Neighborhood: Modification of existing traffic calming devices from temporary to permanent chicanes using raised curbs, and appropriate signage. Or, alternatively, approve installation of three roundabouts as preferred by the neighborhood work group. The permanent design of chicanes would be done through one of the City’s on- call Traffic Engineering Consultant s with community input . Design and construction of roundabouts may require prioritization with other larger-scale capital improvement projects.
Item 3D - 1
City Council Staff Report
May 26, 2022 -- Page 2
Approval of Traffic Calming Measures
BACKGROUND:
On August 21, 2002, the City Council approved a Neighborhood Traffic Calming Program to address neighborhood concerns over traffic safety, traffic speeds, traffic volumes, and cut-through traffic. The primary purpose of the City’s Program is to provide a systematic approach to address these various requests, to implement a communication structure, to obtain objective data, and to demonstrate r esident support to determine the recommended traffic calming measure for implementation. Traffic calming is intended to reduce the speed of traffic and thereby increase traffic safety and improve the quality of life for residents living in the neighborhoods.
The Neighborhood Traffic Calming Program addresses many traffic related issues by working closely with residents to identify existing problems, define neighborhood goals, and develop neighborhood support. The P rogram relies heavily on community participation and action. After development of a neighborhood driven, traffic calming plan, actions may be implemented using a staged approach.
From June 2020, through December 2022, Engineering staff worked with Southern California Association of Governments (SCAG) and their consultant, KOA, to create a Pedestrian Master Plan to increase pedestrian and bicyclist safety citywide, and a Safe Routes to Schools Master Plan to promote walking and bicycling to schools through infrastructure improvements, enforcement tools, safety education, and incentives. These plans relied heavily on community feedback and data analysis , and together they make up the Safe Routes report. Based on the report, there is some overlap between the report’s recommended projects and projects already initiated through the city’s Traffic Calming Program.
STAFF ANALYSIS:
In accordance with the Neighborhood Traffic Calming Program, Staff has receiv ed Community Action Request F orms (CARF) from residents in various neighborhoods requesting the City investigate speeding and other traffic issues on various streets . The CARF documents the traffic issues, a proposed traffic calming solution based on options identified in the Program and demonstrates initial support for the proposed traffic calming measures with signatures from residents of the neighborhood.
A working group comprised of residents is established with each neighborhood that submits a CARF that directly communicates and coordinates with Staff on each step of the traffic calming process. Through a deliberative process that includes obtaining objective traffic data (speed surveys, traffic volumes, pedestrian counts, etc.), recommended traffic calming measures are identified and the working group coordinates direct outreach to residents within their neighborhood on the process and recommended traffic calming measures.
Following is a summary of the traffic calming requests submitted by residents in the following neighborhoods:
Item 3D - 2
City Council Staff Report
May 26, 2022 -- Page 3
Approval of Traffic Calming Measures
Desert Highland Gateway Estates Neighborhood
In June 2021, residents within the Desert Highland Gateway Estates neighborhood submitted a CARF to evaluate if rubberized speed cushions would be warranted on Eastgate Road between Tramview Road and Rosa Parks Road. Given that the request was submitted in summer, residents were informed that data would be collected in- season (October through April) to better gauge actual traffic volumes.
In October 2021, traffic data was collected, and Staff evaluated warrants. It was concluded that up to three rubberized speed cushions (cushions) could be installed, pending community approval. Three conceptual drawings were created, each showing a 1-cushion layout with an identified ideal location, a 2-cushion layout with identified ideal locations, and a 3-cushion layout with identified ideal locations. Location approval letters were sent out, ahead of the data collection, to select addresses where the cushions would be most closely located.
In December 2021, the final location approval letter was received, and it was found that not all locations were welcomed by the affected homeowners/occupants. Staff reached out to the residential working group’s community leaders regarding which direction t hey would like to take, offering either a one or a two-location set up.
In February 2022, the working group elected to proceed with a two-location set up, and survey letters were sent out to all properties along Eastgate Road. In April 2022, the final votes were received, which showed 68% of the community was in favor of the proposed traffic calming measures, with two rubberized speed cushions. Figure 1 below shows the location of the proposed improvements.
Figure 1
Item 3D - 3
City Council Staff Report
May 26, 2022 -- Page 4
Approval of Traffic Calming Measures
Melody Ranch Neighborhood:
On September 10, 2020, Staff submitted to City Council a staff report outlining traffic calming projects that successfully completed the City’s traffic calming process and w ere ready for City Council approval for funding and installation. One of these projects was on Seven Lakes Drive, located in the Melody Ranch Neighborhood.
Although a set of electronic speed feedback signs were initially requested, it was agreed by the three HOAs – Canyon Sands, Seven Lakes, and Oasis, to first install lane parking lines to narrow the roadway, along with two standard speed limit signs. Data was to be collected in October 2021 to test the effectiveness of the traffic calming measure. If successful, then no electronic speed feedback signs would be installed.
After the installation, data was received and assessed by Staff . It was found that there was no change to the 85th percentile speed on Seven Lakes Drive. Staff contacted the working group and informed them of the assessment. Though speeding complaints had gone down, the working group requested to pursue the speed feedback signs that were promised in the September 10, 20 20 staff report, which authorize d installation of the electronic speed feedback signs only after implementation of parking lanes and follow up study. Since the follow -up study proved the parking lanes were ineffective, speed limit signs are now being recommended. Figure 2 below shows the location of the proposed improvements.
Figure 2
Little Tuscany Neighborhood (Roundabouts vs Chicanes):
In June 2015, representatives of the Little Tuscany Neighborhood met with Staff to discuss possible traffic calming measures to implement along W. Racquet Club Road. A CARF in accordance with the Neighborhood Traffic Calming Program was submitted and a specified study zone was created with input from the working group.
Item 3D - 4
Fi me 2 - Pro osed s eed feedback si ns alon Seven Lakes Drive City Council Staff Report
May 26, 2022 -- Page 5
Approval of Traffic Calming Measures
On September 7, 2016, the City Council authorized $30,000 for the installation of rubberized speed cushions (humps) at two locations on W. Racquet Club Road as requested and approved by the Little Tuscany Neighborhood in accordance with the City’s Neighborhood Traffic Calming Program. On October 17, 2016, the Little Tuscany Neighborhood Organization submitted a formal request to the Assistant City Manager to consider roundabouts in lieu of rubberized speed cushions for more rigorous traffic calming measures on W. Racquet Club Road. During the year that followed, the Little Tuscany Neighborhood working group met with staff and the City developed a conceptual design to install three roundabouts on W. Racquet Club Road.
A roundabout is a type of intersection that directs both turning and through- traffic onto a one-way circular roadway built as a traffic calming measure intended to slow traffic speeds at the intersection. A roundabout is typically installed on local or collector roadways with low intersection volumes. Installation of a roundabout generally consists of a raised median island with landscape in the center. One example of where roundabouts have been installed is along Via Chica where the City required the adjacent hotels to participate in traffic calming measures to eliminate cut -through traffic into the residential neighborhood
Staff retained Albert A. Webb & Associates (Webb) through the City’s on-call engineering contract to prepare a conceptual design to install three roundabouts on W. Racquet Club Road. The conceptual design was reviewed and approved by the Little Tuscany Neighborhood working group, and proposed installing roundabouts at the following locations:
1. Ja nis Drive and W. Racquet Club Road
2. Palermo Drive and W. Racquet Club Road
3. Cardillo Avenue and W. Racquet Club Road
On November 1, 2017, Staff presented two options for traffic calming within the Little Tuscany Neighborhood to the City Council , speed cushions or roundabouts. Staff also presented to Council the limited amount of funding available for Traffic Calming. Based on the limited funding available at that time, Staff recommended i nstalling speed cushions. At the time, Webb prepared a preliminary cost estimate for the construction of the three roundabouts planned on W. Racquet Club Road. The preliminary cost included soft costs, construction costs and a construction contingency for a total of $228,859. The City Council approved Staff recommendations for installation of the speed cushions and deferred the installation of the roundabouts.
Figure 3 illustrates the conceptual roundabout design planned for W. Racquet Club Road.
Item 3D - 5
City Council Staff Report
May 26, 2022 -- Page 6
Approval of Traffic Calming Measures
Figure 3
After the City Council reauthorized the installation of the speed cushions at the November 1, 2017 City Council meeting, resident opposition to speed cushions deferred the implementation and Staff continued to coordinate with the working group on alternatives.
In August 2018, Staff met with residents to review alternatives and confirmed that traffic “chicanes,” horizontal deflections via striping and bollards, was a favorable and less expensive alternative to roundabouts. A traffic chicane is shown in Figure 4 below.
Figure 4
Item 3D - 6
N
City Council Staff Report
May 26, 2022 -- Page 7
Approval of Traffic Calming Measures
In June 2019 Staff finalized design details for installation of traffic chicanes on W. Racquet Club Road between Vista Dr. and Palermo Dr., Leonard Road and Tuscan Road, and Cardillo Ave. and Junipero Ave. The working group and residents of Little Tuscany approved installation of the traffic chicanes. Diagrams showing each traffic chicane are provided as Figures 5, 6, and 7.
Figure 5 (Vista Dr. to Palermo Dr.)
Figure 6 (Leonard Road to Tuscan Road)
Figure 7 (Cardillo Ave. to Junipero Ave.)
Item 3D - 7
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City Council Staff Report
May 26, 2022 -- Page 8
Approval of Traffic Calming Measures
In January 2020, the City had installed temporary chicanes via road striping, large diameter bollards, and standard delineators on W. Racquet Club, between Vista Drive and Junipero Avenue. This proved effective in lowering speeds, however the property owners located near the middle chicane had brought forth issues with the lack of parking due to the red curb and access issues to/from their driveway due to nearby delineators.
The work ing group also brought forth issues concerning the aesthetics of using large diameter plastic bollards and requested to have them removed. To mitigate these concerns and keep some type of traffic calming, Staff requested additional funding to modify the existing chicane set-up.
On September 10, 2020, Staff submitted to City Council a staff report outlining traffic calming projects that successfully completed the City’s traffic calming process and were ready for City Council approval for funding and installation. One of these projects was the chicane modification requested by the work group.
In June 2021, the installation of modifications was completed. Traffic data was collected in October 2021 to test the effectiveness of the new layout using the original chicane striping, but without the large diameter plastic bollards. The data was reviewed, and it was determined to be not as effective.
On March 31, 2022, Staff met with members of the work ing group and Councilmember Woods, from District 2 where this neighborhood is located, to discuss next steps. At this meeting, Staff explained to the working group that if they wished to pursue roundabouts the City Council would have to approve the request and the necessary funding. The City Engineer explained that if approve d, t he roundabouts project would become another capital project. The roundabout project would then be included in the 5- Year CIP and would require funding in future years. Staff recommended to the working group to convert the temporary painted chicanes into permanent chicanes made of concrete curbs, rather than pursue roundabouts, as this recommendation would allow for faster implementation of traffic calming features.
Staff can revisit the installation of roundabouts at these locations with the understanding that the project could be delayed by a few years , pending prioritization by Council.
Installation of permanent chicanes would be abandoned while the temporary chic anes would stay in place.
If Staff is directed to proceed with chicanes, Staff would request funding for one of our on-call traffic engineers to provide conceptual drawings adhering to the Manual on Uniform Traffic Control Devic es (MUTCD), the California Vehicle Code (CVC), and feedback from the work group. Upon acceptance of an approved layout, construction documents will be created for use on bidding (Plans, Specifications, & Estimate). Figure 8 below shows the location of the proposed permanent chicanes.
Item 3D - 8
City Council Staff Report
May 26, 2022 -- Page 9
Approval of Traffic Calming Measures
Figure 8
ENVIRONMENTAL ASSESSMENT:
In accordance with Section 15301 “Existing Facilities,” Class 1 projects consist of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing facilities of both investor and publicly owned utilities used to provide electric power, natural gas, sewerage, or other public utility services. Therefore, the installation traffic calming equipment on existing City streets is considered categorically exempt from CEQA.
ALIGNMENT WITH STRATEGIC PLANNING:
This item aligns with City Council Priority “Community Infrastructure”, specifically 3A, Improve City Facilities.
FISCAL IMPACT:
Staff is requesting $250,000 for the traffic calming projects. The $250,000 includes design and construction for the Desert Highland Gateway Estates and Melody Ranch Neighborhoods traffic calming projects and for the design of the Little Tuscany Neighborhood chicanes project. Construction costs for the permanent chicanes is not currently known. Also, the design and construction of roundabouts for the Little Tuscany Neighborhood is also unknown. Prices for construction have significantly increased since the original cost estimate of $230,000 for the roundabouts was completed. There is approximately $50,000 remaining in the Traffic Calming budget and there are sufficient funds available in the Special Gas Tax Improvements fund for the remaining $200,000.
Staff requests to a ppropriate $200,000 from Special Gas Tax Improvements (Fund 133) fund balance to traffic calming project string 20-24-GAS TAX-2106-TRFC CLMNG.
Item 3D - 9
City Council Staff Report
May 26, 2022 -- Page 10
Approval of Traffic Calming Measures
REVIEWED BY:
City Engineer: Joel Montalvo
Deputy City Manager: Flinn Fagg
City Manager: Justin Clifton
Item 3D - 10
CITY COUNCIL STAFF REPORT
05/26/2022 3. E.
City Clerk -
SUBJECT
INITIAL REVIEW OF A MODIFIED FRANCHISE AGREEMENT FOR SOLID WASTE
COLLECTION SERVICES BETWEEN THE CITY OF PALM SPRINGS AND PALM
SPRINGS DISPOSAL SERVICE
RECOMMENDATION:
Review the draft franchise agreement and provide initial comments to staff.1.
Review the rate proposal provided by PSDS and provide direction on the rate options.
2. Attachments
Item 3E
CITY COUNCIL STAFF REPORT
DATE: M AY 26, 2022 NEW BUSINESS
SUBJECT: INITIAL REVIEW OF A MODIFIED FRANCHISE AGREEMENT FOR
SOLID WASTE COLLECTION SERVICES BETWEEN THE CITY OF
PALM SPRINGS AND PALM SPRINGS DISPOSAL SERVICE
FROM: Justin Clifton, City Manager
BY: Office of Sustainability
SUMMARY:
The City of Palm Springs (City) has an exclusive Franchise Agreement (Agreement) with Palm Springs Disposal Services (PSDS) to provide solid waste and recycling collection services to all residents and businesses in the City. The current Agreement for solid waste collection services with PSDS was approved by the City Council in July 2013 and extends through March 2029. However, recent changes to state law relative to recycling and organic waste collection such as the adoption of Senate Bill 1383 necessitate significant modifications to the Agreement. City S taff has elected to restate and update the entire Agreement rather than to simply amend it due to the extensive nature of the changes. In addition, the state requirement for food waste collection will require changes to the services provided by PSDS, and a proposal for modifi cations to the trash collection fee schedule is also included as part of this report for consideration.
RECOMMENDATIONS:
1) Review the draft franchise agreement and provide initial comments to staff; and 2) Review the rate proposal provided by PSDS and prov ide direction on the rate options.
BACKGROUND:
PSDS has been the City’s exclusive waste hauler since 1972. In 2013, the City entered into an Agreement with PSDS to manage residential and commercial waste and recycling collection services within the City for 15 years. The term of the Agreement expires on March 31, 2029.
Item 3E - 1
City Council Staff Report
May 26, 2022 – Page 2
Franchise Agreement for Solid Waste Collection Services
Over the past several years, changes to state law now require commercial and residential users to subscribe to recycling and organic waste collection services as a means to divert waste from landfills and fulfill the state’s climate action goals. These changes will require significant modifications to the current Franchise Agreement with PSDS.
By way of background, the Governor signed SB 1383 in September 2016 in an effort t o reduce greenhouse gas emissions (such as methane, a byproduct of organic waste) and combat climate change. SB 1383 established statewide targets to reduce organic waste disposal in landfills by 50% by 2020 and by 75% by 2025. It also set a target to increase recovery of edible food for human consumption by 20% by 2025.
As a result of SB 1383, the California Department of Resources Recycling and Recovery (CalRecycle), developed regulations to achieve the State's organic waste diversion goals by 2025. In November 2020, CalRecycle released the final regulations to implement SB 1383 (the “SB 1383 Regulations”) . SB 1383 requires all businesses and residents to subscribe to organic waste collection services , so food scraps, landscaping waste, and other organic waste materials are diverted from landfills and recovered for other use, effective January 1, 2022.
Below is a summary of the major requirements under the SB 1383 Regulations:
• PSDS must c ollect organic waste from commercial businesses that meet and generate a certain amount of solid waste . S ingle-family residential households (with 1-4 units) and multifamily dwellings (5 or more units ) are also required to recycle their organic waste.
• PSDS must conduct education and outreach to organic waste generators. • Utilize color-specific containers to collect recycling, organics, and trash. • Establish an edible food recovery program that requires commercial businesses that sell edible food products to donate any edible food that would otherwise be disposed of to edible food recovery organizations (such as food banks) and services.
• Work with the County to perform capacity planning for organic waste diversion from landfills.
• Procure recycled organic waste products (i.e. , compost, mulch, and renewable natural gas) at levels based on City population. The City of Palm Spr ings is required to purchase 3,820 tons of mulch annually.
• Establish an ordinance with enforcement mechanisms that include a schedule of fines for non-compliant entities. This was completed on December 9, 2021. • Require 65% diversion of construction and demolition debris; the Building & Safety Division has implemented a program to address construction waste diversion. • Contamination monitoring of containers through annual route reviews ( “lid flipping”) of solid waste collection routes or waste evaluations of solid waste samples.
• Extensive recordkeeping and reporting of City’s compliance and monitoring efforts with the SB 1383 Regulations.
Item 3E - 2
City Council Staff Report
May 26, 2022 – Page 3
Franchise Agreement for Solid Waste Collection Services
On December 9, 2021, the City Council passed a new ordinance that, among other things, requires all residents to subscribe to organic waste collection services unless a waiver is granted. Organic waste collection includes collection of yard waste ( previously optional until the SB 1383 Regulations took effect) and food waste. Due to the new organic waste collection services that must be provided and other SB 1383 requirements (including, but not limited to, education and outreach, review of applications for waivers from organic waste collection, contamination minimization requirements and procurement of recovered organic waste), it is necessary to revise the Franchise Agreement for Solid Waste Collection Services. Since the SB 1383 requirements are extensive, and various statutes and regulations relating to solid waste and recycling took effect after the franchise agreement was last amended, the City elected to restate and update the entire franchise agreement rather than to simply amend it. PSDS has provided three rate proposals for increased solid waste collection services for Council’s consideration and has proposed revisions to the formula for annual rate adjustments.
STAFF ANALYSIS:
The City Attorney, Office of Sustainability Staff, PSDS and their legal representatives, and the City’s consultant Sloan Vazquez McAfee, began working on a new solid waste franchise agreement in 2021 to address the changes in state law and requirements of SB 1383. As previously noted, the parties worked on a comprehensive overhaul of the existing franchise agreement rather than amending the current agreement due to the extensive nature of the changes required.
The working group developed an updated Franchise Agreement for Solid Waste Collection Services Between the City of Palm Springs and Palm Springs Disposal Service which reflects the following types of changes:
• New requirements that respond to the mandates of SB 1383; • Statutory and regulatory updates since the franchise agreement was last amended in 2013;
• Improvements that address ambiguities of the old agreement; • Changes that reflect lessons learned from current implementation practices; • Added current “best practices” that are being employed by other jurisdictions.
The following sections of this report provide discussion and summary of the most significant changes and updates to the Agreement.
Section 3.1 Term and Rates: This section will update the new start date of the agreement and simplify references to the term extension. PSDS has submitted three rate options with three different start dates for Council’s consideration.
• The proposed rate structure combines Economy and Family Value subscripti on categories into a single Curbside Service category resulting in savings to the customers. The current term ends March 30, 2029, leaving 6- years/9-months to amortize the $2.4 million investment in SB 1383 equipment.
Item 3E - 3
City Council Staff Report
May 26, 2022 – Page 4
Franchise Agreement for Solid Waste Collection Services
• A second option extends the remaining terms by 3 -years/3-months and will lengthen amortization period and savings to customers. This option provides a 5% savings to Residential customers.
• The third option extends the remaining terms by 8-years/3- months and will lengthen amortization period and provide even greater savings to customers. This option provides a 25% savings to Residential customers.
Rate Comparisons for Core Residential Services:
Core
Service Explanation
Previous
Rate
Effective
7/1/20
Current
Rate
Effective
1/1/22
Proposed Rate Effective 10/1/22
Option
1 OR Option
2 OR Option
3 Economy
Family Value
Curbside
NEW Curbside category
combines Economy &
Family Value Services
$18.38 $25.89 $26.61 OR $25.28 OR $24.22
$21.77 $35.60
n/a n/a
Walk-In $23.98 $29.26 $34.37 OR $32.65 OR $31.28
Estate $61.18 $80.66 $87.27 OR $82.91 OR $79.42
Vacation
Property
NEW category increases
service capacity for
vacation properties
formerly receiving Walk-
In Service
$23.98 $29.26 $53.61 OR $50.93 OR $48.79
Rate Comparisons for Core Commercial Services:
Core Service Explanation
Previous
Rate
Effective
7/1/20
Current
Rate
Effective
1/1/22
Proposed
Rate
Effective
10/1/22
2CY Refuse Bin
1st pick-up
$122.26 $155.11 $139.78
Each additional bin $97.23 $129.59 $112.23
3CY Refuse Bin
1st pick-up $166.94 $215.92 $191.57
Each additional bin $134.57 $182.87 $155.92
4CY Refuse Bin
1st pick-up $206.95 $271.96 $238.21
Each additional bin $163.97 $228.13 $190.91
3CY recycling bin
– 1st pick-up
FREE FREE $104.84
Each additional bin $54.32 $55.37 $84.17
Item 3E - 4
City Council Staff Report
May 26, 2022 – Page 5
Franchise Agreement for Solid Waste Collection Services
Core Service Explanation
Previous
Rate
Effective
7/1/20
Current
Rate
Effective
1/1/22
Proposed
Rate
Effective
10/1/22
Contaminated
Organics, each
Cart
NEW category necessary for SB
1383 monitoring and enforcement n/a n/a $25.00
Contaminated
Organics, each Bin
NEW category necessary for SB
1383 monitoring and enforcement n/a n/a $98.55
Comprehensive
Inspections
NEW category necessary for SB
1383 monitoring and
enforcement; charged per hour
or increment thereof
n/a n/a $138.19
Relative to the rate adjustment process, maximum rates under the new agreement will be presented for a five-year period with annual formulaic adjustments to account for inflation and changes in tipping fees.
Section 4.2 Limitations of the Scope of the Exclusive Agreement: T he language in the current agreement was mostly retained. The only updates were to include references to community composting so that it was clear that residents could donate their food waste to a community compost facility (similar to recyclable material s). It also allows for the collection of food waste by a community compost operation as long as there is no fee for hauling. Please note that while the community compost operation could not charge hauling fees, they would be able to charge membership fees or other similar fees to account for operational costs.
Section 5.6 Single-Family Dwelling Collection Services: This section refers to Single- Family Dwellings of up to four units. These residential propert ies include each unit of a condominium project, duplex, triplex, townhouse, apartment building or mobile home park receiving individual cart service . PSDS must provide a three- Container Collection program with the following:
• Weekly Landfill Waste Collection (Gray Container). The default Service Level will be a 65-gallon Cart. PSDS will also offer 95- or 35-gallon Cart sizes, depending on the Customer’s preference and need, for an additional charge. Customers will be required to place the Cart(s) curbside for Collection.
• Weekly Source Separated Recyclable Materials Collection (Blue Container). The default Service Level will be a 65-gallon Cart. PSDS will also offer 95- or 35-gallon Cart as a substitute depending on the Customer’s preference and need.
Customers may request one (1) additional Recycling Cart at no additional charge. • Weekly Source Separated Green Container Organic Waste Collection (Green Container). The default Service Level will be a 65- gallon Cart collected weekly.
PSDS will also offer 95- or 35- gallon Cart as a substitute depending on the Item 3E - 5
City Council Staff Report
May 26, 2022 – Page 6
Franchise Agreement for Solid Waste Collection Services
Customer’s preference and need. Customers must bag Food Waste in bags (clear plastic, brown, compostable, or single use) before depositing Food Waste in Organic Recycling Carts to allow PSDS to pull out the bags for separation following collection.
• On-Call Bulky Item Collection. Customers are entitled to the Collection of twelve (12) Bulky Items per year at no additional charge.
• Annual Holiday Tree Recycling Collection.
Section 5.7 Multi -family Dwelling Collection Services: This section refers to Residential Premises with five units or more at which Solid Waste is collected, irrespective of whether residency at that property is transient, temporary, or permanent.
• Weekly Landfill Waste Collection (Gray Bin). PSDS shall collect Solid Waste from Multi-Family Dwellings as frequently as scheduled by Customer, but not less than once per week.
• Weekly Source Separated Recyclable Materials Collection (Blue Bin). Customers may subscribe to the appropriate Service Level. PSDS will provide Carts with blue lids, blue Bins and roll-off boxes for Collection of Recyclable Materials. To prevent the contamination of Recyclables, PSDS can provide locked lids for Blue Containers upon request.
• Weekly Source Separated Green Container Organic Waste Collection (Green Bin).
Customers may subscribe to the appropriate Service Level. The Green Bin will be a combination of landscape clippings and bagged Food Waste. Customers shall bag Food Waste in bags (clear plastic, brown, compostable, or single use) before depositing Food Waste in Organic Recycling containers.
• Weekly Food Waste Collection (Brown/Tan Cart): PSDS will provide optional source-separated Food Waste Collection for Multi-Family complexes that do not collect landscape clippings due to the removal off -site by a hired landscaper provider. Food Waste will be at least once (1) per week and up to six (6) times per week.
• On-Call Bulky Item Collection. Customers are entitled to the Collection of twelve (12) Bulky Items per year, per unit, at no additional charge. • Annual Holiday Tree Recycling Collection.
Section 5.8 Commercial Collection Services: Commercial Customers include all retail, professional, office, wholesale and industrial facilities, other Commercial enterprises offering goods or services to the public; organizations; and agencies other than C ity agencies. PSDS will be required to service Bins and Drop Boxes stored in Customer’s Solid Waste enclosure or other locations as requested by Customer.
Section 7.4.C. Hours of Collection: Residential collection begins at 7:00 AM, except in the summer when it can begin at 6 :00 AM. Commercial and industrial collection can always begin at 6:00 AM except in areas that border residential neighborhoods.
Item 3E - 6
City Council Staff Report
May 26, 2022 – Page 7
Franchise Agreement for Solid Waste Collection Services
Section 9.1 Franchise Fee: Currently, the City receives a portion of the waste fees , including a diversion fee, a sustainability fee, a city administrative fee and a state administrative fee. The diversion fee is designated to support recycling programs and staff while the sustainability fee is meant to support broader sustainability programs and staff. All City fees combined average approximately 11% of the solid waste service charges to customers. The revenues from these fees are paid to the City quarterly. The updated agreement replaces the aforementioned fees with a single 11% Franchise Fee.
This brings about $1.5 million in revenues per year to the C ity. Currently, only the diversion fee and the sustainability fees ($500,000) are designated to the Sustainability fund.
Section 10.6 Extraordinary Rate Adjustments: This section has been simplified and does not include the same level of itemization as is in the original agreement. In general, extraordinary situations that are outside the contractor’s control are defined as things that last longer than six (6) months.
Section 12.6 Performance Reviews: S ubsection A was updated to require a performance review in 3 years, which would roughly coincide with the next performance review of the current contract. The City may request additional performance reviews, if desired, but not more often than every other year.
Subsection B.4. was updated to eliminate a requirement to conduct an analysis of the three largest private sector companies as a standard in setting a financial performance rating. Rate Reviews have been deleted since each valley city is taking a different approach to funding SB 1383 implementation, which makes rates difficult to compare. In particular, some cities have chosen to extend their contracts to spread out the cost of increases due to the implementation of SB 1383.
Section 12.7 Liquidated Damages: This section is new and adds options for applying liquidated damages if PSDS does not perform their responsibilities related to SB 1383 or obligations under the franchise agreement.
ADOPTION SCHEDULE AND IMPLEMENTATION DATE:
It is anticipated that additional Council review and discussion will be needed to finalize the proposed Agreement and rate schedule. Prior to the adoption of any changes in the rate schedule by the City Council, notice must be provided to all customers pursuant to Proposition 218. Based on these factors, the following adoption schedule is proposed:
Date Event Description
May 26, 2022 City Council
Meeting
Initial presentation of Draft Franchise
Agreement & Rate Schedule
June 16, 2022 City Council
Meeting
City Council Discussion #2 – Draft Franchise
Agreement & Rate Schedule
Item 3E - 7
City Council Staff Report
May 26, 2022 – Page 8
Franchise Agreement for Solid Waste Collection Services
Date Event Description
June 30, 2022 City Council
Meeting
City Council Discussion #3 – Draft Franchise
Agreement & Rate Schedule
July 11, 2022 Public Notice
PSDS to mail Prop. 218 notice to all
customers (Note: Mailing must be sent to
printer no later than 6/27/22)
September 1,
2022
City Council
Public Hearing
City Council approval of Prop. 218 rates and
Franchise Agreement
October 1, 2022 Implementation New rates and services take effect for residential and commercial customers
One of the issues relative to the proposed implementation date is the fact that Collection vehicles collect only one material per route, necessitating the purchase of separate trucks for organic waste collection. Although PSDS has ordered new vehicles for the new route to collect organic waste for residential customers, delays and supply issues by the manufacturer have pushed the anticipated delivery date of the trucks several times. The most recent start date was set for October 1, 2022; PSDS is now requesting that the start date be pushed to January 1, 2023, based on the anticipated delivery date of the vehicles for organic waste. This has resulted in regular revisions to the timeline to adopt the Agreement and solid waste service rates. Despite the requested change in the implementation date by PSDS, Staff recommends that the franchise agreement and new rates take effect on October 1, 2022. However, residential customers would not be charged for organic waste collection services until such services begin in January 2023.
ENVIRONMENTAL ASSESSMENT:
SB 1383 is the successor to Assembly Bills 341 and 1826 and builds upon previous regulations to reduce the disposal of organic waste in landfills. The goals of the SB 1383 regulations are largely two-fold: the first goal is to directly reduce the emissions of short- lived climate pollutants and subsequently help mitigate the effects of climate change.
Landfilling organic waste leads to anaerobic breakdown of that material which creates short-lived climate pollutants and potent greenhouse gases such as methane. Reducing methane and other similar short -lived climate emissions helps combat th e impacts of climate change and air pollution. The second goal of SB 1383 is to recover edible food from disposal to combat food insecurity in California. SB 1383 requires a 20% increase in the recovery of edible food that is currently landfilled by 2025.
Approval of the Agreement (to follow at a future Council meeting) is exempt from California Environmental Qualit y Act (CEQA) review because it does not constitute a project under CEQA pursuant to Guideline 15378(b)(5), which provides that organizational and administrative activities of governments that will not result in physical changes in the environment are not considered projects for CEQA purposes.
Item 3E - 8
City Council Staff Report
May 26, 2022 – Page 9
Franchise Agreement for Solid Waste Collection Services
ALIGNMENT WITH STRATEGIC PLANNING:
This agenda item aligns with the City Council Priority “Environmental Stewardship (2B)” relative to the implementation of SB 1383. Adoption of an updated franchise agreement that includes the collection and composting of organic materials will assist in the implementation of city and state goals to divert waste from landfills and reduce methane emissions.
FISCAL ANALYSIS:
Currently, the City receives a portion of the waste fees, which includes a diversion fee, a sustainability fee, a city administrative fee and a state administrative fee. The diversion fee is designated to support recycling programs and staff while the sustainability fee is meant to support broader sustainability programs and staff. All City fees combined average approximately 11% of the solid waste service charges to customers. The revenues from these fees are paid to the City quarterly. The updated Franchise Agreement includes one City Franchise Fee of 11%. This brings about $1.5 million per year to the City. This would not affect the overall amount of revenues that the City receives in compensation, however, c urrently, the diversion fee and the sustainability fees ($380,000 received during the previous fiscal year) are designated to the Sustainability fund.
REVIEWED BY:
Deputy City Manager: Flinn Fagg
City Attorney: Jeffrey S. Ballinger
City Manager: Justin Clifton
ATTACHMENTS:
1. Draft Franchise Agreement for Solid Waste Collection Services Between the City of Palm Springs and Palm Springs Disposal Service
2. Rate Proposal from PSDS
3. Supplement to Rate Proposal from PSDS
4. Rate Proposal Review and Analysis and Findings by Sloan Vazquez McAfee
5. Draft Proposition 218 Notice of Public Hearing Regarding Proposed Increases to Solid Waste Services Rates
6. Link to Existing 2013 Franchise Agreement: PSDS Franchise Agreement (palmspringsca.gov)
Item 3E - 9
ATTACHMENT #1
Item 3E - 10
DRAFT
FRANCHISE AGREEMENT FOR SOLID WASTE COLLECTION SERVICES
Between the City of Palm Springs
and
Palm Springs Disposal Service
This _____ day of Month, 20__
Item 3E - 11
Contents
RECITALS 1
ARTICLE 1: DEFINITIONS 2
1.1 AFFILIATE 2
1.2 AGREEMENT 2
1.3 ALTERNATIVE DAILY COVER (ADC) 2
1.4 ALTERNATIVE INTERMEDIATE COVER (AIC) 3
1.5 APPLICABLE LAW 3
1.6 APPROVED FACILITY 3
1.7 ASSEMBLY BILL 341 (AB 341) 3
1.8 ASSEMBLY BILL 939 (AB 939) (ACT) 3
1.9 ASSEMBLY BILL 1826 (AB 1826) 3
1.10 BACK-HAUL 3
1.11 BIN 3
1.12 BLUE CONTAINER OR RECYCLABLE MATERIALS CONTAINER 4
1.13 BROWN CONTAINER 4
1.14 BULKY ITEMS 4
1.15 BULKY ITEM COLLECTION SERVICE 4
1.16 BUSINESS DAYS 4
1.17 CALIFORNIA CODE OF REGULATIONS (CCR) 4
1.18 CALRECYCLE 4
1.19 CART 4
1.20 CHANGE IN LAW 5
1.21 CITY 5
1.22 CITY CLEAN-UP SERVICE 5
1.23 CITY CODE 5
1.24 CITY CONTAINER SERVICE 5
1.25 CITY SERVICE UNIT 5
1.26 CITY WASTE 5
1.27 COLLECT, COLLECTED, COLLECTION 6
1.28 COLLECTION SERVICES 6
1.29 COMMENCEMENT DATE 6
1.30 COMMERCIAL EDIBLE FOOD GENERATORS 6
1.31 COMMERCIAL SERVICE 6
1.32 COMMERCIAL BUSINESS, COMMERCIAL 6
1.33 COMMERCIAL EDIBLE FOOD GENERATORS 6
1.34 COMMUNITY COMPOSTING 6
1.35 COMPACTOR, COMPACTION 7
1.36 COMPOST, COMPOSTING 7
1.37 COMPOSTABLE PLASTICS 7
1.38 CONSTRUCTION AND DEMOLITION DEBRIS OR C&D OR C&D DEBRIS 7
1.39 CONTAINERS 7
1.40 CONTAMINATION OR CONTAMINANTS 7
1.41 CONTRACTOR 7
1.42 CONTRACT ADMINISTRATOR 7
1.43 CONTRACTOR COMPENSATION 8
Item 3E - 12
1.44 COVERED ELECTRONIC WASTE (CEW) 8
1.45 CUSTOMER(S) 8
1.46 DAY 8
1.47 DESIGNATED FACILITY 8
1.48 DISCARDED MATERIALS 8
1.49 DISPOSAL 9
1.50 DIVERT, DIVERSION 9
1.51 DROP BOX 9
1.52 DUAL STREAM (OR DUAL-STREAM) 9
1.53 DWELLING UNIT 9
1.54 EDIBLE FOOD 9
1.55 EFFECTIVE DATE 9
1.56 ELECTRONIC WASTE, E-WASTE 9
1.57 ENFORCEMENT ACTION 10
1.58 ENFORCEMENT ACTION 10
1.59 ENVIRONMENTAL LAWS 10
1.60 EXCLUDED WASTE 10
1.61 FACILITY(IES) 10
1.62 FOOD RECOVERY 10
1.63 FOOD RECOVERY ORGANIZATION 11
1.64 FOOD RECOVERY SERVICE 11
1.65 FOOD-SOILED PAPER 11
1.66 FOOD WASTE 11
1.67 FRANCHISE 11
1.68 GENERATOR 11
1.69 GRAY CONTAINER 11
1.70 GRAY CONTAINER WASTE 11
1.71 GREEN CONTAINER 12
1.72 GROSS BILLINGS 12
1.73 HAULER ROUTE 12
1.74 HAZARDOUS SUBSTANCE 12
1.75 HAZARDOUS WASTE 12
1.76 HIGH DIVERSION ORGANIC WASTE PROCESSING FACILITY 12
1.77 HOLIDAYS 13
1.78 HOME GENERATED SHARPS 13
1.79 HOUSEHOLD BATTERIES 13
1.80 HOUSEHOLD HAZARDOUS WASTE (HHW) 13
1.81 INCOMPATIBLE MATERIALS 13
1.82 INERTS 13
1.83 LANDFILL 13
1.84 LARGE EVENT 13
1.85 LARGE VENUE 14
1.86 LIQUIDATED DAMAGES 14
1.87 MASTER BILLED COMMUNITY 14
1.88 MATERIALS RECOVERY FACILITY (MRF) 14
1.89 MIXED WASTE 14
1.90 MIXED WASTE ORGANIC COLLECTION STREAM 14
1.91 MULCH 14
1.92 MIXED WASTE ORGANIC WASTE COLLECTION STREAM 15
Item 3E - 13
1.93 MULTI-FAMILY, MULTI-FAMILY DWELLING (MFD), MULTI-FAMILY SERVICE UNIT 15
1.94 NON-COMPOSTABLE PAPER 15
1.95 NON-COLLECTION NOTICE 15
1.96 NON-ORGANIC RECYCLABLES 15
1.97 ORGANIC WASTE OR ORGANIC MATERIALS 15
1.98 PAPER PRODUCTS 16
1.99 PARENT COMPANY 16
1.100 PARTY, PARTIES 16
1.101 PERSON 16
1.102 PREMISES 16
1.103 PRINTING AND WRITING PAPERS 16
1.104 PROCESS, PROCESSED, OR PROCESSING 16
1.105 PROHIBITED CONTAINER CONTAMINANTS 16
1.106 PROPERTY OWNER 17
1.107 PUBLIC RESOURCES CODE OR PRC 17
1.108 PUTRESCIBLE WASTE 17
1.109 RATE 17
1.110 RATE REVENUE 17
1.111 RATE YEAR 17
1.112 RECYCLABLES OR RECYCLABLE MATERIALS 17
1.113 RECYCLE, RECYCLING 18
1.114 REMNANT ORGANIC MATERIAL 18
1.115 RENEWABLE NATURAL GAS OR RNG 18
1.116 RESIDUAL OR RESIDUE 18
1.117 REUSABLE ITEMS 18
1.118 REUSE 18
1.119 ROLL-OFF BOX 18
1.120 SENATE BILL 1383 REGULATIONS (SB 1383 REGULATIONS) 19
1.121 SERVICE AREA 19
1.122 SERVICE LEVEL 19
1.123 SERVICE RECIPIENT 19
1.124 SINGLE-FAMILY, SINGLE-FAMILY DWELLING (SFD), SINGLE-FAMILY SERVICE UNIT 19
1.125 SOLID WASTE 19
1.126 SOURCE SEPARATED GREEN CONTAINER ORGANIC WASTE (SSGCOW) 20
1.127 SOURCE SEPARATED RECYCLABLE MATERIALS 20
1.128 SPECIAL EVENT COLLECTION SERVICE 20
1.129 SPLIT CONTAINER 20
1.130 STATE 20
1.131 SUBCONTRACTOR 20
1.132 SUBSIDIARY 20
1.133 TERM 20
1.134 TIPPING FEE 20
1.135 TIER ONE COMMERCIAL EDIBLE FOOD GENERATORS 21
1.136 TIER TWO COMMERCIAL EDIBLE FOOD GENERATORS 21
1.137 TON 21
1.138 TRANSFER 21
1.139 TRANSFER STATION 21
1.140 TRANSPORT OR TRANSPORTATION 21
1.141 UNIVERSAL WASTE OR U-WASTE 22
Item 3E - 14
1.142 WORK DAYS 22
1.143 YARD TRIMMINGS OR GREEN WASTE 22
ARTICLE 2: REPRESENTATIONS AND WARRANTIES 23
2.1 CONTRACTOR’S CORPORATE STATUS 23
2.2 CONTRACTOR’S CORPORATE AUTHORIZATION 23
2.3 AGREEMENT WILL NOT CAUSE BREACH 23
2.4 NO LITIGATION 23
2.5 NO ADVERSE JUDICIAL DECISIONS 23
2.6 NO LEGAL CHALLENGE 24
2.7 NO LEGAL PROHIBITION 24
2.8 CONTRACTOR’S ABILITY TO PERFORM 24
2.9 CONTRACTOR’S INVESTIGATION 24
ARTICLE 3: TERM OF AGREEMENT 24
3.1 TERM 24
3.2 PRIOR AGREEMENT SUPERSEDED 25
ARTICLE 4: GRANT AND ACCEPTANCE OF EXCLUSIVE AGREEMENT 25
4.1 GRANT AND ACCEPTANCE OF EXCLUSIVE AGREEMENT 25
4.2 LIMITATIONS TO THE SCOPE OF EXCLUSIVE AGREEMENT 25
4.3 EXCLUSIVITY 26
4.4 ENFORCEMENT OF EXCLUSIVITY 26
4.5 APPLICABLE LAW 27
4.6 OBLIGATIONS OF PARTIES 27
ARTICLE 5: SCOPE OF COLLECTION SERVICES 27
5.1 SUMMARY SCOPE OF SERVICES 27
5.2 FACILITIES 28
5.3 SUBCONTRACTING 29
5.4 RESPONSIBILITY FOR DISCARDED MATERIALS 29
5.5 CITY-DIRECTED CHANGES TO SCOPE 29
5.6 SINGLE-FAMILY DWELLING COLLECTION SERVICES 30
5.7 MULTI-FAMILY DWELLING COLLECTION SERVICES 31
5.8 COMMERCIAL COLLECTION SERVICES 32
5.9 ROLL-OFF SERVICE 34
5.10 C&D DEBRIS COLLECTION SERVICES 34
5.11 CITY COLLECTION SERVICES 34
5.12 SERVICE EXCEPTIONS 35
5.13 PUBLIC EDUCATION AND OUTREACH 36
5.14 SPECIAL SERVICES 36
ARTICLE 6: PROCESSING AND DISPOSAL REQUIREMENTS 37
6.1 TRANSPORTATION OF DISCARDED MATERIALS 37
6.2 TRANSFER OF DISCARDED MATERIALS 37
6.3 DISPOSAL 37
6.4 SOURCE SEPARATED RECYCLABLE MATERIALS PROCESSING SERVICES 38
6.5 ORGANIC MATERIALS PROCESSING SERVICES 38
6.6 BULKY ITEM SERVICES 38
Item 3E - 15
ARTICLE 7: STANDARD OF PERFORMANCE 39
7.1 GENERAL 39
7.2 CONTRACTOR’S OFFICE 39
7.3 SERVICE STANDARDS 39
7.4 COLLECTION ROUTES, OPERATING HOURS AND SCHEDULES 39
7.5 COLLECTION STANDARDS 40
7.6 OWNERSHIP OF MATERIALS 42
7.7 EXCLUDED WASTE 42
7.8 REGULATIONS AND RECORD KEEPING 43
7.9 VEHICLE REQUIREMENTS 43
7.10 CONTAINER REQUIREMENTS 45
7.11 HOLIDAY SERVICE 47
7.12 DISPOSAL AND PROCESSING 47
7.13 GRAY CONTAINER WASTE - CONTAMINATION RESPONSE PROCEDURE 48
7.14 SOURCE SEPARATED MATERIALS - CONTAMINATION RESPONSE PROCEDURE 48
7.15 COMMINGLING OF MATERIALS 49
7.16 PERSONNEL 49
ARTICLE 8: BILLING, CUSTOMER SERVICE, RECORD KEEPING, AND REPORTING 51
8.1 BILLING AND COLLECTION 51
8.2 NON-DISCLOSURE 51
8.3 NO MARKETING 51
8.4 CONTRACTOR’S CUSTOMER SERVICE 52
8.5 RECORD KEEPING 53
8.6 REPORTING REQUIREMENTS 54
ARTICLE 9: COLLECTOR FEES AND OTHER FEES 55
9.1 FRANCHISE FEE 55
9.2 CONTRACTOR’S PAYMENTS TO CITY 55
9.3 ADDITIONAL FEES 55
ARTICLE 10: CONTRACTOR COMPENSATION AND MAXIMUM SERVICE RATES 56
10.1 CONTRACTOR COMPENSATION 56
10.2 PUBLIC NOTICE/PUBLIC HEARING PROCESS 56
10.3 SCHEDULE OF FUTURE ANNUAL RATE ADJUSTMENTS 56
10.4 METHOD OF FUTURE FORMULA RATE ADJUSTMENTS 57
10.5 EXTRAORDINARY RATE ADJUSTMENTS 60
ARTICLE 11: INDEMNIFICATION, INSURANCE AND PERFORMANCE BOND 61
11.1 INDEMNIFICATION OF THE CITY 61
11.2 EVALUATION OF LIABILITY 63
11.3 HAZARDOUS SUBSTANCES INDEMNIFICATION 63
11.4 SEPARATE COUNSEL 64
11.5 CONSIDERATION 64
11.6 OBLIGATION 65
11.7 COLLECTION SERVICES SUBCONTRACTORS 65
11.8 EXCEPTION 65
11.9 DAMAGE BY CONTRACTOR 65
Item 3E - 16
11.10 SURVIVAL 65
11.11 INSURANCE 66
11.12 PERFORMANCE BOND 70
ARTICLE 12: DEFAULT AND REMEDIES 70
12.1 EVENTS OF DEFAULT 70
12.2 RIGHT TO TERMINATE UPON EVENT OF DEFAULT 72
12.3 CITY’S REMEDIES IN THE EVENT OF DEFAULT 72
12.4 POSSESSION OF RECORDS UPON TERMINATION 73
12.5 CITY’S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE 73
12.6 PERFORMANCE REVIEWS 73
12.7 LIQUIDATED DAMAGES 76
12.8 EXCUSE FROM PERFORMANCE 79
12.9 RIGHT TO DEMAND ASSURANCES OF PERFORMANCE 80
ARTICLE 13: OTHER AGREEMENTS OF THE PARTIES 80
13.1 LEGAL REPRESENTATION 80
13.2 FINANCIAL INTEREST 80
13.3 CONTRACTOR NOT OFFICER, EMPLOYEE OR AGENT 81
13.4 CONTRACTOR’S USE OF SUBCONTRACTOR 81
13.5 COMPLIANCE WITH LAW 82
13.6 GOVERNING LAW 82
13.7 LITIGATION 82
13.8 VENUE 82
13.9 BINDING ON SUCCESSORS 82
13.10 ASSIGNMENT 82
13.11 NO THIRD-PARTY BENEFICIARIES 84
13.12 WAIVER 84
13.13 TRANSITION TO NEXT CONTRACTOR 84
13.14 CONTRACTOR’S RECORDS 85
13.15 NOTICE PROCEDURES 85
ARTICLE 14: MISCELLANEOUS AGREEMENTS 86
14.1 ENTIRETY OF AGREEMENT 86
14.2 SEVERABILITY 86
14.3 RIGHT TO REQUIRE PERFORMANCE 87
14.4 NON-DISCRIMINATION 87
14.5 HEADINGS 87
14.6 EXHIBITS 87
14.7 REFERENCES TO LAWS 87
14.8 EFFECTIVE DATE 87
Item 3E - 17
EXHIBIT 1: MAXIMUM SERVICE RATES 89
EXHIBIT 2A: RATE ADJUSTMENT PROCEDURE – CARTS 90
EXHIBIT 2B: RATE ADJUSTMENT PROCEDURE – BINS 91
EXHIBIT 2C: RATE ADJUSTMENT PROCEDURE – DROP BOXES & OTHER SERVICES 94 EXHIBIT 2D: INITIAL MATERIAL HANDLING COST INDEX 95
EXHIBIT 3: CONTRACTOR’S SB 1383 SCOPE OF SERVICES 96
EXHIBIT 4: LIST OF CITY FACILITIES 113
EXHIBIT 5: LIST OF CITY EVENTS 114
EXHIBIT 6: LIST OF DESIGNATED FACILITIES 115
Item 3E - 18
ATTACHMENT #2
Item 3E - 19
4690 E. Mesquite Avenue | P.O. Box 2711 | Palm Springs, CA 92263 | 760-327-1351 | palmspringsdisposal.com
February 1, 2022
Mr. Flinn Fagg, AICP
Development Services Director
Ms. Tracy Sheldon
Program Coordinator
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Via electronic mail
[email protected]
[email protected]
Original hand-delivered
Dear Mr. Fagg and Ms. Sheldon:
Re: 2022 RATE PROPOSAL
We are pleased to submit our Rate Proposal for solid waste services to become effective July 1, 2022 in concert with the new Franchise Agreement. This letter is accompanied by a Comparative Summary of Rates for Core Services and individual Rate Proposals for Residential, Commercial, and Roll-Off Services, effective July 1, 2022.
2021 RATE ADJUSTMENT & EXTRAORDINARY RATE ADJUSTMENT
First, we wish to emphasize that our Rate Proposal gives Residential and Commercial customers full credit for the removal of the Extraordinary Rate Adjustment which is to sunset June 30, 2022.
The Proposal also ‘normalizes’ the 2021 rate adjustment (January 1, 2022 through June 30, 2022) for Residential, Commercial, and Roll-Off services by resetting that adjustment at one-half of the amount currently in the rates.
STATE-MANDATED ORGANIC WASTE RECYCLING SERVICES
Our Proposal allocates the costs for outreach, education, monitoring, reporting, and container labeling to Residential, Commercial, and Roll-Off services as well as the costs to perform weekly Residential organic waste collection services.
Item 3E - 20
Mr. Flinn Fagg & Ms. Tracy Sheldon February 1, 2022
Re: 2022 RATE PROPOSAL
Palm Springs Disposal Services
RESIDENTIAL RATE PROPOSAL
Residential service consists of collecting solid waste from individual dwellings. Collections are performed once weekly with each waste material (recycling, organics, and refuse) collected on the same day.
Following are some highlights of our Rate Proposal for Residential Services.
Cost of SB 1383 Programs
The cost impact of SB 1383 is most significant for Residential services because:
• An investment of $2.14 million is required for the carts that will be distributed to customers and for the vehicles that will perform the collections. • Increased operating costs for Residential Services are:
o Outreach, education, monitoring & reporting ($430,000) o Container labeling ($31,000)
o Residential collection operations ($1,330,000, excluding increased tip fees) To give the cost of SB 1383 some perspective, Palm Desert’s provider identifies the monthly added cost for SB 1383 as $8.80 per dwelling.
For Palm Springs, the average cost is $5.93 (plus a future tipping fee adjustment estimated to average $1.00 per month).
Simplified Rate Structure
Our Residential Rate Proposal revamps our rate structure with the primary goal of simplification by combining Economy Service and Family Value Service into a single Curbside Service. This modification paves the way for changing from 100% direct billing to County property tax billing if and when the City decides to make that change.
A key feature of the new rate structure is that customers may select mixed cart sizes to suit their needs without concern for higher costs for larger carts. We believe that this pricing strategy will avoid the tendency to economize which can lead to higher contamination levels when cart capacity is inadequate.
Savings Opportunities
The Rate Proposal provides three options for your consideration which are tied to the term of the Franchise Agreement.
Item 3E - 21
Mr. Flinn Fagg & Ms. Tracy Sheldon February 1, 2022
Re: 2022 RATE PROPOSAL
Palm Springs Disposal Services
Option 1 sets forth the rates for performing Residential services for the remaining term of the Franchise Agreement (6-years, 9-months).
Option 2 offers Residential customers a rate savings of 5% in the first year and 1% in each of five additional years for the addition of 3-years and 3-months to the term of the Agreement.
This Option provides rate payers with a savings of $715,000 of which $357,000 will be realized in the first year. The longer amortization period for trucks and carts enables us to pass that savings on to customers.
Option 3 offers Residential customers a 25% savings spread over the first four years of the Franchise Agreement for the addition of 8-years and 3-months to the Agreement’s term.
This Option offers rate payers a savings $1.8 million all of which is realized in just the first four years of the Agreement. These savings are derived from a longer amortization period AND our economic incentive for the longer term.
Vacation Rental Properties
We are proposing a new service for vacation rental properties that better addresses the waste volumes generated by these properties.
Vacation rental properties are required by Code to subscribe to Walk-In service (one 65-gallon recycling cart, one 65-gallon organic cart, and one 65-gallon refuse cart). This level of service is frequently not adequate for vacation properties.
The new service would provide vacation properties with one 95 -gallon recycling cart, one 95- gallon organics cart, and up to two 95-gallon refuse carts.
Special Services
At times, a customer may require a special one -time collection, a regular second weekly collection, or removal of non-recyclable contaminants. The rates for these services are being updated to adequately cover the cost to perform.
Subscription Fee Refund
Council Member Woods previously raised a concern about the in equity for customers that paid a subscription fee for their green waste carts while the new program dispenses with that fee. We will seek out customers who find themselves in this situation and arrange for a refund of the subscription fee (ranging from $12.00 to $14.15).
Item 3E - 22
Mr. Flinn Fagg & Ms. Tracy Sheldon February 1, 2022
Re: 2022 RATE PROPOSAL
Palm Springs Disposal Services
COMMERCIAL RATE PROPOSAL
Commercial customers are primarily business establishments or multi-family complexes that utilize bins on a permanent basis for their solid waste needs. Commercial establishments with space constraints my utilize carts for solid waste. Bin collections are available to customers from one to six days per week and customers are free to adjust their service at will.
Recycling legislation (AB 341, AB 1826 and SB 1383) has been an emphasis on diversion by commercial establishments and on monitoring and reporting.
Adjustments
The Commercial Rate Proposal adds a new service conducting comprehensive inspections of customer containers as part of a City-led enforcement action. It also adds a service for removing heavily contaminated organics containers. Finally, the Proposal creates a rate for the first pick - up of a recycling bin commensurate with the state of the recycling industry.
Customers of all core Commercial services will see their rates decrease.
ROLL-OFF RATE PROPOSAL
Roll-Off customers are either large generators that utilize debris boxes and stationary compactors on a permanent basis and contractors and individuals that rent debris boxes on a temporary basis for clean-up and construction/demolition projects. The term Roll-Off refers to the procedure of winching the large container onto or off of the rails of the collection vehicle.
The cost of Roll-Off services includes two components: a ‘pull charge’ for loading the container, and a ‘tipping fee’, the per ton fee charged at the receiving solid waste facility. Pull charges for waste diverted from disposal were previously discounted to encourage diversion and were exempt from City Fees. Legislative mandates render these economic incentives as outdated.
Our Rate Proposal for Roll-Off Services makes substantial changes in how we price these services.
Tip Fees
The practice of marking-up the disposal tip fees will be discontinued and customers generating waste sent for disposal or diversion will both be charged the actual tipping fee charged at the solid waste facility receiving the waste.
Item 3E - 23
Mr. Flinn Fagg & Ms. Tracy Sheldon February 1, 2022
Re: 2022 RATE PROPOSAL
Palm Springs Disposal Services
Pull Charges
Pull charges for tonnage delivered to the Edom Hill Transfer Station for disposal and diversion are being equalized as are the pull charges for stationary compactor loads delivered for disposal and diversion.
A new pull charge for construction, demolition, and inert tonnage delivered to Desert Recycling for diversion has been set higher than the charges for other diversion facilities to account for the additional time drive time to reach the facility which results in lost productivity for the roll-off truck delivering the load.
QUALIFIERS
Annual Formula Rate Adjustments
The DRAFT Franchise Agreement sets forth a formula for adjusting service rates for Residential, Commercial, and Roll-Off services annually, effective each July 1, 2023, subject to the Proposition 218 public notice and public hearing requirements. This Rate Proposal is conditioned upon our review and concurrence of an updated DRAFT Franchise Agreement which includes the scope of services that we developed jointly and the annual formula rate adjustment procedure.
RATE PROPOSAL ASSUMPTIONS
Following are some of the key assumptions taken into account for this Rate Proposal:
• An 11% Franchise Fee paid to the City quarterly
• Payment of a $200,000 contracting fee to the City
• Increased organic waste tip fees will be recovered in annual formula adjustment to Material Handling Rate Component
• Recovery of 2021 Prop. 218 notice costs ($35,000)
• Ongoing Prop. 218 and customer notice costs ($17,200 annual average) • Increased annual environmental insurance costs ($20,400) • Refund of green waste subscription fees ($49,000)
• Addition of eight new positions (annual direct wages shown):
o Recycling Manager/Program Coordinator (1 @ $75,000)
o Recycling Ambassadors (2 @ $55,000 ea.)
o Automated collection vehicle drivers (2 @ 51,400 ea.) o Rear loader collection vehicle drivers (2 @ 51,400 ea.) o Mini-rear loader vehicle driver (1 @ 45,800)
• Delivery of organic waste to the Edom Hill Transfer Station organic processing facility located reportedly opening on July 1, 2022.
Item 3E - 24
Mr. Flinn Fagg & Ms. Tracy Sheldon February 1, 2022
Re: 2022 RATE PROPOSAL
Palm Springs Disposal Services
EXPECTATIONS
We understand that this Rate Proposal will be reviewed by City Staff and the City’s consulting experts, after which we will meet and confer in good faith to reach agreement on the specifics.
We also understand that the agreed service rates and the DRAFT Franchise Agreement will be presented to the City Council for review and comment, after which an updated Franchise Agreement and updated rate schedule will be presented to the City Council to initiate the Proposition 218 process to approve the rates and the Franchise Agreement for implementation effective July 1, 2022.
When we have reached agreement on the rates and DRAFT Franchise Agreement, we would like to supplement the report to the City Council with additional background information describing PSDS and our services.
We appreciate the time and effort that has gone into developing the DRAFT Franchise Agreement and its scope of services.
We look forward to reviewing this Rate Proposal with you and to finalizing the DRAFT Franchise Agreement.
Respectfully submitted,
Rick Wade
Chief Executive Officer
Chris Cunningham
President
Attachments:
1. Comparative Summary of Rates for Core Solid Waste Services
2. 2022 Residential Rate Proposal, Effective July 1, 2022
3. 2022 Commercial Rate Proposal, Effective July 1, 2022
4. 2022 Roll-Off Rate Proposal, Effective July 1, 2022
cc: Joanna Gin, Esq., Best, Best & Krieger, Sacramento
Ms. Tabitha Richards
Mr. Enrique Vazquez, Sloan Vazquez McAfee
Ms. Charissa McAfee, Sloan Vazquez McAfee
Item 3E - 25
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Attachment 1
Item 3E - 26
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 1
Core Residential Services
Palm Springs Disposal Services
All rates assume an annual formula rate adjustment
effective July 1, 2023 and each July 1 thereafter February 1, 2022 Option 1 OR Option 2 OR Option 3
Economy (3) 18.38$ 25.89$
Family Value (4) 21.77$ 35.60$
Curbside (5) n/a n/a
Walk-In 23.98$ 29.26$ 34.37$ OR 32.65$ OR 31.28$ Estate 61.18$ 80.66$ 87.27$ OR 82.91$ OR 79.42$ Vacation Property (6) NEW category increases service capacity for vacation properties formerly receiving Walk-In
Service 23.98$ 29.26$ 53.61$ OR 50.93$ OR 48.79$ Table 1 Footnotes:
(6) Vacation Property Service is a walk-in service that provides one 95-gallon recycle cart, one 95-gallon organics cart, and up to two 95-gallon refuse carts (whereas, standard Walk-In Service allows customer to select the sizes of one recycle cart, one organics cart and one refuse cart). (3) Economy Service often used by seniors and small households. (4) Family Value service used most often by large households.
Explanation
OR OR
(2) 'Options' relate to term of Franchise Agreement:
Option 1, current term of 6-years, 9-months;
Option 2, additional 3-years, 3-months added to current term; Option 3, additional 8-years, 9-months added to current term. (5) Curbside Service includes one recycle cart, one organics cart and one refuse cart. Customers may mix cart sizes to suit their need.
Rate Comparison for Core Residential Services (1)
TABLE 1
(1) Service list shortened to aid interpretation. Core Residential Services account for 76% of all accounts served. Proposed rates: (i) sunset the Extraordinary Rate Adjustment, (ii) normalize the 2021 rate adjustment, and (iii) account for SB 1383 costs.
Proposed Rate Effective 7/1/22 (2) Previous Rate
Effective 7/1/20
Current Rate
Effective 1/1/22Core Service
26.61$ 25.28$ 24.22$ NEW Curbside category combines Economy & Family Value Services
Item 3E - 27
ATTACHMENT #3
Item 3E - 28
4690 East Mesquite Avenue | P.O. Box 2711 | Palm Springs, CA 92263 | 760-327-1351 May 10, 2022
The Honorable Lisa Middleton, Mayor
Members of the City Council
Mr. Justin Clifton, City Manager
Mr. Flinn Fagg, AICP, Deputy City Manager
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, CA 92263
Hand Delivered,
to be distributed in Agenda Packet
Dear Mayor Middleton, Members of The City Council, and Messrs. Clifton & Fagg:
Re: SUPPLEMENT TO RATE PROPOSAL
For the past several months we have worked with City Staff to prepare a new solid waste management franchise agreement that incorporates the new organic waste services mandated by the State of California, updates the terms and conditions of the agreement, and fixes the flaws that resulted in the extraordinary rate adjustment approved by the City Council effective January 1, 2022.
We have provided our Rate Proposal to perform the news organic waste services with two options that could produce significant savings for Residential ratepayers by extending the term of our Franchise Agreement.
As you consider the agreement and the rate options, we thought it would be helpful for us to share some additional information about our proposal, industry franchising practices, and our company.
Please feel free to contact us should you have any questions.
Thank you for your consideration.
Respectfully,
Rick Wade
Chef Executive Officer
Chris Cunningham
President
Attach:
cc: Tracy Sheldon, Office of Sustainability
Item 3E - 29
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PSDS RATE PROPOSAL
SUPPLEMENTAL INFORMATION
Palm Springs Disposal Services May 10, 2022
Your sustainability partner
This report is a supplement to our February 1, 2022 Rate Proposal adding organic waste recycling to our services. This report provides additional information about our Rate Proposal, about municipal franchising practices in general, and about our company. References are also provided.
CONTENTS
ABOUT OUR RATE PROPOSAL 3
A Look Back 3
Current Agreement 3
January 2022 Rate Adjustment 3
Looking Forward 3
SB 1383 3
New Jobs 4
Organic Waste Start-Up 4
Term and Economic Incentives 5
Other Features 5
Community Composting 5
Existing Green Waste Customers 5
Low Income Assistance 6
Rate Structure Changes 6
Vacation Rental Property Service 6
FRANCHISING PRACTICES 7
State Statute 7
Regional Practices 7
Riverside County 7
Coachella Valley 8
Comparing Rates 8
Extending the Term 9
Competitive Procurement 10
One City’s Not-So-Simple Example 10
Another City Example 11
A Practical Approach 11
Performance Reviews 12
ABOUT PSDS 13
Mission, Vision, and Core Values 13
Mission 13
Vision 13
Continued on next page
Item 3E - 30
PSDS RATE PROPOSAL
SUPPLEMENTAL INFORMATION
Palm Springs Disposal Services May 10, 2022
Your sustainability partner
Core Values 13
A Family-Owned Business 14
Ownership 14
Leadership 14
Associates 15
Employee Safety 15
Addressing the Driver Shortage 15
The Pandemic 16
Facility 16
Experience 16
Jurisdictions 16
Services 16
Customer Care 16
Satisfaction Surveys 17
Use of Technology 18
Telephone System 18
Website 18
Vehicle Safety 18
Tablets and Routing 18
Environmental Measures 19
Clean Fuel 19
Electricity 19
Water Conservation 19
Future Environmental Initiatives 19
Biofuel Program 19
Trip Reduction Program 19
Local Processing Program 20
Community Giving 20
REFERENCES 21
Mayor Scott Mattas, City of Desert Hot Springs
Mayor pro tem Gary Gardner, City of DHS
Councilmember Russell Betts, City of DHS
Luke Rainey, City Manager, City of DHS
Nona Watson, PS Chamber of Commerce
Wes Winter, Mizell Center
Mary Flores, Grit Development
Roy Clark
Dean & Theresa Mike
ABOUT OUR RATE PROPOSAL
Item 3E - 31
PSDS RATE PROPOSAL
SUPPLEMENTAL INFORMATION
Palm Springs Disposal Services May 10, 2022
Your sustainability partner
A Look Back
Current Agreement
• The current Franchise Agreement was approved by the City Council in July 2013 and became effective April 2014.
• The primary reason for updating the Agreement in 2013 was a desire of that City Council to upgrade Residential waste service FROM twice-weekly manual collection using containers provided by customers TO once-weekly automated collection using carts provided by PSDS. The change in collection frequency resulted in a 14% rate savings for customers.
January 2022 Rate Adjustment
The recent January 1, 2022 rate adjustment addressed two economic issues:
• The Extraordinary Rate Adjustment (“ERA”) accounted for changes that occurred in the international marketplace for recyclables. Unfortunately, it took five years to resolve that matter and all the while the economic consequences continued to accumulate. Our Rate Proposal sunsets the ERA rates on June 30, 2022; and,
• The annual formula Rate Adjustment for 2022 was deferred while the ERA was resolved.
Our Rate Proposal accounts for ‘normalizing’ that portion of the rates which will reduce the increase by one-half effective July 1, 2022.
Looking Forward
SB 1383
The updated franchise agreement that the City Council will consider is driven by a State-mandate to provide residential organic waste collection services to Residential customers, educate and monitor Residential and Commercial organic recycling participation, SB 1383 was adopted in 2016 and the implementation regulations were finalized November 2020. Communities throughout California are adding organic waste services and are adjusting rates according to individual impacts and circumstances. Residential rates in Palm Desert are increasing $8.60 per month for SB 1383 phased in over four years. In northern California Oakley CA sees a 17.4% increase solely attributed to SB 1383.
For several months, our representatives have been meeting with City Staff and the City’s consultant to interpret the new organic recycling regulations and develop an amended and restated franchise agreement.
Item 3E - 32
PSDS RATE PROPOSAL
SUPPLEMENTAL INFORMATION
Palm Springs Disposal Services May 10, 2022
Your sustainability partner
The element of greatest significance in the draft Agreement is the requirement that ALL Residential customers be provided with organic waste recycling services. (Up until now, as is the case in the other Coachella Valley cities, organic waste collection is an elective service provided to only a fraction of Residential customers.) We will be distributing about 14,000 carts, adding 3 new collection vehicles, and employing 4 full-time equipment operators.
New Jobs
• To augment the City’s organic recycling outreach and education efforts, we have promoted an experienced bi-lingual customer service employee to a new full-time position of Environmental Coordinator. She will administer the organics program and supervise outreach personnel.
• Two new Recycling Ambassador positions will perform the face -to-face outreach, education, and monitoring services for our Commercial customers. A hiring preference will be given to residents of Palm Springs.
• Four new driver/collector positions will be added. Again, a hiring preference will be given to residents of Palm Springs.
Organic Waste Start-Up
We initially selected October 1, 2022, as the start-up date of the Residential organic waste recycling program but equipment delays will make January 1, 2023 the more likely date:
• Equipment. Collection vehicles were ordered August 2021. Delivery dates continue to be pushed back from June 2022 to September 2022 to December 2022. We remain concerned about supply chain issues. Once delivered, vehicles need to be performance tested and outfitted. Driver training will follow before equipment is placed into service. • Facility. The Edom Hill organic waste processing facility has also seen several delays.
Completion is now targeted for October 1, 2022.
• Customer Convenience. On the positive side, delivering carts for a January start-up may better fit the lifestyles and schedules of our customers.
Item 3E - 33
PSDS RATE PROPOSAL
SUPPLEMENTAL INFORMATION
Palm Springs Disposal Services May 10, 2022
Your sustainability partner
Term and Economic Incentives
• The current 15-year Franchise Agreement ends March 30, 2029, leaving 6-years and 9- months over which to amortize a $2.4 million investment in SB 1383 equipment. (This equipment would typically be amortized over 10-years.)
• Our Rate Proposal offers two alternatives that would each save Residential customers money.
o By extending the remaining term by 3-years and 3-months, we will be able to lengthen the amortization period for the equipment and pass that savings along to Residential customers through the rates.
o By extending the remaining term by 8-years and 3-months, we will be able to lengthen the amortization period for the equipment and pass that savings along to Residential customers through the rates, AND we will add an additional savings incentive. (The additional incentive would not be recovered through the rates in later years.)
Other Features
Community Composting
• We commend the initiatives of community members to establish community composting in Palm Springs. The Agreement includes our offer to deliver food waste or organic waste to community composting projects located in the city at no cost and with no limit to the amount.
• We also suggest that the City consider a role for community composters at the weekly VillageFest events as an outreach and education opportunity and even to collect food waste generated by the events.
Existing Green Waste Customers
• Since 2014, Residential customers have been able to subscribe to green waste colle ction service upon payment of a one-time subscription fee, currently $14.02. • We were asked to investigate a solution that would refund current green waste subscribers the one-time subscription fee. The draft Agreement includes our proposal to refund the subscription fee to current customers at the full original amount paid.
Item 3E - 34
PSDS RATE PROPOSAL
SUPPLEMENTAL INFORMATION
Palm Springs Disposal Services May 10, 2022
Your sustainability partner
Low Income Assistance
• We are advised that Proposition 218 requirements prevent us from offering low-income assistance to customers directly.
• However, we could initiate such a program using qualifications established by the City and funded as a withholding from unrestricted fees paid to the City.
Rate Structure Changes.
We have simplified Residential services.
• Our Rate Proposal combines the Economy and Family Value subscription categories into a single Curbside Service category with savings to all Economy and Family value subscribers.
• This approach eliminates the ‘enticement’ for residents to save money on their bill by subscribing to the minimum available service. We think that giving customers the ability to ‘right-size’ their service without concern for price, will minimize contamination in recycling and organic recycling carts as well as diminish recyclable waste in trash carts.
Vacation Rental Properties
We are proposing new minimum service requirements for vacation rental properties. • We service 2,073 vacation rental properties. Standard service is one 65-gallon trash cart and one 65-gallon recycling cart, each collected once weekly. o 212 of the properties subscribe to the more comprehensive Estate Service o 328 of the properties add additional 65-gallon carts
o 265 of the properties upgrade to 95-gallon carts
o 55 of the 95-gallon subscribers add an additional 95-gallon cart o 43 of the properties add an additional weekly pick-up • When compared to non-vacation rental properties, vacation rental properties represent a disproportionate number of solid waste collection issues that we regularly address. • Our Rate Proposal increases the minimum vacation rental property service to up to two 95-gallon trash carts, one 95-gallon recycling cart, and one 95-gallon mixed organic waste cart. (If accepted, this measure may require an amendment to Section the Municipal Code.)
Item 3E - 35
PSDS RATE PROPOSAL
SUPPLEMENTAL INFORMATION
Palm Springs Disposal Services May 10, 2022
Your sustainability partner
FRANCHISING PRACTICES
Municipal solid waste franchises have some unique characteristics. • They are among the largest contracts that a City enters. • They are vital to the health and safety of the community. • The services impact every resident, business, and visitor.
Solid waste services may be arranged by open competition, permit, and non-exclusive and exclusive arrangements. Exclusive franchise arrangements are the most common method used in California.
Franchise agreements define the territory, scope of service, maximum rates, and terms and conditions of performance.
The length of the agreement varies from community to community. Some franchises are as short as 5-years, and others are as long as 25-years (Placentia). Several include a provision providing an annual automatic one-year extension.
The solid waste industry is a capital-intensive industry. Collection vehicles are approaching one - half million dollars each and are subjected to extremely harsh and repetitive operating conditions. Collection vehicles are essential to performing the work and it is important that the operator continually reinvest in equipment to maintain a fleet capable of meeting the demands.
The term of the Agreement is an important ingredient to this equation to allow adequate time for financing and amortization.
State Statute
State Statute specifically permits jurisdictions to award and renew arrangements for solid waste services without the requirement of a competitive procurement. [California Public Resources Code Section 40059(a)(2)]
Regional Practices
94% of California jurisdictions have some type of franchised solid waste service; 88% are exclusive, 4% are non-exclusive, 2% are by district, and 6% are municipal. [CalRecycle SB 1383 Local Services rates Analysis, R3 Consulting Group, Inc., January 2020] Riverside County
All 28 Riverside County jurisdictions, except Riverside and Wildomar, have entered into exclusive franchise agreements with private firms. Riverside uses City forces to service 2/3 of its residents with the remaining 1/3 serviced in an exclusive franchise arrangement. Riverside has issued non- Item 3E - 36
PSDS RATE PROPOSAL
SUPPLEMENTAL INFORMATION
Palm Springs Disposal Services May 10, 2022
Your sustainability partner
exclusive permits to 3 private haulers to perform commercial services. Wildomar has entered exclusive franchise arrangements with 2 haulers to serve different geographic areas.
The preponderance of franchise renewals or extensions in Riverside County are negotiated. Some agreements include an annual one-year automatic extension.
Coachella Valley
The cities of the Coachella Valley all have exclusive franchise agreements, and all have historically negotiated renewals or extensions based upon their satisfaction with the performance of their haulers.
Two private companies provide solid waste collection services to the nine cities of the Coachella Valley:
• Burrtec (Cathedral City, Coachella, Indian Wells, Indio, La Quinta, Palm Desert, Rancho Mirage),
• PSDS/DVD (Palm Springs and Desert Hot Springs).
Burrtec acquired its seven jurisdictions from Waste Management in 2006 as a part of WM’s divestiture of $250 million of ‘underperforming assets’. WM acquired the operations through a series of mergers with the original acquisition from the founding Scopesi family. The Scopesi family, WM (and its predecessors), and Burrtec have all negotiated renewals of these agreements based upon their individual records of performance.
(In Palm Desert, a new franchise agreement with Burrtec was approved March 10, 2022 and involves a 10-year extension to the term and additional fees for organic waste services. During the course of 2022, the City of Palm Desert will explore subsidizing the rate to the tune of $2 million from its Recycling Fund.)
PSDS was awarded Palm Springs in 1972 in a competitive procurement. Subsequent agreement renewals and extensions have been negotiated frequently following a thorough performance review.
DVD acquired the Desert Hot Springs in 1974 from a previous franchisee.
Coachella Valley cities have routinely renewed/extended the franchise agreements with their haulers based upon satisfactory performance.
Comparing Rates
A citizen in one community may speak with a citizen in another community and then question why the rate they pay for service is higher.
They are frequently surprised to learn that the answer is not as simple as they expect.
Item 3E - 37
PSDS RATE PROPOSAL
SUPPLEMENTAL INFORMATION
Palm Springs Disposal Services May 10, 2022
Your sustainability partner
Communities are different and their unique distinguishing characteristics impact the cost of service. Some examples:
• One community may emphasize curbside collection for efficiency while the other places a priority on customer choice and service customization (requiring more personnel to perform walk-in collections).
• One community may have minimal City facilities requiring free services, while the other is a full-service city with an airport, convention center, golf courses, and more, all requiring a substantial level of services free to the municipality. • One community may be newer in its layout with greater residential density, consistent roadsides with curb and gutter, and uniform properties, while the other may be older with less density, and with natural unimproved roadsides. • One community may proportionately have a more robust commercial sector compared to its residential sector than its neighbor.
• One community may proportionately have a more modern commercial core that offers centralized waste collection services compared to the more individually styled collection sites of its neighbor.
• One community may stipulate two or more weekly collections or not allowing service changes while the other may be more lenient on those matters. • One community may add more City fees to the cost of service than the other. • One community may subsidize collection rates while the other does not. • One community may be physically closer to disposal and diversion facilities than another.
These are several examples of the type of distinguishing characteristics that result in differences in the cost of service from one community to the next.
Extending the Term
City staff has indicated an interest in conducting a competitive procurement process at the end of the current Franchise Agreement to test the market.
We have offered the City Council some rate saving options for residential customers, but they are contingent on extending the term.
In this section, we would like to share our views on why extending the term of the Agreement is an appropriate course of action for Palm Springs.
Item 3E - 38
PSDS RATE PROPOSAL
SUPPLEMENTAL INFORMATION
Palm Springs Disposal Services May 10, 2022
Your sustainability partner
Competitive Procurement
A competitive procurement process involves a request for proposals (RFP) that provides a comprehensive description of the services to be provided, specifies service units, and seeks rate proposals that for comparison purposes can be expressed in terms of annual cost. In the evaluation process, the jurisdiction reviews and ranks proposers based on their qualifications and first year annual rate revenue and recommends award of a franchise agreement.
The process sounds straight forward but that is often not the case.
One City’s Not-So-Simple Example
Very recently a competitive procurement was conducted by a Southern California city with a population of about 80,000. The City received seven proposals from which four were selected for final consideration. High to low, the pricing for the four finalists varied by 21%, an unexpectedly large amount. City staff and the City’s consultant recommended the lowest cost proposer. After hours of public testimony, the City Council, on a split vote, selected a different proposer than the one recommended.
The process was not as neat and tidy as had been planned. The four proposers cited above are all experienced and respected solid waste providers.
• What accounts for a 21% price disparity?
• Is the lowest price the best deal?
• What are the ramifications of selecting the lowest price? • What are the ramifications of not selecting the lowest price? Since the selected proposer cited above was not the current service provider, c hanging service providers will undeniably impact every customer. At the very least:
• Exchanging every residential cart and exchanging or rebranding every commercial bin and roll-off box will pose an inconvenience to residents and businesses. • If collection days are changed by the new provider, something not uncommon, the inconvenience to customers will grow.
• Missed collections while drivers learn routes are to be expected and will cause complaints.
• Billings will likely result in questions and confusion.
There are also the intangibles that are lost when a new service provider takes over.
Arturo O. is an example of an intangible. Arturo is a residential driver since 2006. He has developed relationships with the customers on his route. Arturo also works weekends at Elmer’s.
Item 3E - 39
PSDS RATE PROPOSAL
SUPPLEMENTAL INFORMATION
Palm Springs Disposal Services May 10, 2022
Your sustainability partner
Customers from his route frequently visit him there on weekends to check in and say Hello; some let him know that they will be setting out extra trash in the next week.
Another City Example
In another community debating whether to negotiate or initiate a competitive procurement, the mayor pro temp weighed in as a certified purchasing manager stating that contracts like solid waste management, where the parties are in the relationship for the long haul, it is typical to negotiate rather than seek competitive prices.
A Practical Approach
In our opinion, the practical approach is to evaluate the current service provider:
• Is the service provider meeting the service requirements of the agreement in a timely and consistent manner?
• Are the service provider’s billings of customers accurate and in conformance with the approved maximum rates?
• Is the service provider responsive to the requests, needs and concerns of its customers? • Is the service provider responsive to the City Council and City Staff? • Is the service provider a responsible member of the community? • Are service rates reasonable given the service needs and distinguishing characteristics of the community?
If the City Council can comfortably answer ‘Yes’ to those criteria, then extending a franchise agreement will offer greater certainty and stability with less risk than undertaking a competitive procurement and potentially awarding an agreement to a low bidder who might not be the current provider.
By allowing an existing vendor with a record of outstanding customer service and performance to earn the right to negotiate a new agreement, the City Council ensures that the City is meeting the needs and expectations of the public and perpetuating an outstanding customer experience.
Contract provisions including, but not limited to, performance reviews, formula rate adjustments, caps on cost-of-living adjustments, and customer satisfaction surveys are all measures that can be used to keep the process in check.
Item 3E - 40
PSDS RATE PROPOSAL
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Palm Springs Disposal Services May 10, 2022
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Performance Reviews
Many of the questions listed above are routinely addressed as part of a performance review.
Our performance has been periodically reviewed by City Staff with the assistance of outside experts engaged by the City. These performance reviews consisted of the following:
• A Technical Review to determine the effectiveness of the technologies we employ. • A Service Review to determine our service quality.
• A Rate Review to determine the reasonableness of our rates in the market area. • A Compliance Review to determine our compliance with applicable laws. • A Financial Review to compare results with an objective and measurable industry standard.
Performance reviews have been conducted by the City in 2001, 2002, 2010, and 2018. Each review found that we were meeting or exceeding requirements and expectations. Customer satisfaction has consistently been recorded as very good to excellent.
We have consistently been cooperative, forthcoming, and timely with all information requests.
Each review has concluded that PSDS is performing as required and that From our perspective, we ask that performance review criteria be written, objective, measurable, realistic, and representative of the solid waste industry.
The above performance review criteria are included in the proposed Franchise Agreement.
Item 3E - 41
PSDS RATE PROPOSAL
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Palm Springs Disposal Services May 10, 2022
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ABOUT PSDS
This year we proudly celebrate 50 years of service to the residents and businesses of Palm Springs and the many community organizations that we support.
Mission, Vision, and Core Values
Mission
Our mission and duty are to protect the public health and the environment in Palm Springs through innovative, safe, efficient, and cost-effective solid waste management services in partnership with the City of Palm Springs.
Vision
We envision a community where waste is recovered and converted into energy or recycled into new materials and products.
Core Values
• Provide excellent service to every customer.
• Let integrity, fairness and respect influence every decision, large and small. • Treat every customer and every associate with fair, transparent and even-handed regard. • Strive for constant improvement.
Item 3E - 42
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A Family-Owned Business
PSDS was founded in 1972 by Warren W. Jaycox (d. 1982), a Southern California solid waste contractor who entered the industry collecting residential food scraps as feed source at the family hog farms that were established in 1933 by his father, a retired New York City firefighter.
The company is operated today by two successor families: the Jaycox/ Cunningham Family (descendants of Mr. Jaycox, d. 1982), and the Wade Family (descendants of Ray Wade, d. 2009, a business associate of Mr. Jaycox). CEO James Cunningham passed in 2021.
Ownership
100% of PSDS is owned by the descendants of Warren Jaycox and Ray Wade.
Our three women shareholders hold 32% of the company’s shares. Racial minority members (Latino) account for 33% of the company’s ownership.
Our owners are hands-on, and a family member is directly involved in each department.
Leadership
Rick Wade
CEO Rick Wade has been employed by PSDS since 1983. Rick has also served in leadership positions in the Inland Empire Disposal Association (president), California Refuse Removal Council (president), and Pacific Northwest Refuse Association (president). Rick is a recipient of the Mizell Center Stars Among Us Award, 2012. Rick has a background in manufactured housing construction.
Chris Cunningham
President Chris Cunningham has been a member of the PSDS team since 20 07. Chris currently serves as secretary of the California Waste Haulers Association. He is also president of the Inland Empire Disposal Association . Chris has a background in construction and water and sanitation facility operation and maintenance.
Bob Kuznik
Bob Kuznik is an outside advisor to the company and has extensive solid waste and municipal government experience. Bob is a former president of Jaycox Disposal Services, Anaheim; former mayor, city council member and planning commissioner in the City of Placentia; former chairman of the Orange County Private Industry Council; and former president of the Anaheim Chamber of Item 3E - 43
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Commerce. He also held assistant director positions with the City of Palm Springs Public Works and Community Development Departments.
Associates
We employ 90 associates, 7 of which reside in Palm Springs. 16 associates have 20 or more years of service. The average length of employment of all employees is 14 years, 13 years for drivers.
Our associates with the most years of service are Carlos, our field supervisor and Manual, one of our mechanics. Carlos and Manual both have 44-years of continuous employment.
Employee Safety
We operate more safely than average for the California waste industry as evidenced by our most recent workers compensation insurance experience rating of 96% [Workers Compensation Insurance Rating Bureau of California, 2021].
Addressing the Driver Shortage
Our job classification with the greatest number of positions is that of driver.
Nationwide, the driver shortage is impacting solid waste firms and as a result, some have even fallen behind collecting less critical waste materials like recycling.
The Coachella Valley is not immune from the effects of the driver shortage as evidenced by SunLine’s need to revert to Level 2 (weekend) service since October 2021.
We have taken steps to avoid disruptions to our service:
• Ongoing open recruitment.
• Increased investment in driver wages as part of our recruiting and retention efforts. • Paid schooling for new employees to obtain advanced commercial driver licenses. • Deployment of smaller, special purpose collection vehicles not requiring advanced licensing by operators.
• Maintaining a family atmosphere where associates are respected and appreciated.
Item 3E - 44
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Palm Springs Disposal Services May 10, 2022
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The Pandemic
At times during the pandemic almost 25% of our labor force tested positive or was quarantined because of a confirmed exposure yet we were able to maintain our schedules.
Our strategies for closing the office to visitors, sanitizing workspaces, social distancing, and overtime work enabled us to maintain all services without missing any pick-ups. Those same tested strategies were utilized again in the recent Omicron variant outbreak and will be employed against future surges as necessary.
Facility
We own our 4-acre facility located in the industrial zone at E. Mesquite Avenue and Williams Road, near the City’s Wastewater Treatment Plant and Animal Shelter.
Experience
Jurisdictions
As PSDS, we provide solid waste management services to the City of Palm Springs. Our sister company, Desert Valley Disposal, Inc., we provide solid waste management services to the City of Desert Hot Springs and to the adjacent unincorporated area of Riverside County identified as County Franchise Area No. 10.
Services
We may be a small business, but we are large enough to meet the needs of our customers.
Our services include all the Residential, Commercial, and Roll-Off services that are standard for the industry.
We have successfully handled service conversions:
• Converting residential services from manual collection to automated collection. • Upgrading recycling services from individual tubs to single stream methods utilizing carts. • Converting Residential service from twice weekly to once weekly collection.
Customer Care
We are passionate about customer service and the quality of our customer service has never been a concern to the City.
Item 3E - 45
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Palm Springs Disposal Services May 10, 2022
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First, it is important to keep in mind that every week we perform no fewer than 41,000 Residential collections, 3,500 commercial bin collections, and 90 Roll-Off collections in Palm Springs. We closely monitor the quality of our service and strive to resolve any mistakes the same day.
Solid waste services are sometimes accompanied with some built-in customer opinions, which may bias how a person feels about their service or about their interaction with our representative about a policy. Some examples:
• People may generally not like the idea of having to pay to get rid of something that they don’t want (trash).
• Rules and regulations go together with municipal solid waste services and some customers may object to one or more of the policies. Some examples:
o Service is mandatory
o Carts are to be filled no more than level full, with the lid closed o Certain waste is prohibited
o Organic waste carts are now mandated by the State
Our associates are just as passionate about customer service as we are.
Satisfaction Surveys
The current Franchise Agreement includes a provision for regularly monitoring customer satisfaction. We proposed that initiative.
Our cloud-based customer feedback system enables customers that contact our staff to provide feedback on the experience. We use the results for training purposes and for system upgrades.
In 2021, 9,771 customers contacted us regarding services. All were invited to complete a brief survey about their experience. 1,573 completed the survey.
Reasons for Contact:
• 49% to arrange for or change service.
• 37% to report a problem or missed pick-up.
• 15% to seek an explanation about services.
Satisfaction:
• 81% were ‘extremely satisfied’ (and 9% more responded ‘satisfied’). • 3% (47) were ‘not satisfied’.
Item 3E - 46
PSDS RATE PROPOSAL
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Palm Springs Disposal Services May 10, 2022
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When a negative comment is received, a team leader reaches out to the customer to address the concern.
The results of our customer satisfaction surveys are shared annually with City Staff.
Use of Technology
We utilize available technology to support customer service and collection operations.
Telephone System
In 2021, we upgraded our telephone system to make it easier for customers to communicate with us and improve how our customer service representatives respond to after hour messages.
Website
In 2020 we refreshed our website to improve navigation, expand content, and offer customers a ‘live chat’ feature.
Vehicle Safety
Since 2019 we have used 4-side camera systems on collection vehicles to record incidents. Our recordings are also available to law enforcement as a form of ‘Neighborhood watch’ to assist in investigations.
Presently, we are adding motion sensors to all collection vehicles that detect and report unsafe operations such as excessive speed and hard braking. Our supervisors use these reports to counsel and train drivers with the goal of enhancing overall safety.
Tablets and Routing
Walk-in subscribers appear randomly along our residential routes. To maintain collection vehicle efficiency, we deploy scouts ahead of the collection vehicle to pull carts to the curb for collection.
Our scouts are equipped with tablets linked to our customer record management system to ensure that walk-in customers are not missed and that emptied carts are returned to their proper storage location. The data also enables our dispatch office to track route progress.
The tablet systems are now being deployed on commercial bin routes where they are used to maintain route efficiency in real time as collection schedules change.
Item 3E - 47
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Palm Springs Disposal Services May 10, 2022
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Environmental Measures
Clean Fuel
We have twenty years’ experience with clean compressed natural gas vehicles. We operate 27 CNG vehicles in the City.
In 2020, we installed a new natural gas refueling system to refuel our entire fleet simultaneously overnight, at a time when electricity and natural gas demands are at their lowest.
Electricity
We are a customer of Desert Community Energy.
Water Conservation
We converted our grass landscaping to natural desert landscape.
Future Environmental Initiatives
We offer the following environmental initiatives for the City’s future consideration.
Biofuel Program
This program is proposed as a joint City-PSDS effort to fuel PSDS collection vehicles using renewable biofuel produced by the City’s Wastewater Treatment Plant. • We operate a fleet of vehicles that are fueled by natural gas. • Just across the street, the City’s Wastewater Treatment Plant flares off surplus biogas that is a by-product of the treatment process.
• Biogas is a renewable biofuel that could be used to fuel our fleet. • We have configured our new refueling station to accept biofuel from the City’s Wastewater Treatment Plant.
Trip Reduction Program
This program is proposed as a joint City-PSDS effort to reduce daily vehicle trips of independent landscape maintenance contractors . Conceptually, we would operate a green waste transfer station on a City-owned parcel in the vicinity of the Airport and Corporation Item 3E - 48
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Palm Springs Disposal Services May 10, 2022
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Yard for use by independent landscape maintenance contractors thereby eliminating the individual trips to processing facilities.
• A significant number of landscape maintenance contractors operate in Palm Springs and individually transport green waste material to local facilities every day. • We own and operate large capacity equipment and already transport significant quantities of green waste collected from City facilities. • Revenue generated from tip fees would cover operating costs and lease of the City - owned parcel.
• A combination of pricing strategies and regulations could achieve a significant reduction in daily vehicle trips.
Local Processing Program
This program is a proposal by PSDS to investigate, design, permit, finance, construct, and operate mixed recycling and organic waste recycling facilities to fulfill the City’s capacity planning and facility requirements of SB 1383.
• Presently the City has no control over the processing methods, capacity, and destination markets for mixed recycling or recycled organic waste. • The City has been unable to secure capacity guarantees at local processing facilities. • SB 1383 requires jurisdictions to plan for and provide organic waste diversion facility capacity.
• PSDS would investigate, design, permit, finance, construct, and operate those facilities and guarantee capacity to the City.
Community Giving
We have a long history of giving back to community organizations in Palm Springs, including, but not limited to:
Athena International, Boys and Girls Club of Palm Springs, City of Palm Springs, City of Palm Springs Sustainability Commission, Desert Aids Project, Digicom Learning, Environmental Research & Education Foundation, Food Now, Greater Palm Springs Pride, Hik e 4 Hope, Lions International, Martha’s Village & Kitchen, Mizell Senior Center, ONE-PS, Palm Springs Air Museum, Palm Springs Animal Shelter, Palm Springs Chamber of Commerce, Palm Springs Gay Men’s Chorus, Palm Springs Police Officers Association, Palm Springs Unified School District, The Center, Volunteer Palm Springs, Well in the Desert, Wounded Warrior Project.
Item 3E - 49
PSDS RATE PROPOSAL
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Palm Springs Disposal Services May 10, 2022
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REFERENCES
References are attached.
Item 3E - 50
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Palm Springs Disposal Services May 10, 2022
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11999 Palm Drive • Desert Hot Springs • CA • 92240
(760) 329-6411• www.cityofdhs.org
DESERT HOT SPRINGS CITY OF
OFFICE OF THE MAYOR
March 1, 2022
The Honorable Mayor Lisa Middleton
Palm Springs City Council
City Manager Justin Clifton
RE: Palm Springs Disposal Services (PSDS)
Desert Valley Disposal (DVD)
I have spent 15 years as a council member and the past 6 years as Mayor of Desert Hot Springs. I have worked closely with Desert Valley Disposal ( DVD) on the City contract negotiations and programs for waste disposal. I am aware that PSDS (DVD) will be asking for a contract extension based on the rate increase. Our city will be going through the same exercise this year and I will be fully supporting their position based on the regulation the State of California is imposing.
Desert Valley Disposal has partnered with the City when we were in financial crisis in 2012, and whenever our non-profits have reached out the company , they have stepped up to support the community. I would encourage your city to continue the long -time relationship with this company. I can make myself available for any questions.
Sincerely,
______________________
Scott Matas, Mayor
City of Desert Hot Springs
Item 3E - 51
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Office of the Mayor Pro Tem: Gary Gardner
March 2, 2022
Mayor Lisa Middleton, City of Palm Springs
Palm Springs City Council Members
Justin Clifton, City Manager
To My Colleagues and Friends:
I am generally adverse to reaching out to another city when it comes to issues in their city, but I’m hoping you’ll allow me to give you some thoughts on your contract renewal with Palm Springs/Desert Valley Disposal.
While I do think it is appropriate that we as public servants periodically review long-term contracts, especially when leadership in the city changes, I want to let you know that from my perspective here in Desert Hot Springs, PSD/DVD has been a fantastic service provider who has acted more as a partner with our city than as a service provider.
Their service to our residents has been outstanding, and what’s more, they have worked closely with our city staff in keeping our desert clean. Illegally dumped trash in DHS has noticeably gone down. PSD/DVD and our city staff have developed innovative programs to help our residents dispose of large items, as well as helping us patrol for illegal dumping. As an elected official, I have never been disappointed when I, or any of our staff, have reached out to them with a problem, and their response time is outstanding.
And let me leave you with an additional thought. PSD/DVD only serves Palm Springs and Desert Hot Springs. It is very much a symbiotic relationship. I don’t think that PSD/DVD could do as good a job as they do serving just one of our cities without serving the other. This is really one of those cases where we are acting together for the betterment of both of our cities, and I have doubts that another provider would give either of us the same level of service as PSD/DVD does. They are a local company, their roots are here, and they are not a giant national corporation. We are all better served when we deal with local providers who are a part of our communities.
I hope you will extend your contract with PSD/DVD – your residents, and mine will continue to be well served.
Cordially,
Gary Gardner
Mayor Pro Tem
Item 3E - 52
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Item 3E - 53
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Item 3E - 54
""'~ CITY OF:~ ~~, DESERT HOT SPRINGS ,~ ------- ~ :----- ---------------- c;ITY HANACER's orF1c.e 11999 Po!m Onve • Desetl Hol Spnngs • CA • 922-.0 C760) 32H4 I I • =•cijy<m:11n.91g
Morch 8. 2022
The Honotoble Moyor liso Middletoo
Palm Springs Cily Council
Cilv Manage r Justin Clitton
RE: Pot,n Springs D~posol Se<vices (?SOS)
Desert Vo ley Dispo;cl (DVD)
The City of Deser1 ~101 Springs cvrrenlly vfili,es Desen Vo~ey Disposol cs our fronchise woste hovler . lhe City ond Desert Volley Oisposal hove been in controcl for over 44 '{ears.
We consider our con frocj mo,oof aportncrship inwhi:::hweboth help each other obtoin certain gools ond progress 1oword the fvlure.
Over lt,e ye ors oe... r sioff nove estoblished w o1king re!ofionsh ips wilh Desert Volley Dispose and working loge I her hove been successfu l in implemen ting now progroms and solutions to address issues tho1 hove ori$en. ond o!I new mcndoted 1egulctk>ns.
The City is exlfemefy · sotisfled with the pas t and currenl pertormon-ce o f Desert Volley Disposol, ond is curren tly working on amend ing the fronchlse agreeme nt to extend their services ond con1nve the lon.g-term relo lionsh·p. We ore also going through the process of updat ing rates and considering the new rote p topcsol for tervices to meel nevi State regula tions.
We oreo1 iy recommend the Ci1y o f Palm Sp:ings continue their services and foster o similar losg-re;m relolionship os the City oi Desert Hot Sp,ings hos wilh Desen Volley Disposal.
If yoo hove any questions about our commitment with Oe-sert Volley DisposoJ, p!eose tee! free to reoch ovl lo me or my stoff 01 ony lime.
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Item 3E - 55
Mo h 2, 2 22
Cuuncilme
Councilm
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er of Cornn rce
R i.:gor ing: L tter of up rt for Palm prings Dispo nJ ervi e The City or Palm . pring.,; pKsst..-d a new ordin,mc that, among other things, will mandnte o~anic , tc coUcction services to all residents. thi includ 001Jec1jon of yard waste and food wast .
We would like lot e this opportunity to offer our. upport for extendi g the lcrm (or tim ) on Lht: wnl cl with Palm prings V 1sposa.l. We feel that l>y ex1endin,g the time on the con act, it wouJ meon I of impa l o the customers and busin ss communi1y s rates, pring
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On behalf of the Pali • rings Chamber or Comm rec, plt!t.1.'c .1cccpl lhi. · Jell ·r f · 1pport for r y ur cum,i<lt: ion.
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Item 3E - 56
March 1 , 2022
Mayor Lisa Middleton & Council Members
City of Palm Springs
3200 East Tahquilz canyon Way
Palm Springs, CA 92262
Dear Mayor Middleton & Council Members:
I am writing to support Palm Springs Disposal Service in their proposal for an extension of the tern, of the~ contract enabling them to provide optimal rates ror Palm Springs residents, many of whom are our senior members and guests.
Palm Springs Disposal Setvice has tong been a partner of Mizell Center m our provision of services 10 Pa.Im Springs seniors. While they have supported many Mizell program opportlA'lities, they have had a special impact on the implementation of the Meals on Wheels program. Because of the assistance of PSDS ttterally hundreds of Palm Springs seniors in need receive meals on a daily basis, PSDS is a supporter not only of Mizell Center, bwt of nonprofit organizations throughout lhe community providing a broad spectrum of vdal services. Because of the generosity and C01M1unity spirit of businesses Hke Palm Springs Disposal Service the Palm Spmgs safety ne1 is woven ever tighter.
Please don't hes,tate 10 contact me if you have any questions or are in need of addttional information.
Wes Winter
Executive Directo<
4 80 South Sun r,se W ay
Palm Sprongs , CA 92262
760 - 3Z3 - 588Q
Mizell .org
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Item 3E - 57
GRIT
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201 N. Polm Conyon Drive, Suite 200 Polm Springs, CA 92262 Tel: (760)325'3050 Fox: (760)325-5848
Honorable Mayor Middleton & Members of the City Council City manager Justin Oifton
It has come to our attention that the city of Palm Springs will be considering a rate proposal with rate options designed around the State of California's new organics mandate (SB1383).
Palm Springs Disposal Services has been servicing our properties for over 30 year$. The qualltv of servlct they provide Is outstand ing. We strongly encourage the Clty Council to continue its long•term relatlonship with PSOS that would be benefit all those IMng and working within the C-rty of Palm Springs.
We urse you to consider the Impact each option would have on our local community.
Should you have any questions or cone.ems please feel free to call our office 1t 760-844•7708
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Item 3E - 58
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I 1m IWl!C 1111"1 P,tm Sp,lnp OIIOOsll Senlices (PSOS) is worldng with 1M Clty on I rCMSlon 10 their Franthlie Aitrt,mtnl 10 occommod11e I.he requirements of S81383 , and I.has tM At:::rft'ff)t'f1t h•~ of)1k)n, whk:h would re-~uh Jr1 lowe< cost to residents for c::ompli•nte lO S.8 1383 by uiendtna tho wm of lho City's controct with PSOS.
I ~m In f1var of oxttndlna t~ wm of thQ contract,
A\~ hameownar In P11lm Sprhlftl, n,y e,cperte,,c.c Is that PSOS Is a good neighbor. They provldg elCcollont ,crvtco. They .iro prompt In r<:$pondine to requests, such as replacing mi$$lng tri»~h bin< They keep lo 1hefr pl<k•up schedule s. TMy make it easy to dispose of bulky Items by tpon,orln.g foll ond tprlna communltyc:lean•up tvents and drop-off ov<?nts ~, City Hall, at1d by having d1.1mpst1rs at their fKillly, Th~y kt~ residents informed about re,c;yd,ng practk •s and OIMr lmpOrt~nl IOPiCS lhroul)I newslctt0t·s lnduded wllh their billlll8, l'SOS worked hord 10 mlnhnltt thf lmp,ict of che txtr;sord1n-,ry nne increase and r~gular r.1te increase pasStd by tho Oty (Oijn(tl In 2011, ~nd 1hey -• tronsp•rent with supporting information.
AS a ~. of the S111Uin•bM,ty c-m-, my--· is th.t PS0S is a gwd pan lhtY h-wo,loed ~,. th the Offn ol Sustoiiwl>llaty in devdopng p,Xlict!s •nd p,ocedlltt, for 1mp1,r..,.,,,,,. SI IJS3 ilnd 11,e inlt..C -Nd> to residtnU. n,..,....., al1o ~,_..,-.Ith I.ht Office ols..M>Wbilir/ll'I ffllo<tlnge,ostir,g requwoment.sro, o,pn,cs d.-.lbv ......,.._ Mid lo d ... ~ ~•ndeduutionabout ptcpff fttl'dinsln 1M>1oc plo<e
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PSDS RATE PROPOSAL
SUPPLEMENTAL INFORMATION
Palm Springs Disposal Services May 10, 2022
Your sustainability partner
Dean and Theresa Mike
269 & 208 Luring Dr.
597 Santa Catalina Rd.
Dear Mayor Middleton and Palm Springs City Council Members,
I have been made aware that the city of Palm Springs will be considering options regarding new state organic requirements and higher rates for those services for Palm Springs Disposal Services.
If there is a possibility of extending the current term that would lessen the impact on customer rates, I urge council to vote for a term extension that could lessen the impact on customer rates.
Palm Springs Disposal staff has always performed an excellent service from special hauls, dumpster rentals, to even switching my services by a simply email/phone call for all three of my properties. Their customer service has always been exceptional.
Thank you for your time and consideration.
Dean and Theresa Mike
Palm Springs
Item 3E - 59
PSDS RATE PROPOSAL
SUPPLEMENTAL INFORMATION
Palm Springs Disposal Services May 10, 2022
Your sustainability partner
End of Supplemental Report
Item 3E - 60
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 1
Core Commercial Services
Palm Springs Disposal Services
All rates assume an annual formula rate adjustment
effective July 1, 2023 and each July 1 thereafter February 1, 2022 Core Service Explanation Previous Rate
Effective 7/1/20
Current Rate
Effective 1/1/22
Proposed Rate
Effective 7/1/22
2CY refuse Bin
1st pick-up 122.26$ 155.11$ 139.78$
Each additional bin 97.23$ 129.59$ 112.23$
3CY refuse Bin
1st pick-up 166.94$ 215.92$ 191.57$
Each additional bin 134.57$ 182.87$ 155.92$
4CY refuse Bin
1st pick-up 206.95$ 271.96$ 238.21$
Each additional bin 163.97$ 228.13$ 190.91$
3CY recycling bin (2)
1st pick-up FREE FREE 104.84$
Each additional bin 54.32$ 55.37$ 84.17$
Contaminated Organics
Removal: (3)
Each Cart n/a n/a 25.00$
Each Bin n/a n/a 98.55$
Comprehensive
Inspections (per hour) (4)
NEW category necessary for SB 1383
monitoring & enforcement; charged
per hour or increment thereof. n/a n/a 138.19$
TABLE 2
Rate Comparison for Core Commercial Services (1)
NEW category necessary for SB 1383
monitoring & enforcement
Continued on next page
Item 3E - 61
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 1
Core Commercial Services
Palm Springs Disposal Services
All rates assume an annual formula rate adjustment
effective July 1, 2023 and each July 1 thereafter February 1, 2022 Table 2 Footnotes:
(4) SB 1383 places responsibility on the local jurisdiction to enforce participation and minimize contamination. This fee pays for the cost of special container inspections that the City requires as part of an enforcement action. (3) Allowing the regular collection vehicle to collect containers with observed gross contamination would contaminate the entire load. This fee covers the cost of re-routing another collection vehicle to collect contaminated contents as refuse. (1) Service list shortened to aid interpretation. Core Commercial Services account for 92% of all Commercial service revenue.
Proposed rates: (i) sunset the Extraordinary Rate Adjustment, (ii) normalize the 2021 rate adjustment, and (iii) account for SB 1383 costs for outreach, education, monitoring, reporting & container labeling. (2) As the Extraordinary Rate Adjustment demonstrated, there are significant costs involved with recycling. The proposed rates recognize that collection comes at a cost and that recycling bins are less dense than refuse.
Item 3E - 62
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 1
Core Roll-Off Services
Palm Springs Disposal Services
All rates assume an annual formula rate adjustment
effective July 1, 2023 and each July 1 thereafter February 1, 2022 Core Service Explanation Previous Rate
Effective 7/1/20
Current Rate
Effective 1/1/22
Proposed Rate
Effective 7/1/22
Debris Box Pull Charge: (2)
Disposal 231.64$ 236.14$ 375.00$
Diversion 206.47$ 210.48$ 375.00$
Desert Recycling (3) NEW category. n/a n/a 450.00$
Tip Fees: (2)
Disposal 74.83$ 77.58$ 51.49$ Diversion
Stationary Compactor Pull
Charge: (2)
Disposal 572.66$ 583.75$ 590.00$
Diversion 176.06$ 179.48$ 590.00$
Tip Fees: (2)
Disposal 74.83$ 77.58$ 51.49$ Diversion Market Rate
Comprehensive Inspections
(per hour) (4)
NEW category necessary for SB 1383
monitoring & enforcement; charged per hour or
increment thereof. n/a n/a 138.19$
Market Rate
Continued on next page
TABLE 3
Rate Comparison for Core Roll-Off Services (1)
Item 3E - 63
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 1
Core Roll-Off Services
Palm Springs Disposal Services
All rates assume an annual formula rate adjustment
effective July 1, 2023 and each July 1 thereafter February 1, 2022 Table 3 Footnotes:
(4) SB 1383 places responsibility on the local jurisdiction to enforce participation and minimize contamination. This fee pays for the cost of special container inspections that the City requires as part of an enforcement action. (1) Service list shortened to aid interpretation. Core Roll-Off Services account for 87% of all Industrial service revenue. Proposed rates: (i) normalize the 2021 rate adjustment, and (ii) account for SB 1383 costs for outreach, education, monitoring, reporting & container labeling.
(2) Increases in pull charges offset by decreases in tip fees (3) Pull charge recognizes lost productivity due to longer off-load times at this facility.
Item 3E - 64
Attachment 2
Item 3E - 65
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 2
Residential Services
Palm Springs Disposal Services
All rates assume an annual formula rate adjustment
effective July 1, 2023 and each July 1 thereafter February 1, 2022 Option 1
Current
Term
Effective
7/1/22
Effective
7/1/22
Effective
7/1/23
Effective
7/1/24
Effective
7/1/22
Effective
7/1/23
Effective
7/1/24
Effective
7/1/25
Effective
7/1/26
(5% Savings) (1% Savings) (1% Savings) (9% Savings) (7% Savings) (5% Savings (4% Savings)
BASIC SERVICE
Basic Service includes once-weekly
collection of one refuse cart, one recycling
cart, & one organics cart of sizes selected by
customer (35-, 65-, or 95-gallons) and
collected curbside.
Individual Billing 26.61$ 25.28$ 26.34$ 26.34$ 24.22$ 24.75$ 25.28$ 25.55$ 26.61$ Billed quarterly.
Master Billing 26.34$ 25.02$ 26.08$ 26.08$ 23.97$ 24.50$ 25.02$ 25.29$ 26.34$ For multiple dwellings on one master
account; billed monthly to designated
agent; all dwellings on account receive
identical service.
* * * Applied to all dwellings receiving individual collection services including those subscribing to Custom Services. * * *
RESIDENTIAL SERVICES
Continued on next page
Add 3-Years, 3-Months to Term
Option 2
Add 8-Years, 3-Months to Term
Option 3
Service Description
Item 3E - 66
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 2
Residential Services
Palm Springs Disposal Services
All rates assume an annual formula rate adjustment
effective July 1, 2023 and each July 1 thereafter February 1, 2022 Option 1
Current
Term
Effective
7/1/22
Effective
7/1/22
Effective
7/1/23
Effective
7/1/24
Effective
7/1/22
Effective
7/1/23
Effective
7/1/24
Effective
7/1/25
Effective
7/1/26
CUSTOM SERVICES
Cart Service
Curbside Services:
Additional Cart, collected weekly 8.63$ 8.20$ 8.54$ 8.54$ 7.85$ 8.03$ 8.20$ 8.28$ 8.63$ For each additional refuse, recycling, or
organics cart, collected curbside once
weekly.
Additional Cart, one-time collection 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ Applies to a one-time special collection of
each refuse, recycling, or organics cart.
Walk-In Services:
Walk-In Service 7.76$ 7.37$ 7.68$ 7.68$ 7.06$ 7.22$ 7.37$ 7.45$ 7.76$ Once-weekly collections made within
property up to 50-feet from roadway.
Additional Cart Collected Weekly - Walk-In 11.46$ 10.89$ 11.35$ 11.35$ 10.43$ 10.66$ 10.89$ 11.00$ 11.46$ For each additional refuse, recycling, or
organics cart, collected from within
property up to 50-feet from roadway once
weekly.
Additional Cart, one-time collection 30.00$ 30.00$ 30.00$ 30.00$ 30.00$ 30.00$ 30.00$ 30.00$ 30.00$ Applies to a one-time special collection of
each refuse, recycling, or organics cart.
Estate Service 60.66$ 57.63$ 60.05$ 60.05$ 55.20$ 56.41$ 57.63$ 58.23$ 60.66$ Once-weekly collections of made within
property up to 50-feet from roadway; no
limit to number of carts.
Vacation Property Service 27.00$ 25.65$ 26.73$ 26.73$ 24.57$ 25.11$ 25.65$ 25.92$ 27.00$ Required service for registered vacation
rental properties; once-weekly collection of
up to two 95-gallon refuse carts (second
cart provided upon request), one 95-gallon
recycling cart, & one 95-gallon organics
cart from within property up to 50-feet from
roadside.
Additional Walk-In Distance 8.60$ 8.60$ 8.60$ 8.60$ 8.60$ 8.60$ 8.60$ 8.60$ 8.60$ For each additional 50-foot increment
beyond 50-feet from roadway.
Second Weekly Collection Day Varies Varies Varies Varies Varies Varies Varies Varies Varies For adding a regular second weekly
collection of a cart or carts; the cost is
double the cost of subscriber's regular
service.
Add 8-Years, 3-Months to Term
* * * Fees for one or more custom services are in addition to the fees for Basic Service (refer to pricing examples) . * * * Continued on next page
RESIDENTIAL SERVICES, continued
Service Description
Option 2 Option 3
Add 3-Years, 3-Months to Term
Item 3E - 67
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-
-
-
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 2
Residential Services
Palm Springs Disposal Services
All rates assume an annual formula rate adjustment
effective July 1, 2023 and each July 1 thereafter February 1, 2022 Option 1
Current
Term
Effective
7/1/22
Effective
7/1/22
Effective
7/1/23
Effective
7/1/24
Effective
7/1/22
Effective
7/1/23
Effective
7/1/24
Effective
7/1/25
Effective
7/1/26
CUSTOM SERVICES, continued
Manual Services:
For dwellings inaccessible to normal route
collection vehicles.
Manual Collection, Curbside 4.72$ 4.48$ 4.67$ 4.67$ 4.30$ 4.39$ 4.48$ 4.53$ 4.72$ Manual Collection, Walk-In 13.06$ 12.41$ 12.93$ 12.93$ 11.88$ 12.15$ 12.41$ 12.54$ 13.06$ Once-weekly collections made within
property up to 50-feet from roadway.
Manual Collection, Estate Service 74.81$ 71.07$ 74.06$ 74.06$ 68.08$ 69.57$ 71.07$ 71.82$ 74.81$ Once-weekly collections of made within
property up to 50-feet from roadway; no
limit to number of carts.
Additional Walk-In Distance 8.60$ 8.60$ 8.60$ 8.60$ 8.60$ 8.60$ 8.60$ 8.60$ 8.60$ For each additional 50-foot increment
beyond 50-feet from roadway.
Additional Cart, one-time collection 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ Applies to a one-time special collection of
each refuse, recycling, or organics cart.
EXTRA SERVICES & MISC. FEES
Change Service Charge 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ Charge waived for (i) initial subscriptions,
(ii) service correction within 30-days of
subscription, and (iii) changes made
during month of September.
Bulky Item / Special Haul:
First 2 items per month Free
Additional items in a month $ 25.00 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ 25.00$ Except appliances
Appliances $ 69.50 69.50$ 69.50$ 69.50$ 69.50$ 69.50$ 69.50$ 69.50$ 69.50$ Replacement Cart 69.84$ 69.84$ 69.84$ 69.84$ 69.84$ 69.84$ 69.84$ 69.84$ 69.84$ To replace a lost or damaged cart, except
for damage due to normal wear & tear.
Returned Check/Failed Electronic Payment
Charge 35.00$ 35.00$ 35.00$ 35.00$ 35.00$ 35.00$ 35.00$ 35.00$ 35.00$ Applied to each returned check or failed
electronic payment.
Past Due Charge 1.50% 1.50% 1.50% 1.50% 1.50% 1.50% 1.50% 1.50% 1.50% Applied to accounts that are 90-days past
due.
Delinquent Account Charge 20% 20% 20% 20% 20% 20% 20% 20% 20% Applied to accounts subject to collection as
a delinquent account; includes City admin
fee for collection on property tax bill as a
lien.
Free Free
RESIDENTIAL SERVICES, continued
Service Description
Option 2 Option 3
Continued on next page
Add 3-Years, 3-Months to Term Add 8-Years, 3-Months to Term Item 3E - 68
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 2
Residential Services
Palm Springs Disposal Services
All rates assume an annual formula rate adjustment
effective July 1, 2023 and each July 1 thereafter February 1, 2022 Option 1 Option 2 Option 3
Current Term
Add 3-Years,
3-Months to
Term
Add 8-Years,
3-Months to
Term
Effective
7/1/22
Effective
7/1/22
Effective
7/1/22
Curbside Service
Basic Service Fee 26.61$ 25.28$ 24.22$
Total 26.61$ 25.28$ 24.22$
Curbside Manual Collection
ADD Basic Service Fee 26.61$ 25.28$ 24.22$
ADD Manual Collection Fee 4.72$ 4.48$ 4.30$ Total 31.33$ 29.76$ 28.52$
Walk-In Service
Basic Service Fee 26.61$ 25.28$ 24.22$
ADD Walk-In Service Fee 7.76$ 7.37$ 7.06$ Total 34.37$ 32.65$ 31.28$
Walk-In Service >50-feet, <100-feet
Basic Service Fee 26.61$ 25.28$ 24.22$
ADD Walk-In Service Fee 7.76$ 7.37$ 7.06$ ADD Additional Distance charge 8.60$ 8.60$ 8.60$ Total 42.97$ 41.25$ 39.88$
Manual Collection Walk-In Service
Basic Service Fee 26.61$ 25.28$ 24.22$
ADD Walk-In Service Fee 13.06$ 12.41$ 11.88$
Total 39.67$ 37.69$ 36.10$
Walk-In Service with Additional Walk-In for One Refuse Cart Basic Service Fee 26.61$ 25.28$ 24.22$
ADD Manual Collection Service Fee 13.06$ 12.41$ 11.88$ ADD Extra Distance Fee 8.60$ 8.60$ 8.60$
Total 48.27$ 46.29$ 44.70$
Vacation Property Walk-In Service
Basic Service Fee 26.61$ 25.28$ 24.22$
ADD Vacation Property Service Fee 27.00$ 25.65$ 24.57$
53.61$ 50.93$ 48.79$
Service Description
RESIDENTIAL SERVICES, continued
PRICING EXAMPLES (for Rates Effective 7/1/22)
Item 3E - 69
Attachment 3
Item 3E - 70
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 3
Commercial Services
Palm Springs Disposal Services
All rates assume an annual formula
rate adjustment effective July 1, 2023
and each July 1 thereafter February 1, 2022
Service Description Effective
7/1/22
COMMERCIAL SERVICES
Commercial Cart Service
Value Service
Each cart each pick-up day 32.46$
Add'l cart one time pick up 4.04$
Standard (Walk-In) Service
Each cart each pick-up day 71.09$
Add'l cart one time pick up 8.34$
Commercial Can Service
Value Service
4 cans each pick-up day 32.46$
Add'l can one time pick up 4.04$
Standard (Walk-In) Service
4 cans each pick-up day 71.09$
Add'l can one time pick up 8.34$
Custom Service - 2nd Weekly Collection
Standard (Walk-In) Service
Added charge per cart 2nd pick-up 71.17$
Custom Service - 95 Gallon Cart
Value 95 Service
Each 95-gallon cart 48.01$
Add'l cart one-time pick-up 5.89$
Walk-In 95 Service
Each 95-gallon cart 105.14$
Add'l cart one-time pick-up 12.39$
Commercial Cart Recycling
First cart with one weekly pick-up:
Value Service 10.82$
Walk-In Service 23.69$
Add'l cart or add'l weekly pick-up:
Value Service 3.06$
Walk-In Service 6.84$
COMMERCIAL SERVICES
Continued on next page
Item 3E - 71
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 3
Commercial Services
Palm Springs Disposal Services
All rates assume an annual formula
rate adjustment effective July 1, 2023
and each July 1 thereafter February 1, 2022
Service Description Effective
7/1/22
COMMERCIAL SERVICES, continued
Commercial Bin Service
2 CY Bin Service:
First weekly pickup per bin 139.78$
Each additional weekly bin pickup, 2-5 112.23$
Extra pick-up next day service:
First bin 85.56$
Each additional bin 27.02$
Extra pick-up priority same day service:
Each bin 119.41$
Saturday/holiday service:
Each bin 119.41$
3 CY Bin Service:
First weekly pickup per bin 191.57$
Each additional weekly bin pickup, 2-5 155.92$
Extra pickup next day service:
First bin 98.55$
Each additional bin 38.74$
Extra pick-up priority same day service:
Each bin 132.10$
Saturday/holiday service:
Each bin 132.10$
3 CY Recycling Bin Service:
First bin with one weekly pick-up 104.84$
Each additional bin or weekly pick-up or extra
pick-up 84.17$
Contaminated recycling bin, per bin 98.55$
COMMERCIAL SERVICES, continued
Continued on next page
Item 3E - 72
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 3
Commercial Services
Palm Springs Disposal Services
All rates assume an annual formula
rate adjustment effective July 1, 2023
and each July 1 thereafter February 1, 2022
Service Description Effective
7/1/22
COMMERCIAL SERVICES, continued
Commercial Bin Service, continued
4 CY Bin Service:
First weekly pickup per bin 238.21$
Each additional weekly bin pickup, 2-5 190.91$
Extra pick-up next day service:
First bin 109.83$
Each additional bin 47.40$
Extra pick-up priority same day service:
Each bin 143.36$
Saturday/holiday service
Each bin, monthly 143.36$
Temporary Bin Rental
3 CY 4-day Residential Clean-Up Bin 89.73$
Mixed C&D Debris, Diverted:
3 CY 7-day Construction Bin, per pick-up 173.88$
Weekly Rental (if no activity for 7-days) 98.88$
Stationary Compactor Service
2 CY Compactor (per pickup) 131.17$
3 CY Compactor (per pickup) 141.67$
4 CY Compactor (per pickup) 152.31$
COMMERCIAL SERVICES, continued
Continued on next page
Item 3E - 73
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 3
Commercial Services
Palm Springs Disposal Services
All rates assume an annual formula
rate adjustment effective July 1, 2023
and each July 1 thereafter February 1, 2022
Service Description Effective
7/1/22
COMMERCIAL SERVICES, continued
Miscellaneous Charges
Return Trip - Inaccessible Bins 49.41$
Bin Relocation Charge:
First Bin 47.17$
Each Additional Bin 16.14$
Bin Roll-Out Charge each 25-ft increment
beyond 25-feet 78.53$
Specialized Equipment Charge 138.19$
Locking Bin Charges:
First bin pick-up 89.66$
Each additional bin 43.27$
Contractor-provided lock charge 30.10$
Clean Outside Bin Enclosure 39.38$
Clean & Wash Bin Charge:
First bin 89.66$
Each additional bin 38.45$
Bin Enclosure Cleaning:
Basic service per sq. ft. 3.37$
Power wash service per sq. ft. 6.74$
Cart Related Fees:
Extra Distance Charge each 50-ft increment
beyond 50-feet 6.55$
Cardboard Trash/Recycling Box Charge 6.68$
Comprehensive Inspections (per hour) 138.19$
COMMERCIAL SERVICES, continued
Continued on next page
Item 3E - 74
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 3
Commercial Services
Palm Springs Disposal Services
All rates assume an annual formula
rate adjustment effective July 1, 2023
and each July 1 thereafter February 1, 2022
Service Description Effective
7/1/22
COMMERCIAL SERVICES, continued
Organic Waste Diversion Service:
Source Separated Green Waste
32-Gallon Cart
First cart 26.10$
Each additional cart 10.78$
65-Gallon Cart
First cart 44.27$
Each additional cart 11.74$
2-CY Bin
First bin 209.33$
Each additional bin 209.33$
3-CY Bin
First bin 292.43$
Each additional bin 292.43$
Cannabis Waste Documentation Fee
Will call 33.16$
Monthly charge for weekly collections 143.65$
Source Separated Food Waste
35-Gallon Cart
First cart 74.16$
Each additional cart 41.64$
65-Gallon Cart
First cart 106.94$
Each additional cart 74.42$
2-CY Bin
First bin 483.21$
Each additional bin 483.21$
COMMERCIAL SERVICES, continued
Continued on next page
Item 3E - 75
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 3
Commercial Services
Palm Springs Disposal Services
All rates assume an annual formula
rate adjustment effective July 1, 2023
and each July 1 thereafter February 1, 2022
Service Description Effective
7/1/22
COMMERCIAL SERVICES, continued
Organic Waste Diversion Services, continued
Source Separated Mixed Waste
32-Gallon Cart
First cart 58.85$
Each additional cart 26.33$
65-Gallon Cart
First cart 75.85$
Each additional cart 43.33$
2-CY Bin
First bin 359.42$
Each additional bin 359.42$
Contaminated Organics Removal:
Each Cart 25.00$
Each Bin 98.55$
Comprehensive Inspections (per hour) 138.19$
Other Miscellaneous Charges
Returned Check Charge 35.00$
Past Due Charge 1.50%
Delinquent Acct, Charge 20%
Service Description Effective
7/1/22
3 CY Bin
1xWeek 191.57$
2xWeek 347.49$
3xWeek 503.41$
4xWeek 659.33$
5xWeek 815.25$
6xWeek 971.17$
Continued on next page
PRICING EXAMPLES
COMMERCIAL SERVICES, continued
COMMERCIAL SERVICES, continued
Item 3E - 76
Attachment 4
Item 3E - 77
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 4
Roll-Off Services
Palm Springs Disposal Services
All rates assume an annual formula
rate adjustment effective July 1, 2023
and each July 1 thereafter February 1, 2022
Service Description Proposed Rate
Effective 7/1/22
ROLL-OFF SERVICES
Debris Box Service
Disposal debris box, 10, 20, 30 & 40 CY
Pull Charge 375.00$
Tip Fees (per ton) Market Rate
Daily Rental Charge 53.57$
Debris Box Diversion Service 71.09$
Diversion debris box, 10, 20, 30 & 40 CY (EHTS only):
Pull Charge 375.00$
Tip Fees (per ton) Market Rate
Daily Rental Charge 53.57$
Diversion debris box, 10, 20, 30 & 40 CY (CD&I only)
Pull Charge 450.00$
Tip Fees (per ton) Market Rate
Daily Rental Charge 64.29$
Miscellaneous Debris Box Charges:
Return Trip Charge 50.20$
Box Size Exchange 50.20$
Relocate Charge 50.20$
Redelivery Charge 128.52$
Specialized Equipment Charge 147.07$
Maintenance Service per visit 161.97$
Clean & Wash Charge 95.46$
Off-Loading Charge 119.78$
Hard to handle material (per ton) Market Rate
Saturday/Holiday Service: Add'l per box 79.81$
Direct haul to landfill:
Waste generated by City pull charges 935.41$
Tip Fees (per ton) Market Rate
Waste generated by customer: pull charges 1,049.44$
Tip Fees (per ton) Market Rate
Continued on next page
ROLL-OFF SERVICES
Item 3E - 78
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 4
Roll-Off Services
Palm Springs Disposal Services
All rates assume an annual formula
rate adjustment effective July 1, 2023
and each July 1 thereafter February 1, 2022
Service Description Proposed Rate
Effective 7/1/22
ROLL-OFF SERVICES, continued
Stationary Compactor Service
Compactor 10, 15, 20, 30 & 40 CY (disposed):
Pull Charge 595.00$
Tip Fees (per ton) Market Rate
Stationary Compactor Diversion Service
Compactor 10, 15, 20, 30 & 40 CY
Pull Charge 595.00$
Tip Fees (per ton) Market Rate
Miscellaneous Compactor Charges:
Return Trip Charge 50.20$
Turn-Around Charge 98.16$
Relocate Charge 50.20$
Redelivery Charge 128.52$
Monthly Maintenance Service 114.11$
Specialized Equipment Charge 147.07$
Unscheduled Maintenance Service per trip 161.97$
Saturday/Holiday Service: Add'l per box 79.81$
Clean Litter in/around compactor 119.78$
Clean & Wash Charge 95.46$
Enclosure Cleaning
Basic service per sq. ft. 3.32$
Power wash service per sq. ft. 6.81$
Off-Loading Charge 119.78$
Other Miscellaneous Charges
Returned Check Charge 35.00$
Past Due Charge 1.50%
Delinquent Acct, Charge 20%
ROLL-OFF SERVICES
Item 3E - 79
2022 RATE PROPOSAL
Effective July 1, 2022
ATTACHMENT 4
Roll-Off Services
Palm Springs Disposal Services
All rates assume an annual formula
rate adjustment effective July 1, 2023
and each July 1 thereafter February 1, 2022
Service Description Proposed Rate
Effective 7/1/22
ROLL-OFF SERVICES
Debris Box Service, 4-ton disposed load
Pull charge 375.00$
Tip fees (4 tons @ $51.49/ton) 205.96$
Total 580.96$
Debris Box Service, 4-ton green waste diversion load
Pull charge 375.00$
Tip fees (4 tons @ $56.01/ton) 224.04$
Total 599.04$
Debris Box Service, 4-ton C&D diversion to Desert Recycling Pull charge 450.00$
Tip fees (4 tons @ $40.00/ton) 160.00$
Total 610.00$
Compactor Service, 8-ton disposed load
Pull charge 595.00$
Tip fees (8 tons @ $51.49/ton) 411.92$
Total 1,006.92$
Compactor Service, 4-ton diversion load
Pull charge 595.00$
Tip fees (4 tons @ $91.64/ton) 366.56$
Total 961.56$
PRICING EXAMPLES (for Rates Effective July 1, 2022)
Item 3E - 80
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End of document
Item 3E - 81
Palm Springs Draft Agreement Page 1
This Franchise Agreement for Solid Waste Collection Services (“Agreement”) is made and entered into this ___day of _____, 2022 (“Effective Date”) by and between the City of Palm Springs , a California municipal corporation, hereinafter referred to as “CITY,” and Palm Springs Disposal Services, a California corporation, hereinafter referred to as "CONTRACTOR." In this Agreement, the CITY and CONTRACTOR may be collectively referred to as the “Parties” and individually referred to as “Party.”
RECITALS
WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 (“Act”) and subsequent additions and amendments (codified at California Public Resources Code Section 40000 et seq.), has declared that it is in the public interest to authorize and require local agencies to make adequate provisions for Solid Waste handling within their jurisdiction; and, WHEREAS, the State of California has found and declared that the amount of Solid Waste generated in Calif ornia, coupled with diminishing landfill space and potential adverse environmental impacts from landfilling and the need to conserve natural resources, have created an urgent need for State and local agencies to enact and implement an aggressive integrated waste management program. The State has, through enactment of AB 939 and subsequent related legislation including, but not limited to: AB 2176 (Chapter 879, Statutes of 2004) , SB 1016 (Chapter 343, Statutes of 2008), AB 341 (Chapter 476, Statutes of 2011) , AB 1826 (Chapter 727, Statutes of 2014 ), and SB 1383 (Chapter 395, Statutes of 2016 ), directed the responsible State agency, and all local agencies, to promote a reduction in Landfill Disposal and to maximize the use of feasible waste reduction, Reuse, Recycling, and composting options in order to reduce the amount of material that must be Disposed; and, WHEREAS, the California Department of Resources Recycling and Recovery (“CalRecycle”) promulgated regulations to implement SB 1383 (the “SB 1383 Regulations”) for local jurisdictions, Generators, haulers, Solid Waste facilities, and other entities to support achievement of statewide Organic Waste Disposal reduction targets; and, WHEREAS, SB 1383 Regulations require jurisdictions to implement solids waste Collection programs, meet Processing facility requirements, conduct contamination monitoring, provide education, maintain records, submit reports, monitor compliance, conduct enforcement, and fulfill other requiremen ts; and, the City of Palm Springs (“CITY”) has chosen to delegate some of its responsibilities to Palm Springs Disposal Services the “CONTRACTOR”), acting as the CITY’s designee, through this Agreement; and, WHEREAS, consistent with provisions of the Act, including Public Resources Code Section 40059, aspects of solid waste handling are of local concern, including frequency of collection, means of collection and transportation, level of services, charges and fees, the nature, location, and extent of providing solid waste services, and whether the services are to be provided by means of a non-exclusive, partially exclusive, or wholly exclusive franchise, contract, license, or otherwise which may be granted by the City under terms and conditions prescribed by the City Council; and
WHEREAS, City determination that granting an exclusive franchise agreement to a solid waste enterprise is in the best interests of the residents and business establishments in City, and for the protection of community health, safety and well-being.
WHEREAS, CONTRACTOR has demonstrated through past performance and in negotiations conducted with CITY that CONTRACTOR is qualified and competent to perform the solid waste services desired by CITY.
WHEREAS; CONTRACTOR desires to engage in the business of Collecting Discarded Materials in the CITY; and, Item 3E - 82
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WHEREAS, the CITY further declares its intent to approve and maintain the maximum approved rate s for the Collection, transportation, Processing, Recycling, Composting, and/or Disposal of Discarded Materials; and, WHEREAS, the Parties hereto desire to enter into a wholly exclusive agreement for the provision of Collection Services except for those limitations specified in this Agreement; and, WHEREAS, this Agreement has been developed by and is satisfactory to the CITY and the CONTRACTOR, Now, therefore, in consideration of the mutual covenants, conditions and consideration contained herein, the CITY and CONTRACTOR hereby agree as hereinafter set forth:
ARTICLE 1: DEFINITIONS
For the purpose of this Agreement, the definitions contained in this Article shall apply unless otherwise specifically stated. If a word or phrase is not defined in this Agreement, the definition of such word or phrase as contained in the Palm Springs Municipal Code shall control.
1.1 AFFILIATE
“Affiliate” means all businesses , including, without limitation, corporations, limited and general partnerships and sole proprietorships , that are directly or indirectly related to the CONTRACTOR by virtue of direct or indirect ownership interest or common m anagement. Such businesses shall be deemed to be “Affiliated with” the CONTRACTOR and included within the term “Affiliates” as used herein. An Affiliate includes: (i) a business in which the CONTRACTOR has a direct or indirect ownership interest; (ii) a business that has a direct or indirect ownership interest in the CONTRACTOR; and/or (iii) a business that is also owned, controlled or managed by any business or individual which has a direct or indirect ownership interest in the CONTRACTOR. For the purposes of this definition, “ownership” means ownership as defined in the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the Effective Date , provided that ten percent (10%) shall be substituted for fifty percent (50%) in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and Section 318(a)(5)(C) shall be disregarded. For purposes of determining ownership under this paragraph and constructive or indirect ownership under Section 318(a), owne rship interest of less than ten percent (10%) shall be disregarded and percentage interests shall be determined on the basis of the percentage of voting interest of value that the ownership interest represents.
1.2 AGREEMENT
“Agreement” means this exclusive Collection Services Franchise Agreement between the CITY and CONTRACTOR for the Collection and subsequent Transfer, Transportation, Processing, and/or Disposal, of Single -Family, Multi- Family, and Commercial Discarded Materials and C&D, including all exhibits and attachments, and any amendments thereto.
1.3 ALTERNATIVE DAILY COVER (ADC)
“Alternative Daily Cover” or “ADC” has the same meaning as in 27 CCR Section 20690.
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1.4 ALTERNATIVE INTERMEDIATE COVER (AIC)
“Alternative Intermediate Cover” or “AIC” has the same meaning as in 27 CCR Section 20700.
1.5 APPLICABLE LAW
“Applicable Law” means all Federal, State, County, and local laws, regulations, rules, orders, judgments, decrees, permits, approvals, or other requirement of any governmental agency having jurisdiction over the Collection, Transportation, Processing, and Disposal of Discarded Materials that are in force on the Effective Date and as may be enacted, issued, or amended during the Term of this Agreement. Applicable Law includes, but is in no way limited to, AB 939, AB 341, AB 1826, and SB 1383 and corresponding regulations.
1.6 APPROVED FACILITY
“Approved Facility” means any one of or any combination of the: Approved C&D Facility; Approved Disposal Facility; Approved High Diversion Organic Materials Processing Facility; Approved Organic Materials Processing Facility; Approved Source Separated Recyclable Materials Processing Facility; and Approved Transfer Station, each of which are defined in this Article and listed in Exhibit 6.
1.7 ASSEMBLY BILL 341 (AB 341)
“AB 341” means AB 341 (Chapter 476, Statutes of 2011) as amended, supplemented, superseded and replaced from time to time.
1.8 ASSEMBLY BILL 939 (AB 939) (ACT)
“AB 939” means AB 939 (Chapter 1095, Statutes of 1989) also known as the California Integrated Waste Management Act of 1989 (California Public Resources Code Section 40000, et seq.), as amended, supplemented, superseded, and replaced from time to time.
1.9 ASSEMBLY BILL 1826 (AB 1826)
“AB 1826” means AB 1826 (Chapter 727, Statutes of 2014), as amended, supplemented, superseded, and replaced from time to time.
1.10 BACK-HAUL
“Back-Haul” means generating and transporting Organic Waste to a destination owned and operated by the Generator using the Generator’s own employees and equipment, or as otherwise defined in 14 CCR Section 18982(a)(66)(A).
1.11 BIN
“Bin” means a metal or plastic Container with hinged lid(s) and wheels serviced by a front -end loading Collection vehicle with a Container capacity of one (1) to eight (8) cubic yards, including Bins with compactors attached to increase the capacity of the Bin. Bins are also known as dumpsters.
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1.12 BLUE CONTAINER OR RECYCLABLE MATERIALS CONTAINER
“Blue Container” has the same meaning as in 14 CCR Section 18982.2(a)(5) and shall be used for the purpose of storage and Collection of Source Separated Recyclable Materials.
1.13 BROWN CONTAINER
“Brown Container” has the same meaning as in 14 CCR Section 18982.2(a)(5.5) and shall be used for the purpose of storage and Collection of Source Separated Food Waste.
1.14 BULKY ITEMS
“Bulky Items” means discarded furniture (including chairs, sofas, mattresses, carpet, and other similar items); appliances (including refrigerators, ranges, washers, dryers, water heaters, dishwashers, plumbing, small household appliances, and other similar items, commonly known as “white goods”); Electronic Waste; wood wastes (including wood waste, tree trunks, and large branches if no more than two (2) feet in diameter, four (4) feet in length, and 150 pounds in weight per bundle, scrap wood, in the aggregate not exceeding one (1) cubic yard per Collection unless Contractor allows heavier or larger- sized items); clothing; and tires. Any Bulk y Items containing chlorofluorocarbon (CFC) refrigerants shall be handled in accordance with Applicable Law. Bulky Items do not include car bodies or C&D, or any other items that cannot be handled by two (2) Persons. Bulky items do not include items more than eight (8) feet in length, four (4) feet in width, or weighing more than 150 pounds.
1.15 BULKY ITEM COLLECTION SERVICE
“Bulky Item Collection Service” means the 1) the semi-annual curbside collection event, 2) a semi-annual drop-off event, and 3) on- call Collection of Bulky Items by the CONTRACTOR in the Service Area and the delivery of those Bulky Items to the Approved Facility.
1.16 BUSINESS DAYS
“Business Days” mean days during which the CITY ’s administrative offices are normally open to do business with the public.
1.17 CALIFORNIA CODE OF REGULATIONS (CCR)
“California Code of Regulations” or “CCR” means the State of California Code of Regulations. CCR references in this Agreement are preceded with a number that refers to the relevant Title of the CCR (e.g., “14 CCR, Division 7, Chapter 12” refers to Title 14, Division 7, Chapter 12 of the California Code of Regulations.
1.18 CALRECYCLE
“CalRecycle” means the California Department of Resources Recycling and Recovery or its successor.
1.19 CART
“Cart” means a heavy plastic receptacle and a rated capacity of at least thirty -two (32) gallons and not more than ninety-six (96) gallons, having a hinged, tight-fitting lid and wheels, that is approved by the Contract Administrator for use by Service Recipients for Collection Services under this Agreement.
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1.20 CHANGE IN LAW
“Change in Law” means the following events or conditions:
a. The enactment, adoption, promulgation, issuance, modification, or written change in administrative or judicial interpretation of any Applicable Law on or after the Effective Date; or, b. The order or judgment of any governmental body, on or after the Effective Date, to the extent such order or judgment is not the result of willful or negligent action, error or omission or lack of reasonable diligence of the CITY or of the CONTRACTOR, whichever is asserting the occurrence of a Change in Law; provided, however, that the contesting in good faith or the failure in good faith to contest any such order or judgment shall not constitute or be construed as such a willful or negligent action, error or omission or lack of reasonable diligence.
1.21 CITY
“CITY” means the City of Palm Springs, California.
1.22 CITY CLEAN-UP SERVICE
“CITY Clean-up Service” means the Collection of Source Separated Recyclable Materials, Organic Materials, Gray Container Materials and Bulky Items by the CONTRACTOR resulting from written or verbal requests from the CITY for temporary clean-up programs at a centralized collection site. Such Service shall include the provision of Bins or Roll-Off Boxes by the CONTRACTOR, and the transport and delivery of the Collected materials to the appropriate Approved Facility.
1.23 CITY CODE
“CITY Code” means the Palm Springs Municipal Code.
1.24 CITY CONTAINER SERVICE
“CITY Container Service” means the Collection of Solid Waste, Recyclable Materials, and Organic Materials from public litter Containers and the transport and delivery of the Collected materials to the appropriate Approved Facility.
1.25 CITY SERVICE UNIT
“CITY Service Unit” means those CITY properties or CITY locations which the Contract Administrator requests that the CONTRACTOR provide Services as provided in this Agreement.
1.26 CITY WASTE
“CITY Waste” means Solid Waste, Recyclable Materials, Green Waste, Organic Materials, Bulky Items, Electronic Waste and Universal Waste generated at a CITY Service Unit.
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1.27 COLLECT, COLLECTED, COLLECTION
“Collect,” “Collected” or “Collection” means the act of the CONTRACTOR taking physical possession of, and removing Discarded Materials, whether by manual, semi-automated or automated means, and transporting such materials to the Approved Facility, pursuant to this Agreement.
1.28 COLLECTION SERVICES
“Collection Services” means SFD Collection Service, MFD Collection Service, CITY Collection Service, and Commercial Collection Service.
1.29 COMMENCEMENT DATE
“Commencement Date” means the date specified in Article 3.1 when the CONTRACTOR is to begin providing Collection and related Services required by this Agreement.
1.30 COMMERCIAL EDIBLE FOOD GENERATORS
“Commercial Edible Food Generators” includes Tier One Commercial Edible Food Generators and Tier Two Commercial Edible Food Generators, or as otherwise defined in 14 CCR Section 18982(a)(7). For the purposes of this definition, Food Recovery Organizations and Food Recovery Services are not Commercial Edible Food Generators, or as otherwise specified by 14 CCR Section 18982(a)(7).
1.31 COMMERCIAL SERVICE
“Commercial Service” means Collection Services performed at or for a Commercial Service Unit.
1.32 COMMERCIAL BUSINESS, COMMERCIAL
“Commercial Business” or “Commercial” means a firm, partnership, proprietorship, joint-stock company, corporation, or association, whether for-profit or nonprofit, strip mall, or industrial facility, or as otherwise defined in 14 CCR Section 18982(a)(6), and any multiple-family, residential dwelling with five (5) units or more.
1.33 COMMERCIAL EDIBLE FOOD GENERATORS
“Commercial Edible Food Generators” includes Tier One Commercial Edible Food Generators and Tier Two Commercial Edible Food Generators, or as otherwise defined in 14 CCR Section 18982(a)(7). For the purposes of this definition, Food Recovery Organizations and Food Recovery Services are not Commercial Edible Food Generators, or as otherwise specified by 14 CCR Section 18982(a)(7).
1.34 COMMUNITY COMPOSTING
“Community Composting” m eans any activity that composts green material, agricultural material, food material, and vegetative food material, alone or in combination, and the total amount of feedstock and Compost on -site at any one time does not exceed 100 cubic yards and 750 squar e feet, as specified in 14 CCR Section 17855(a)(4); or as otherwise defined in 14 CCR Section 18982(a)(8).
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1.35 COMPACTOR, COMPACTION
“Compactor,” or “Compaction” means a mechanical apparatus that compresses materials, the Container that holds the compressed materials, and/or the process of compressing materials or holding compressed materials .
Compactors include Bin Compactors of any size Serviced by front -loading Collection Vehicles and Compactors of any size Serviced by Roll-Off Box Collection vehicles.
1.36 COMPOST, COMPOSTING
“Compost” has the same meaning as in 14 CCR Section 17896.2(a)(4), which stated, as of the Effective Date of this Agreement, that “Compost” means the product resulting from the controlled biological decomposition of organic Solid Wastes that are Source Separated from the municipal Solid Waste stream, or which are separated at a centralized Facility.
1.37 COMPOSTABLE PLASTICS
“Compostable Plastics” or “Compostable Plastic” means plastic materials that meet the ASTM D6400 standard for compostability, or as otherwise described in 14 CCR Section 18984.1(a)(1)(A) or 18984.2(a)(1)(C).
1.38 CONSTRUCTION AND DEMOLITION DEBRIS or C&D or C&D Debris “Construction and Demolition Debris” or “C&D” or “C&D Debris” means the nonhazardous waste building material, Inerts, soil, packaging, Yard Trimmings, rubble, and other used or Discarded Materials resulting from construction or demolition. Accepted and prohibited materials are listed in Exhibit 3.
1.39 CONTAINERS
“Container(s)” means a cart, can, commercial bin, debris box, or stationary compactor intended for the purpose of depositing waste for disposal, except construction and demolition debris and bulky items, or Recyclable Materials for diversion. Containers may be provided by CITY or CONTRACTOR, or for manual collection as may be required to be provided by the property owner or occupant generating Solid Waste, Organic Waste or Recyclables.
1.40 CONTAMINATION or CONTAMINANTS
“Contamination” means the inclusion in a Container of Excluded Waste of any amount; or Organic Materials and/or Recyclable Materials placed in a Solid Waste Container; or materials other than Organic Materials in an Organic Materials Container, or materials other than Recyclable Materials in a Recyclable Materials Container, which render the contents of the Container materially unsuitable for the intended type of Diversion.
1.41 CONTRACTOR
“CONTRACTOR” means Palm Springs Disposal Services.
1.42 CONTRACT ADMINISTRATOR
“Contract Administrator” means _____________________, or any subsequent Person, or his or her designee, designated by the CITY to administer and monitor the provisions of this Agreement.
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1.43 CONTRACTOR COMPENSATION
“CONTRACTOR Compensation” means the monetary compensation received by the CONTRACTOR in return for providing Services in accordance with this Agreement as described in Article 10.
1.44 COVERED ELECTRONIC WASTE (CEW)
“Covered Electronic Waste” or “CEW” means discarded electronic devices that the California Department of Toxic Substances Control (DTSC) has determined to be a covered electronic device, as specified by Section 42463(f) of the California Public Resources Code. CEWs include cathode ray tube (CRT) devices (including televisions and computer monitors); LCD desktop monitors; laptop computers with LCD displays; LCD televisions; plasma televisions; portable DVD players with LCD screens; and other electronic devices as may be added by the DTSC from time to time.
1.45 CUSTOMER(S)
“Customer” means the Person who receives the CONTRACTOR’s Collection services and to whom the CITY or CONTRACTOR submits its billing invoice to and collects payment from for Collection services provided to a Premise. The Customer may be either the occupant, owner, or property manager of the Premises, as allowed under the CITY Code.
1.46 DAY
“Day” means calendar day unless otherwise specified in this Agreement.
1.47 DESIGNATED FACILITY
“Designated Facility(ies)” means any one of or any combination of a C&D Processing Facility; Disposal Facility; High Diversion Organic Waste Processing Facility; Organic Waste Processing Facility, Source Separated Recyclable Materials Processing Facility; and Transfer Facility that the CITY is directing the CONTRACTOR to use. Any such facility utilized by the CONTRACTOR shall be designed and constructed in accordance with Applicable Laws and shall have been issued all permits from federal, State, regional, county and city agencies necessary for it to operate. Any such facility shall be in full regulatory compliance with all such permits.
1.48 DISCARDED MATERIALS
“Discarded Materials” are a form of Solid Waste and shall be regulated as such. For purposes of this Agreement, material is deemed to have been discarded, without regard to whether it is destined for Recycling or Disposal, and whether or not it has been separated from other Solid Wastes, in all cases where a fee or other compensation, in any form or amount, is directly or indirectly solicited from, or, levied, charged, or otherwise imposed on, or paid by, the Generator or Customer in exchange for handling services. As used herein, handling services include, without limitation, the Collection, removal, Transportation, delivery, and Processing and/or Disposal of the material.
Discarded Materials do not include Edible Food that is recovered for human consumption and is not discarded. For the purposes of this Agreement, Discarded Materials include Source Separated Recyclable Materials, Source Separated Green Container Organic Waste, Food Waste, Gray Container Waste, and C&D once the materials have been placed in Containers for Collection.
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1.49 DISPOSAL
“Disposal” or “Disposed” mean the final disposition of any Solid Waste Collected by the Contractor or Residue from CONTRACTOR’S Processing activities at a permitted Landfill or other permitted Solid Waste Facility.
1.50 DIVERT, DIVERSION
“Divert” or “Diversion (or any variation thereof)” means activities which reduce or eliminate Discarded Materials from Disposal, including, but not limited to, source reduction, Reuse, salvage, Recycling, and composting.
1.51 DROP BOX
“Drop Box” means Containers with a typical capacity of eight (8) to forty (40) cubic yards that are Serviced by a roll-off Collection vehicle.
1.52 DUAL STREAM (OR DUAL-STREAM)
“Dual Stream” or “Dual -Stream” means a Collection method in which the Generators are instructed to separate Source Separated Recyclable Materials (such as, but not limited to Non-Organic Recyclables) or Source Separated Green Container Organic Waste (such as, but not limited to, Green Waste and Food Waste) into two streams of materials for placement in two sections of a Split Container or into two different Containers, and in which the Contractor maintains the separation of the two streams during Collection and Processes each stream separately.
1.53 DWELLING UNIT
“Dwelling Unit” means any individual living unit in a Single-Family Dwelling (SFD) or Multi-Family Dwelling (MFD) structure or building intended for, or capable of being utilized for, Residential living other than a hotel or motel.
1.54 EDIBLE FOOD
“Edible Food” means food intended for human consumption. For the purposes of this Agreement, Edible Food is not Solid Waste if it is recovered and not discarded. Nothing in this Agreement requires or authorizes the recovery of Edible Food that does not meet the food safety requirements of the California Retail Food Code. If the definition in 14 CCR Section 18982(a)(18) for Edible Food differs from this definition, the definition in 14 CCR Section 18982(a)(18) shall apply to this Agreement.
1.55 EFFECTIVE DATE
“Effective Date” means the date on which the Agreement becomes binding upon the Parties, which is the date when the latter of the Parties has executed this Agreement.
1.56 ELECTRONIC WASTE, E-WASTE
“Electronic waste” or “E -Waste” means discarded electronic equipment including, without limitation , televisions, computer monitors, central processing units (CPUs), laptop computers, computer peripherals, external hard drives, keyboards, scanners, and mice, printers, copiers, facsimile machines, radios, stereos, stereo speakers, VCRs, DVDs, camcorders, microwaves, telephones, cellular telephones, and other electronic devices.
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1.57 ENFORCEMENT ACTION
"Enforcement Action" means an action of the CITY to address non-compliance including, but not limited to, issuing administrative citations, fines, penalties, or using other remedies.
1.58 ENFORCEMENT ACTION
“Enforcement Inspection” means an examination of Containers by CONTRACTOR performed under the direct supervision of the CITY as a part of an enforcement action and shall consist of a physical inspection of each Container used by Customer to determine the percentage by weight of Material Not Permitted in each of Customer’s Containers.
1.59 ENVIRONMENTAL LAWS
"Environmental Laws" means all federal and State statutes, and county and CITY ordinances concerning public health, safety and the environment including, by way of example and not limitation, AB 341, AB 939, AB 1826, SB 1383, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. § 6902 et seq.; the Federal Clean Water Act, 33 U.S.C. § 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.; the California Hazardous Waste Control Act, California Health and Safety Code § 25100 et seq.; the Carpenter-Presley-Tanner Hazardous Substance Account Act, California Health and Safet y Code § 25300 et seq.; the Porter -Cologne Water Quality Control Act, California Water Code § 13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code § 25249.5 et seq.; as currently in force or as hereafter amended, and all rules and regulations promulgated thereunder.
1.60 EXCLUDED WASTE
“ Excluded Waste” means Hazardous Substance, Hazardous Waste, Infectious Waste, Designated Waste, volatile, corrosive, Medical Waste, infectious, regulated radioactive waste, and toxic substances or material that Approved Facility operator(s) reasonably believe(s) would, as a result of or upon acceptance, Transfer, Processing, or Disposal, be a violation of local, State, or Federal law, regulation, or ordinance, including: land use restrictions or conditions, waste that cannot be Disposed of in Class III Landfills or accepted at the Facility by permit conditions, waste that in CONTRACTOR’S reasonable opinion would present a significant risk to human health or the environment, cause a nuisance or otherwise create or expose CONTRACTOR or CITY to potential liability; but not including de minimis volumes or concentrations of waste of a type and amount normally found in Single -Family or Multi-Family Solid Waste after implementation of programs for the safe Collection, Processing, Recycling, treatment, and Disposal of batteries and paint in compliance with Sections 41500 and 41802 of the California Public Resources Code.
1.61 FACILITY(IES)
“Facility(ies)” means any plant, site, or operation used for the purpose of handling Discarded Materials, including, but not limited to, Disposal, Transfer, Recycling, Composting, and Processing Facilities or operations.
1.62 FOOD RECOVERY
“Food Recovery” means actions to collect and distribute food for human consumption which otherwise would be disposed, or as otherwise defined in 14 CCR Section 18982(a)(24).
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1.63 FOOD RECOVERY ORGANIZATION
“Food Recovery Organization” means an entity that primarily engages in the collection or receipt of Edible Food from Commercial Edible Food Generators and distributes that Edible Food to the public for Food Recovery either directly or through other entities, including, but not limited to:
A. A food bank as defined in Section 113783 of the Health and Safety Code; B. A nonprofit charitable organization as defined in Section 113841 of the Health and Safety code; and, C. A nonprofit charitable temporary food facility as defined in Section 113842 of the Health and Safety Code.
If the definition in 14 CCR Section 18982(a)(25) for Food Recovery Organization differs from this definition, the definition in 14 CCR Section 18982(a)(25) shall apply to this Agreement.
1.64 FOOD RECOVERY SERVICE
“Food Recovery Service” means a person or entity that collects and transports Edible Food from a Commercial Edible Food Generator to a Food Recovery Organization or other entities for Food Recovery, or as otherwise defined in 14 CCR § 18982(a)(26).
1.65 FOOD-SOILED PAPER
“Food-Soiled Paper” means compostable paper material that has come in contact with food or liquid, such as, but not limited to, compostable paper plates, paper coffee cups, napkins, pizza boxes, and milk cartons.
1.66 FOOD WASTE
“Food Waste” means Source Separated Food Scraps, Food-Soiled Paper, and Compostable Plastics. Food Waste is a subset of Source Separated Green Container Organic Waste. Edible Food separated for Food Recovery shall not be considered Food Waste.
1.67 FRANCHISE
“Franchise” means the special rights and privileges granted by the CITY to CONTRACTOR under this Agreement to operate as an exclusive enterprise for Collection Services in the Service Area and to use the public rights of way for such purpose.
1.68 GENERATOR
“Generator” means any Person whose act or process produces Discarded Materials, or whose act first causes any of these items to become subject to regulation.
1.69 GRAY CONTAINER
“Gray Container” has the same meaning as in 14 CCR Section 18982(a)(28) and shall be used for the purpose of storage and Collection of Gray Container Waste or Mixed Waste.
1.70 GRAY CONTAINER WASTE
“Gray Container Waste” means Solid Waste that is collected in a Gray Container that is part of a three -Container Organic Waste Collection service that prohibits the placement of Organic Waste in the Gray Container as specified in 14 CCR Sections 18984.1(a) and (b) or as otherwise defined in 14 CCR Section 17402(a)(6.5). For the purposes of Item 3E - 92
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this Agreement, Gray Container Waste includes carpet and textiles.
1.71 GREEN CONTAINER
“Green Container” has the same meaning as in 14 CCR Section 18982(a)(29) and shall be used for the purpose of storage and Collection of Source Separated Green Container Organic Waste.
1.72 GROSS BILLINGS
“Gross Billings” means total amount invoiced to Customers by the CONTRACTOR for the provision of Services pursuant to this Agreement, with a year-end adjustment for any account written off as uncollectible. Gross Billings do not include revenues from the sale of Recyclable Materials, California Refund Value revenue, CalRecycle supplemental payments to registered curbside recycling operators, or revenue from the sale of processed recycling, or C&D material.
1.73 HAULER ROUTE
Hauler Route” means the designated itinerary or sequence of stops for each segment of the CITY’s Collection service area, or as otherwise defined in 14 CCR Section 18982(a)(31.5).
1.74 HAZARDOUS SUBSTANCE
“Hazardous Substance” means any of the following: (a) any substances defined, regulated or listed (directly or by reference) as "Hazardous Substances" or hazardous material, Hazardous Waste, toxic waste, pollutant, or toxic substances or similarly identified as hazardous to human health or the environment, in or pursuant to: (i) the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, 42 USC §9601 et seq. (CERCLA); (ii) the Hazardous Materials Transportation Law, 49 USC §5101, et seq.; (iii) the Resource Conservation and Recovery Act, 42 USC §6901 et seq.; (iv) the Clean Water Act, 33 USC §1251 et seq.; (v) Ca lifornia Health and Safety Code §§ 25115-25117, 25249.8, 25281, and 25316; (vi) the Clean Air Act, 42 USC §7901 et seq.; and, (vii) California Water Code §13050; (b) any amendments, rules, or regulations promulgated thereunder to such enumerated statutes o r acts currently existing or hereafter enacted; and, (c) any other hazardous or toxic substance, material, chemical, waste, or pollutant identified as hazardous or toxic or regulated under any other Applicable Law currently existing or hereinafter enacted, including, without limitation, friable asbestos, polychlorinated biphenyl’s (PCBs), petroleum, natural gas, and synthetic fuel products and by-products.
1.75 HAZARDOUS WASTE
“Hazardous Waste” means all substances defined as Hazardous Waste, acutely Hazardous Waste, or extremely Hazardous Waste by the State in Health and Safety Code §§ 25110.02, §25115, and §25117 or in the future amendments to or recodifications of such statutes or identified and listed as Hazardous Waste by the U.S.
Environmental Protection Agency (EPA), pursuant to the federal Resource Conservation and Recovery Act (42 USC § 6901 et seq.), all future amendments thereto, and all rules and regulations promulgated thereunder.
1.76 HIGH DIVERSION ORGANIC WASTE PROCESSING FACILITY
“High Diversion Organic Waste Processing Facility” means a facility that is in compliance with the reporting requirements of 14 CCR § 18815.5(d) and meets or exceeds an annual average Mixed Waste organic content Recovery rate of 50 percent between January 1, 2022 and December 31, 2024, and 75 percent after January 1, Item 3E - 93
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2025, as calculated pursuant to 14 CCR § 18815.5(e) for Organic Waste received from the “Mixed waste organic collection stream” as defined in 14 CCR § 17402(a)(11.5); or, as otherwise defined in 14 CCR § 18982(a)(33).
1.77 HOLIDAYS
“Holidays” shall mean the observed holiday for Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and New Year’s Day.
1.78 HOME GENERATED SHARPS
“Home-Generated Sharps” means hypodermic needles, syringes, lancets, and pen needles for the delivery of medications derived from a household, including a Multi-Family Dwelling or Single Family Dwelling.
1.79 HOUSEHOLD BATTERIES
“Household Batteries” means disposable or rechargeable dry cells such as those referred to as A, AA, AAA, B, C, D, 9-volt, button type or those from laptop computers or cell phones, and commonly used as power sources for consumer electronics devices, including but not limited to zinc oxide, nickel metal hydride, alkaline, mercury, silver oxide, lithium, lithium ion and carbon zinc, but excluding automotive lead acid batteries.
1.80 HOUSEHOLD HAZARDOUS WASTE (HHW)
“Hazardous Waste” or “HHW” means all substances defined as Hazardous Waste, acutely Hazardous Waste, or extremely Hazardous Waste by the State in Health and Safety Code §25110.02, §25115, and §25117 or in the future amendments to or recodifications of such statutes or identified and listed as Hazardous Waste by the U.S.
Environmental Protection Agency (EPA), pursuant to the Federal Resource Conservation and Recovery Act (42 USC §6901 et seq.), all future amendments thereto, and all rules and regulations promulgated thereunder.
1.81 INCOMPATIBLE MATERIALS
“Incompatible Material” or “Incompatibles” mean(s) human- made inert material, including, but not limited to, glass, metal, plastic, and also includes organic waste for which the receiving end-user, facility, operation, property, or activity is not designed, permitted, or authorized to perform Organic Waste recovery activities as de fined in 14 CCR Section 18983.1(b), or as otherwise defined by 14 CCR Section 17402(a)(7.5).
1.82 INERTS
“Inerts” means materials such as concrete, soil, asphalt, and ceramics.
1.83 LANDFILL
“Landfill” means a “Solid Waste Landfill” defined by Public Resources Code Section 40195.1
1.84 LARGE EVENT
“Large Event” means an event, including, but not limited to, a sporting event or a flea market, that charges an admission price, or is operated by a local agency, and serves an average of more than 2,000 individuals per day of operation of the event, at a location that includes, but is not limited to, a public, nonprofit, or privately owned park, parking lot, golf course, street system, or other open space when being used for an event.
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1.85 LARGE VENUE
“Large Venue” means a permanent venue facility that annually seats or serves an average of more than 2,000 individuals within the grounds of the facility per day of operation of the venue facility. A venue facility includes, but is not limited to, a public, nonprofit, or privately owned or operated stadium, amphitheater, arena, hall, amusement park, conference or civic center, zoo, aquarium, airport, racetrack, horse track, performing arts center, fairground, museum, theater, or other public attraction facility. A site under common ownership or control that includes more than one Large Venue that is contiguous with other Large Venues in the site, is a single Large Venue.
1.86 LIQUIDATED DAMAGES
“Liquidated Damages” means the amounts due by the CONTRACTOR for failure to meet specific quantifiable standards of performance as described in Article 12.
1.87 MASTER BILLED COMMUNITY
“Master Billed Community” means Residential premises within a planned unit development or other group of dwellings may authorize a homeowner's association, property manager, or agent to receive and pay the Solid Waste bill issued by CONTRACTOR as a master-billed account, provided all premises subject to the account subscribe to the same service. CONTRACTOR shall bill master billed accounts monthly in arrears. (Master billing is provided as a courtesy to the individual Residential customers and d oes not relieve them of their individual responsibilities to arrange and pay for solid waste management services.)
1.88 MATERIALS RECOVERY FACILITY (MRF)
“Materials Recovery Facility” or “MRF” means the designated Transfer Station(s) or any other Approved Facility, selected by the CONTRACTOR and approved by the CITY, or specifically designated by the CITY, designed, operated, and legally permitted for the purpose of receiving, sorting, processing, storing, or preparing Recyclable Materials and cardboard, scrap metal, wood, asphalt, concrete and other inert materials for sale.
1.89 MIXED WASTE
“Mixed Waste” means Mixed Waste Organic Collection Stream and Solid Waste Collected in a Container that is required by 14 CCR Sections 18984.1, 18984.2, or 18984.3 to be Transp orted to a High Diversion Organic Waste Processing Facility.
1.90 MIXED WASTE ORGANIC COLLECTION STREAM
“Mixed Waste Organic Waste Collection Stream” means Organic Waste Collected in a Container that is required by 14 CCR Sections 18984.1, 18984.2, or 18984.3 to be Transported to a High Diversion Organic Waste Processing Facility, or as otherwise defined in 14 CCR Section 17402(a)(11.5).
1.91 MULCH
“Mulch” means a layer of material applied on top of soil, and, for the purposes of the Agreement, Mulch shall conform with the following conditions, or conditions as otherwise specified in 14 CCR Section 18993.1(f)(4):
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standards for land application specified in 14 CCR Section 17852(a)(24.5)(A)(1) through (3). ii. Was produced at one or more of the following types of Facilities:
a. A compostable material handling operation or facility as defined in 14 CCR Section 17852(a)(12), that is permitted or authorized under 14 CCR, Division 7, other than a chipping and grinding operation or facility as defined in 14 CCR Section 17852(a)(10);
b. A Transfer/Processing Facility or Transfer/Processing operation as defined in 14 CCR Section 17402(a)(30) and (31), respectively, that is permitted or authorized under 14 CCR, Division 7; or, c. A Solid Waste Landfill as defined in PRC Section 40195.1 and that is permitted under 27 CCR, Division 2.
1.92 MIXED WASTE ORGANIC WASTE COLLECTION STREAM
“Mixed Waste Organic Waste Collection Stream” means Organic Waste Collected in a Container that is required by 14 CCR Sections 18984.1, 18984.2, or 18984.3 to be Transported to a High Diversion Organic Waste Processing Facility, or as otherwise defined in 14 CCR Section 17402(a)(11.5).
1.93 MULTI-FAMILY, MULTI-FAMILY DWELLING (MFD), MULTI-FAMILY SERVICE UNIT “
Multi
-F
amily,” “ M
ulti-Family Dwelling,” “MFD,” or “ Multi-Family Service Unit ” means premises used for residential purposes with five (5) or more dwelling units, including condominium projects, duplexes, townhouse projects, apartment houses, or mobile home parks, irrespective of whether residence therein is transient, temporary or permanent which receive collection services from centralized locations. Multi- Family premises do not include hotels, motels, or other transient occupancy facilities, which are considered Commercial Businesses.
1.94 NON-COMPOSTABLE PAPER
“Non-Compostable Paper” includes, but is not limited to, paper that is coated in a plastic material that will not breakdown in the composting process, or as otherwise defined in 14 CCR Section 18982(a)(41).
1.95 NON-COLLECTION NOTICE
“Non-Collection Notice” means a form, as approved in advance by the CITY, used to notify a Service Recipient of the reason for the non-Collection of materials set out by the Service Recipient for Collection by the CONTRACTOR pursuant to this Agreement.
1.96 NON-ORGANIC RECYCLABLES
“Non-Organic Recyclables” means non-putrescible and non-hazardous recyclable wastes including, but not limited to, bottles, cans, metals, plastics, and glass, or as otherwise defined in 14 CCR Section 18982(a)(43). Non -Organic Recyclables are a subset of Source Separated Recyclable Materials.
1.97 ORGANIC WASTE or ORGANIC MATERIALS
“Organic Waste” means Solid Waste containing material originated from living organisms and their metabolic waste products, including, but not limited to, Food Waste, Green Waste, landscape and pruning waste, nonhazardous Item 3E - 96
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wood waste, and food-soiled paper waste that is mixed in with Food Waste.
1.98 PAPER PRODUCTS
“Paper Products” include, but are not limited to, paper janitorial supplies, cartons, wrapping, packaging, file folders, hanging files, corrugated boxes, tissue, and toweling; or as otherwise defined in 14 CCR Section 18982(a)(51).
1.99 PARENT COMPANY
“Parent Company” means a company that has a controlling interest in another company, enabling the Parent Company to control management and operations of the Affiliate or Subsidiary company.
1.100 PARTY, PARTIES
“Party” or “Parties” refers to the CITY and the CONTRACTOR, individually or together, as applicable.
1.101 PERSON
“Person” has the same meaning as in Public Resources Code Section 40170, which states, as of the Effective Date of this Agreement, that a Person includes an individual, firm, limited liability company, association, partnership, political subdivision, government agency, municipality, industry, public or private corporation, or any other entity whatsoever.
1.102 PREMISES
“Premises” means any parcel of land, building and/or structure or portion thereof, in the City where Solid Waste is produced, generated or accumulated.
1.103 PRINTING AND WRITING PAPERS
“Printing and Writing Papers” include, but are not limited to, copy, xerographic, watermark, cotton fiber, offset, forms, computer printout paper, white wove envelopes, manila envelopes, book paper, note pads, writing tablets, newsprint, and other uncoated writing papers, posters, index cards, calendars, brochures, reports, magazines, and publications; or as otherwise defined in 14 CCR Section 18982(a)(54).
1.104 PROCESS, PROCESSED, OR PROCESSING
“Process”, “Processed” or “Processing” means the controlled separation, recovery, volume reduction, conversion, or Recycling of Solid Waste including, but not limited to, organized, manual, automated, or mechanical sorting, the use of vehicles for spreading of waste for the purpose of recovery, and/or includes the use of conveyor belts, sorting lines, or volume reduction equipment, or as otherwise defined in 14 CCR Section 17402(a)(20).
1.105 PROHIBITED CONTAINER CONTAMINANTS
“Prohibited Container Contaminants” means the following: (i) discarded materials placed in the Blue Container that are not identified as acceptable Source Separated Recyclable Materials for the City’s Blue Container; (ii) discarded materials placed in the Green Container that are not identified as acceptable Source Separated Green Container Organic Waste for the City’s Green Container; (iii) discarded materials placed in the Brown Container that are not Item 3E - 97
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identified as acceptable Source Separated Brown Container Food Waste for the City’s Brown Container; (iv) discarded materials placed in the Gray Container that are acceptable Source Separated Recyclable Materials, Source Separated Green Container Organic Wastes, and/or Source Separated Brown Container Food Waste to be placed in the City’s Blue Container, Green Container, and/or Brown Container; and, (v) non -Solid Waste items placed in any container.
1.106 PROPERTY OWNER
“Property Owner” means the owner of real property, or as otherwise defined in 14 CCR Section 18982(a)(57).
1.107 PUBLIC RESOURCES CODE or PRC
“Public Resources Code” or “PRC” means the California Public Resources Code.
1.108 PUTRESCIBLE WASTE
“Putrescible Waste” means wastes that are capable of being decomposed by micro -organisms with sufficient rapidity as to cause nuisances because of odors, gases, or other offensive conditions, and includes materials such as, but not limited to Food Waste, offal, and dead animals; or as otherwise defined in 14 CCR Section 17402(a)(21).
1.109 RATE
“Rate” means the maximum amount, expressed as a dollar unit, approved by the CITY that the CONTRACTOR may bill a Customer for providing specified services under this Agreement. A Rate has been established for each individual Service Level are presented in Exhibit 1 . The Rates approved by the CITY are the maximum Rate that CONTRACTOR may charge a Customer for a particular Service Level and CONTRACTOR may, in its sole discretion, charge any amount up to and including the maximum Rate approved by the CITY. CONTACTOR has acknowledged for Organic Waste Collection services that are not provided to residential customers until the Edom Hill Organic Waste Processing Facility opens, that Organic Waste Collection service rates will be not be charged until those customers actually received such service.
1.110 RATE REVENUE
“Rate Revenue” means CONTRACTOR’S income received from Customers for services provided in accordance with Exhibit 1. Rate Revenue does not include revenues from the sale of Recyclable Materials , California Refund Value revenue, CalRecycle supplemental payments to registered curbside recycling operators, revenue from the sale of processed recycling, compost, or C&D material, or miscellaneous income from non-Collection activities.
1.111 RATE YEAR
“Rate Year” means a 12 -month period, beginning July 1 and ending June 30 of the following year , for which the CONTRACTOR’s Compensation is calculated.
1.112 RECYCLABLES OR RECYCLABLE MATERIALS
“Recyclables” or “Recyclable Material” means material that can be separated from waste for the purpose of reusing or returning these materials in the form of raw materials for new, used or reconstituted products that Item 3E - 98
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meet the quality standard necessary to be used in the marketplace, or for composting.
1.113 RECYCLE, RECYCLING
“Recycle” or “Recycling” means the process of Collecting, sorting, cleansing, treating, and reconfiguring materials for the purpose of returning them to the economic mainstream in the form of raw material for new, Reused, or reconstituted products that meet the quality standards necessary to be used in the marketplace. Recycling includes processes deemed to constitute a reduction of Landfill Disposal pursuant to 14 CCR, Division 7, Chapter 12, Article
2. Recycling does not include gasification or transformation as defined in Public Resources Code Section 40201.
1.114 REMNANT ORGANIC MATERIAL
“Remnant Organic Material” means the Organic Waste that is Collected in a Gray Container that is part of the Gray Container Collection stream, or as otherwise defined in 14 CCR 17402(a)(23.5).
1.115 RENEWABLE NATURAL GAS OR RNG
“Renewable Natural Gas” or “RNG” means gas derived from Organic Waste that has been diverted from a Landfill and Processed at an in- vessel digestion facility that is permitted or otherwise authorized by 14 CCR to recover Organic Waste, or as otherwise defined in 14 CCR Section 18982(a)(62).
1.116 RESIDUAL or RESIDUE
“Residual” or “Residue” means the Solid Waste destined for Disposal, further transfer/processing as defined in 14 CCR Section 17402(a)(30) or 14 CCR Section 17402(a)(31), or transformation which remains after Processing has taken place and is calculated in percent as the weight of Residual divided by the total incoming weight of materials.
1.117 REUSABLE ITEMS
“Reusable Items” means items that are capable of being Reused after minimal Processing. Reusable Items may be Collected Source Separated or recovered thro ugh a Processing Facility. Reusable Items may include, but are not limited to, clothing, furniture, and/or sporting equipment.
1.118 REUSE
“Reuse” or any variation thereof, means the use, in the same, or similar, form as it was produced, of a material which might otherwise be discarded, or as otherwise defined in 14 CCR Section 17402.5(b)(2).
1.119 ROLL-OFF BOX
“Roll-Off Box” means an open - or closed-top metal Container, roll- top Container, or closed compacto r Container serviced by a roll-off truck and with a Container capacity of 10 to 40 cubic yards. Roll-off boxes are also known as drop boxes or debris boxes.
1.120 SENATE BILL 1383 (SB 1383)
“SB 1383” means Senate Bill 1383 (Chapter 395, Statutes of 2016), which established methane emissions reduction targets in a statewide effort to reduce emissions of short -lived climate pollutants as amended, supplemented, superseded, and replaced from time to time.
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1.120 SENATE BILL 1383 REGULATIONS (SB 1383 REGULATIONS) “SB 1383 Regulations” refers to the Short -Lived Climate Pollutants (SLCP): Organic Waste Reductions regulations developed by CalRecycle and adopted in 2020 that created Chapter 12 of 14 CCR, Division 7 and amended portions of regulations of 14 CCR and 27 CCR.
1.121 SERVICE AREA
“Service Area” means that area within the corporate limits of Palm Springs, California.
1.122 SERVICE LEVEL
“Service Level” means to the number and size of a Customer’s Container(s) and the frequency of Collection service, as well as ancillary services such as lock/unlock service, Container push/pull service, etc.
1.123 SERVICE RECIPIENT
“Service Recipient” means an individual, agency, organization or company receiving Collection Service pursuant to this Agreement.
1.124 SINGLE-FAMILY, SINGLE-FAMILY DWELLING (SFD), SINGLE-FAMILY SERVICE UNIT “
Single-F
amily,” “ Single-Family Dwelling,” “SFD,” or “Single -Family Service Unit” m eans, notwithstanding any
contrary definition in a CITY Code, any detached or attached house or residence designed or used for occupancy by one (1) family, provided that Collection Service feasibly can be provided to such Premises as an independent unit, and the owner or occupant of such independent unit is billed directly for the Collection Service or is part of a Master Billed Community. “Single-F
amily,” “ Single-Family Dwelling,” “SFD,” or “Single -Family Service Unit” includes
Residential units of a duplex, tri
-p
lex, or four
-p
lex Residential structure provided that the owner or Occupant of each unit is separately billed for its specific Service Level or is part of a Master Billed Community.
1. 125 SOLID WASTE
“Solid Waste” has the same meaning as defined in PRC Section 40191, which defines Solid Waste as all putrescible and nonputrescible solid, semisolid, and liquid wastes, including garbage, trash, refuse, paper, rubbish, ashes, industrial wastes, C&D , abandoned vehicles a nd parts thereof, discarded home and industrial appliances, dewatered, treated, or chemically fixed sewage sludge which is not hazardous waste, manure, vegetable or animal solid and semisolid wastes, and other discarded solid and semisolid wastes, with the exception that Solid Waste does not include any of the following wastes:
(1) Hazardous waste, as defined in PRC Section 40141.
(2) Radioactive waste regulated pursuant to the Radiation Control Law (Chapter 8 (commencing with Section 114960) of Part 9 of Division 104 of the Health and Safety Code). (3) Medical waste regulated pursuant to the Medical Waste Management Act (Part 14, commencing with Section 117600, of Division 104 of the Health and Safety Code). Untreated medical waste shall not be disposed of in a Solid Waste Landfill, as defined in PRC Section 40195.1. Medical waste that has been treated and deemed to be Solid Waste shall be regulated pursuant to PRC, Division 30.
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1.126 SOURCE SEPARATED GREEN CONTAINER ORGANIC WASTE (SSGCOW) “Source Separated Green Container Organic Waste” or “SSGCOW” means Source Separated Organic Waste that can be placed in a Green Container that is specifically intended for the separate Collection of Organic Waste by the Generator, excluding carpets, Non-Compostable Paper, and textiles. The accepted types of Source Separated Green Container Organic Waste and process for modifying the accepted types of Source Separated Green Container Organic Waste are specified in Article 5. Source Separated Green Container Organic Waste is a subset of Organic Waste.
1.127 SOURCE SEPARATED RECYCLABLE MATERIALS
“Source Separated Recyclable Materials” means Source Separated Non -Organic Recyclables. The accepted types of Source Separated Recyclable Materials and process for modifying the accepted types of Source Separated Recyclable Materials are specified in Article 5.
1.128 SPECIAL EVENT COLLECTION SERVICE
“Special Event Collection Service” means the Collection of Solid Waste, Recyclable Materials and Organic Materials as appropriate at CITY-sponsored special events.
1.129 SPLIT CONTAINER
“Split Container” means a Container that is split or divided into segregated sections, instead of an entire Container, or as otherwise allowed pursuant to 14 CCR, Division 7, Chapter 12, Article 3.
1.130 STATE
“State” means the State of California.
1.131 SUBCONTRACTOR
“Subcontractor” means any Person, firm, or entity hired by CONTRACTOR to carry out CONTRACTOR’s duties of Article 5.of this Agreement. For the purposes of this Agreement, Disposal Facilities and Processing Facilities are not Subcontractors.
1.132 SUBSIDIARY
“Subsidiary” means an Affiliate with ten percent (10%) or more of its ownership controlled by CONTRACTOR.
1.133 TERM
“Term” means the period of this Agreement, including extension periods if granted, as provided for in Article 3.
1.134 TIPPING FEE
“Tipping Fee” means the cost imposed at Disposal, Processing and or/Transfer Facility for the handling, Processing or dumping of Solid Waste Collected by Contractor.
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1.135 TIER ONE COMMERCIAL EDIBLE FOOD GENERATORS
“Tier One Commercial Edible Food Generator” means a Commercial Edible Food Generator that is one of the following, each as defined in 14 CCR Section 18982:
A. Supermarket.
B. Grocery Store with a total facility size equal to or greater than 10,000 square feet.
C. Food Service Provider.
D. Food Distributor.
E. Wholesale Food Vendor.
If the definition in 14 CCR Section 18982(a)(73) of Tier One Commercial Edible Food Generator differs from this definition, the definition in 14 CCR Section 18982(a)(73) shall apply to this Agreement
1.136 TIER TWO COMMERCIAL EDIBLE FOOD GENERATORS
“Tier Two Commercial Edible Food Generator” means a Commercial Edible Food Generator that is one of the following, each as defined in 14 CCR Section 18982:
A. Restaurant with 250 or more seats, or a total facility size equal to or greater than 5,000 square feet.
B. Hotel with an on-site food facility and 200 or more rooms.
C. Health facility with an on-site food facility and 100 or more beds.
D. Large Venue.
E. Large Event.
F. A State agency with a cafeteria with 250 or more seats or total cafeteria facility size equal to or greater than 5,000 square feet.
G. A local education agency with an on-site food facility.
If the definition in 14 CCR Section 18982(a)(74) of Tier Two Commercial Edible Food Generator differs from this definition, the definition in 14 CCR Section 18982(a)(74) shall apply to this Agreement
1.137 TON
“Ton” or means a unit of weight equal to 2,000 pounds (907.18474 kg).
1.138 TRANSFER
“Transfer” means the act of transferring Discarded Materials Collected by CONTRACTOR from CONTRACTOR’s Collection vehicles into larger vehicles at a Transfer Facility for Transport to other Facilities for Processing or Disposing of such materials. Transfer allows for removal of materials excluded or prohibited from handling at the Transfer Facility (e.g., removal of Hazardous Waste).
1.139 TRANSFER STATION
“Transfer Station” means a facility, selected by the CONTRACTOR and approved by the CITY, or specifically designated by the CITY, designed, operated and legally permitted for the purpose of receiving and transferring Solid Waste, Recyclable Materials including Green Waste and Food Waste, Bulky Items, and/or C&D Debris.
1.140 TRANSPORT or TRANSPORTATION
“Transport” or “Transportation” means the act of conveying Collected materials from one location to another.
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1.141 UNIVERSAL WASTE or U-WASTE
“Universal Waste” or “U-Waste” means all wastes defined by 22 CCR Subsections 66273.1 through 66273.9. These include, but are not limited to, batteries, fluorescent light bulbs, mercury switches, and electronic waste.
1.142 WORK DAYS
“Work Days” or “Working Days” means days on which the CONTRACTOR is required to provide regularly scheduled Collection services under this Agreement.
1.143 YARD TRIMMINGS or GREEN WASTE
“Yard Trimmings” or “Green Waste” means types of SSGCOW resulting from normal yard and landscaping installation, maintenance, or removal that the Generators Source Separate and set out in Green Containers for Collection for the purpose of Processing by the CONTRACTOR. The accepted types of Yard Trimmings and process for modifying the accepted types of Yard Trimmings are specified in Article 5.
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ARTICLE 2: REPRESENTATIONS AND WARRANTIES
The Parties, by acceptance of this Agreement, represent and warrant the conditions presented in this Article.
2.1 CONTRACTOR’S CORPORATE STATUS
The CONTRACTOR is a corporation duly organized, validly existing and in good standing under the laws of California.
It is qualified to transact business in California and has the power to own its properties and to carry on its business as now owned and operated and as required by this Agreement.
2.2 CONTRACTOR’S CORPORATE AUTHORIZATION
Each signatory of this Agreement represents and warrants that he or she has the full legal authority to execute and deliver the same on behalf of the Party for which the signatory is acting.
2.3 AGREEMENT WILL NOT CAUSE BREACH
To the best of the CONTRACTOR’s and the CITY’s knowledge after reasonable investigation, the execution or delivery of this Agreement or the performance by either Party of their respective obligations hereunder does not conflict with, violate, or result in a breach: (i) of any Applicable Law; or (ii) any term or condition of any judgment, order, or decree of any court, administrative agency or other governmental authority, or any agreement or instrument to which the CONTRACTOR or any other local governmental entity is a party or by which the CONTRACTOR or any of its properties or assets are bound, or constitutes a default hereunder.
2.4 NO LITIGATION
To the best of the CONTRACTOR’s knowledge after reasonable investigation, there is no action, suit, proceeding or investigation, at law or in equity, before or by any court or governmental authority, commission, board, agency or instrumentality decided, pending or threatened against any party wherein an unfavorable decision, ruling or finding, in any single case or in the aggregate, would:
Materially adversely affect the performance by the CONTRACTOR of its obligations hereunder; Adversely affect the validity or enforceability of this Agreement; or, Have a material adverse effect on the financial condition of the CONTRACTOR, or any surety or entity guaranteeing the CONTRACTOR’s performance under this Agreement.
2.5 NO ADVERSE JUDICIAL DECISIONS
To the best of the CONTRACTOR’s and the CITY’s knowledge after reasonable investigation, there is no judicial decision that would prohibit this Agreement.
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2.6 NO LEGAL CHALLENGE
CONTRACTOR understands and acknowledges that the award of this Agreement may be subject to review and repeal by the CITY’s citizens through a referendum or similar petition, and to various types of legal and environmental challenges (such referenda, similar petition and legal and environmental challenges being referred to collectively as “Legal Challenges”). Accordingly, this Agreement shall not become effective until the Contract Administrator reasonably determines that (i) any Legal Challenges that had been initiated as of the time of such determination have been resolved in favor of the CITY’s award of this Agreement to CONTRACTOR; and (ii) the deadline to initiate any additional Legal Challenges has expired. To the fullest extent permitted by law, CONTRACTOR shall defend, indemnify and hold the CITY, its Mayor, Council, officers, representatives, agents, employees and volunteers, harmless against any and all liability, claims, losses, damages, or expenses including reasonable attorney’s fees, arising from any Legal Challenges. In the event of any election regarding a Legal Challenge, CONTRACTOR shall reimburse CITY for its reasonable costs of doing so.
2.7 N O LEGAL PROHIBITION
To the best of each Party’s knowledge, after reasonable investigation, there is no Applicable Law in effect on the date that Party signed this Agreement that would prohibit the performance of their res pective obligations under this Agreement and the contemplated transactions.
2.8 CONTRACTOR’S ABILITY TO PERFORM
The CONTRACTOR warrants and guarantees that it possesses the business, professional, and technical expertise to perform all Services, obligations, and duties as described in and required by this Agreement , including all Exhibits.
The CONTRACTOR possesses the ability to secure equipment, facility, and employee resources required to perform its obligations under this Agreement.
2.9 CONTRACTOR’S INVESTIGATION
The CONTRACTOR has made an independent investigation and analysis, the results of which are satisfactory to the CONTRACTOR, of the conditions and c ircumstances surrounding this Agreement, its content and preparation, and the work to be performed by the CONTRACTOR under this Agreement . T his Agreement accurately and fairly represents the intentions of the CONTRACTOR, and the CONTRACTOR enters into this Agreement based on the findings of that independent investigation and analysis.
ARTICLE 3: TERM OF AGREEMENT
3.1 TERM
The Term of this Agreement shall begin October 1, 2022, and terminate on March 30, 2029 [June 30, 2032] [June 30, 2037], unless sooner terminated in accordance with the terms provided herein.
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3.2 PRIOR AGREEMENT SUPERSEDED
The prior Franchise Agreement between CITY and CONTRACTOR, entered into on April 1, 2014, as amended, shall terminate upon the Effective Date of this Agreement, except as otherwise expressly provided for in the prior Agreement, and is hereby replaced by this Agreement.
ARTICLE 4: GRANT AND ACCEPTANCE OF EXCLUSIVE AGREEMENT
4.1 GRANT AND ACCEPTANCE OF EXCLUSIVE AGREEMENT
Except as otherwise provided in this Agreement, the CONTRACTOR is hereby granted, and the CONTRACTOR hereby accepts the exclusive right to provide Collection Services within the Service Area. The franchise granted to CONTRACTOR shall be for the scope of services described in this Agreement, subject to the limitations described in Article 4.2 and except where otherwise precluded by Federal, State, and local laws and regulations.
4.2 LIMITATIONS TO THE SCOPE OF EXCLUSIVE AGREEMENT
Notwithstanding any provision to the contrary contained in this Agreement, the exclusive franchise, right and privilege to provide Solid Waste Handling Services at Premises within CITY granted to CONTRACTOR by this Agreement specifically excludes the following services, which services may be provided by Persons other than CONTRACTOR and which may be subject of other permits, licenses, franchises or agreements issued or entered by CITY:
A. The sale or donation of Recyclable Materials or Organics Materials by the Generator to any person or entity other than CONTRACTOR ; provided, however, to the extent permitted by law, if the Generator is required to pay monetary or non -monetary consideration for the Collection, transport, or Transfer of Recyclable Materials or Organics Materials the fact that the Generator receives a reduction of discount in price (or in other terms of the consideration the Generator is required to pay) shall not be considered a sale or donation. This article shall not be construed to prohibit Community Composting facilities from charging a fee for processing organic waste.
B. Recyclable Materials or Organics Materials which is removed from the Generator’s Premises by the Generator, and transported b y such Generator (or by his or her full- time employees) to a processing or Disposal Facility, including a Community Compost ing site, in a manner consistent with all applicable laws and regulations.
C. Beverage containers delivered for Recycling under the California Beverage Container Recycling Litter Reduction Act (California Public Resources Code, Section 14500, et seq.).
D. SSGCOW removed from the Premises by a gardening, landscaping, or tree trimming contractor, utilizing its own equipment, as an incidental part of a total service offered by that contractor rather than as a hauling service.
E. Construction and Demolition Debris removed from the P remises by a contractor, building company, janitorial service or other entity utilizing its own equipment, as an incidental part of a total service offered by that contractor.
F. Edible Food which is collected from a Generator by other person(s), such as a person from a Food Recovery Organization or Food Recovery Service, for the purposes of Food Recovery, or which is transported by the Generator to another person(s), such as a person from a Food Recovery Organization, for the purposes of Item 3E - 106
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Food Recovery, regardless of whether the Generator donates, sells, or pays a fee to the other person(s) to collect or receive the Edible Food from the Generator.
G. Food Scraps that are separated by the Generator and used by the Generator or distributed to other person(s) for lawful use as animal feed, in accordance with 14 CCR Section 18983.1(b)(7). Food Scraps intended for animal feed may be Self-Hauled by Generator or hauled by another party.
H. The Collection, Transfer, transport, Recycling, Processing, and Disposal of animal waste (excluding horse manure which is included in the scope of this Agreement) and remains from slaughterhouse or butcher shops for use as tallow. Horse manure may be Self-Hauled.
I. The Collection, Transfer, transport, Recycling, Processing, and Disposal of by-products of sewage treatment, including sludge ash, grit and screenings.
J. The Collection, Transfer, transport, Recycling, Processing, and Disposal of Hazardous Substances, Hazardous Waste, and radioactive waste regardless of its source.
K. The Collection, Transfer, transport, Recycling, Processing, and Disposal of Solid Waste by the City through City officers or employees in the normal course of their employment.
L. Solid Waste Handling Services for governmental agencies, other than the CITY, which may have facilities in the CITY, but over which the CITY has no jurisdiction in connection with the regulation of Solid Waste.
M. Solid Waste Handling Services provided by any person having a legal right to continue doing so, pursuant to California Public Resources Code Section 49520, et seq., or otherwise, so long as and to the extent such legal right continues to exist.
N. Edible Food that is collected from a Generator by other Person(s), such as a Person from a Food Recovery Organization or Food Recovery Service, for the purposes of Food Recovery; or that is transported by the Generator to another location(s), such as the location of a Food Recovery Organization, for the purposes of Food Recovery, regardless of whether the Generator donates, sells, or pays a fee to the other Person(s) to collect or receive the Edible Food from the Generator.
O. The hauling of byproducts from the processing of food or beverages and use of such material as animal feed if the byproducts originate from agricultural or industrial sources, do not include animal (including fish) processing byproducts, are Source Separated by the Generator of the byproducts, and are not discarded; and, if the use as animal feed is in accordance with 14 CCR Section 18983.1(b)(7).
4.3 EXCLUSIVITY
This Agreement is exclusive in nature, and notwithstanding Article 4.2, neither the CITY nor its residents shall make or enter into any other agreement or arrangement for the Collection , Transport, removal, Disposal , or Processing of Recyclable Materials, Organics Materials, Gray Container Waste or Bulky Items from within said CITY boundaries during the term of this Agreement, or of any extension or renewal thereof.
4.4 ENFORCEMENT OF EXCLUSIVITY
All Residential Premises, Commercial and community activities of every kind and description that generate Solid Waste and Curbside Recyclable Materials shall be required by CITY to utilize the Collection and Container Services of the CONTRACTOR provided for herein.
In the event the CONTRACTOR can produce pictorial evidence or other documentation that other Persons are servicing Collection Containers or are Collecting Recyclable Materials, Organics Materials, Gray Container Waste or Bulky Items in a manner that is not consistent with this Agreement, the CITY may, in its sole discretion, assist CONTRACTOR in the efforts of the CONTRACTOR to enforce its rights under this Agreement.
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4.5 APPLICABLE LAW
This Agreement and scope of this Agreement shall be interpreted to be consistent with Applicable Law, now and during the Term of this Agreement. If future judicial interpretations of current law or new laws, regulations, or judicial interpretations limit the ability of the CITY to lawfully contract for the scope of services consistent with the manner and consistent with all provisions as specifically set forth herein, the CONTRACTOR agrees that the scope of this Agreement will be limited to those Services and materials which may be lawfully included herein and that the CITY shall not be responsible for any lost profits or losses claimed by the CONTRACTOR to arise out of limitations to the scope or provisions of this Agreement set forth herein. In such an event, it shall be the responsibility of the CONTRACTOR to minimize the financial impact of such future judicial interpretations or new laws and the CONTRACTOR may meet and confer with CITY and may petition for a rate adjustment pursuant to Article 10.
4.6 OBLIGATIONS OF PARTIES
In addition to the specific performance required under this Agreement, CITY and the CONTRACTOR shall:
A. Use their reasonable efforts to enforce the exclusiveness of th is Agreement by the CONTRACTOR’s identification and documentation of violations of this Agreement and the CITY’s notification of Generators and Collection companies reasonably believed to be Collecting or allowing others to Collect Discarded Materials in a manner that is inconsistent with the terms of this Agreement.
B. Provide timely notice to one another of a perceived failure to perform any obligations under this Agreement and provide access to information demonstrating the Party’s failure to perform.
C. Provide timely ac cess to the Contract Administrator and the CONTRACTOR’s designated representative and provide complete and timely responses to requests of the other Party.
D. Provide timely notice of matters which may affect either Party’s ability to perform under this Agreement.
ARTICLE 5: SCOPE OF COLLECTION SERVICES
5.1 SUMMARY SCOPE OF SERVICES
The CONTRACTOR or its Subcontractor(s) shall be responsible for the following:
A. Collecting Solid Waste, Recyclable Materials, Organic Materials, Bulky Items, and C&D Debris generated by and placed for Collection by Customers of the CONTRACTOR’s services and the CITY pursuant to the requirements of Article 5;
B. Transporting Collected materials to the appropriate Approved Facilities pursuant to the requirements of Article 6;
C. Performing all other services required by this Agreement including, but not limited to, Customer billing, Customer service, record keeping, and reporting pursuant to Article 8; D. Performing all public outreach and education requirements pursuant to Exhibit 3; E. Performing all monitoring and auditing requirements pursuant to Exhibit 3; F. Furnishing all labor, supervision, V ehicles, Containers, other equipment, materials, supplies, and all other items and services necessary to perform its obligations under this Agreement; Item 3E - 108
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G. Paying all expenses related to provision of services required by this Agreement including, but not limited to, taxes, host fees, business and any other license fees, regulatory fees (including CITY fees or similar surcharges as applicable), and utilities; paying all expenses related to the operation, permitting, licensing, regulatory fees for all Approved Facilities owned/operated by the CONTRACTOR or the CONTRACTOR’s Affiliate; paying for all expenses related to Changes in Law at Approved Facilities owned/operated by the CONTRACTOR or the CONTRACTOR’s Affiliate; and, paying all expenses related to any construction, any land or facility improvements, any repair and/or replacement of equipment and all other expected or unforeseen costs associated with all Approved Facilities owned/operated by the CONTRACTOR or the CONTRACTOR’s Affiliate; H. Performing or providing all services necessary to fulfill its obligations in full ac cordance with this Agreement at all times using best industry practice for comparable operations; and, I. Complying with all Applicable Laws.
The CONTRACTOR shall perform the work and provide the services pursuant to this Agreement in a thorough and professional manner so that the residents and businesses within the Service A rea are provided reliable, courteous, and high-quality service at all times. The enumeration and specification of particular aspects of service, labor, or equipment requirements s hall not relieve the CONTRACTOR of the duty to perform all other tasks and activities necessary to fulfill its obligations under this Agreement, regardless of whether such requirements are enumerated elsewhere in this Agreement, unless excused in accordance with Article 12.8.
The CONTRACTOR shall not knowingly deliver materials C ollected under this A greement to facilities that do not comply in all material aspects with Applicable Law. The CONTRACTOR, and not the CITY, must use reasonable efforts to assure that all Disposal, transfer, and Processing facilities to which the CONTRACTOR delivers material under this Agreement are properly permitted to receive material Collected under this Agreement, except for any other facility that the CITY directs the CONTRACTOR to use. Failure to comply with this provision may result in the CONTRACTOR being in default under this Agreement.
5.2 FACILITIES
T
he CONTRACTOR, without constraint and as a free-m
arket business decision in accepting this Agreement, agrees to use the Approved Facilities for the purposes of Processing and/or Disposing of all Source Separated Recyclable Materials, Source Separated Organics Materials, Gray Container Waste or Bulky Items, and other materials Collected in the CITY as may be designated by CITY over the Term . Such decision by the CONTRACTOR in no way constitutes a restraint of trade.
A.
Use of CONTRACTOR -Owned Approved Facilities. If the CONTRACTOR or Affiliate owns and/or operates Approved Facility, all expenses associated with permitting, licensing, regulatory compliance, closure and post -closure, etc. and all other costs associated with the operation and ownership of the Approved Facility is the sole responsibility of the CONTRACTOR. CONTRACTOR shall observe and comply with all regulations in effect at the Approved Facility(ies) and cooperate with and take direction from the operator(s) thereof with respect to delivery of Discarded Materials.
B. Annual Notice of Facilities . Through written notice to the CITY annually on or before June 1, CONTRACTOR shall identify the facilities to which CONTRACTOR will Transport Organic Waste including facilities for Source Separated Recyclable Materials, Source Separated Organic Waste, and Source Separated Food Waste . CONTRACTOR shall actively work with the Approved Facility(ies) operator(s) throughout the Term of this Agreement to ensure that Contamination remains below the limits established by Applicable Law, including, without limitation, SB 1383.
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5.3 SUBCONTRACTING
CONTRACTOR is solely responsible for management and oversight of the activities of all Subcontractors.
CONTRACTOR shall be considered to be in breach or default should the activities of any Subcontractor constitute a breach or event of default under this Agreement; CONTRACTOR shall to entitled to cure rights in the event of breach or default where the action is susceptible to cure.
CONTRACTOR shall not engage any Subcontractors for Collection, transportation, or Processing of Source Separated Recyclable Materials, Source Separated Organics Materials, Gray Container Waste or Bulky Items or any other service listed in Article 5.1, without the prior written consent of the Contract Administrator. If the CONTRACTOR plans to engage other affiliated or related party entities in the provision of services, the CONTRACTOR shall provide the Contract Administrator with thirty (30) days written notification of its plans and provide an explanation of any potential impacts related to the quality, timeliness, or cost of providing services under this Agreement.
CONTRACTOR shall require that all subcontractors file an insurance certificate with the CITY describing such Subcontractor’s insurance coverage, and name CITY as an additional insured. The Contract Administrator may waive or excuse these insurance requirements in its sole discretion. CONTRACTOR shall require that all Subcontractors that are Affiliates comply with all material terms of this Agreement.
5.4 RESPONSIBILITY FOR DISCARDED MATERIALS
Once Solid Waste, Recyclable Materials and Organic Materials are placed in the CONTRACTOR’s Containers and at the Collection location, the responsibility for their proper handling shall transfer directly from the Generator to the CONTRACTOR, with the exception of Excluded Waste if the CONTRACTOR can identify the Generator. Once Solid Waste, Recyclable Materials and Organic Materials are deposited by the CONTRACTOR at the appropriate Approved Facility, such materials shall become the responsibility of the owner or operator of the Approved Facility with the exception of Excluded Waste. Responsibility for Excluded Waste that has been inadvertently Collected by the CONTRACTOR shall remain with the CONTRACTOR if it cannot identify the Generator, and the CONTRACTOR shall assume all responsibility for its proper Disposal.
5.5 CITY-DIRECTED CHANGES TO SCOPE
Upon request of the CITY, the CITY may meet and confer with the CONTRACTOR to establish the scope of any additional services or modification to existing services (which may include use of Approved Facilities), or cessation of any service to be provided under this Agreement.
CITY shall provide CONTRACTOR a written request to provide a proposal to provide such additional, modified or eliminated services. Such written request shall include a specific description and effective dat e of the additional, modified or eliminated services.
Within thirty (30) calendar days of the CITY’s written request, CONTRACTOR shall present to CITY a written proposal to provide such additional, modified or eliminated services. The CITY shall review the CONTRACTOR’s proposal for the change in scope of services.
C
ITY shall review CONTRACTOR’s proposal for the change in scope of services in a timely manner and the CITY and the CONTRACTOR shall negotiate the changes in scope and compensation in good faith and shall amend this Agreement, as appropriate, to reflect the mutually agreed -u
pon changes in scope. If City -Directed changes cause
an increase or decrease in the cost of performing services, such adjustments shall be considered as a part of the rate adjustment process for the next Rate Year.
I
f the CITY and CONTRACTOR are unable to agree on terms and conditions, including compensation adjustments, of such services within ninety (90) calendar days from CITY receipt of CONTRACTOR’s proposal for such services, the CITY may specify the compensation for the additional services. Nothing herein shall prevent the CITY from soliciting Item 3E - 110
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cost and operating information from other Persons in order to inform the CITY’s evaluation of CONTRACTOR’s proposal.
At any time during the Term of this Agreement, the CITY may solicit proposals from other Persons for services not contemplated under this Agreement. In the event that contracting with other Persons for such services will reduce CONTRACTOR’s Compensation under this Agreement, the CONTRACTOR shall be offered the opportunity to match any other Person’s proposed pricing, and retain the added scope of services. Nothing in this Agreement shall prevent the CITY from contracting with other Persons in the event that CONTRACTOR is unable or unwilling to provide such services described in CITY’S written request for CITY-directed changes to scope.
5.6 SINGLE-FAMILY DWELLING COLLECTION SERVICES
Single Family Dwelling or SFD means each Residential property, including each unit of a condominium project, duplex, triplex, townhouse, apartment building or mobile home park in which each of the P remises receives individual Solid Waste Collection Service using Carts.
CONTRACTOR shall provide a three-Container Collection program for the separate Collection of Source Separated Recyclable Materials, SSGCOW, and Gray Container Waste as specified in this Article, using Containers that comply with the requirements of Article 7. The default Service Level will be weekly, automated Collection of three (3) 65 - gallon Carts for each curb-serviced household. Collection frequency shall be not less than once per week from Carts placed at a suitable location, which is typically on the curb, but may be in the street against the curb or in an alley.
Source Separated Recycling Carts and SSGCOW Carts shall be collected on the same day as Refuse carts. SFD Customers will be required to have SSGCOW Collection when services are made available by CONTRACTOR, but no later than October 1, 2022.
A. Weekly Gray Container Waste Collection. CONTRACTOR shall collect and remove Gray Container Wastes from all SFD Customers once per week from CONTRACTOR -provided Carts. CONTRACTOR will provide each SFD with a wheeled Cart for automated Collection of solid waste. The default Service Level will be a 65-gallon Cart Collected weekly. The CONTRACTOR shall provide a 95 - or a 35-gallon Cart as a substitute depending on the Customer’s preference and need. No discount will be given for using smaller Carts. Customers may add additional Carts as may be needed at an additional charge. Customers will be required to place the Cart(s) curbside for Collection.
B. Weekly Source Separated Recyclable Materials Collection (Blue Container) . CONTRACTOR shall provide each SFD with a wheeled Cart for automated Collection of Recyclable Materials as defined in this Agreement. The default Service Level will be a 65 -gallon Cart collected weekly. The CONTRACTOR shall provide a 95- or a 35-gallon Cart as a substitute depending on the Customer’s preference and need. No discounts will be given for using smaller Carts. Customers may request one (1) additional Recycling Cart at no additional charge, and additional Carts as may be needed at an additional charge. Customers will be required to place the Cart(s) curbside for collection.
C. Weekly Source Separated Green Container Organic Waste Collection. CONTRACTOR will provide each SFD with a wheeled Cart for automated Collection of SSGCOW. The default Service Level will be a 65 -gallon Cart collected weekly. The contractor shall provid e a 95 - or 35- gallon Cart as a substitute depending on the Customer’s preference and need. No discount will be given for using add additional Carts as may be needed at an additional charge. Customers will be required to place the Cart(s) curbside for collection. Customers shall bag Food Waste in bags allowed by the Facility and communicated by the CONTRACTOR before depositing Food Waste in Organic Recycling Carts.
Customers with individual cart service in multi- dwelling complexes with space constraints, where manual service is currently provided, or as determined by the CITY and the CONTRACTOR shall be provided with a 2.5-gallon pail to collect organic waste.
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D. SFD On-Call Bulky Item Collection. CONTRACTOR will provide on-call Collection of Bulky Items, as defined in the Agreement subject to the conditions of that program, to SFDs scheduling the service with CONTRACTOR with 48 hours’ notice , excluding weekends. Items will be collected on Customer’s regular Collection Day. CONTRACTOR will be required to separate and Recycle all commodities that can be feasibly recovered. Customers may place up to two items out for Collection per pick-up. Customers are entitled to the Collection of twelve (12) Bulky Items per SFD per year at no additional charge. Pick-up of more than two Bulky Items per Collection or Collections that exceed twelve (12) Bulky Items in a one (1) y ear period shall be subject to the charges in the approved Rate Schedule. When processing a request by a SFD Customer for an on -call Bulky Item pick-up, CONTRACTOR shall encourage the Customer to donate usable items to a community organization and shall provide Customer with contact information of potential community organization alternatives.
E. Annual Holiday Tree Recycling Collection. CONTRACTOR shall provide annual holiday tree Recycling Collection for curbside residents on their regular Collection day. Trees are to be cut into 4-foot maximum lengths with all decorations and stands removed.
5.7 MULTI-FAMILY DWELLING COLLECTION SERVICES
MFD means Residential Premises with five units or more at which Solid Waste is Collected by Bin, and not by Cart, irrespective of whether residency at that property is transient, temporary, or permanent. When discussing Solid Waste, Recycling, Green Waste, Food Waste or Organics Collection Service changes with Customers, CONTRACTOR must provide a rate schedule to Customers denoting all Service Levels and all possible frequencies of collection.
Sunday Collection will be made available as a premium service for an additional fee not to exceed the CITY-approved maximum rate in Exhibit 1 of the Agreement.
MFD Customers will be required to have Recycling and Green Waste Collection Services in addition to Solid Waste Collection Services unless they have other acceptable accommodations (e.g., landscaper removes all Green Waste, and/or customers self -haul materials). MFD Customers will be required to have Food Waste Collection or co - Collected Green Waste and Food Waste Collection when services are made available by CONTRACTOR commencing October 1, 2022 when CONTRACTOR, with CITY’S administrative assistance in enrolling customers, will begin enrolling Customers in these services.
CONTRACTOR shall allow MFD Customers to use Carts or Bins for Solid Waste Co llection that are shared by the occupants of the Premises. CONTRACTOR shall provide one (1) or more Cart(s) or Bin(s) to such Customers as requested by Customer, provided that capacity shall be sufficient to provide that no Solid Waste need be placed outside the Container(s). CITY shall make final determination as to the number and size of Containers, and frequency of Collection to be provided to Customers.
CONTRACTOR shall give special consideration when determining the Collection location for Multi-Family Residential Complexes to ensure that the flow of traffic is not impeded and that it does not result in aesthetic degradation of an area. The designated Collection location, if disputed by Customer or CONTRACTOR, shall be determined by the CITY.
Additionally, if in the CITY’s opinion the location of an existing Collection location is inappropriate, CITY may require the Customer or CONTRACTOR to relocate the Collection Containers.
A. Gray Container Waste Collection. CONTRACTOR shall collect Solid Waste from MFDs as frequently as scheduled by Customer, but not less than once per week and more frequently if required to handle the waste generated at the Premises where the Bins are located. The CONTRACTOR shall provide Gray Containers as part of the Collection Service a t rates not to exceed those set forth in Exhibit 1. The size of the Container and the frequency (above the minimum) shall be determined between the Customer and the CONTRACTOR. Size and frequency shall be sufficient to provide that Item 3E - 112
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no Solid Waste need be placed outside the Container . In special circumstances, Containers with gray l ids may be used for MFD Collection S ervice by special arrangement between the CONTRACTOR and Customer.
B. Source Separated Recyclable Materials Collection (Blue Container) . CONTRACTOR will provide Recycling Collection Service to all Customers requesting this service at rates not to exceed those set forth in Exhibit 1. Customers will have the opportunity to subscribe to the appropriate Service Level. CONTRACTOR will provide Carts with blue lids, blue Bins and roll-off boxes for Collection of Recyclable Materials. To prevent the Contamination of Recyclables, the CONTRACTOR will provide locked lids for Blue Containers, as requested by the CITY or the Customer.
C. SSGCOW Collection (Green Container). CONTRACTOR will provide wheeled Carts and Bins for the co-Collection of Green Waste and bagged Food Waste to all Customers requesting this service at rates not to exceed those set forth in Exhibit 1. Customers will have the opportunity to subscribe to the appropriate Service Level to accommodate the amount of waste material they generate.
CONTRACTOR will provide Carts with green lids, Green Carts, Green Bins, and Roll-Off boxes for co- Collection of Green Waste and Organic Materials. Collection frequency will be at least once (1) per week and up to five (5) times per week. Customers and CONTRACTOR will determine a mutually acceptable Collection location(s). Commencing October 1, 2022 CONTRACTOR, with CITY’s administrative assistance in enrolling customers, shall begin enrolling Multi- Family residential customers not currently enrolled in Green Waste Collection services, in Organic Materials Collection Services.
D. Food Waste Collection (Brown Container). CONTRACTOR will provide optional source -separated Food Waste Collection for Multi- Family complexes that do not subscribe to SSGCOW Collection.
CONTRACTOR will provide brown wheeled Carts and Bins for Collection of source -separated Food Waste Customers will subscribe to the appropriate Service Level. Should CONTRACTOR and Customer not agree on CONTRACTOR’s Container determination, the CITY shall make the determination. CONTRACTOR will provide Cart lids and Bins in a color that complies with SB 1383 requirements for Collection of Food Waste. 35- or 65-gallon Carts or 2-cubic yard bins will be made available for source -separated Food Waste. The Collection frequency for source -separated Food Waste will be at least once (1) per week and up to six (6) times per week. Customers and CONTRACTOR will determine a mutually acceptable Collection location(s).
E. On-Call Bulky Item Collection . CONTRACTOR shall provide Multi- Family Dwelling Customers with on-call Bulky Item pick -up in accordance with the approved Rate Schedule in Exhibit 1 . The limitations regarding Bulk y Item size and type of Bulky Item described for Residential Customer Bulky Item services in Article 5.6 shall apply to Multi-Family Dwelling Customers.
F. Annual Holiday Tree Recycling Collection. CONTRACTOR shall provide annual holiday tree Recycling Collection for residents from Solid Waste enclosures or location agreed to by CONTRACTOR and Customer. Trees are to be cut into 4-foot maximum lengths with all decorations and stands removed.
5.8 COMMERCIAL COLLECTION SERVICES
Commercial Customers include all retail, professional, office, wholesale and industrial facilities, other Commercial enterprises offering goods or services to the public; organizations; and agencies other than CITY agencies. CONTRACTOR will be required to service Carts, Bins and Drop Boxes stored in Customer’s Solid Waste enclosure or other locations as requested by Customer. When discussing Source Separated Recyclable Materials, Organic Materials, and Gray Container Waste Collection Service changes with Customers, CONTRACTOR must provide a rate schedule denoting all Service Levels and all possible Item 3E - 113
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frequencies of collection. Commercial Customers will be required to have Source Separated Recyclable Materials and SSGCOW Collection Services in addition to Gray Container Waste Collection Services.
A. Gray Container Waste Collection. CONTRACTOR will provide Carts with gray lids, gray Bins and/or drop boxes for Collection of solid waste. Customers will have the opportunity to subscribe to the appropriate Service Level. Bin and compactor services will be made available in sizes including; 2, 3, or 4 cubic yards. Drop Box service will be made available in Containers sizes including; 10, 20, 30 and 40 cubic yards. Roll-off boxes and compactors, as provided by contractor or by Customer, shall be serviced as needed. Customers and CONTRACTOR will determine a mutually acceptable Collection Container location. Solid Waste Collection Service is mandatory for all service locations.
B. Source Separated Recyclable Materials Collection (Blue Container). CONTRACTOR will provide Carts with blue lids, blue Carts, blue Bins and roll-off boxes for Collection of Recyclable Materials . 35-, 65-, and 95-gallon Carts with blue lids will be made available. Bin and compactor services will be made available in sizes including: 2, 3, and 4 cubic yard Bins, and 2, 3, and 4 cubic yard Customer provided compactors. Customers will be charged at rates not to exceed those set forth in Exhibit 1.
C. Organic Material Collection (Green Container). CONTRACTOR will provide wheeled Carts with green lids and green Bins for Collection of Organics at rates not to exceed those set forth in Exhibit
1. Customers will have the opportunity to subscribe to the appropriate Service Level. CONTRACTOR will provide Carts with green lids, Green Bins, Green carts or Roll- Off boxes for co -Collection of Green Waste and bagged Food Waste . 95-gallon Carts will be made available. Bins will be made available in sizes including 2, 3, and 4 cubic yards. Collection frequency will be at least once (1) per week and up to five (5) times per week. Drop Box service will also be made available in Containers sizes including: 10, 20, 30 and 40 cubic yards. Customers and CONTRACTOR will determine a mutually acceptable Collection location. Commencing October 1, 2022 CONTRACTOR, with administrative assistance in enrolling customers shall begin enrolling commercial customers not currently enrolled in Green Waste Collection services, in Organic Materials Collection Services.
D. Food Waste Collection (Brown Container). CONTRACTOR will provide source- separated Food Waste Collection for restaurants, cafeterias, assisted living facilities, hospitals, supermarkets and all other Commercial premises where food is prepared, sold and/or consumed. CONTRACTOR will provide brown wheeled Carts and Bins for Collection of source -separated Food Waste Customers will subscribe to the appropriate Service Level. Should CONTRACTOR and Customer not agree on CONTRACTOR’s Container determination, the CITY shall make the determination. CONTRACTOR will provide Cart lids and Bins in a color that complies with SB 1383 requirements for Collection of Food Waste. 35- or 65-gallon Carts or 2-cubic yard bins will be made available for Source-Separated Food Waste. The Collection frequency for Source-Separated Food Waste will be at least once (1) per week and up to six (6) times per week. Customers and CONTRACTOR will determine a mutually acceptable Collection l ocation(s). Commencing October 1, 2022 CONTRACTOR, with CITY’s administrative assistance in enrolling customers, shall begin enrolling commercial customers not currently enrolled in Food Waste Collection services, in Food Waste Collection Services.
E. On-Call Bulky Item Collection. CONTRACTOR will provide on -call Collection of Bulky Items from Commercial Customers using a method suitable for the Commercial premises and agreed upon by the Customer or property manager. CONTRACTOR will be required to separate and Recy cle all commodities that can be feasibly recovered. Commercial generators shall pay a separate fee in accordance with the maximum rate approved by the CITY.
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5.9 ROLL-OFF SERVICE
CONTRACTOR shall provide exclusive permanent and temporary Roll- Off Box collection service upon request for collection of Solid Waste. When accepting an order for Roll-Off Box service, it shall be CONTRACTOR’S duty to assist Customer with arranging service that maximizes the diversion of Solid Waste from landfill Disposal.
Roll-Off Boxes shall be industry standard 10-, 20-, 30-, and 40-cubic yard Roll-Off Boxes. The provision of Compactor Roll-off Boxes, which are enclosed Containers attached to a compaction device, is not included in this Agreement, however providing collection service to such Compactor Roll-Off Boxes is included.
Temporary Roll-Off Box service shall be prepaid or C.O.D. by credit card, check, or cash, including prepaid Tip Fees computed based upon the size of the box and the Tip Fee for the type of Solid Waste being collected: 10-cubic yard Roll-Off Box (1 0-tons), 20-cubic yard Roll- Off Box (3 -tons), 30-cubic yard box (4 -tons), and 40 -cubic yard box (5 - tons).
Actual weights for permanent and temporary Roll-Off Boxes exceeding a maximum payload of 10-tons shall be subject to additional charges for off-loading, additional trips, and additional loads as provided for in the approved Rate Schedule.
5.10 C&D DEBRIS COLLECTION SERVICES
C&D Debris Collection Serv ices include the delivery, removal and Recy cling or Disposal of used or discarded materials removed from premises during demolition, construction, repair or renovation of a structure resulting from construction, remodeling, repair or demolition operations on any Residential property, Commercial building, pavement, or other structure and such other materials as may be removed during the normal cleanup process of such construction, renovation, repair or demolition operations. C&D Debris also includes rocks, soils, tree remains and other Green Waste and Large Green Waste which results from land clearing or land development operations in preparation for construction. C&D Debris does not include Excluded Waste.
A. C&D Collection Service Requirements. CONTRACTOR shall provide C&D Debris Collection from Service Units in the Service Area and the delivery of that material to the Processing Facility, Transfer Station or Disposal Facility, as appropriate. C&D Collection Service shall be made available in Container sizes including 3, 10, 20, 30 and 40 cubic yards. Reduced pricing shall be offered for clean, source-separated /inert loads. Special pricing will be offered for tires.
B. Diversion Compliance. CITY’S Building Department shall advise applicants seeking to perform construction and demolition work requiring a CITY-issued permit of , and CONTRACTOR shall assist Customers in complying with, the requirements of the 2019 and 2022 California Building Standards Code including Part 11 the California Green Building Standards Code (“CALGreen”). CITY’S Building Department and CONTRACTOR shall communicate and coordinate with each other to comply with state and local C&D Debris diversion requirements. The CONTRACTOR shall provide the documentation to the Customer as necessary to meet the requirements of the CITY’S C&D ordinance (Chapter 6.10 of Title 6 of the CITY Code).
5.11 CITY COLLECTION SERVICES
CITY facilities will be p rovided all services listed as A-F below at “no charge” exclusive of C&D Debris generated from the removal, construction, remodeling or refurbishing of a CITY facility or public works project. Collections will be scheduled at a time mutually agreed upon by the CONTRACTOR and the CITY.
A. Weekly Gray Container Waste Collection. CONTRACTOR will provide wheeled Carts and Bins for Collection of Gray Container Waste. The CITY will have the opportunity to subscribe to the Item 3E - 115
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appropriate Service Level. Carts will be made available including 65 and 95 gallons. Bins will be made available in sizes including 2, 3, and 4 cubic yards. Collection frequency will be at least once (1) per week and up to six (6) times per week. Drop Box service will be made available in Container sizes including 10, 20, 30 and 40 cubic yards.
B. Source Separated Recyclable Materials C ollection (Blue Container) . CONTRACTOR will provide Recycling Collection Service at CITY Facilities. CONTRACTOR will provide Cart s, Bins and roll- off boxes for Collection of Recyclable materials.
C. Organic Material Collection (Green Container). CONTRACTOR will provide SSGCOW Collection Service at CITY Facilities. CONTRACTOR will provide Carts, Bins and Roll-Off boxes for Collection of Organic Materials (Food Waste in bags).
D. Food Waste Collection (Brown Container) . CONTRACTOR will provide Food Waste Collection Service at CITY Facilities as needed. CONTRACTOR will provide Carts, Bins and Roll -Off boxes for Collection of these Organic Materials.
E. Illegally Dumped Bulky Items . CONTRACTOR will provide on- call collection of illegally dumped Bulky Items as requested by the CITY. Upon notification by the City, CONTRACTOR shall Collect the item(s) before the end of the next Business Day.
F. CITY-Sponsored Events. CONTRACTOR will provide Solid Waste and Recycling Collection and Disposal/processing service for all CITY -sponsored events at no additional charge. Customers will be provided Solid Waste, Recycling, Green Waste and Food Waste capacity at the appropriate Service Levels for each venue or event, as determined by CITY. When requested by event organizers and approved by the Contract Administrator, the CONTRACTOR will provide Source Separated Recyclable Materials, SSGCOW, Food Waste , and gray Container Waste Col lection Service; and special event boxes and liners. Available Cart sizes include 35, 65 and 95 gallons, except Food Waste which is restricted to 35- or 65-gallon Carts. Available Bin sizes include 2, 3, or 4 cubic yards, except Food Waste which is restricted to 2-cubic yard Bins. Available Roll-Off Box sizes include 10, 20, 30 and 40 cubic yards. Collection frequency will be provided as needed by the Customer. The CONTRACTOR shall provide staffing, when necessary, to help educate members of the public and ensure appropriate materials management. The CITY may require a post-event report including the tons disposed and Diverted. Events for which services are anticipated to be provided include, but are not limited to the events in Exhibit 5.
The CITY reserves the right to add, eliminate or replace events.
G. On-Call Bulky Item Collection. CONTRACTOR will provide on -call Collection of Bulky Items from CITY Facilities using a method suitable for the facility and agreed upon by the CITY. CONTRACTOR will be required to separate and Recycle all commodities that can be feasibly recovered.
5.12 SERVICE EXCEPTIONS
A. Waste Not Properly Placed in Containers. CONTRACTOR shall not be required to collect any Solid Waste that is not placed inside a Residential Container with lid closed, or has been over -loaded in Residential Containers by weight or volume; or has been compacted or otherwise placed, kept, or accumulated in a manner that the Solid Waste will not, of its own weight, fall out of the Residential Container in which it is placed when such Residential Container is turned upside down. In such Item 3E - 116
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circumstances, CONTRACTOR shall complete and leave a Non -Collection Notice securely attached to any adjacent Residential Container of Customer. The use of permanent stickers to affix a Non - Collection Notice will not be allowed.
B. Unsafe Container Location. CONTRACTOR shall provide Collection Services for all properly placed Bins or Residential Containers except that CONTRACTOR shall not be required to collect any Solid Waste or Recyclable Materials from any Bin or Residential Container which is placed in a manner which would otherwise preclude the safe pickup thereof. CONTRACTOR shall complete and leave a Non-Collection Notice securely attached to such improperly placed Bin or Residential Container.
The use of permanent stickers to affix a Non- Collection Notice will not be allowed.
C. Unsafe Conditions. If CONTRACTOR determines that any condition at or near any collection location presents a health or safety threat to CONTR ACTOR’s employees, CONTRACTOR shall immediately notify the CITY Representative thereof. Upon City authorization, the CONTRACTOR may discontinue collection for any such location until the safety hazard is eliminated. Contractor shall complete and leave a Non-Collection Notice securely attached to Customers’ Bin or on the door to the Customer’s Premises. The use of permanent stickers to affix a Non- Collection Notice will not be allowed.
D. Unsafe Waste. If CONTRACTOR determines that a Bin contains Hazardous Waste or other materials that present a health or safety threat to CONTRACTOR’S employees, CONTRACTOR may refuse to collect such Bin and CONTRACTOR shall notify the City Fire Department immediately. CONTRACTOR shall further notify CITY of this fact in its monthly report prepared pursuant to Article 8.6.
E. Inadequate Subscriptions. CONTRACTOR shall collect all Solid Waste in Containers regardless of whether such waste is in excess of the volume of waste subscribed to by the Customer.
CONTRACTOR shall complete the disposal of all such Solid Waste in accordance with Article 7.5.B.7 and leave a Notice of Excess Waste and Extra Charge securely attached to Customer’s Container or on the door to Customer’s Premises and may charge the Customer an additional fee or charge for such excess as provided in Exhibit 1. The use of permanent stickers to affix a Notice of Excess Waste and Extra Charge will not be allowed.
5.13 PUBLIC EDUCATION AND OUTREACH
Public education activities will be conducted by the CONTRACTOR as described in Exhibit 3 of this Agreement.
5.14 SPECIAL SERVICES
A. Bulk Cardboard Drop-Off. CONTRACTOR shall accept bulk cardboard for drop-off by residents and businesses at its facility between the hours of 8:00 A.M. and 3:00 P.M. on non-holiday weekdays.
B. Special Wastes. CONTRACTOR shall devote a webpage on its website to the proper disposal of special wastes including Home-Generated Sharps, Prescription Medication, Electronic Waste, Household Hazardous Waste, and Non-Automotive Batteries.
C. Home-Generated Sharps Disposal
1. Home-Generated Sharps. Home-Generated Sharps means hypod ermic needles, syringes, lancets, and pen needles.
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2. Webpage. CONTRACTOR’s Special Waste webpage shall provide information on the proper disposal of Home -Generated Sharps including the name, address, and phone number of pharmacies in the City that accept properly contained sharps for disposal.
3. Sharps Containers. At its office, CONTRACTOR shall provide sharps disposal containers free-of- charge for pick -up by City Residents for delivery of filled and properly sealed containers by Customer to County’s HHW Facility in City or other proper disposal facility.
4. Reporting. CONTRACTOR shall include in its monthly report the number of sharps containers distributed.
D. Home Electronic Waste Drop- Off. Until it becomes unmanageable because of abuse or indiscriminate dumping, CONTRACTOR shall accept Electronic Waste for drop-off by Residents and businesses at no charge at its Facility between the hours of 8:00 A.M. and 3:00 P.M. on non-holiday weekdays.
1. Reporting. CONTRACTOR shall include in its monthly report the number of drop -off visits and quantity of Electronic Waste items dropped-off at CONTRACTOR’s facility.
ARTICLE 6: PROCESSING AND DISPOSAL REQUIREMENTS
6.1 TRANSPORTATION OF DISCARDED MATERIALS
The CONTRACTOR shall transport all Discarded Materials Collected to the designated Transfer Station, MRF, Organic Materials Processing Facility or Disposal Facility. The CONTRACTOR agrees to make all reasonable efforts to separate Recyclable Materials from Solid Waste for Diversion from landfill disposal. The CONTRACTOR shall maintain accurate records of the quantities of Source Separated Recyclable Materials, SSGCOW, and Gray Container Waste transported to the Transfer Station, MRF, Organic Materials Processing Facility or Disposal Facility and will cooperate with the CITY in any audits or investigations of such quantities. The CONTRACTOR shall cooperate with the operator of any Transfer Station, MRF, Organic Materials Processing Facility or Disposal Facility with regard to operations therein.
6.2 TRANSFER OF DISCARDED MATERIALS
The CONTRACTOR may deliver Solid Waste Collected to a Designated Facility or a permitted Transfer Station. All expenses related to the Solid Waste that has been transferred or delivered to a Transfer Facility or a Designated Facility after it has been delivered by the C ONTRACTOR are the sole responsibility of the facility owner. If the CONTRACTOR or Affiliate owns and/or operates the Transfer Station, all expenses associated with permitting, regulatory compliance, etc. and all other costs associated with the operation and ownership of the Transfer Station is the sole responsibility of the CONTRACTOR. Any request to adjust the CONTRACTOR’s rates shall be done in accordance with Article 10.
6.3 DISPOSAL
The CONTRACTOR shall dispose of Solid Waste Collected, but not sent to a designated Transfer Station, MRF or Organic Material Processing Facility at the designated Disposal Facility. The designated Disposal Facility is listed in Exhibit 5. All expenses related to the Disposal of Solid Waste will be the sole responsibility of the CONTRACTOR. All expenses associated with the operation and ownership of the Disposal Facility is the sole responsibility of the CONTRACTOR. Any request to adjust the CONTRACTOR’s rates shall be done in accordance with Article 10.
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6.4 SOURCE SEPARATED RECYCLABLE MATERIALS PROCESSING SERVICES The CONTRACTOR shall deliver all Collected Recyclable Materials to a fully permitted Source Separated Recyclable Material Processing Facility or a fully permitted Transfer Station. The designated Processing Facility is listed in Exhibit 5. All expenses related to Source Separated Recyclable Material Processing and marketing will be the sole responsibility of the CONTRACTOR. The CONTRACTOR shall ensure that all Recyclable Material Collected pursuant to this Agreement is diverted from the landfill. The CONTRACTOR shall ensure that the Recyclable Material s Collected pursuant to this Agreement is not disposed of in a landfill, except as a Residue resulting from Processing.
Any request to adjust the CONTRACTOR’s rates shall be done in accordance with Article 10.
6.5 ORGANIC MATERIALS PROCESSING SERVICES
The CONTRACTOR shall deliver all Collected Organic Material to a fully permitted Organic Material Processing Facility or a fully permitted Organic Material Transfer Station. The designated Processing Facility is listed in Exhibit
5. All expenses related to Organic Material Processing and marketing will be the sole responsibility of the CONTRACTOR. Any request to adjust the CONTRACTOR’s rates shall be done in accordance with Article 10.
To the extent it is within the CONTRACTOR’s control, CONTRACTOR shall ensure that all Organic Material Collected pursuant to this Agreement is diverted from and not disposed of in the landfill except as a Residue resulting from Processing or Organic Material loads rejected by the Processing Facility operator or Organic Material loads not delivered to the Processing facility by CONTRACTOR due to the presence of excessive contamination rendering the Organic Waste load unfit for processing. Organic Waste Material loads rejected by the Processing Facility operator or not delivered to the Processing facility due to excessive contamination shall be reported to CITY together with information regarding the source or route from which it originated. Failure to do so plac es the CONTRACTOR in default. The CITY has the option, but not obligation, to direct the CONTRACTOR where to deliver the material.
A. Status of Organic Material Processing Facility. The Organic Material Processing Facility in Exhibit 5 utilized by the CONTRACTOR shall be designed and constructed in accordance with Applicable Laws.
Any such Organic Material Processing Facility shall have been issued all permits from federal, State, regional, county and city agencies necessary for it to accept the CITY’s Organic Materials and be in full regulatory compliance with all such permits.
6.6 BULKY ITEM SERVICES
A. Bulky Waste Containing Freon. In the event CONTRACTOR Collects Bulky Waste that contains Freon, CONTRACTOR shall handle such Bulky Waste in a manner such that the Bulky Waste is not subject to regulation as Hazardous Waste under applicable state and federal laws or regulations.
B. Maximum Reuse and Recycling. CONTRACTOR shall make reasonable efforts to recycle appliances, unpainted/untreated wood waste, and yard waste.
CONTRACTOR shall not be required to recycle furniture or to disassemble Bulky Items for recycling.
CONTRACTOR shall record by weight (in tons) the Solid Waste Collected under this Article and shall record the weights (in tons) of Solid Waste if diverted, if any, from landfilling through Recycling, reuse, or other means of diversion.
C. CITY Direction of Bulky Waste. CITY reserves the right to direct CONTRACTOR to take Bulky Waste Collected pursuant to this Article to a designated site or sites within City for the purpose of permitting persons who will reuse or Recycle such Bulky Waste to obtain the Bulky Waste at no cost. CONTRACTOR shall have no obligation to dispose of the Bulky Waste remaining at the directed site or sites after reusers or recyclers have removed reusable or Recyclable Bulky Waste.
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ARTICLE 7: STANDARD OF PERFORMANCE
7.1 GENERAL
The CONTRACTOR shall at all times comply with Applicable Laws and provide services in a manner that is safe to the public and the CONTRACTOR’s employees. Except to the extent that a higher performance standard is specified in this Agreement, the CONTRACTOR shall perform services in accordance with Solid Waste, Recyclable Materials and Organic Materials management practices common to the Coachella Valley area in California.
7.2 CONTRACTOR’S OFFICE
CONTRACTOR shall maintain an office located within CITY Service Area publicly accessible 8:00 a.m. to 5:00 p.m., Monday through Friday, except for Holidays as defined in Article 7.11 of this Agreement. On Saturday’s when collections are performed as a result of a Holiday delay, the office shall be staffed from 8:00 a.m. until Noon.
CONTRACTOR’S office shall be staffed by trained and experienced customer service representatives (“CSRs”) and equipped with telephone system adequate for all incoming Customer Se rvice-related calls received during normal business hours can be answered in person or by a recording device.
Office hours may be adjusted by CONTRACTOR only after approval of CITY and appropriate prior notification is provided to all Customers.
7.3 SERVICE STANDARDS
The CONTRACTOR shall perform all Collection Services under this Agreement in a thorough and professional manner. Except for incidents of Excuse from Performance set forth in Article 12. 8 herein, Collection Services described in this Agreement shall be performed regardless of difficulty of Collection.
7.4 COLLECTION ROUTES, OPERATING HOURS AND SCHEDULES
A. Collection Routes . During the T erm of this Agreement, the CONTRACTOR shall prepare and maintain maps precisely defining Collection routes, together with the days and the times at which Collection shall regularly commence. Such maps shall be made available to the CITY for review upon request by the Contract Administrator. I n the event of a route change which will change the Collection day for an SFD Service Unit, the CONTRACTOR shall request approval from the Contract Administrator not less than thirty (45) days before the proposed date of implementation. The CONTRACTOR shall notify those Service Recipients in writing of the route change not less than thirty (30) days before the commencement of Collection Services.
B. Subsequent Collection Route Changes. In the event of a route change which will change the Collection day for an SFD Service Unit, the CONTRACTOR shall request approval from the Contract Administrator not less than thirty (45) days before the proposed date of implementation. The CONTRACTOR shall notify those Service Recipients in writing of an approved route change not less than thirty (30) days before the proposed date of implementation.
C. Hours of Collection. Unless otherwise authorized by the Contract Administrator, the CONTRACTOR’s days and hours for the Collection operations shall be as follows:
1. Monday-Saturday. Contractor shall provide Collection Services between 7:00 a.m. and 6:00 p.m., except as follows:
• Collection Services at all schools may begin at 6:00 a.m. • Commercial and Industrial Collection Services may begin at 6:00 a.m. in collection areas that do not border Residential areas or where there are mixed commercial and Item 3E - 120
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residential use properties. Exceptions shall be affected only upon the mutual agreement between CITY and CONTRACTOR.
• Collection Services at Commercial and Industrial Premises in the downtown corridor may begin at 6:00 a.m. on days that a street closure will be in effect before 1:00 p.m. for special events, construction activities and rights-of-way maintenance activities. • All Collection Services may begin at 6:00 a.m. during the period between the Monday following Memorial Day and the Saturday following Labor Day.
2. No Sunday Pickup. Contractor shall not perform scheduled Collection Services on Sunday, except for Special Events and emergencies as determined by the City Manager.
7.5 COLLECTION STANDARDS
A. Manner of Collection. The CONTRACTOR shall provide Collection Service with as little disturbance as possible and shall leave any Cart or Bin in an upright position at the same point it was Collected without obstructing alleys, roadways, driveways, sidewalks or mail boxes.
The CONTRACTOR, at the request of Customers, may provide special services including: (i) unlocking Containers; (ii) accessing Container enclosures with a key; or, (iii) pulling or pushing Containers to the Collection vehicle. The CONTRACTOR may charge Customers for extra services at rates not to exceed at the maximum approved rates set forth in Exhibit 1 of this Agreement.
B. Litter Abatement and Spill Prevention. The CONTRACTOR shall not litter P remises in the process of providing Collection Services or while its V ehicles are on the road. The CONTRACTOR shall transport all materials Collected under the terms of this Agreement in such a manner as to prevent the spilling or blowing of such materials from the CONTRACTOR’s vehicle. The CONTRACTOR shall exercise all reasonable care and diligence in providing Collection Services so as to prevent spilling or dropping of any material and shall immediately, at the time of occurrence, clean up such spilled or dropped materials.
1. The CONTRACTOR shall clean up any materials that are spilled or scattered by the CONTRACTOR or its employees.
2. The CONTRACTOR shall not be responsible for cleaning up unsanitary conditions caused by the carelessness of the Service Recipient; however, if an enclosure contains spilled or dropped materials and the materials impede service delivery (e.g., the CONTRACTOR’S ability to roll out the Bin for service) the CONTRACTOR shall document the incident with photographs and not ify the Customer. If, at the next service, the spilled or dropped materials are not cleaned up so as to not impede service delivery, the CONTRACTOR shall clean up the enclosure at a rate not to exceed the maximum rates approved by the CITY in Exhibit 1.
3. Equipment oil, hydraulic fluids, spilled paint, or any other liquid or debris resulting from the CONTRACTOR’s operations or equipment repair shall be covered immediately with an absorptive material and removed from the street surface. When necessary , the CONTRACTOR shall apply a suitable cleaning agent to the street surface to provide adequate cleaning. To facilitate such clean-up, the CONTRACTOR’s Vehicles shall at all times carry sufficient quantities of petroleum absorbent materials along with a broom and shovel.
4. The CONTRACTOR shall not transfer loads from one vehicle to another on any public street, unless it is necessary to do so because of mechanical failure, hot load (combustion of material in the truck), or accidental damage to a vehicle.
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5. The above paragraphs notwithstanding, the CONTRACTOR shall clean up any spillage or litter caused by the CONTRACTOR within one (1) hour upon notice from the CITY.
6. In the event where damage to the CITY Streets is the result of a hydraulic oil spill caused by the CONTRACTOR, the CONTRACTOR shall be responsible for all repairs to return the street to the same condition prior to the spill. The CONTRACTOR shall notify the CITY within one (1) hour of such damage. The CONTRACTOR shall also be responsible for all clean -up activities related to the spill including placement of absorbent, and application of cleaning agent or notification of CONTRACTOR’S cleaning company. Repairs and clean -up shall be performed in a manner satisfactory to the Contract Administrator and at no cost to the CITY.
7. Customers that regularly produce more Solid Waste than their current subscription service can accommodate may have their service level increased in accordance with the following procedure:
a. First Incident in Three-Month Period
If more Solid waste is placed for collection than can be accommodated in a Container (Cart, Bin or Roll- Off Box), filled level full, with lids closed, if so equipped, Contractor shall photograph the overflowing Container, collect the Solid waste, and send to the Customer (at both the service and billing addresses) the photograph and a letter instructing that the next instance of an overflowing Container may result in a charge, and possibly in an increase in the service subscription. Contractor may charge the Customer the Container Overage Fee included in the approved Rate Schedule. If the Container overflowed sufficiently to require the driver to leave the collection vehicle to clean around the Container, Contractor may charge the Container Overage Clean-Up Fee in the approved Rate Schedule.
b. Second Incident in a Three-Month Period
CONTRACTOR shall notify the City of any notifications to customers after the first notification. Upon the second event of an overfilled Container in a three-month period, Contractor shall photograph the overflowing Container, collect the Solid waste, and send to the Customer the photograph and a letter instructing that a third incident in that same three-month period may result in an increase in the service subscription. If the Container overflowed sufficiently to require the driver to leave the collection vehicle to clean around the Container, Contractor may charge the Container Overage Clean-Up Fee in the approved Rate Schedule. If Solid Waste was left beside a Container for collection, Contractor may charge the Container overage fee in the approved Rate Schedule.
c. Third Incident in a Three-Month Period
Upon the third event of an overfilled Container in a three -month period, Contractor shall photograph the overflowing Container, collect the Solid waste, and send to the Customer the photograph and a letter notifying Customer of an increase in the service subscription. If the Container overflowed sufficiently to require the driver to leave the collection vehicle to clean around the Container, Contractor may charge the Container Overage Clean-Up Fee in the approved Rate Schedule. If Solid Waste was left beside a Container for collection, Contractor may charge the Container overage fee in the approved Rate Schedule.
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In the event that these procedures give rise to a dispute between Contractor and a Customer, City shall settle the dispute.
7.6 OWNERSHIP OF MATERIALS
A. Title to Source Separated Recyclable Materials, Organic Material, and Gray Container Waste, Bulky Items, and Construction and Demolition Debris shall pass to the CONTRACTOR at such time as said materials are properly containerized, bagged, or bundled and placed at the curb or other point of Collection in the manner as set forth herein or as agreed to by the CONTRACTOR and the Customer.
If materials are placed out for Collection without being properly containerized, bagged, or bundled, title shall pass to the CONTRAC TOR at the time the material is placed in the CONTRACTOR’s Collection vehicle. If Collected materials are delivered to a Transfer Station, Materials Recovery Facility, or Organic Material Processing Facility other than one operated by the CONTRACTOR, then title will again transfer from the CONTRACTOR to the operator of the non -CONTRACTOR Transfer Station, Materials Recovery Facility, or Organic Material Processing Facility upon such delivery.
B. Title to material Collected as part of a CITY Clean-up Service or Special Event Collection Service shall pass to the CONTRACTOR at the time the material is placed in the Collection Container provided by the CONTRACTOR or the CONTRACTOR’s Collection vehicle if no Containers are provided by the CONTRACTOR. If Collected materials are delivered to a Transfer Station, Processing Facility, or Organic Waste Processing Facility other than one operated by the CONTRACTOR, then title will transfer from the CONTRACTOR to the operator of the non -CONTRACTOR Transfer Station, Processing Facility or Organic Material Processing Facility upon such delivery.
C. The CITY and the CONTRACTOR understand and agree that it is the CONTRACTOR the CONTRACTOR shall have the right to retain, Recycle, Process, Dispose of, and o therwise use Source Separated Recyclable Materials, SSGCOW, and Gray Container Waste Collected pursuant to the terms hereof in any lawful fashion or for any lawful purpose; and, further, shall have the right to retain any benefit resulting from its right to retain, Recycle, Process, Dispose of, or reuse the Source Separated Recyclable Materials, SSGCOW, and Gray Container Waste which it collects.
7.7 EXCLUDED WASTE
A. Inspection Program and Training. The CONTRACTOR shall develop a load inspection program that
includes the following components: (i) personnel and training; (ii) load checking activities; (iii) management of wastes; and, (iv) record keeping and emergency procedures.
The CONTRACTOR’s load checking personnel, including its Collection vehicle drivers, shall be trained in:
(i) the effects of Hazardous Substances on human health and the environment; (ii) identification of prohibited materials; and, (iii) emergency notification and response procedures. Collection vehicle drivers shall inspect Containers before Collection when practical.
B. Response to Excluded Waste Identified During Collection. If the CONTRACTOR determines that material placed in any Container for Collection is Excluded Waste or presents a hazard to the CONTRACTOR’s employees, the CONTRACTOR shall have the right to refuse to accept such material.
The Generator shall be contacted by the CONTRACTOR and requested to arrange proper Disposal.
If the Generator cannot be reached immediately, the CONTRACTOR shall, before leaving the Premises, leave a tag at least two (2) inches by six (6) inches in size, which indicates the reason for refusing to Collect the material and lists the phone number of the County of Riverside Department of Environmental Health Hazardous Materials Branch . Under n o circumstances shall CONTRACTOR’s employees knowingly Collect Excluded Waste or remove unsafe or poorly containerized Excluded Waste from a Collection Container. Prior to the Commencement Date of Item 3E - 123
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th
is Agreement, the tag that will be used to notice Customers of reason for non-C ollection shall be
reviewed and approved by the Contract Administrator. If Excluded Waste is found in a Collection Container or Collection area that could possibly result in imminent danger to people or property, the CONTRACTOR shall immediately notify the Fire Department. If Excluded Waste is found in a Collection Container that poses an imminent danger to people or property, the CONTRACTOR shall immediately notify the appropriate Fire Department and/or other emergency services departments as appropriate, as well as the CITY.
C
. Response to Excluded Waste Identified at Disposal or Processing Facility. Materials Collected by the CONTRACTOR will be delivered to the Approved Facilities for purposes of Processing or Disposal.
In the event that load checkers and/or equipment operators at such facility identify Excluded Waste and remove Excluded Waste from shipments from the CONTRACTOR, the CONTRACTOR shall arrange for removal of the Excluded Wastes at its cost by permitted haulers in accordance with Applicable Laws and regulatory requirements. The CONTRACTOR may at its sole expense attempt to identify and recover the cost of Disposal from the Generator. If the Generator can be successfully identified, the cost of this effort, as well as the cost of Disposal shall be chargeable to the Generator.
7.8 REGULATIONS AND RECORD KEEPING
The CONTRACTOR shall comply with emergency notification procedures required by Applicable Laws and regulatory requirements. All records required by laws and regulations shall be maintained at the CONTRACTOR’s facility.
7.9 VEHICLE REQUIREMENTS
A. General Provisions. The CONTRACTOR shall provide a fleet of new Collection Vehicles sufficient in number and capacity to efficiently perform the work required by this Agreement in strict accordance with its terms. All such Vehicles shall have watertight bodies designed to prevent leakage, spillage, or overflow. Hoppers shall be enclosed on top and on all sides to prevent material from leaking, blowing or falling from the Vehicles. Each Collection vehicle shall be equipped with a shovel and broom for clean-up of spillage. Collection Vehicles shall never be loaded to exceed the manufacturer’s recommended weight limit or otherwise operated unsafely or in violation of any Applicable Law.
B. Safety Markings. All Collection equipment used by the CONTRACTOR shall have appropriate safety markings including, but not limited to, highway lighting, flashing and warning lights, clearance lights, and warning flags. All such safety markings shall be in accordance with the requirements of the CITY, as may be amended from time to time.
C. Vehicle Signage and Painting. Collection Vehicles shall be painted and numbered uniquely without repetition and shall have the CONTRACTOR’s name, the CONTRACTOR’s Customer service telephone number, and the number of the vehicle painted in letters of contrasting color, at least six (6) inches high, on each side and the rear of each vehicle. No advertising shall be permitted other than the name of the CONTRACTOR except promotional advertisement o f environmental messaging, the Recyclable Materials and Organic Materials programs or such other signage as may be approved by the Contract Administrator in writing. The CONTRACTOR shall repaint all Vehicles (including vehicle striping if appropriate) during the Term of this Agreement upon request of the City and as necessary to maintain a positive public image.
D. Vehicle Maintenance. The CONTRACTOR shall maintain Collection equipment in a clean condition and in good repair at all times. All parts and systems of the Collection equipment shall operate properly and be properly maintained. The CONTRACTOR shall wash all Collection Vehicles at least once a week. The CITY reserves the right to require CONTACTOR to submit weekly washing logs.
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properly. Vehicles that are not operating properly shall be taken out of service until they are repaired and operate properly. The CONTRACTOR shall repair, or arrange for the repair of, all of its Vehicles and equipment for which repairs are needed because of accident, breakdown or any other cause so as to maintain all equipment in a safe and operable condition. The Contract Administrator may inspect Vehicles at any reasonable time, and within three (3) calendar days of such a request, to determine compliance with this Agreement and sanitation requirements.
E. Vehicle Noise Level. All Collection operations shall be conducted as quietly as possible and shall conform to applicable Federal, State, County, and the CITY noise level regulations. The CITY may request the CONTRACTOR to check any piece of equipment for conformance with the n oise limits when reasonable to do so.
F. Vehicle and Equipment Inventory. On or before the Effective Date of this Agreement, the CONTRACTOR shall provide to the Contract Administrator an inventory of Collection Vehicles and major equipment used by the CO NTRACTOR for Collection or transportation in performance of services under this Agreement. The inventory shall indicate each Collection vehicle by identification number, DMV license number, the age of the chassis and body, type of fuel used, the type and capacity of each vehicle, the date of acquisition, and the maintenance and rebuilt status. The CONTRACTOR shall submit to the Contract Administrator an updated inventory including all of the information required above in each annual report, or more often at the request of the CITY. Each vehicle inventory shall be accompanied by a certification signed by the CONTRACTOR that all Collection Vehicles meet the requirements of this Article.
G. Vehicle Registration, Licensing and Inspection. CONTRACTOR shall maintain documentation to verify that each of the CONTRACTOR’s Collection Vehicles are in compliance with all registration, licensing and inspection requirements of the California Highway Patrol, the California Department of Motor Vehicles , and any other Applicable Law s or regulations. Upon written request by the Contract Administrator, copies of such documentation shall be provided to the CITY within ten (10) Business Days of the request.
H. Reserve Equipment. The CONTRACTOR shall have available to it, at all times, a reasonable number of reserve Collection equipment which can, to the extent needed to complete the Collection route, be dispatched within one (1) hour of any breakdown. Such reserve equipment shall correspond in size and capacity to the equipment used by the CONTRACTOR to perform the contractual duties.
I. Covering of Loads. All loads not in covered body trucks shall be tarped or restrained to prevent spilling.
J. Weight Restrictions . The CONTRA CTOR shall not load Vehicles in excess of the manufacturer’s recommendations or limitations imposed by State or local weight restrictions on Vehicles. The CONTRACTOR acknowledges that the CITY may document compliance with this provision of this Agreement through review of scale tickets and records of the Transfer Station, MRF, Organic Materials Processing Facility and Disposal Facility.
K. Alternative Fuel Vehicles. All Collection Vehicles (including all side loaders, rear loaders, front loaders, Roll Off, and any other types of vehicles) shall operate in full compliance with the requirements of the California Air Resources Board and the South Coast Air Quality Manage ment District’s rules and regulations including Rule 1193. Route supervisor’s vehicles and all other ancillary vehicles that will operate on a routine basis in the CITY shall comply with all Applicable Laws, rules, and regulations, including but not limite d to the California Air Resources Board and South Coast Air Quality Management District regulations.
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7.10 CONTAINER REQUIREMENTS
A. SFD Carts. The Carts shall be of the proper color with identification of purpose and labeling complying with the requirements of SB 1383.
B. Purchase and Distribution of Carts and Bins. The CONTRACTOR shall be responsible for the purchase and distribution of fully assembled and functional Carts and Bins to Service Units in the Service Area. The CONTRACTOR shall also distribute Carts and Bins to new Service Units that are added to the CONTRACTOR’s Service Area during the T erm of this Agreement within three (3) Business Days of receipt of notification from the CITY or the Service Unit . Containers shall be designed and constructed to be watertight and prevent the leakage of liquids. All Containers shall display the CONTRACTOR’s name, local telephone number, and some identifying inventory or serial number.
C. Cart Labels. In the interest of creating effective and consistent public education and outreach, CONTRACTOR shall utilize its Containers to reinforce public education messages. All Solid Waste Container lids shall be black in color. All Recyclable Materials Container lids shall be blue in color.
All Organics Materials Container lids shall be green in color for mixed organic waste or brown in color for food waste. The body of the Carts for all materials types shall be a uniform color selected by the CONTRACTOR for CITY approval. The CITY reserves the right to reject the C ONTRACTOR’S choice of cart body color. CONTRACTOR’s Containers shall also be labeled with a list of acceptable materials and a list of prohibited materials and such labels shall be in both English and Spanish. The CITY reserves the right to review and approve materials (e.g., labels) prior to the placement of any orders.
D. SB 1383 Requirements. CITY acknowledges that existing Carts provided to Customers may not meet the requirements of SB 1383 for color and labeling, and City hereby authorizes CONTRACTOR to transition from non-compliant to compliant Carts as part of on-going replacement of aged-out Carts as provided for by CalRecycle regulations. For Carts already in service, CONTRACTOR shall affix compliant sticker labels before January 1, 2023, or as soon as practicable. Cart Customers without an Organics Waste Recycling Cart shall be provided a Cart with compliant labeling effective by January 1, 2023.
E. Replacement of Carts and Bins.
1. The CONTRACTOR’s employees shall take care to prevent damage to Carts or Bins by unnecessary rough treatment . However, any Cart or Bin damaged by the CONTRACTOR shall be replaced by the CONTRACTOR, at the CONTRACTOR’s expense, within five (5) Business Days after notificat ion by the CITY or the Service Recipient, at no cost or inconvenience to the Service Recipient or to the CITY.
2. Upon notification to the CONTRACTOR by the CITY or a Service Recipient that the Service Recipient’s Cart(s) or Bin(s) are faulty or have worn out or have been stolen or damaged beyond repair through no fault of the Service Recipient, the CONTRACTOR shall deliver a replacement Cart(s) or Bin(s) to such Service Recipient within five (5) Business Days. There shall be no charge to the Service Recipient for the delivery or replacement of the Cart(s) or Bin(s).
In those instances where the CONTRACTOR can demonstrate that a Cart(s) or Bin(s) was damaged or stolen as the result or product of negligence on the part of the Service Recipient, the CONTRACTOR shall be entitled to bill the Service Recipient the cost of the Cart(s) or Bin(s) plus the delivery charge in an amount not to exceed the applicable maximum approved rates set forth in Exhibit 1 to this Agreement.
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3. The CONTRACTOR shall maintain records documenting all Cart and Bin replacements occurring on a monthly basis . Such information shall be provided to the Contract Administrator upon written request.
F. Repair of Carts and Bins. The CONTRACTOR shall be responsible for repair of Carts and Bins in the Service Area including but not be limited to, hinged lids, wheels and axles. Within five (5) Business Days of notification by the CITY or a Service Recipient of the need for such repairs, the CONTRACTOR shall repair the Cart or Bin, or if necessary, remove the Cart or Bin for repairs and deliver a replacement Cart or Bin to the Service Recipient. CONTRACTOR shall be responsible for graffiti removal on any Cart or Bin within five (5) business day at no additional charge to the Customer or to CITY.
G. Cart or Bin Exchange. Upon notification to the CONTRACTOR by the CITY or a Service Recipient that a change in the size or number of Carts or Bins is required, or determination by CONTRACTOR that such a change is required, the CONTRACTOR shall deliver such Carts or Bins to such Service Recipient no later than the Service Recipient’s next regularly scheduled Collection Day . Each SFD Service Unit shall be entitled to receive one (1) free Solid Waste Cart exchange; one (1) free Recycling Cart exchange; and one (1) free Organic Materials Cart exchange per Rate Year during the Term of this Agreement. Each MFD, Commercial or CITY Service Unit shall be entitled to receive one (1) free Solid Waste Cart or Bin exchange, and to the extent such Carts or Bins are provided by the CONTRACTOR under the terms of this Agreement, one (1) free Recycling Cart or Bin exchange, one (1) free Organics Material Cart or Bin exchange per Rate Year during the Term of this Agreement.
Accordingly, the CONTRACTOR shall be entitled to charge for exchanges in excess of the limit set forth above per Rate Year, at a rate not exceeding the “Cart or Bin Exchange” maximum approved rate as set forth in Exhibit 1, as adjusted under the terms of this Agreement.
H. Additional Gray Container Waste Capacity. Upon notification to the CONTRACTOR by the CITY or a Service Recipient that additional Gray Container Waste capacity is requested, the CONTRACTOR shall comply by delivering a larger Cart, an additional Cart, larger Bin or an additional Bin, to such Service Recipient no later than the Service Recipient’s next regularly scheduled Collection Day. The CONTRACTOR shall be entitled to charge for the cost of the additional Solid Waste capacity in an amount not exceeding the applicable maximum approved rate for the larger capacity or Additional Cart or Bin as set forth in Exhibit 1, as adjusted under the terms of this Agreement.
I. Additional Source Separated Recyclable Materials Capacity. The CONTRACTOR shall provide one additional Blue Carts to SFD Service Units requesting an additional Cart no later than the Service Recipient’s next regularly scheduled Collection Day provided that the additional capacity is used by the SFD Service Unit for the purposes of setting out additional Recyclable Materials that are generated by and at the SFD Service Unit for regular weekly Source Separated Recyclable Material Collection Service. The CONTRACTOR shall be entitled to charge for any additional Blue Carts or a fee as set forth set forth in Exhibit 1, and as adjusted under the terms of this Agreement.
J. Additional SSGCOW Capacity. The CONTRACTOR shall provide additional Green Carts to SFD Service Units requesting an additional Cart no later than the Service Recipient’s next regularly scheduled Collection Day of the request at no additional cost provided that the additional capacity is used by the SFD Service Unit for the purposes of setting out additional SSGCOW that are generated by and at the SFD Service Unit for regular weekly SSGCOW Collection Service. The CONTRACTOR shall be entitled to charge extra for any additional Green Carts beyond the first additional Cart for a fee as set forth set forth in Exhibit 1, as adjusted under the terms of this Agreement.
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K. Ownership of Carts and Bins. Ownership of Carts and Bins shall rest with the CONTRACTOR, except that, in the case of the termination of this Agreement prior to its expiration due to the default of the CONTRACTOR as set forth in Article 12 of this Agreement, the CITY shall have the right to take possession of th e Carts and Bins and retain such possession under the terms and conditions described in Article 12. Upon the receipt of written notice from the CITY, the CONTRACTOR shall submit to the Contract Administrator an inventory of Carts and Bins, including their locations.
L. Annual Bin Cleaning: Once each Rate Year, commencing July 1, 2023, at no charge to Bin Customers, the CONTRACTOR shall provide, upon request or as deemed necessary, the cleaning of Bins. The cleaning service shall include the collection of gray water. In the event a Customer requests the CONTRACTOR to provide Bin cleaning more than one (1) time per Rate Year, the CONTRACTOR shall have the right to charge the Customer an amount not exceeding the maximum approved rate for Bin Cleaning set forth in Exhibit 1.
7.11 HOLIDAY SERVICE
The CITY observes New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day as legal holidays. CONTRACTOR shall not be required to provide Collection Services or maintain non-emergency office hours on the designated holidays. In any week in which one of these holidays falls on a Work Day, Collection Services for the holiday and each Service Work Day thereafter will be delayed one (1) Business Day for the remainder of the week , with normally scheduled Friday Residential Collection Services being performed on Saturday. Any changes to the Holiday Service Collection schedule may only be approved by the CITY.
7.12 DISPOSAL AND PROCESSING
A. Gray Container Waste. Except as set forth below, all Solid Waste Collected as a result of performing Collection Services shall be transported to the Transfer Station or the Disposal Facility and eventually disposed of at the Disposal Facility . In the event the Disposal Facility is closed on a Commercial Service Work Day, the CONTRACTOR shall transport and dispose of the Solid Waste at such other legally permitted Disposal facility as is approved by the CITY. Notwithstanding any other provision of this Agreement, if a Disposal Facility other than the designated Disposal Facility is used, and it is not owned/operated by the CONTRACTOR or its Affiliate (it being understood that such other Disposal Facility would need to be selected by the CONTRACTOR and approved by the CITY, or specifically designated by the CITY), then the CONTRACTOR’s obligations hereunder will not include the landfilling of the Solid Waste (which will be the responsibility of the Disposal Facility operator).
B. Source Separated Recyclable Materials. All Source Separated Recyclable Materials Collected as a result of performing Collection Services shall be delivered to the Materials Recovery Facility (MRF).
In the event the MRF is closed on a Commercial Service Work Day, the CONTRACTOR shall transport and deliver the Recyclable Material to such other legally permitted MRF as is approved by the CITY.
The CONTRACTOR shall ensure that all Source Separated Recycl able Materials Collected pursuant to this Agreement that are expressly listed in Exhibit 3 (including those materials added by the CONTRACTOR to such list from time to time) are diverted from the Disposal Facility in accordance with current and subsequent legislation and regulations. Notwithstanding any other provision of this Agreement, if an MRF other than the designated Transfer Station is used that is not owned/operated by the CONTRACTO R or its Affiliate (it being understood that such other MRF would need to be selected by the CONTRACTOR and approved by the CITY, or specifically designated by the CITY), then the CONTRACTOR’s obligations hereunder will not include processing and marketing of Source Separated Recyclable Materials (which will be the responsibility of the MRF operator).
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C. SSGCOW and Brown Container Materials. All SSGCOW Materials and Brown Container Collected as a result of performing Collection Services shall be delivered to the Approved Organic Materials Processing Facility. In the event the facility is closed on a Commercial Service Work Day, the CONTRACTOR shall transport and deliver the SSGCOW Materials and Brown Container to such other legally permitted Organic Materials Processing Facility as is approved by the CITY. The CONTRACTOR shall ensure that all SSGCOW Materials and Brown Container Collected pursuant to this Agreement is diverted from the Disposal Facility in accordance with current and subsequent legislation and regulations. Notwithstanding any other provision of this Agreement, if an Organic Materials Processing Facility other than the designated Organic Materials Processing Facility is used that is not owned/operated by the CONTRACTOR or its Affiliate (it being understood that such other Organic Materials Processing Facility would need to be selected by the CONTRACTOR and approved by the CITY, or specifically designated by the CITY), then the CONTRACTOR’s obligations hereunder will not include processing and marketing of SSGCOW and Brown Container Materials (which will be the responsibility of the Organic Facility operator).
D. Bulky Items. All Bulky Items Collected as a result of performing Collection Services shall be delivered to the designated Approved Facility.
Bulky Items Containing Freon. In the event the CONTRACTOR Collects Bulky Items that contain freon, the CONTRACTOR shall handle such Bulky Items in a manner such that the Bulky Items are not subject to regulation as Hazardous Waste under federal, State and/or CITY Applicable Laws or regulations.
7.13 GRAY CONTAINER WASTE - CONTAMINATION RESPONSE PROCEDURE Except as set forth below, the CONTRACTOR shall not be required to Collect Solid Waste if the Service Recipient does not segregate the Solid Waste from Excluded Waste. If Solid Waste is contaminated through commingling with Excluded Waste, the CONTRACTOR shall, if practical, separate the Solid Waste from the contaminants . The Solid Waste shall then be Collected and the contaminants shall be left in the Solid Waste Cart or Bin along with a Non - Collection Notice explaining why the contaminant(s) is not considered Solid Waste. However, in the event the Solid Waste and contaminants are commingled to the extent that they cannot easily be separated by the CONTRACTOR or the nature of the contaminants renders the entire Solid Waste Cart or Bin contaminated, the CONTRACTOR may; 1) Collect the Solid Waste and leave a Non -Collection Notice that contains instructions on the proper procedures for setting out Solid Waste or; 2) leave the Solid Waste Cart or Bin un -emptied along with a Non-Collection Notice that contains in structions on the proper procedures for setting out Solid Waste . On the third (3 rd) time that the
CONTRACTOR finds that a Service Unit has set out contaminated Solid Waste, the CONTRACTOR may leave the Solid Waste Cart or Bin un- emptied along with a Non -Collection Notice that contains instructions on the proper procedures for setting out Solid Waste and reduce the service at that Service Unit to the minimum level available by exchanging the Solid Waste Container without the authorization of the Customer. The CITY reserves the right to require further outreach and education by the CONTRACTOR or to conduct its own notification process prior to authorizing removal.
7.14 SOURCE SEPARATED MATERIALS - CONTAMINATION RESPONSE PROCEDURE Except as set forth below, the CONTRACTOR shall not be required to Collect materials if the Residential or Commercial Service Recipient does not segregate the Recyclable Materials , Solid Waste, Organic Waste, Green Waste, Excluded Waste or Construction and Demolition Debris. The first (1 st) time materials to be source separated
are contaminated through commingling, the CONTRACTOR shall contact the Customer to discuss the Contamination and shall Collect the Container and cause the material contained therein to be disposed or processed in the most appropriate manner. On the second (2nd) time that the CONTRACTOR finds that a Service Unit has set out contaminated Recyclable Materials, the CONTRACTOR shall contact the Customer to discuss the Contamination and shall Collect the C ontainer and cause the material contained therein to be disposed or processed in the most appropriate Item 3E - 129
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manner. If a third (3 rd) instance of improper procedure occurs within a rolling twelve- month period, the CONTRACTOR may present documentation of the prior two instances, and the subsequent communication with the Customer, to the CITY and request authorization to remove the Recycling Cart(s) or Bin(s) and stop Collecting Recyclable Materials from that Residential or Commercial Service Unit. The CITY reserves the right to require further outreach and education by the CONTRACTOR or to conduct its own notification process prior to authorizing removal.
7.15 COMMINGLING OF MATERIALS
A. Gray Container Waste, Source Separated Recyclable Materials, and Organic Materials . The CONTRACTOR shall not commingle Gray Container Waste Collected pursuant to this Agreement with any Source Separated Recyclable Materials , or Organic Materials separated for Collection pursuant to this Agreement prior to delivery to the Transfer Station, MRF, Organic Materials Processing Facility or Disposal Facility as appropriate, without the express prior written authorization of the Contract Administrator.
B. Gray Container Waste Material Collected in the Service Area . The CONTRACTOR shall not commingle any Gray Container Waste Collected pursuant to this Agreement with any other material Collected by the CONTRACTOR outside the CITY Service Area prior to delivery to the Transfer Station, MRF, Organic Materials Processing Facility or Disposal Facility as appropriate, unless the CONTRACTOR has provided documentation that is satisfactory to the Contract Administrator explaining how the commingled material will be allocated.
C. Source Separated Recyclable Materials Collected in the Service Area. The CONTRACTOR shall not commingle Source Separated Recyclable Materials Collected pursuant to this Agreement with any other material Collected by the CONTRACTOR outside the CITY Service Area prior to delivery to the Transfer Station, MRF, or Disposal Facility as appropriate, unless the CONTRACTOR has provided documentation that is satisfactory to the Contract Administrator explaining how the comm ingled material will be allocated.
D. Organic Materials Collected in the Service Area. The CONTRACTOR shall not commingle Organic Materials Collected pursuant to this Agreement with any other material Collected by the CONTRACTOR outside the CITY Service Area prior to delivery to the Transfer Station, Organic Material Processing Facility or Disposal Facility as appropriate, unless the CONTRACTOR has provided documentation that is satisfactory to the Contract Administrator explaining how the commingled material will be allocated.
E. Material Separation. Gray Container Waste, Source Separated Recyclable Materials, Organic Materials, Bulky Items and C&D Debris shall not be mixed together in the CONTRACTOR’s Collection equipment unless such material has been deemed contaminated in which case it shall be Collected as Solid Waste . Each category of material Collected shall be kept separated according to type or classification except for such material that has been deemed contaminated in which case it shall be classified as Solid Waste.
7.16 PERSONNEL
A. General Personnel Requirements. The CONTRACTOR shall employ and assign qualified personnel to perform all services set forth herein. The CONTRACTOR shall be responsible for ensuring that its employees comply with all A pplicable Laws and regulations and meet all federal, state and local requirements related to their employment and position.
The CONTRACTOR shall furnish such qualified drivers, mechanical, supervisory, Customer service, clerical, and other personnel as may be necessary to provide the services required by this Agreement in a safe and efficient manner.
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The CONTRACTOR shall use its best efforts to assure that all employees who interact with Customers present a neat appearance and conduct themselves in a courteous manner . The CONTRACTOR shall not permit its employees to accept, demand, or solicit, directly or indirectly, any additional compensation, or gratuity from members of the public.
B. Liaison and Points of Contact. The CONTRACTOR shall designate at least one (1) qualified employee as the CITY’s primary liaison who is principally responsible for Collection operations and resolution of service requests and complaints . CONTRACTOR shall also provide contact information for a minimum of one (1) point of contact with each CONTRACTOR department, including operations, Customer service, Customer billing and Customer communications. CONTRACTOR shall immediately inform CITY of any changes in the designated liaison and any departmental point of contact. The CITY may also communicate directly with Route Manager or other CONTRACTOR personnel.
• CONTRACTOR hereby designates the following individuals:
o Chris Cunningham as its Contract Liaison.
o Liz Hernandez as its Environment Coordinator.
o Blake Wade as its Route Manager.
• Not later than October 1, 2022, CITY shall notify CONTRACTOR in writing of the name of its Contract Administrator.
C
. Environmental Coordinator. To achieve a high level of recycling public education and awareness, the CONTRACTOR shall dedicate an Environmental Coordinator (equal to 70% time, on a full-time basis) to Palm Springs to complete outreach to SFD, MFD and Commercial customers, and develop and implement all public education and outreach activities required under the Agreement. The Environmental Coordinator shall conduct outreach, promote waste reduction, recycling, diversion programs, and provide technical assistance to Multi
-F
amily and Commercial Customers. The
diversion outreach and education program requirements are detailed in Exhibit 3 . The diversion program monitoring and reporting requirements are detailed in Exhibit 3. • Th
e Environmental Coordinator shall work exclusively on the CITY programs and services and shall not have other, non-City responsibilities or other CITY responsibilities not related to Environmental Coordinator responsibilities in the CITY. The Environmental Coordinator shall not be the primary CONTRACTOR liaison described in Article 7.16.B, above. • Upon City request, CONTRACTOR shall designate a different Coordinator if the CITY is dissatisfied with the performance of the designated Coordinator. • The Environmental Coordinator will shall cooperate and coordinate with the Contract Administrator to minimize duplicative, inconsiste nt, or inappropriately timed education campaigns. The CONTRACTOR shall allow the Contract Administrator a reasonable opportunity to review, request modifications to, and approve all materials including, but not limited to: print, radio, television, or internet media before publication, distribution, and/or release.
D. Driver Qualifications. All drivers must have in effect a valid license, of the appropriate class, issued by the California Department of Motor Vehicles. CONTRACTOR shall use the Class II California Department of Motor Vehicles employer “Pull Notice Program” to monitor its drivers for safety.
E. Safety Training. The CONTRACTOR shall provide suitable operational and safety training for all of its employees who operate Collection Vehicles or equipment . The CONTRACTOR shall train its Item 3E - 131
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employees involved in Collection to identify, and not to collect, Excluded Waste. Upon the Contract Administrator’s request, the CONTRACTOR shall provide a copy of its safety policy and safety training program, the name of its safety officer, and the frequency of its trainings.
ARTICLE 8: BILLING, CUSTOMER SERVICE, RECORD KEEPING, AND REPORTING
8.1 BILLING AND COLLECTION
The CONTRACTOR shall be solely responsible for the billing and collection of payments for all Collection Services.
The CONTRACTOR shall charge Service Recipients an amount which shall not exceed the maximum approved rates attached in Exhibit 1 to this Agreement as adjusted under the terms of this Agreement. The CITY or Contract Administrator shall have the right to review and approve the format of all Customer bills . The CONTRACTOR shall be entitled to set rates for all services provided pursuant to this Agreement, provided that such rates do not exceed the maximum approved rates set forth in Exhibit 1, as adjusted under the terms of this Agreement.
A. Partial Month Service. If, during a month, a Service Unit is added to or deleted from the CONTRACTOR’s Service Area, the CONTRACTOR’s billing shall be pro-rated by dividing the monthly rate for the service provided to the Service Unit by thirty (30) and multiplying the result by the number of actual days in the month that service was provided to the Service Unit.
B. Billing Inserts. The CITY may provide non-Solid Waste related educational and other material to the CONTRACTOR for inclusion in the invoices provided by the CONTRACTOR to SFD, MFD and Commercial Customers for Collection Services. CITY’S insert shall be limited to one (1) 8.5 -inch by 11-inch double-sided page.
C. Residential Exemption. Owners of Premises which have been unoccupied by any human habitation and upon which no waste has been produced or accumulated (other than Green Waste such as clippings, branches, leaves and the like, which has been promptly removed by personnel doing gardening work on the premises), for 6 consecutive months or more may request an exemption from Solid Waste Collection fees for a period of up to 12 months or until the Premises becomes occupied or produces or accumulates Solid Waste, if the exemption request is approved by the CITY. Approved exemptions shall automatically expire December 31 of each year.
D. Delinquent Service Accounts. The CONTRACTOR may take such action as is legally available to Collect or cause collection of such past due amounts. CONTRACTOR may not discontinue providing Recycling, Green Waste/Organic Materials, or Solid Waste Collection Services to a SFD Service Unit, MFD Service Unit, or Commercial property but instead must use the lien process to Collect delinquent accounts unless the CITY has approved a collection service exemption for the subject residential property in accordance with the provisions set forth in the CITY Code. For Commercial properties, CONTRACTOR may also reduce service levels.
8.2 NON-DISCLOSURE
The CONTRACTOR will not disclose to any Person other than the CITY or official investigations by members of a law enforcement agency any information identifying an individual Customer, the composition or contents of a Customer's Discarded Materials, or a Customer's trade secrets unless upon the authority of a law, or pursuant to written authorization of the Customer.
8.3 NO MARKETING
The CONTRACTOR will not market or distribute mailing lists with the name or address of Customers . The CONTRACTOR’s obligations under this subsection are in addition to any other privacy rights accorded Customers under Applicable Law.
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8.4 CONTRACTOR’S CUSTOMER SERVICE
All service inquiries and complaints shall be directed to the CONTRACTOR. A representative of the CONTRACTOR shall be available to receive the complaints during normal business hours. All service complaints will be handled by the CONTRACTOR in a prompt, courteous, and efficient manner.
A. Emergency Contacts. CONTRACTOR shall also maintain a list with contact telephone numbers for at least three responsible company representatives capable of immediately addressing and responding to emergency situations outside of Phone Hours. This list shall be provided to the CITY’s emergency dispatch, Police, fire and Public Works Departments, and the City Manager’s Office.
B. Multi-lingual, TDD Services. Contractor shall at all times maintain the capability of responding to telephone calls in English, Spanish, and such other languages as CITY may direct. CONTRACTOR shall at all times maintain the capability of responding to telephone calls through Teleco mmunications Device for the Deaf (TDD) Services. These capabilities shall be maintained for both the local telephone number and the emergency telephone number.
C. Customer Complaints and Inquiries. Contractor shall record in a computerized daily log all complaints, including date, time, complainant’s name and address if the complainant is willing to give this information, and nature date and manner of resolution of complaint. Any such calls received via CONTRACTOR’s answering service shall be recorded in the log and responded to no later than the following work day. This log shall be available for inspection by CITY during Office Hours. CITY requires CONTRACTOR to have an employee available to answer incoming calls during Office Hours. When incoming phone ca ll volumes exceed that employee’s ability to answer such calls, the call shall be switched to a message center.
D. Response Requirements. All incoming calls shall be answered within a maximum of four rings. Any call “on-hold” in excess of 3 minutes shall b e switched to a message center where CONTRACTOR shall maintain information in a daily log to enable a customer service representative to return customer calls. All “call backs” shall be attempted a minimum of one time prior to 6:00 p.m. on the day of the c all. If the caller is not contacted on the first attempt, CONTRACTOR shall make subsequent attempts on the next working day after the original call. CONTRACTOR shall make a minimum of three attempts within twenty-four hours of the receipt of the call. If CONTRACTOR is unable to reach the caller on the phone, CONTRACTOR shall send a postcard to the caller. All attempts to contact the caller shall be recorded on the log kept by CONTRACTOR . In addition, CONTRACTOR shall provide a customer service email address to be included on all bills and newsletters. CONTRACTOR shall respond by email or telephone within 24 hours. CONTRACTOR shall designate a Customer Satisfaction Office (CSO) to CITY. CSO shall monitor the customer experience by random selecting daily at least 10% of customers who contacted CONTRACTOR’s office daily to solicit opinions about their experience. Opinion solicitation shall be by email or regular mail. A summary of Results of the random CSO survey shall be submitted to CITY monthly.
E. Emergency Services. In the event of a tornado, major storm, earthquake, landslide, flood , fire, natural disaster, act of terrorism, or other such event, the Contract Administrator may, in his or her discretion, grant the CONTRACTOR a variance from regular routes and schedules but no breach, default or other claim of nonperformance by CITY shall accrue if a variance is not issued. As soon as practicable after such event, the CONTRACTOR shall advise the Contract Administrator when it is anticipated that normal routes and schedules can be resumed. The Contract Administrator shall make an effort through the local news media to inform the public when regular services may be resumed.
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from the event. The CONTRACTOR shall receive additional compensatio n, above the normal compensation contained in this Agreement, to cover the costs of collections of disaster debris including for owned and rented equipment, additional personnel, overtime hours , and other documented expenses for Emergency Collection Servic es, provided the CONTRACTOR has first secured written authorization and approval from the CITY through the Contract Administrator to perform the work.
CONTRACTOR shall invoice CITY monthly for Emergency Collection Service performed at the rates established in Exhibit 1. CITY’S payment to CONTRACTOR shall be due within thirty (30) days of receipt of CONTRACTOR’S invoice.
F. Service Recipient Calls. During office hours , the CONTRACTOR shall maintain a telephone answering system capable of accepting at least seven (7) incoming calls at one (1) time . The CONTRACTOR shall document calls regarding inquiries, service requests and complaints through the use of the CONTRACTOR’s ticket report system.
G. Website. The CONTRACTOR shall develop and maintain a website dedicated to services provided in the CITY that is accessible by the public. The web site shall include answers to frequently asked questions; rates for Collection Services; Recyclable Materials and Organic Materials specifications; proper Household Hazardous Waste Disposal procedures; and other related topics . CITY shall arrange for the CITY’s website to include an e -mail link to the CONTRACTOR and a link to the CONTRACTOR’s website. The CONTRACTOR’s website shall provide the public the ability to e -mail complaints to the CONTRACTOR and request services or service changes.
H. Hazardous Waste Referrals. The CONTRACTOR shall provide information regarding the Collection of Hazardous Waste to those Service Recipients requesting such information. The information shall at a minimum include information regarding the CONTRACTOR’S program in the CITY as well as information regarding the services available through the County of Riverside.
I. Automated Billing Payment. In an effort to reduce paper waste, the CONTRACTOR shall make available to all Customers an automated billing and payment system at no additional charge. This system should be website based and allow Customers to view and pay bills through CONTRACTOR’s website. Through the CONTRACTOR’s website, Customers may request to cease paper billing and receive all bills through e-mail and/or CONTRACTOR’s website. The CONTRACTOR will ensure that the electronic billing and payment website conforms to industry -standard practices for electronic commerce security. The CONTRACTOR must ensure that these Customers are compiled in a list to ensure that billing inserts are mailed directly . The CONTRACTOR shall promote the website- based billing and payment system on all paper bills sent to Customers.
J. Bill Payment by Phone. The CONTRACTOR shall make available to all Customers the ability to make bill payment by phone at no additional charge. Customers shall not be charged a surcharge or fee.
8.5 RECORD KEEPING
A. Accounting Records . The CONTRACTOR shall maintain full, complete and separate financial, statistical and accounting records, pertaining to cash, billing, and provisions of all Collection Services provided under this Agreement, prepared on an accrual basis in accordance with generally accepted accounting principles. Such records shall be subject to audit, copy, and inspection. Gross Billings derived from provision of the Collection Services, whether such services are performed by the CONTRACTOR or by an approved Subcontractor(s) as set forth in Exhibit 4, shall be recorded as revenues in the accounts of the CONTRACTOR. These records shall be maintained separate from the CONTRACTOR’s records for services provided outside the Service Area. The CONTRACTOR shall Item 3E - 134
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maintain and preserve all cash, billing and Disposal records for a period of not less than eight (8) years following the close of each of the CONTRACTOR’s fiscal years.
B. Agreement Materials Records. The CONTRACTOR shall maintain records of the quantities of (i) SFD, MFD, Commercial and the CITY Solid Waste and Construction and Demolition Debris Collected and Disposed under the terms of this Agreement; (ii) Recyclable Materials Collected, purchased, Processed, sold, donated or given for no compensation; (iii Organic Materials Collected, Processed, sold, donated or given for no compensation; and, ( iv) C&D Debris Collected, Processed, sold, donated or given for no compensation. CONTRACTOR shall maintain these records for a minimum of ten (10) years beyond expiration or earlier termination of the Agreement. CONTRACTOR shall provide these records to CITY (upon request or at the end of the record retention period) in an organized and indexed manner rather than destroying or disposing of them.
C. CONTRACTOR shall maintain Customer contact data, Customer service, accounting, statistical, operational, and other records related to its performance as shall be necessary to provide reporting under this Agreement, Applicable Law, and to demonstrate compliance with this Agreement. Unless otherwise required in this Article, CONTRACTOR shall retain all records and data required to be maintained by this Agreement in an accessible location and condition (which may include the cloud) for the Term of this Agreement plus th ree (3) years after its expiration or earlier termination.
Records and data shall be in chronological and organized form and readily and easily interpreted.
Upon request, any such records shall be retrieved within ten (10) Working Days of a request by the Contract Administrator and made available to the Contract Administrator. CONTRACTOR shall maintain adequate record security to preserve records from events that can be reasonably anticipated such as a fire, theft, and an earthquake. Electronically -maintained data and records shall be protected and backed -up. To the extent that CONTRACTOR utilizes its computer systems to comply with record keeping and reporting requirements under this Agreement, CONTRACTOR shall, on a monthly basis, save all system -generated reports supporting those record keeping and reporting requirements in a static format in order to provide an audit trail for all data required.
8.6 REPORTING REQUIREMENTS
Monthly reports shall be submitted to the Contract Administrator no later than thirty (30) calendar days after the end of the reporting month. Quarterly reports shall be submitted to the Contract Administrator no later than forty- five (45) calendar days after the end of the reporting quarter. Annual reports shall be submitted to the Contract Administrator no later than March 15 after the end of each preceding Rate Year. Monthly, quarterly and annual reports shall be submitted in hard copy or provided electronically via e -mail if acceptable to the Contract Administrator. Reporting requirements for monthly, quarterly and annual reports are detailed in Article 8 of the Agreement.
A. State Reporting Assistance. The CONTRACTOR shall, upon request from the CITY, pro vide assistance in completing State reports, including but not limited to the CalRecycle Electronic Annual Report (EAR). This shall include providing the CITY with data on a calendar year basis as needed to complete the report.
B. Additional Reporting. The CONTRACTOR shall furnish the CITY with any additional reports as may reasonably be requested by CITY regarding CONTRACTOR’s operations hereunder, such reports to be prepared within a reasonable time following the reporting period. CONTRACTOR shall coordinate with the CITY to ensure that any materials scheduled to be included in the annual report due in 2022 be provided earlier if necessary for the CITY to comply with the reporting requirements of SB 1383 Regulations
.
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ARTICLE 9: COLLECTOR FEES AND OTHER FEES
9.1 FRANCHISE FEE
The Franchise Fee percentage shall be Eleven percent (11%) of Gross Billings during the term of this Contract unless adjusted by the CITY, except for Gross Billings for Material Handling Fees for Roll-Off Box service. CONTRACTOR and CITY agree the Franchise Fee is a negotiated amount that is reasonably related to the value of the rights granted to Contractor under this Agreement. CITY may use the Franchise Fee for any lawful purpose. T he Franchise Fee is a cost paid solely by CONTRACTOR.
9.2 CONTRACTOR’S PAYMENTS TO CITY
The CONTRACTOR shall make payment to the CITY of the fees set forth in Article 9. Payment to the CITY shall be due quarterly on the thirtieth (30
th) day of the month following each calendar quarter during which revenues are billed. Each such payment shall be accompanied by an accounting that sets forth CONTRACTOR’s Gros s Billings during the preceding quarter. Each payment shall be accompanied by the following certification which shall be executed by an officer of the Contractor: “I hereby certify that the foregoing statement of the payment to the CITY is made by me, that I am authorized to make such payment of the amount of the payment due, and that to the best of my knowledge and belief, the amount of the payment is true, correct a nd complete.” The CITY maintains the right to audit payments.
No acceptance by CITY of any payment shall be construed as an accord that the amount is in face the correct amount, nor shall such acceptance of payment be construed as a release of any claim CI TY may have against CONTRACTOR for any additional sums payable under the provisions of this Agreement. All amounts paid shall be subject to independent audit and recomputation by CITY . If, after audit, such recomputation indicates an underpayment of less t han three percent (3%), CONTRACTOR shall pay to CITY the amount of the underpayment within ten (10) days of receipt of written notice from CITY that such is the case. If, after audit, such recomputation indicates an underpayment of equal to or more than th ree percent (3%), CONTRACTOR shall reimburse CITY the amount of the underpayment and for all reasonable costs and expenses incurred in connection with the audit and recomputation within thirty (30) days of receipt of written notice from City that such is the case. If, after audit, such recomputation indic ates an overpayment, CITY shall notify the CONTRACTOR in writing of the amount of overpayment, less costs and expenses incurred in connection with the audit and recomputation. Should an overpayment be found, CONTRACTOR shall offset the payment of payments (as appropriate) next due following receipt of notice of overpayment by the amount specified in such notice.
9.3 ADDITIONAL FEES
A. Contracting Fee Reimbursement. The CONTRACTOR shall make a one-time, lump sum payment of Two Hundred Thousand Dollars ($200 ,000) within seven (7) Business Days of execution of this Contract to reimburse the CITY for costs it incurred in connection with entering this Agreement.
B. Fees associated with rate adjustments. CONTRACTOR shall pay for the printing and mailing of Proposition 218 Public Hearing Notices and notices of annual rate adjustments in accordance with Government Code Section 53756. CONTRACTOR shall also pay for the cost of contractor review of any proposed extraordinary rate adjustments.
C. Other Fees. The CITY reserves the right to establish other fees, as it deems reasonably necessary.
The amount, time, and method of payment of the fee and the applicable adjustment process, will be established similar to those described in Article 9.
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ARTICLE 10: CONTRACTOR COMPENSATION AND MAXIMUM SERVICE RATES
10.1 CONTRACTOR COMPENSATION
The maximum approved rates set forth in Exhibit 1, as more fully defined as CONTRACTOR Compensation in this Article, shall be the maximum amount that the CONTRACTOR may charge Customers, as full, entire and complete compensation due pursuant to this Agreement for all labor, equipment, materials and supplies, fees or surcharges due to the CITY as applicable, taxes, insurance, bonds, letters of credit, overhead, disposal, transfer, processing, profit and all other things necessary to perform all the services required by this Agreement in the manner and at the times prescribed . From time to ti me, Customers may request services for which a rate is not provided in Exhibit 1. In such cases, CONTRACTOR shall so advise the Contract Administrator and the Customer and CONTRACTOR shall negotiate a rate for the requested services. If agreement cannot be reached, the matter shall be referred to the Contract Administrator for establishment of the rate. Approved rates for requested services shall be included in Exhibit 1 in the next Rate Year. The CONTRACTOR shall impose no other charges for services provided under this Agreement to Customers unless approved in advance in writing by CITY.
10.2 PUBLIC NOTICE/PUBLIC HEARING PROCESS
The CITY may subject any new or increased rates to a majority protest proceeding under Proposition 218 as it deems necessary or advisable. If, at any time, a Rate adjustment determined to be appropriate by both CITY (which determination will not be unreasonably withheld) and CONTRACTOR to compensate CONTRACTOR for increases in costs as described in this Agreement cannot be implemented for any reason, CONTRACTOR and CITY shall negotiate in good faith, a reduction of services equal to the value of the Rate adjustment that cannot be implemented.
If CITY and CONTRACTOR are unable to reach agreement about such a reduction in services, then CONTRACTOR may terminate this Agreement upon one hundred eighty (180) days’ prior written notice to CITY, in which case the CONTRACTOR and CITY shall each be entitled to payment of amounts due for contract performance through the date of termination but otherwise will have no further obligation to one another pursuant to this Agreement after the date of such termination.
Should a court of competent jurisdiction determine that the CONTRACTOR cannot charge and/or increase its Rates for charges related to Franchise Fees and/or other governmental fees and charges, CONTRACTOR shall reduce the Rates it charges Customers by a corresponding amount, provided said Franchise Fees, other governmental fees, Rates and/or charges disallowed by the court were determined not to be related to the cost of providing service hereunder and had been incorporated in the Rates charged by CONTRACTOR to its Customers.
This provision will survive the expiration or earlier termination of this Agreement.
10.3 SCHEDULE OF FUTURE ANNUAL RATE ADJUSTMENTS
A. Rate Adjustment Application. Beginning with the Rate Year starting July 1, 2023, and for all subsequent Rate Years, the m aximum approved r ates shown in Exhibit 1 shall be adjusted as described in this Article. The CONTRACTOR shall submit a written Rate Adjustment Application directly to the Contract Administrator or via certified mail, on or before March 1, 2023, and on or before March 1 of each succeeding Rate Year. CONTRACTOR’S Rate Adjustment Application shall be based on the method of adjustment described in Section 10.4.
B. City Review. The CITY will confirm the calculations of CONTRACTOR’S Rate Adjustment Application in writing within sixty (60 ) days of receipt of CONTRACTOR’S application. If CITY’S written Item 3E - 137
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confirmation is not received by CONTRACTOR within thirty (30) days, CONTRACTOR shall be authorized to proceed with the new rates as submitted.
10.4 METHOD OF FUTURE FORMULA RATE ADJUSTMENTS
Pursuant to Article 10.3, the annual percentage adjustment to the maximum approved rates of Exhibit 1 shall be calculated using the Excel worksheet entitled Rate Adjustment Procedure PSDS FA. Exhibits 2A through 2C provide examples of the use of the Excel worksheet. Exhibit 2D provides initial Material Handling Indices.
A. Step One: Calculate the Percentage Change in CPI. Using the Consumer Price Index for All Urban Consumers for the Riverside-San Bernardino-Ontario Area, calculate the percentage change in the index re ported by the US Department of Labor Bureau of Labor Statistics for the most recent January from that reported for January of the prior year.
For the rate adjustment effective July 1, 2023, the change in CPI shall be the percentage change in the CPI for January 2022 to January 2023.
As an example, Exhibits 2A, 2B & 2C calculate the Percent Change in Index as 5.0747%, each displayed in column C, row 1.
For Exhibit 2A, Cart service, the Percent Change in Index carries forward to column M, row 9.
For Exhibit 2B, Bin service, the Percent Change in Index carries forward to column M, row 9.
For Exhibit 2C, Drop Boxes and Other Services, the Permitted Percentage Change shown in column C, row 1 is to be applied without further adjustment or weighting.
B. Step Two: Calculate New Material Handling Component Index. Using the current tipping fee per ton for each material facility, and the actual total tonnage for each material type for the most recent twelve (12) month period ending September 30, calculate the Weighted Average Cost Per Ton.
Examples:
For Cart service, Exhibit 2A first calculates the Estimated Material Cost for each material type (column H) by multiplying the New Rate (column F) by the tonnage for the 12-month period ending September 30 (column G); next, Exhibit 2A calculates the Weighted Average Cost Per Ton by dividing the sum of Estimated Material Handling Cost, $1,173,293 (column H, row 6), by the sum of Tonnage, 18,364 (column G, row 6), yielding a Weighted Average Cost Per Ton of $63.8909 (column H, row 7).
For Bin service, Exhibit 2B first calculates the Estimated Material Cost for each material type (column H) by multiplying the New Rate (column F) by the tonnage for the 12 -month period ending September 30 (column G); next, Exhibit 2A calculates the Weighted Average Cost Per Ton by dividing the sum of Estimated Material Handling Cost, $1,574,438 (column H, row 6), by the sum of Tonnage, 28,828 (column G, row 6), yielding a Weighted Average Cost Per Ton of $54.61 (column H, row 7).
C. Step Three: Calculate the Permitted Percentage in Material Handling Component Index. The increase or decrease in the new Material Handling component index and the previous year’s material handling component index will be used to adjust the material handling component of the Item 3E - 138
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rates. The initial Material Handling Component Index for Cart service will be $61.5540 as provided in Exhibit 2D, column C, row 6 and $52.4220 for Bin service as provided in Exhibit 2D, column F, row
12. Examples:
For Cart service, Exhibit 2A calculates the Percent Change in Index for the Material Handling Component as the New Index Value 63.8909 (column J, row 8), divided by the Previous Index Value, 61.5540 (column I, row 8) minus 1, yielding a Percent Change in Index of 3.7965% (column K, row 8).
For Bin service, Exhibit 2B calculates the Percent Change in Index for the Material Handling Component as the New Index Value 54.6149 (column J, row 8), divided by the Previous Index Value, 52.4220 (column I, row 8) minus 1, yielding a Percent Change in Index of 4.1832% (column K, row 8).
D. Step Four: Calculate the Permitted Percentage Rate Change. Multiply the percentage changes for the collection service component and the material handling component by each component’s assigned percentage weighting. The initial percentage weightings for the material handling component are provided in Exhibit 2D, (Note: 6% is the maximum allowed adjustment to the collection service component for Cart or Bin service in any Rate Year.) Examples:
For Cart service, Exhibit 2A:
• The Permitted Percentage Change for the collection service component is calculated by multiplying the Component Weighting of 76.90% (column L, row 9) by the Percent Change in Index of 5.0747% (column M, row 9) yielding 3.9026%. 3.9026% is less than the 6% cap, therefore the Permitted Percentage Change is 3.9026%.
• The Permitted Percentage Change for the material handling component is calculated by multiplying the Component Weighting of 23. 0974% (column L. row 11) by the Percent Change in Index of 3.7964 % (c olumn M, row 11) yielding 0.8769% as the Permitted Percentage Change (column N, row 11).
• The Total Percentage Rate Adjustment is calculated by adding the Maximum Allowed Collection Service Component Adjustment of 3.9026% (column N, row 10) to the material handling component percentage of 0.8769% (column N, row 11) yielding the Total Percentage Rate Adjustment of 4.78% (column N, row 12).
For Bin service, Exhibit 2B:
• The Permitted Percentage Change for the collection service component is calculated by multiplying the Component Weighting of 77.4 888% (column L, row 9) by the Percent Change in Index of 5.0747% (column M, row 9) yielding 3.9324%. 3.9324% is less than the 6% cap, therefore the Permitted Percentage Change is 3.9324%.
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• The Permitted Percentage Change for the material handling component is calculated by multiplying the Component Weighting of 22.51 12% (column L. row 11) by the Percent Change in Index of 4.1832% (column M, row 9) yielding 0.9417% as the Permitted Percentage Change.
• The Total Percentage Rate Adjustment is calculated by adding the Maximum Allowed Collection Service Component Adjustment of 3.9324% (column N, row 10) to the Material Handling Component percentage of 0.9417% (column N, row 11 yielding the Total Percentage Rate Adjustment of 4.87% (column N, row 12).
E. Step Five: Calculate the Cost Component Weights for Future Rate Adjustment Calculation. Use the procedure set forth in Exhibit 2A (for Cart service) and Exhibit 2B (for Bin service) to recalculate the percentage weightings for the collection service component and the material handling component for the next rate year adjustment (column R, rows 13 and 14).
Examples:
For Cart service, Exhibit 2A:
• Column O, rows 13 and 14 entries are from column L, rows 9 and 11, 76.9026% and
23.0974%, respectively.
• Column P, rows 13 and 14 entries are from column M, rows 9 and 11, 5.0747% and
3.7965% respectively.
• Column Q entries are the result of column O entries multiplied by column P entries,
3.9026% and 0.8769%, respectively.
• Column R entries are the result of column O entries plus column Q entries, 80.8052% and
23.9743%, respectively.
• Column S entries are the result of column R entries divided by the total Cost Component Increase in column R, row 15.
For Bin service, Exhibit 2B:
• Column O, rows 13 and 14 entries are from column L, rows 9 and 11, 77.4888% and
22.5112%, respectively.
• Column P, rows 13 and 14 entries are from column M, rows 9 and 11, 5.0747% and
4.1832% respectively.
• Column Q entries are the result of column O entries multiplied by column P entries,
3.9323% and 0.9417%, respectively.
• Column R entries are the result of column O entries plus column Q entries, 81.4211% and
23.4529%, respectively.
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• Column S entries are the result of column R, rows 13 and 14 entries divided by the total Cost Component Increase in column R, row 15.
F. Calculate the Maximum Authorized Rates. Using Exhibit 1 calculate the maximum approved rates by multiplying each current maximum approved rate in Exhibit 1 by the appropriate Total Percentage Rate Adjustment Rate Adjustment (for Cart service, the value plus 1 from Exhib it 2A, column N, row 12; for Bin service, the value plus 1 from Exhibit 2B, column N, row 12; and, for Drop Box and Other Service, the value plus 1 from Exhibit 2C, column C, row 1). The maximum approved rates for Residential services of Exhibit 1 involving material handling will be adjusted by the Total Percentage Rate Adjustment for Cart service plus 1. The maximum approved rates for Commercial services of Exhibit 1 involving material handling will be adjusted by the Total Percentage Rate Adjustment for Bin service plus 1.
Examples:
The maximum approved rate of $24.22 for basic residential weekly curbside service will be multiplied by 1.0478 (from Exhibit 2A, column N, row 12) yielding a new maximum approved rate of $25.38.
The maximum approved rate of $191.57 for one 3 cubic yard bin collected once weekly will be multiplied by 1.0487 yielding a new maximum approved rate of $200.90 per month.
For Drop Box (Roll-Off Box) service, multiply the maximum approved pull charge of $375.00 by
1.05747 (from Exhibit 2C, column C, row 1) yielding a new maximum approved rate of $396.55.
These procedures will be applied separately for Cart service (Exhibit 2A) and Bin service (Exhibit 2B) using the corresponding Excel worksheets.
All other rates including pull charges for Roll-Off Box and Other services in Exhibit 1 shall be adjusted based on changes in the CPI as calculated in Exhibit 2C. Charges for material handling rates for Roll-off Box services shall be billed at the actual cost incurred at the material handling facility to which the material was delivered.
10.5 EXTRAORDINARY RATE ADJUSTMENTS
It is understood that CONTRACTOR accepts the risk for changes in cost of providing services and the Service Levels requested by Customers and therefore the extraordinary adjustments to Rates shall be limited to a Change in Law (whether by a legislative action, administrative regulation, or judicial interpretation), or City-directed changes in designated Solid Waste facilities. When extraordinary circumstances occur, the CONTRACTOR may petition the CITY in writing for an adjustment in the maximum rates due to extraordinary circumstances beyond the CONTRACTOR’s control. CONTRACTOR may request to be compensated for costs incurred when the additional costs start to be incurred. The CONTRACTOR shall submit information in support of the requested adjustment for review within ten (10) business days of submitting its request. The City Council shall approve or deny the request within six (6) months of submittal, in its reasonable judgment.
The CONTRACTOR shall provide documentation and analysis to the satisfaction of CITY of the reasons for such adjustment. Petitions regarding extraordinary circumstances beyond the CONTRACTOR’s control shall satisfy all of the following conditions: (i) materially alters CONTRACTOR’s operations or overall costs; (ii) could not reasonably have been foreseen by a prudent operator; and (iii) by all reasonable expectations will continue for a period of at least six (6) months. Such changes shall include inaccurate estimates by the CONTRACTOR of its cost of operations.
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The CONTRACTOR’s request shall contain substantial proof and justification to support the need for the adjustment.
For each request brought pursuant to this article CONTRACTOR shall prepare a schedule documenting the extraordinary costs. Such request shall be prepared in a form acceptable to the CITY with support for assumptions made by the CONTRACTOR in preparing the estimate. The CONTRACTOR shall also submit a schedule showing how its total costs and total revenues have changed over the past two (2) years for the services provided under this Agreement.
The CITY may request from the CONTRACTOR such further information as it deems necessary to fully evaluate the request and make its determination. As a privately held company, CONTRACTOR must maintain the confidentiality of its financial statements and is unable to release financial statements that could be subject to a public record s request. As part of CITY’S review of an extraordinary rate adjustment application by CONTRACTOR, CITY may review CONTRACTOR’S financial statements in a setting that provides the City the necessary information it seeks. No copies, reproductions, pictures, or re-creations will be allowed to be retained by the CITY or its consultant. CITY shall review the CONTRACTOR’s request and, in the City Council’s sole judgment and absolute, unfettered discretion, make the final determination as to whether an adjustment to the maximum rates will be made, and, if an adjustment is permitted, the appropriate amount of the adjustment. The City Council may consider increases or decreases in the CONTRACTOR’s total revenues and total cost of services when reviewing an extraordinary rate adjustment request.
The CITY and the CONTRACTOR may make changes in the service levels under this Agreement sufficient to avoid the need for a rate adjustment. Extraordinary rate adjustments shall only be effective after approval by the City Council and may not be applied to rates retroactively.
ARTICLE 11: INDEMNIFICATION, INSURANCE AND PERFORMANCE BOND
11.1 INDEMNIFICATION OF THE CITY
A. GENERAL. The CONTRACTOR shall defend, with counsel reasonably acceptable to the CITY, indemnify and hold harmless, to the fullest extent allowed by law, CITY, its officers, officials, employees, volunteers, agents and assignees (collectively, “Indemnitees” ), from and against any and all causes of action, claims, costs (including but not limited to reasonable attorneys’ and expert witness fees), loss, damages , liability, penalties, forfeitures, demands, proceedings or suits, in law or in equity, of every kind and description, including, but not limited to, injury to and death of any Person and damage to property, or for contribution or indemnity claimed by third parties (collectively, the “Claims”), arising out of or occasioned in any way by, directly or indirectly, CONTRACTOR’s performance of, or its failure to perform, its obligations under this Agreement. The foregoing indemnity shall not apply to the extent that the Claim is caused solely by the negligence or intentional misconduct of CITY, its officers, employees or agents, but shall apply if the Claim is caused by the joint negligence of CONTRACTOR and/or other persons. Upon the occurrence of any Claim, CONTRACTOR, at CONTRACTOR’s sole cost and expense, shall defend (with attorneys reasonably acceptable to CITY) CITY, its officers, employees, and agents. CONTRACTOR’s duty to indemnify and defend shall survive the expiration or earlier termination of this Agreement.
B. CALRECYCLE Indemnification. CONTRACTOR’S duty to defend and indemnify herein includes payment of all fines and/or penalties imposed by CalRecycle, subject to the restrictions set forth in Public Resources Code Section 40059.1, if the requirements of AB 939, AB 341, AB 1826, and/or SB 1383 and corresponding regulations are not met by the CONTRACTOR with respect to the Discarded Item 3E - 142
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Materials Collected under this Agreement, and such failure is: (i) due to the failure of CONTRACTOR to meet its obligations under this Agreement, or, (ii) due to CONTRACTOR delays in providing information that prevents CONTRACTOR or CITY from sub mitting reports required by AB 939, AB 341, AB 1826, and/or SB 1383 and corresponding regulations in a timely manner. The provisions of this Section shall survive the termination or expiration of this Agreement.
C. Excluded Waste. The CONTRACTOR acknowledges that it is responsible for compliance during the entire Term of this Agreement with all Applicable Laws. The CONTRACTOR shall not store, transport, use, or Dispose of any Excluded Waste except in strict compliance with all Applicable Laws. The foregoing notwithstanding, or any other provision of this Section 11.1, the Parties acknowledge that de minimis amounts of excluded waste are generated by households and businesses which may, without the knowledge of CONTRACTOR, improperly place such mater ials for collection as solid waste. The presence of these materials may not be readily detectible by CONTRACTOR when operating an automated collection system. Accordingly, the Parties agree that the mere presence of undetectable amounts of Excluded Waste in containers collected by CONTRACTOR in the course of performing its duties hereunder shall not, in and of itself, be deemed to constitute negligence on the part of CONTRACTOR, nor shall CONTRACTOR be deemed to have violated Applicable Law.
In the event that the CONTRACTOR negligently or willfully mishandles Excluded Waste in the course of
carrying out its activities under this Agreement, the CONTRACTOR shall at its sole expense promptly take all investigatory and/or remedial action reasonably required for the remediation of such environmental contamination. Prior to undertaking any investigatory or remedial action, however, the CONTRACTOR shall first obtain the Contract Administrator’s approval of any proposed investigatory or remedial action. Should CONTRACTOR fail at any time to promptly take such action, the CITY may undertake such action at the CONTRACTOR’s sole cost and expense, and the CONTRACTOR shall reimburse the CITY for all such expenses within thirty (30) calendar days of being billed for those expenses, and any amount not paid within that thirty (30) calendar day period shall thereafter be deemed delinquent and subject to the delinquent fee payment provision of this Agreement. These obligations are in addition to any defense and indemnity obligations that the CONTRACTOR may have under this Agreement. The provisions of this Article shall survive the termination or expiration of this Agreement.
Notwithstanding the foregoing, the CONTRACTOR’s duties under this subsection shall not extend to any
claims arising from the Disposal of Solid Waste at the Approved Disposal Facility, including, but not limited to, claims arising under Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) unless such claim is a direct result of the CO NTRACTOR’s negligence or willful misconduct or CONTRACTOR owns or operates the Approved Disposal Facility.
D. Environmental Indemnity. The CONTRACTOR shall defend, indemnify, and hold the CITY harmless against and from any and all Claims attributable to the negligence or willful misconduct of the CONTRACTOR in handling Excluded Waste.
E. Related to Proposition 218. Should there be a Change in Law or a new judicial interpretation of Applicable Law, including, but not limited to, Articles XIII C and XIII C D of the California Constitution (commonly known as “Proposition 218”), which impacts the CITY’S ability to set or change Rates for the Collection services established in accordance with this Agreement, CONTRACTOR agrees to Item 3E - 143
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meet and confer with the CITY to discuss the impact of such Change in Law on either Party’s ability to perform under this Agreement.
If, at any time, the existing Rates or a Rate adjustment determined to be appropriate by both CITY and CONTRACTOR to compensate CONTRACTOR for costs or increases in costs as described in this Agreement cannot be maintained or implemented for any reason, CO NTRACTOR and CITY shall negotiate in good faith, a reduction of services equal to the value of the Rate or Rate adjustment that cannot be implemented. If CITY and CONTRACTOR are unable to reach agreement about such a reduction in services, then CONTRACTOR may either (i) terminate this Agreement upon 180 days’ prior written notice to CITY, in which case the CONTRACTOR and CITY shall each be entitled to payment of amounts due for contract performance through the date of termination but otherwise will have no further obligation to one another pursuant to this Agreement after the date of such termination, or (ii) request that the matter be referred to a mediator jointly selected by CITY and CONTRACTOR for determination. If CITY, at its sole discretion, agrees to mediation, the Parties shall share equally in the cost of mediation. If CITY does not agree to mediation, then CONTRACTOR may exercise its right to terminate the Agreement in accordance with (i) of this paragraph. The parties shall, at a minimum, meet and confer regardless of whether a mediator is used.
The CITY shall not be in default of this Agreement, if it is determined by a court of competent jurisdiction, that CITY lacks the authority to set Rates or increase Rates for charges related to providing Collection services under this Agreement. Should a court of competent jurisdiction determine that the CONTRACTOR cannot charge and/or increase its Rates for any charges incorporated into the Rates under this Agreement, CONTRACTOR shall (i) reduce the Rates it charges Customers a corresponding amount, providing said fees, Rates and/or charges disallowed by the court are not related to the cost of providing service hereunder and had been incorporated in the Rates charged by CONTRACTOR to its Customers, or (ii) CONTRACTOR may have the right to terminate this Agreement upon 180 days’ prior written notice to CITY.
Nothing herein is intended to imply that California Constitution, Articles XIII C or XIII D, apply to the Rates established for services provided under this Agreement; rather this Section is provided merely to allocate risk of an adverse judicial interpretation between the Parties.
This provision, Article 11.1 A –E, will survive the expiration or earlier termination of this Agreement and shall not be construed as a waiver of rights by the CITY or Indemnity from third parties.
11.2 EVALUATION OF LIABILITY
The CONTRACTOR’s obligation to defend, hold harmless, and indemnify under Article 11 shall not be excused because of the CONTRACTOR’s inability to evaluate an Indemnitee’s liability or because the CONTRACTOR evaluates such liability and determines that the Indemnitee is not liable to the claimant. Within twenty (20) days of receiving written notice from the CITY of a claim for which the CITY is entitled to indemnity, the CONTRACTOR shall confirm to the CITY in writing that the CONTRACTOR will provide a defense to the claim and shall take appropriate actions to provide such defense.
11.3 HAZARDOU S SUBSTANCES INDEMNIFICATION
The CONTRACTOR shall indemnify, defend with counsel acceptable to the CITY, and hold harmless the CITY, its officers, officials, employees, agents, assigns and any successor or successors to the CITY’s interest from and against Item 3E - 144
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all claims, damages (including but not limited to special, consequential and natural resources damages) injuries, hazardous materials response, remediation and removal costs, losses, demands, liens, liabilities, causes of action, suits (including citizen ’s suits), legal or administrative proceedings, interest, fines, charges, penalties (including attorneys’ fees for the adverse party), and expenses (including but not limited to attorneys’ and expert witness fees and costs incurred in connection with defending against any of the foregoing or enforcing this indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted against CITY or its officers, officials, employees, agents, assigns, or cont ractors arising or resulting from any repair, cleanup or detoxification, or preparation and implementation of any removal, remedial, response, closure or other plan (regardless of whether u ndertaken due to governmental action) concerning: (i) any Hazardous Substance or hazardous wastes at any facility where CONTRACTOR transports, stores, or causes to be disposed Solid Waste pursuant to this Agreement; (ii) CONTRACTOR’s discharge of a pollutant in violation of the State Porter-Cologne Water Quality Act or federal Clean Water Act; (iii) CONTRACTOR’s violation of any State or federal air quality rule, law or regulation; (iv) CONTRACTOR’s violation of any other State or federal environmental law, including the Resource Conservation and Recovery Act or its State law corollary; or (v) CONTRACTOR’s discharge of any Hazardous Substance or Hazardous Waste that causes injury to Person(s) or property(ies), in each of clauses (ii) through (v), during the Term of this Agreement and subject to Article 11. The foregoing indemnity is intended to operate as an agreement to indemnify, defend, insure, protect and hold CITY harmless from liability, pursuant to Section 107(e) of CERCLA, 42 U.S.C. Section 9607(e) and California Health and Safety Code Section 25364, and other applicable State and federal Environmental Laws.
11.4 SEPARATE COUNSEL
The CITY may elect to have and consult separate legal counsel from the CONTRACTOR at any time during the pendency of any claim at its sole discretion. The CITY shall be responsible for paying its separate counsel unless: (i) the CITY reasonably determines and notifies CONTRACTOR that separate counsel is required to represent the CITY during the resolution of any claim; or (ii) a court of competent jurisdiction rules that the CONTRACTOR has refused to satisfy its obligations under this Article 11. Notwithstanding the preceding sentence or the first sentence of Article
11.1, with respect to a particular claim, if the CONTRACTOR confirms to the CITY in writing CONTRACTOR’s obligation to indemnify and defend the CITY, without reserving a right to later seek reim bursement from the CITY with respect to such claim, the CITY shall not object to the counsel representing it being the same counsel that represents CONTRACTOR in the defense of such claim and shall, if permitted by law, provide such written conflict- of-interest waiver as may be required for such joint representation. If the CONTRACTOR provides the aforementioned confirmation, but the CITY declines to consent to such joint representation, the CITY may retain its own counsel at its own expense, the CITY shall have no right of defense or reimbursement of defense costs with respect to such claim (but the CITY shall still be entitled to indemnity), the CITY shall reasonably cooperate with CONTRACTOR in the defense and settlement of such claim. If the CONTRACTOR does not provide the aforementioned confirmation, or if the CONTRACTOR provides such confirmation and the CITY is prohibited by law from providing such waiver, then the CONTRACTOR shall reimburse the CITY for the reasonable attorneys’ fees and costs of the CITY’s separate counsel with respect to such claim.
11.5 CONSIDERATION
It is specifically understood and agreed that the consideration inuring to the CONTRACTOR for the execution of this Agreement consists of the promises, payments, covenants, rights and responsibilities contained in this Agreement and the consideration to the CITY are the solid waste collection services CONTRACTOR shall perform pursuant to this Agreement.
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11.6 OBLIGATION
The execution of this Agreement by the CONTRACTOR shall obligate the CONTRACTOR to comply with the foregoing indemnification provisions; however, the collateral obligation of providing insurance must also be fully complied with as set forth in Article 11.11 below.
11.7 COLLECTION SERVICES SUBCONTRACTORS
Any Subcontractor(s), independent contractor(s) or any type of agent(s) performing or hired to perform any term or condition of this Agreement on behalf of the CONTRACTOR, or as may be allowed by this Agreement, shall comply with each term and condition of this Agreement, including each term and condition of Article 11.11 entitled “INSURANCE” or a more appropriate level of coverage as determined by the City. This applies to subcontractors performing collection services for CITY facilities. Furthermore, the CONTRACTOR shall be responsible for the Subcontractor’s acts, omissions and satisfactory performance of the terms and conditions of this Agreement. All Subcontractors, independent contractors and agents to the CONTRACTOR are disclosed on Exhibit 4, attached hereto.
The CONTRACTOR shall require all Subcontractors performing Collection Services under the terms of this Agreement to enter into an agreement containing the provisions set forth in this Article 11 in their entirety and Subcontractor shall fully indemnify the CITY in accordance with this Agreement.
11.8 EXCEPTION
Notwithstanding any other provision of this Article 11, the CONTRACTOR’s obligation to indemnify, hold harmless and defend under this Article11 does not extend to any loss, liability, penalty, damage, cause of action , suit, forfeiture, claim, demand, proceeding, injury, cost, lien, interest, fine, charge or expense (i) as to which the CONTRACTOR is precluded by law from indemnifying the Indemnitee, (ii) which arose or resulted from the sole negligence or willful misconduct of any Indemnitee; (iii) pertaining to the process by which the CONTRACTOR was selected, the exclusive Franchise hereunder was granted, or this Agreement was entered into or approved by the CITY, or the CITY’s authority to do any of the same.
11.9 DAMAGE BY CONTRACTOR
If the CONTRACTOR’s employees or Subcontractors cause any injury, damage or loss to the CITY property, including but not limited to the CITY streets or curbs, other than normal wear and tear from routine operations and as set forth in Article 5, the CONTRACTOR shall reimburse the CITY for the CITY’s cost of repairing such injury, damage or loss. Such reimbursement is not in derogation of any right of the CITY to be indemnified by the CONTRACTOR for any such injury, damage or loss. With the prior written approval of the CITY, the CONTRACTOR may repair the damage at the CONTRACTOR’s sole cost and expense. CONTRACTOR shall not be responsible for damage to pavement that does not meet pavement design, construction and maintenance standards for truck operations.
11.10 SURVIVAL
CONTRACTOR’s indemnity obligations shall survive the expiration or termination of this Agreement and continue until such obligations have been fully satisfied by the resolution of all claims for which indemnity obligations are owed to the CITY.
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11.11 INSURANCE
A. Commercial General Liability. The CONTRACTOR shall, at its sole cost and expense, procure, maintain and keep in full force and effect during the life of this Agreement commercial general liability (CGL), and if necessary, commercial umbrella liability insurance in an amount not less than Nine Million Dollars ($9,000,000) for each occurrence and general aggregate and Products/Completed Operations aggregate limits of liability coverage of not less than Nine Million Dollars ($9,000,000).
CGL insurance shall be written on ISO occurrence fo rm CG 00 01 04 13 (or a substitute form providing equivalent coverage) and shall cover liability arising from premises, operations, products- completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract).
CITY shall be included as an insured under the CGL, using ISO additional insured endorsement CG 20 10 07/04 and CG 20 37 07/04 or a substitute providing equivalent coverage, and under the commercial umbrella, if any.
This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to CITY. There shall be no endorsement or modification of the CGL to make it excess over other available insurance; alternatively, if the CGL states that it is excess or pro rata, the policy shall be endorsed to be primary with respect to the additional insured.
There shall be no endorsement or modification of the CGL limiting the scope of coverage for liability assumed under a contract.
CONTRACTOR waives all rights against CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the commercial general liability or commercial umbrella liability insurance maintained pursuant to Article 11.11 of this Agreement.
Insurer shall endorse CGL policy as required to waive subrogation against CITY.
Furthermore, the commercial general liability policy will contain a separation of insureds provision specifying that the policy will apply separately to the CITY and each additional insured against whom claim is made or suit is brought.
B. Commercial Automobile Liability. The CONTRACTOR shall procure, maintain and keep in full force and effect during the life of this Agreement, automobile liability insurance and, if necessary, commercial umbrella liability insurance for owned, leased, hired or borrowed automobiles in an amount not less than Ten Million Dollars ($10,000,000) combined single limit bodily injury and property damage for each accident.
Coverage as required in paragraph 1.2 above shall be written on ISO form CA 00 01, CA 00 05, CA 00 25, or a substitute form providing equivalent liability coverage.
Pollution liability coverage at least as broad as that provided under the ISO pollution liability — broadened coverage for covered autos endorsement (CA 99 48) shall be provided, and the Motor Carrier Act endorsement (MCS 90) shall be attached.
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CONTRACTOR waives all rights against CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the automobile liability or commercial umbrella liability insurance obtained by CONTRACTOR pursuant to this Agreement.
C. Workers’ Compensation and Employer’s Liability. The CON TRACTOR shall procure, maintain and keep in full force and effect during the life of this Agreement workers’ compensation coverage in an amount not less than the State statutory limits and employers’ liability insurance in an amount not less than One Milli on Dollars ($1,000,000) each accident for bodily injury by accident or One Million Dollars ($1,000,000) each employee for bodily injury by disease. CONTRACTOR waives all rights against CITY and its agents, officers, directors, and employees for recovery of damages to the extent these damages are covered by the workers compensation and employers liability or commercial umbrella liability insurance obtained by CONTRACTOR pursuant to this Agreement.
CONTRACTOR shall obtain an endorsement equivalent to WC 00 03 13 to affect this waiver.
D. Pollution and Remediation Legal Liability.
1. Pollution Legal Liability for Transfer Stations – Owned and Non-Owned – Claims Made.
The CONTRACTOR shall procure, maintain and keep in full force and effect during the life of this Agreement Pollution and Remediation Legal Liability insurance applicable to bodily injury; property damage, including loss of use of damaged property or of property that has not been physically injured or destroyed; transit exposures, cleanup costs; and defense, including costs and expenses incurred in the investigation, defense, or settlement of claim; arising out of pollution condition at on or under of the Transfer Station. Coverage shall be maintained in an amount not less than Five Million ($5,000,000).
Coverage as required above shall apply to sudden and non- sudden pollution conditions resulting from the escape or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids, or gases, waste materials, or other irritants, contaminants, or pollutants.
Said Pollution and Remediation Legal Liability insurance shall be on a claims-made form and shall be retroactive to the date CONTRACTOR first bega n providing services in the CITY as the exclusive franchisee for Solid Waste Collection services. Said Pollution and Remediation Legal Liability insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of this Agreement.
If pollution liability insurance coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the contract effective date, the CONTRACTOR must purchase "extended reporting” coverage for a minimum of five (5) years after completion of this Agreement.
The CONTRACTOR shall procure, maintain and keep in full force and effect during the life of this Agreement any other insurance required by law. The limits of insurance herein shall not limit the liability of the CONTACTOR.
2. CONTRACTOR Pollution Legal Liability – Occurrence form. The CONTRACTOR shall procure, maintain and keep in full force and effect during the life if this Agreement, CONTRACTORS Pollution Legal Liability for contracting operations for the collection, transportation, Item 3E - 148
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temporary storage and Disposal of the waste. Coverage to include unloading and loading of the waste, all forms of transportation, mis -delivery of the waste and non -owned site Disposal coverage. The coverage is to be on an Occurrence form with defense outside the limit of liability. The coverage is to apply to pollution conditions arising out of the services under this Agreement for liability arising for bodily injury, property damage including natural resource damage liability and cleanup costs. Coverage shall be maintained in amount not less than Five Million ($5,000,000).
3. Cyber Liability. Contractor will maintain cyber liability insurance with a combined single limit of not less than One M illion ($1,000,000) per event. Contractor’s cyber policy must include language related to Contractor data breach. Contractor shall verify by providing City Contract Manager a copy of the Declarations Page for the policy for City review prior to the Commencement Date.
The insurance required by this subsection includes:
1. Premises Operations;
2. Independent Contractor's Protective;
3. Automobile Liability that includes Owned, Non-Owned, and Hired Motor Vehicles;
4. Broad Form Property Damage, including Completed Operations.
E. Policy. The policy or policies shall be issued by an insurer licensed to do business in the State.
Minimum insurance company ratings as determined by the most current edition of the Best’s Key Rating Guide/Property-casualty/United States should be A- (Secure Best’s Rating) and VIII (Financial Size Category).
F. Additional Requirements. The type and amount of coverage required hereunder may be amended in the future to limits reasonably required by the CITY (such amendment to be considered a CITY - Directed Change and handled pursuant to Article 5.5). The CONTRACTOR shall provide the CITY an endorsement to its insurance policies specifically naming the CITY, its officers, officials, agents, independent contractors, employees and volunteers as additional insureds under the commercial general liability and automobile liability policies, providing coverage for claims that arise out of the work or operations performed by or on behalf of the CONTRACTOR or that in any way concerns this Agreement and include coverage for the additional insureds for both ongoing and completed operations so long as the liability of an additional insured arises out of the work of the named insured, or so long as an additional insured’s liability arises out of the named insured’s performance of this Agreement. The CONTRACTOR shall not utilize an omnibus endorsement but shall provide an endorsement that specifically names the CITY, its officers, officials, agents, independent contractors, employees and volunteers as additional insureds under the policy. The additional insured endorsement shall not contain any provisions not included in the additional insured forms referenced in this Agreement which limit or restrict coverage for the additional insureds beyond the extent set forth in this Agreement. The coverage provided to the CITY shall be equal and identical to the coverage of the CONTRACTOR under “Proof of Insurance.” Upon c ommencement of this Agreement, the CITY shall receive, at a minimum, a certificate of insurance along with policy Item 3E - 149
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forms endorsements confirming coverage required under this Agreement. Upon request of the CITY, the CONTRACTOR shall provide a certified copy of the entire policy.
The CONTRACTOR shall provide CITY a copy of all policies of insurance (including all endorsements) within ten (10) Business days following receipt of a written request from the CITY for the same. The required insurance Policy Endorsement shall be filed by the CONTRACTOR with the CITY Clerk prior to the commencement of the CONTRACTOR’s operations under this Agreement, which Endorsement shall reflect the coverage as set forth herein. Following the binding of any policy of insurance, the CONTRACTOR shall deliver a new Policy Endorsement from the insurance company to the CITY Clerk. The general liability, Pollution and Remediation Legal Liability, excess liability, umbrella liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
1. Primary Insurance. For any claims related to this Agreement the CONTRACTOR’s insurance coverage shall be primary insurance as respects the CITY, its officers, officials, agents, independent contractors, employ ees, and volunteers. Any insurance or self -insurance maintained by the CITY, its officers, officials, employees, or volunteers shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.
2. Notification of Cancellation. The CONTRACTOR is required to notify the CITY by certified mail, return receipt requested, of the cancellation, non-renewal or material change of any insurance coverage or policy immediately upon receiving notice of cancellati on, non- renewal or material change
H. Occurrence-based coverage and Thirty-Day Notice. Except for the pollution liability policy, which is written on a claims-made basis, each insurance policy required by this clause shall be occurrence- based or an alternate form as approved by the CITY and endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or limits except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been received by the CITY.
I. Proof of Insurance. Proof of insurance shall be mailed to the following address or any subsequent address as may be directed in writing by the CITY.
City of Palm Springs Procurement Department
3200 E Tahquitz Canyon Way
Palm Springs, CA 92262
J. Modification of Insurance Requirements. The insurance requirements provided in this Agreement may be modified or waived by the CITY, in writing, upon the request of the CONTRACTOR if the CITY determines such modification or waiver is in the best interest of the CITY considering all relevant factors, including exposure to the CITY.
K. Rights of Subrogation. All required insurance policies shall preclude any underwriter’s rights of recovery or subrogation against the CITY with the express intention of the Parties being that the required insurance coverage protects both Parties as the primary coverage for any and all losses covered by the above -described insurance. The CONTRACTOR shall ensure that any companies issuing insurance to cover the requirements contained in this Agreement agree that they shall have no recourse against the CITY for payment or assessments in any form on any policy of insurance.
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The clauses ‘Other Insurance Provisions’ and ‘Insured Duties in the Event of an Occurrence, Claim or Suit’ as it appears in any policy of insurance in which the CITY is named as an additional insured shall not apply to the CITY.
L. Failure to Obtain Insurance. The failure of the CONTRACTOR to obtain and maintain any required insurance shall not relieve CONTRACTOR of any liability under this Agreement (and the CONTRACTOR may be answerable to the CITY for damages or any other remedy on account of such breach) nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the CONTRACTOR concerning indemnification.
M. No Limitation of Liability. By requiring insurance herein, CITY does not represent that coverage and limits will necessarily be adequate to protect CONTRACTOR, and such coverage and limits shall not be deemed as a limitation on CONTRACTOR’s liability under the indemnities granted to CITY in this contract.
11.12 PERFORMANCE BOND
Unless waived by the CITY in writing, the CONTRACTOR shall furnish to the CITY, and keep current, a performance bond in a form with language that is acceptable to the CITY, for the faithful performance of this Agreement and all obligations. The principal sum of the bond shall be Two Hundred and Fifty Thous and and 00/100 Dollars ($250,000.00) and shall be annually adjusted by the CPI. In the event the performance bond is waived by the CITY and the CONTRACTOR takes any action, or allows any action to be taken, which falls under the provisions of Article
13.10 entitled “ASSIGNMENT,” waiver of the performance bond as set forth in Article 11.12 herein, is automatically and immediately rescinded and the CONTRACTOR shall have ten (10) calendar days to obtain the performance bond required herein and provide proof of such performance bond to the CITY.
A. Requirements. The performance bond shall be executed by a surety company that is: acceptable to the CITY; an admitted surety company licensed to do business in the State; has an "A:VII" or better rating by A. M . Best or Standard and Poor’s; and included on the list of surety companies approved by the Treasurer of the United States.
ARTICLE 12: DEFAULT AND REMEDIES
12.1 EVENTS OF DEFAULT
Each of the following shall constitute an event of default.
A. Fraud or Deceit. The CONTRACTOR practices, or attempts to practice, any fraud or deceit upon the CITY.
B. Insolvency or Bankruptcy. The CONTRACTOR becomes insolvent, unable, or unwilling to pay its debts, or upon listing of an order for relief in favor of the CONTRACTOR in a bankruptcy proceeding.
C. Failure to Provide and Maintain Bonds/Letter of Credit and Coverage . The CONTRACTOR fails to provide or maintain the performance bond or letter of credit, if required by this Agreement, or if the Item 3E - 151
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CONTRACTOR fails to provide or maintain in full force and affect the workers’ compensation, liability, or indemnification coverage as required by this Agreement.
D. Violations of Regulation . The CONTRACTOR violates any orders or filings of any regulatory body having authority over CONTRACTOR relative to this Agreement, provided that the CONTRACTOR may contest any such orders or filings by appropriate proceedings conducted in good faith, in which case no breach or default of this Agreement shall be deemed to have occurred unless and until the regulatory body or court determines CONTRACTOR violated such order or filing .
E. Violations of Applicable Law. The CONTRACTOR violates Applicable Law relative to this Agreement.
F. Failure to Perform Direct Services. The CONTRACTOR ceases to provide Collection, transportation, or Processing services as required under this Agreement for a period of two (2) consecutive calendar days or more, for any reason within the control of the CONTRACTOR. Notwithstanding the foregoing, CONTRACTOR shall not be liable for Liquidated Damages if CONTRACTOR is excused from performance pursuant to Section 12.9.
G. Failure to Comply with Requirements of SB 1383 Regulations. The CONTRACTOR fails to comply with requirements of the Agreement including public educatio n, reporting, contamination monitoring, recordkeeping, or other obligations of this Agreement that delegate CITY’S responsibility and/or authority under SB 1383 Regulations to CONTRACTOR.
H. Failure to Pay or Report. The CONTRACTOR fails to make any payments to the CITY as required under this Agreement including payment of CITY fees, surcharges or Liquidated Damages or refuses to provide the CITY with required information, reports, and/or records in a timely manner as provided for in this Agreement.
I. Acts or Omissions. Any other act or omission by the CONTRACTOR which violates the terms, conditions, or requirements of this Agreement, or any law, statute, ordinance, order, directive, rule, or regulation issued thereunder and which is not corrected or remedied within the time set in the written notice of the violation or, if the CONTRACTOR cannot reasonably correct or remedy the breach within the time set forth in such notice, if the CONTRACTOR should fail to commence to correct or remedy such violation within the time set forth in such notice and diligently effect such correction or remedy thereafter.
J. F
alse, Misleading, or Inaccurate Statements . Any representation or disclosure made to the CITY by the CONTRACTOR in connection with or as an inducement to entering into this Agreement, or any future amendment to this Agreement, which proves to be false or misleading in any material respect as of the time such representation or disclosure is made, whether or not any such representation or disclosure appears as part of this Agreement; and, any CONTRACTOR - p
rovided report containing a
misstatement, misrepresentation, data manipulation, or an omission of fact or content explicitly defined by this Agreement, excepting non
-n
umerical typographical and grammatical errors.
K
. Seizure or Attachment . There is a seizure of, attachment of, or levy on, some or all of the CONTRACTOR’s operating equipment, including without limits its equipment, maintenance or office facilities, Approved Facility, or any part thereof, which results in a disruption of service.
L. S
uspension or Termination of Service. There is any termination or suspension of the transaction of business by the CONTRACTOR related to this Agreement, including without limit, due to labor unrest including strike, work stoppage or slowdown, sick
-o
ut, picketing, or other concerted job action lasting
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more than two (2) calendar days and resulting in an imminent and substantial threat to public health and safety, as determined by CITY.
M. Criminal Activity. CONTRACTOR, its officers, or any manager or other employee are convicted of a felony, where the conviction is the result of actions (i) taken by such person while acting within the course and scope of their employment, and with the knowledge, or at the direction, of CONTRACTOR, and (ii) which relate directly to the performance of services to the City under this Agreement..
N. Assignment without Approval . The CONTRACTOR transfers or assigns this Agreement without the expressed written approval of the CITY unless the assignment is permitted without approval of the CITY pursuant to Article 13.10 of this Agreement.
O. Failure to Perform Any Obligation . The CONTRACTOR fails to perform any obligation established under this Agreement or fails to cure a curable default.
12.2 RIGHT TO TERMINATE UPON EVENT OF DEFAULT
The CITY may terminate this Agreement immediately upon written notice to the CONTRACTOR in the event the CONTRACTOR defaults under Article 12.1.C entitled, “Failure to Provide and Maintain Bonds/Letters of Credit and Coverage.”
The CONTRACTOR shall be given ten (10) Business Days from written notification by the CITY to cure any default which, in the CITY’s sole opinion, creates an imminent and substantial public health and safety threat.
Th
e CONTRACTOR shall be given ten (10) Business Days from written notification by the CITY to cure any default arising under subsections E, F, I, J, and K in Article 12.1 provided, however, that the CITY shall not be obligated to provide CONTRACTOR with a notice and cure opportunity if the CONTRACTOR has committed the same or similar breach/default within a twenty
-f
our (24) month period.
T
he CONTRACTOR shall be given thirty (30) calendar days from written notification by the CITY to cure any other default (which is not required to be cured within ten (10) Business Days); however, the CITY shall not be obligated to provide CONTRACTOR with a notice and cure opportunity if the CONTRACTOR has committed the same or similar breach/default within a twenty-f
our (24) month period. Failure to allege breach/default shall not constitute waiver by the CITY.
1 2.3 CITY’S REMEDIES IN THE EVENT OF DEFAULT
Upon the CONTRACTOR’s default, the CITY has the following remedies in the event of the CONTRACTOR default:
A. Waiver of Default . The CITY may waive any event of default or may waive CONTRACTOR’s requirement to cure a default event if the CITY determines that such waiver would be in the best interest of the CITY. The CITY’s waiver of an event of default is not a waiver of future events of default that may have the same or similar conditions.
B. Suspension of the CONTRACTOR’s Obligation. The CITY may suspend CONTRACTOR’s performance of its obligations if the CONTRACTOR fails to cure default in the time frame specified in Article 12.2 until such time the CONTRACTOR can provide assurance of performance in accordance with the terms of this Agreement.
C. Liquidated Damages. The CITY may assess Liquidated Damages for the CONTRACTOR’s failure to meet specific performance standards pursuant to Article 12.6.
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D. Termination. In the event that the CONTRACTOR should default, subject to the right of the CONTRACTOR to cure, in the performance of any provisions of this Agreement, and the default is not cured for any default within ten (10) calendar days if the default creates an imminent and substantial public health and safety threat or arises under Article 12.1. E, F, I, J, or K, or otherwise thirty (30) calendar days after receipt of written notice of default from the CITY, then the CITY Council may, hold a hearing at its governing body meeting to determine whether this Agreement should be terminated.
This Agreement may not be terminated except by act of the City Council. In the event the CITY decides to terminate this Agreement, the CITY shall serve twenty (20) calendar days written notice of its intention to terminate upon CONTRACTOR. In the event the CITY exercises its right to terminate this Agreement, the CITY may, at its option, upon such termination, either directly undertake performance of the services or arrange with other Persons to perform the services with or without a written agreement. This right of termination is in addition to any other rights of the CITY upon a failure of the CONTRACTOR to perform its obligations under this Agreement.
CONTRACTOR shall not be entitled to any further revenues from Collection operations authorized hereunder from and after the date of termination except to the extent attributable to services rendered prior to termination.
E. Other Available Remedies. The CITY’s election of one (1) or more of the remedies described herein shall not limit the CITY from any and all other remedies at law and in equity including injunctive relief, etc.
12.4 POSSESSION OF RECORDS UPON TERMINATION
In the event of termination for an event of default, the CONTRACTOR shall furnish the Contract Administrator with immediate access to all of its business records, including without limitation, proprietary CONTRACTOR computer systems, related to its Customers, Collection routes, and billing of accounts for Collection services in the City of Palm Springs.
12.5 CITY’S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE
The CITY’s rights to terminate this Agreement under Article 12.3, and to take possession of the CONTRACTOR’s records under Article 12.4 are not exclusive, and the CITY’s termination of this Agreement and/or the imposition of Liquidated Damages shall not constitute an election of remedies. Instead, these rights shall be in addition to any and all other legal and equitable rights and remedies, including but not limited to termination, which the CITY may have.
By virtue of the nature of this Agreement, the urgency of timely, continuous, and high-quality service; the lead time required to effect alternative service; and the rights granted by the CITY to the CONTRACTOR, the remedy of damages for a breach hereof by the CONTRACTOR is inadequate and the CITY shall be entitled to injunctive relief (including but not limited to specific performance).
12.6 PERFORMANCE REVIEWS
A. Time for Performance Review. The CONTRACTOR’s performance review shall be subject to review at the third year and at the following times:
1. By CONTRACTOR’s serious breach of the terms of this Agreement;
2. As part of any review for an Extraordinary Rate Adjustment.
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3. At any time such review is ordered by the City Manager, but not more often than every other year.
B. Components of Performance Review. Performance Review shall consist of any or all of the following components at the CITY’s discretion.
Technical Review to determine the effectiveness of the technologies employed for Solid Waste Collection, Recycling or Disposal services. Procedures will include a review of (i) Solid Waste Collection, source reduction, Recycling or Disposal services; (ii) the application of new technologies; (iii) the effect of legislative and regulatory changes; and, (iv) compliance with the terms of this Agreement.
Rate Review to assure the rates charged Customers are reasonable for the services and terms and conditions of the Agreement in comparison to those in other communities within the Coachella Valley market area.
The CITY may work with a third party to conduct a review of rates of other valley cities and each unique scope of offerings to provide
Service Review to assure that services are provided of satisfactory quality and effectiveness in substantial compliance with the terms of this Agreement. Procedures will include conducting a review of (i) The services provided; (ii) The feasibility of providing new services; (iii) Customer complaints and CONTRACTOR’s response to customer complaints; (iv) Recordkeeping; and (v) Customer satisfaction surveys.
The Parties agree that the purpose of the survey is to accurately and objectively measure Customer satisfaction with CONTRACTOR’s performance. Care will be given in the design of the survey instrument to determine the reason behind reports of unsatisfactory performance and to differentiate between dissatisfaction with CONTRACTOR’s performance and dissatisfaction with policies and/or procedures determined by CITY or dictated by this Agreement. Surveys with responses without explanatory comments or for which such a differentiation cannot be clearly made shall be excluded from tabulation.
The Customer satisfaction survey will be distributed to a minimum of one thousand (1,000) Residential Customers, stratified by full-time occupied and part-time occupied, and at least fifty percent (50%) of CONTRACTOR’s Commercial Customers, selected at random.
Compliance Review to assure that CONTRACTOR is in substantial compliance with this Agreement and all other applicable provisions of law and all representations and warranties. Procedures will include a review of the CONTRACTOR’s performance with regard to the provisions of this Agreement and applicable laws, regulations and requirements.
Financial Review to measure CONTRACTOR’s accuracy of Customer billings and CONTRACTOR’s accuracy of CITY Fees paid to CITY. Procedures will include (i) Collecting Contractor’s Rate Schedules for the period under review; (ii) randomly select Residential, Commercial and Industrial accounts; (iii) obtain billing and payment records for the accounts selected for review; review the accuracy of CONTRACTOR’s Customer billings; (iv) Review Contractor’s records and reports of Customer Billings, Disposal and Diversion activities; (v) compute amount of CITY Fees due CITY; analyze CONTRACTOR’s payment of Item 3E - 155
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CITY Fees; and, (vi) make a determination regarding the accuracy of CONTRACTOR’s payment of CITY Fees.
C. Conduct of Performance Review. An independent consultant selected by CITY shall perform the performance review and the financial review component of the performance review shall be performed by a certified public accountant. CONTRACTOR shall comply with all record and documentation requests in a timely manner. The performance review shall be completed within one hundred-fifty (150) days from the date CITY notifies CONTRACTOR of its intent to perform the review, and if not completed within that timeframe, the review shall be abandoned and it shall be assumed that CONTRACTOR favorably performed in all components and aspects of the review, unless otherwise agreed to by the Parties.
D. Cost of Performance Review. CONTRACTOR shall be solely responsible for the full cost of each Performance Review conducted as part of any review for an Extraordinary Rate Adjustment and during the fifth and tenth Contract years. CONTRACTOR shall deposit sufficient funds with CITY to pay for CITY’s reasonable cost for such Performance Review. When a Performance Review is undertaken by CITY for reasons other than those provided above, the full cost of conducting the review shall be borne solely by the CITY.
E. Review Procedure. Whenever a Performance Review is called for under the provisions of this Agreement, a public Performance Review Hearing will be held, at least sixty (60) days in advance of the commencement date of the Performance Review. Thirty (30) days prior to the Performance Review Hearing, CONTRACTOR shall submit a report to the City Manager which may contain such information as it wishes to have considered, and shall contain the following:
A. Recommended changes and/or new services to improve CITY’s ability to meet Diversion goals and to contain costs and minimize impacts on rates.
B. Any specific plans for provision of changed or new services by CONTRACTOR.
C. Responses to any issues that have been raised concerning Se rvices performed by CONTRACTOR.
D. The reports required by this Agreement shall be used as one basis for review of CONTRACTOR’s performance, and CONTRACTOR may submit other relevant performance information and reports for consideration. In addition to the abo ve, CITY may request CONTRACTOR to submit other relevant performance information and reports for consideration. In addition to the above, CITY may request CONTRACTOR to submit any other specific information relating to its performance.
F. Review Hearing. The City may conduct the performance review administratively, or, if in the opinion of the City Manager significant actions are required by CONTRACTOR affecting the Agreement, or if there would be significant public interest, the City Manager may request review through a Performance Review Hearing held by the City Council at a public meeting. The City Manager may cause notice of the hearing to be given by publication in a newspaper of general circulation at least ten (10) days before the hearing and shall give CONTRACTOR ten (10) days’ written notice of such hearing. CONTRACTOR may submit comments or complaints during or before the Hearing, either orally or in writing. CONTRACTOR shall be present at and participate in the Performance Review Hearing. The Performance Review Hearing may include all components of Performance Review as described herein, including obtaining new or expanded services. The City Council may use all relevant evidence produced at the Hearing and shall approve a report Item 3E - 156
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concerning CONTRACTOR’s performance and adopt findings by Resolution. As a result of its findings following any Performance Review Hearing, CITY may require CONTRACTOR to provide expanded or new services within a reasonable time and CITY may direct or take corrective actions for any performance inadequacies (although nothing contained in this provision should be construed as requiring CITY to hold a Performance Review Hearing in order to enforce any rights or remedies it has pursuant to the terms hereof.) Should CITY require expanded or new services as a remedy for CONTRACTOR’s failure to perform its obligations hereunder, no additional compensation shall be due for such services.
12.7 LIQUIDATED DAMAGES
A. General. The CONTRACTOR acknowledges and agrees that one of the CITY’s primary goals in entering into this Agreement is to ensure that the provided Collection Services are of the highest quality; that Service Recipient satisfaction remains at the highest level; that authorized programs are designed and implemented to achieve compliance with CalRecycle diversion requirements applicable to CITY -; that fees for service remain competitive ; and, that materials Collected are put to the highest and best use to the extent feasible. The Parties find that as of the time of the execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by CITY as a result of a breach by CONTRACTOR of its obligations under this Agreement. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that:
(i) substantial damage results to members of the public who are denied services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of the Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incap able of measurement in precise monetary terms; (iii) that exclusive services might be available at substantially lower costs than alternative services and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the termination of this Agreement for such breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches.
B. Service and Diversion Performance Standards; Liquidated Damages for Failure to Meet Standards. The Parties further acknowledge that consistent and reliable Collection Service is of utmost importance to the CITY and that the CITY has considered and relied on CONTRACTOR’s representations as to its quality-of-service commitment in entering into this Agreement with it. The Parties further recognize that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable service and performan ce. The Parties further recognize that if the CONTRACTOR fails to achieve the performance standards, or fails to submit required documents in a timely manner, the CITY and the CITY’s residents and businesses will suffer damages and that it is and will be impractical and extremely difficult to ascertain and determine the exact amount of damages. Therefore, without prejudice to the CITY’s right to treat such non - performance as an event of default under Article 12, the Parties agree that the liquidated damages amount defined below represent reasonable estimates of the amount of such damages considering all of the circumstances existing on the effective date of this Agreement, including the relationship of the sums to the range of harm to the CITY, Customers and the community as a whole that reasonably could be anticipated and the anticipation that proof of actual damages would be costly or impractical. In placing their initials at the places provided, each Party specifically confirms the accuracy of the statements made above and the fact that each Party has had ample opportunity to Item 3E - 157
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consult with legal counsel and obtain an explanation of the liquidated damage provisions at the time that this Agreement was made.
C. Procedure for Assessing Liquidated Damages.
1. The CITY may determine the occurrence of events giving rise to liquidated damages through the observation of its own employees or representatives, investigation of Customer complaints or self-reporting by the CONTRACTOR.
2. Prior to assessing liquidated damages, and within thirty (30) days of becoming aware of such violation, the CITY shall give CONTRACTOR notice of its intention to do so. The notice will include a brief description of the incident(s)/non-performance. The CONTRACTOR may review and make copies at its own expense of all information in the possession of the CITY relating to incident(s)/non-performance. The CONTRACTOR may, within ten (10) working days after receiving notice, request a meeting with the CITY to present evidence regarding the accuracy of the facts related to the incident. If a meeting is requested, it shall be held by the Contract Administrator or his/her designee. The CONTRACTOR may present evidence relevant to the incident(s)/non -performance. The Contract Administrator or designee will provide CONTRACTOR with a written explanation of his or her determination on each incident(s)/non -performance prior to authorizing the assessment of liquidated damages. The decision of the CITY shall be final and the CONTRACTOR shall have be en deemed to have exhausted its administrative remedies and can thereafter challenge such ruling in court. The CONTRACTOR shall not be liable to pay liquidated damages with respect to any violation or incident of substandard performance as described in Article 12.7 entitled “Excuse from Performance” herein, or which has been cured within the time set forth in this Agreement for cure, or occurring after termination of this Agreement, or while the CITY (or any third party authorized by the CITY) is performing interim Collection Services except for items 3., 4., 5., 10., 12., or 17., in the tables below occurring after termination of this Agreement.
3. The CONTRACTOR shall pay any Liquidated Damages assessed by the CITY within ten (10) Business Days of the date the Liquidated Damages are assessed. If they are not paid within the ten (10) Business Day period, the CITY may proceed against the performance bond required by this Agreement, order the termination of the rights granted by this Agreement, or all of the above.
B. The CONTRACTOR agrees to pay (as Liquidated Damages and not as a penalty) the following amounts:
LIQUIDATED DAMAGES
Item Amount
1. Each occurrence of Contractor Collecting from
Customers during unauthorized hours.
$250/Event
2. Failure to provide Containers for SB 1383
Collection service, including Organic Materials
$1,000.00 each week.
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LIQUIDATED DAMAGES
Item Amount
Collection by October 1, 2022 to all
customers, unless customer has been granted
a waiver .
3. Failure to complete annual outreach and
education requiremen ts as described in
Exhibit 3 by June 30 of any Rate Year to CITY’s
satisfaction.
$1,000.00 per Rate Year.
4. Each failure by Contractor to develop,
produce, and distribute a public outreach
document or perform a community outreach
activity in the form and manner required
under the Agreement and approved by CITY
$500/Document or Activity
5. Failure to complete annual SB 1383
monitoring requirements as described in
Exhibit 3 by June 30 of any Rate Year to CITY’s
satisfaction.
$1,000.00 per Rate Year.
6. Failure to complete annual reporting
requirements as described in Exhibit 3 by June
30 of any Rate Year to CITY’s satisfaction.
$1,000.00 per Rate Year.
7. Commingling Solid Waste with Recyclable
Materials in Collection Vehicles.
$1,000.00 per incident.
8. Disposal of Recyclable Materials or Organic
Materials in the Disposal
Facility except as
provided in this Agreement.
$1,000.00 per load.
9. Failure to deliver any Collected materials to
the CITY approved Disposal Facility, Materials
Recovery Facility, Transfer Station, or Organic
Materials Processing Facility, as appropriat e,
except as otherwise expressly provided in this
Agreement.
$5,000.00 first failure
$25,000.00 each subsequent failure.
10. Failure to timely provide Containers to new
service units or to timely replace Containers
for existing customers within five (5) calendar
days of receiving such request
$50/Event
11. Failure to provide Collection service on the
Assigned date/time of scheduled collection
$250/Event
12. Failure to contact Customers in response to
complaints within 24 hours or to resolve or
$250/Event
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LIQUIDATED DAMAGES
Item Amount
remedy a Complaint within seven (7) calendar
days of receiving such Complaint
13. Failure to label Containers $250/Event
14. Failure to issue contamination notices $50/Event
15. Failure to conduct compliance tasks (i.e.,
perform route reviews or waste audits)
$250/Event
16. Failure to investigate complaints $250/Event
17. Failure to perform re-inspections $50/Event
18. Failure to meet Minimum Diversion Rate
percentage
$1,000.00 per Rate Year.
19. Submission of a late report $1,000.00 per Event.
20. Submission of an inaccurate and misleading
report
$1,000.00 per Event.
21. Failure to fulfill anything other obligation in
this Agreement.
$250/Event
12.8 EXCUSE FROM PERFORMANCE
The Parties shall be excused from performing their respective obligations hereunder and from any obligation to pay Liquidated Damages to the extent and for the period of time they are prevented from so performing by reason of floods, earthquakes, pandemics, other acts of nature, war, civil insurrection, riots, acts of any government (including judicial action), and other similar catastrophic events which are beyond the control of and not the fault of the Party claiming excuse from performance hereunder. In the case of labor unrest or job action directed at a third party over whom CONTRACTOR has no control, the inability of the CONTRACTOR to provide services in accordance with this Agreement due to the unwillingness or failure of the third party to: (i) provide reasonable assurance of the safety of the CONTRACTOR’s employees while providing such services; or, (ii) make reasonable accommodations with respect to Container placement and point of Delivery, time of Collection, or other operating circumstances to minimize any confrontation with pick ets or the number of Persons necessary to make Collections shall, to that limited extent, excuse performance. The foregoing excuse shall be conditioned on the CONTRACTOR’s cooperation in performing Collection services at different times and in different locations. Further, in the event of labor unrest, including but not limited to strike, work stoppage or slowdown, sickout, picketing, or other concerted job action conducted by the CONTRACTOR’s employees or directed at the CONTRACTOR, or a subsidiary, the CO NTRACTOR shall not be excused from performance. In such case, the CONTRACTOR shall continue to provide a reasonably satisfactory level of performance during the pendency thereof, but the CONTRACTOR shall not be required to adhere strictly to the specific requirements of this Agreement regarding routes, Collection times or similar matters; provided, however, that in no event shall more than seven (7) calendar days elapse between pickups for Residential and Commercial Customers.
Item 3E - 160
Palm Springs Draft Agreement Page 80
The Party claiming excuse from performance shall, within two (2) calendar days after such Party has notice of such cause, give the other Party notice of the facts constituting such cause and asserting its claim to excuse under this Article.
If either Party validly exercises its rights under this Article, the Parties hereby waive any claim against each other for any damages sustained thereby.
The partial or complete interruption or discontinuance of the CONTRACTOR’s services caused by one (1) or more of the events described in this Article shall not constitute a default by the CONTRACTOR under this Agreement.
Notwithstanding the foregoing, however, if the CONTRACTOR is excused from performing its obligations hereunder for any of the causes listed in this Article for a period of thirty (30) calendar days or more, the CITY shall nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten (10) Business Days’ notice to the CONTRACTOR, in which case the provisions of Article 12.3 shall apply.
12.9 RIGHT TO DEMAND ASSURANCES OF PERFORMANCE
The Parties acknowledge that it is of the utmost importance to the CITY and the health and safety of all those members of the public residing or doing business within the CITY who will be adversely affected by interrupted waste management service, that there is no material interruption in services provided under this Agreement.
I
f the CONTRACTOR: (i) is the subject of any labor unrest including work stoppage or slowdown, sick-o ut, picketing
or other concerted job action; (ii) appears in the reasonable judgment of the CITY to be unable to regularly pay its bills as they become due; or, (iii) is the subject of a civil or criminal judgment or order entered by a Federal, State, regional or local agency for violation of an Applicable Law, and the CITY believes in good faith that the CONTRACTOR’s ability to perform under this Agreement has thereby been placed in substantial jeopardy, the CITY may, at their sole option and in addition to all other remedies it may have, demand from the C ONTRACTOR reasonable assurances of timely and proper performance of this Agreement, in such form and substance as the CITY believes in good faith is reasonably necessary in the circumstances to evidence continued ability to perform under this Agreement. If the CONTRACTOR fails or refuses to provide satisfactory assurances of timely and proper performance in the form and by the date required by the CITY, such failure or refusal shall be an event of default for purposes of Article 12.1.
ARTICLE 13: OTHER AGREEMENTS OF THE PARTIES
13.1 LEGAL REPRESENTATION
It is acknowledged that each Party was, or had the opportunity to be, represented by counsel in the preparation of and contributed equally to the terms and conditions of this Agreement and, accordingly, the rule that a contract or Agreement shall be interpreted strictly against the party preparing the same shall not apply herein due to the joint contributions of both Parties.
13.2 FINANCIAL INTEREST
The CONTRACTOR warrants and represents that no elected official, officer, agent or employee of the CITY has a financial interest, directly or indirectly, in this Agreement or the compensation to be paid under it and, further, that no CITY employee who acts in the CITY as a purchasing agent, nor any elected or appointed officer of the CITY, nor Item 3E - 161
Palm Springs Draft Agreement Page 81
any spouse or child of such purchasing agent, employee or elected or appointed officer, is a partner, officer, director or proprietor of the CONTRACTOR and, further, that no such CITY employee, purchasing agen t, CITY elected or appointed officer, or the spouse or child of any of them, alone or in combination, has a material interest in the CONTRACTOR. Material interest means direct or indirect ownership of more than five percent (5%) of the total assets or capital stock of the CONTRACTOR.
13.3 CONTRACTOR NOT OFFICER, EMPLOYEE OR AGENT
A. CONTRACTOR IS INDEPENDENT CONTRACTOR. It is understood and agreed, and it is the intention of the Parties hereto, that the CONTRACTOR is an independent contractor, and is not an officer, employee, or agent of the CITY for any purpose whatsoever. The CITY shall have no right to and shall not control the manner and method by which the Franchise services are performed by CONTRACTOR herein, except as otherwise provided in this Agreement. The CONTRACTOR shall be entirely and solely responsible for its acts and the acts of its agents, employees, Subcontractors engaged in the performance of services hereunder. The CONTRACTOR shall have no claim under this Agreement or otherwise against the CITY for vacation pay, sick leave, retirement benefits, social security, workers’ compensation, disability, or unemployment insurance benefits or other employee benefits of any kind. The Parties acknowledge that the CITY shall not withhold from the CONTRACTOR’s compensation any funds for income tax, FICA, disability insurance, unemployment insurance, or similar withholding and the CONTRACTOR is solely responsible for the timely payment of all such taxes and related payments to the State and federal government for itself and its employees, agents, and Subcontractors who might render services in connection with this Agreement. The CONTRACTOR shall inform all entities or Persons who perform any services pursuant to this Agreement of the provisions of this Article.
B. CONTRACTOR RESPONSIBILITY TO AND FOR ITS OFFICERS, AGENTS EMPLOYEES, the CONTRACTORS AND SUBCONTRACTORS. The CONTRACTOR shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors, and Subcontractors, if any. Neither the CONTRACTOR nor its officers, employees, agents, contractors, or Subcontractors shall obtain any right to retirement benefits, workers’ compensation benefits, or any other compensation or benefits which accrue to the CITY employees and the CONTRACTOR expressly waives any claim it may have or acquire to such compensation or benefits.
13.4 CONTRACTOR’S USE OF SUBCONTRACTOR
The use of a Subcontractor to perform services under this Agreement shall not constitute delegation of the CONTRACTOR’s duties provided that the CONTRACTOR has received prior written authorization from the Contract Administrator to subcontract such services and the Contract Administrator has approved a Subcontractor who will perform such services. The CONTRACTOR shall be responsible for directing the work of the CONTRACTOR’s Subcontractors and any compensation due or payable to the CONTRACTOR’s Subcontractor shall be the sole responsibility of the CONTRACTOR. The Contract Administrator shall have the right to require the removal of any approved Subcontractor for reasonable cause. The Subcontractors listed in Exhibit 4 to this Agreement are hereby approved by the CITY.
Item 3E - 162
Palm Springs Draft Agreement Page 82
13.5 COMPLIANCE WITH LAW
The CONTRACTOR shall at all times, at its sole cost, comply with all Applicable Laws, permits and licenses of the United States, State, County, and the CITY and with all applicable regulations promulgated by Federal, State, regional or local administrative and regulatory agencies, now in force and as they may be enacted, issued or amended during the Term.
A. PERMITS AND LICENSES. The CONTRACTOR shall obtain, at its own expense, all permits, licenses and approvals required by law or ordinance, and shall maintain such permits, licenses and approvals in full force and effect throughout the Term of this Agreement. The CONTRACTOR shall provide proof of such permits, licenses or approvals and shall demonstrate compliance with the terms and conditions of such permits, licenses and approvals upon the request of the Contract Administrator.
B. NOTICE OF AMENDMENT TO CITY CODE. The CITY shall provide written notice to the CONTRACTOR of any planned amendment of the CITY Code of Ordinances that would substantially affect CONTRACTOR’s obligations or the performance of the CONTRACTOR’s services pursuant to this Agreement. CITY will make efforts to try to provide at least thirty (30) calendar days prior to the City Council approval of such an amendment.
13.6 GOVERNING LAW
The law of the State shall govern the rights, obligations, duties and liabilities of the CITY and the CONTRACTOR under this Agreement and shall govern the interpretation of this Agreement.
13.7 LITIGATION
In the event of any litigation arising out of this Agreement, the prevailing Party in such action shall be en titled to recover its reasonable costs and expenses including, without limitation, reasonable attorneys’ fees and costs paid or incurred in good faith. The “prevailing Party,” for purposes of this Agreement, shall be deemed to be that Party who obtains substantially the result sought, whether by settlement, dismissal or judgment.
13.8 VENUE
The Parties agree that any litigation between the CITY and the CONTRACTOR concerning or arising out of this Agreement shall be filed and maintained exclusively in the courts of the County of Riverside, California. Each Party consents to service of process in any manner authorized by law.
13.9 BINDING ON SUCCESSORS
The provisions of this Agreement shall inure to the benefit to and be binding on the successors and permitted assigns of the Parties.
13.10 ASSIGNMENT
CONTRACTOR shall not assign its rights nor delegate or otherwise transfer its obligations under this Agreement to any other Person without the prior written consent of the CITY. Any such assignment made without the consent of the CITY shall be void and the attempted assignment shall constitute a material breach of this Agreement.
Item 3E - 163
Palm Springs Draft Agreement Page 83
F
or purposes of this Article, "assignment" shall include, but not be limited to: (i) a sale, exchange or other trans fer of substantially all of the CONTRACTOR's local, regional, and/or corporate assets dedicated to service under this Agreement to a third party; (ii) a sale, exchange or other transfer of ten (10) percent or more of the local, regional, and/or corporate assets, stock, or ownership of the CONTRACTOR to a Person (other than a transfer of shares in the CONTRACTOR by the owner of such shares to a revocable trust for the benefit of his family or to another family member owning shares in the CONTRACTOR) except t hat no cumulative sale, exchange, or transfer of shares may exceed twenty (20) percent during the Term of this Agreement (other than a transfer of shares in the CONTRACTOR by the owner of such shares to a revocable trust for the benefit of his family or to another family member owning shares in the CONTRACTOR); (iii) any reorganization, consolidation, merger, recapitalization, stock issuance or re -
is
suance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction to which the CONTRACTOR or any of its shareholders is a party which results in a change of ownership or control of ten (10) percent or more of the value or voting rights in the local, regional, and/or corporate stock of the CONTRACTOR; (iv) divestiture of an Affiliate (e.g., trucking company, materials recovery facility, transfer station, etc.) used by the CONTRACTOR to fulfill its obligations under this Agreement; and, (v) any combination of the foregoing (whether or not in related or contemporaneous transactions) which has the effect of any such transfer or change of local, regional, and/or corporate ownership and/or control of the CONTRACTOR. For purposes of this Article, the term "proposed assignee" shall refer to the proposed transferee(s) or other successor(s) in int erest pursuant to the assignment.
Th
e CONTRACTOR acknowledges that this Agreement involves rendering a vital service to the CITY’s residents and businesses, and that the CITY has selected CONTRACTOR to perform the services specified herein based on: (i) CONTRACTOR's experience, skill, and reputation for conducting its Solid Waste, Recyclables, Green Waste, Food Waste and C&D Debris management operations in a safe, effective, and responsible fashion, at all times in keeping with applicable waste management laws, regulations, and good waste management practices; and, (ii) CONTRACTOR's financial resources on a local, regional, and/or corporate level to maintain the required equipment and to support its indemnity obligations to the CITY under this Agreement. The CITY has relied on each of these factors, among others, in choosing the CONTRACTOR to perform the services to be rendered by the CONTRACTOR under this Agreement.
If the CONTRACTOR requests the CITY consideration of and consent to an assignment, the CITY may deny or approve such request in their complete discretion. No request by the CONTRACTOR for consent to an assignment need be considered by the CITY unless and until CONTRACTOR has met the following requirements. The CITY may, in its sole discretion, waive one (1) or more of these requirements.
A. O
n the date the CONTRACTOR submits a written request for the CITY written consent of an assignment, the CONTRACTOR shall pay the CITY a transfer fee in the amount of one (1) percent of the Gross Billings for the most
-r
ecently completed Rate Year. The transfer fee shall be returned to the CONTRACTOR if the CITY denies consent.
B
. The CONTRACTOR shall undertake to pay the CITY its reasonable expenses for attorneys’, consultants’, accountants’ fees, staff time, and investigation costs necessary to investigate the suitability of any proposed assignee, and to review and finalize any documentation required as a condition for approving any such assignment.
C. The CONTRACTOR shall furnish the CITY with audited financial statements of the proposed assignee's operations for the immediately preceding three (3) operating years.
D. The CONTRACTOR shall furnish the CITY with satisfactory proof: (i) that the proposed assignee has at least ten (10) years of Solid Waste, Recycla ble Materials, Organic Materials and C&D Debris management experience on a scale equal to or exceeding the scale of operations conducted by the Item 3E - 164
Palm Springs Draft Agreement Page 84
CONTRACTOR under this Agreement; (ii) that in the last five (5) years, the proposed assignee has not suffered any citations or other censure from any Federal, State or local agency. The CONTRACTOR having jurisdiction over its waste management operations due to any significant failure to comply with State, Federal or local waste management laws and that the assignee has provided the CITY with a complete list of such citations and censures; (iii) that the proposed assignee has at all times conducted its operations in an environmentally safe and conscientious fashion; (iv) that the proposed assignee conducts its operations and management practices in accordance with sound waste management practices in full compliance with all Federal, State, and local laws regulating the Collection, transportation, Processing and Disposal of Solid Waste, Recyclable Materials, Organic Materials and C&D Debris, including Hazardous Waste; and, (v) that any other information required by the CITY demonstrates that the proposed assignee can fulfill the terms of this Agreement in a timely, safe and effective manner.
E. The CONTRACTOR shall provi de the CITY with any and all additional records or documentation which the CITY reasonably determines would facilitate the review of the proposed assignment.
Under no circumstances shall any proposed assignment be considered by the CITY if the CONTRACTOR is in default at any time during the period of consideration. If, in the CITY’s sole determination, there is any doubt regarding the compliance of the CONTRACTOR with this Agreement, the CITY may require an audit of the CONTRACTOR’s compliance and the costs of such audit shall be paid by the CONTRACTOR in advance of the performance of said audit.
13.11 NO THIRD-PARTY BENEFICIARIES
This Agreement is not intended to, and will not be construed to, create any right on the part of any third party to bring an action to enforce any of its terms.
13.12 WAIVER
Waiver by the CITY or the CONTRACTOR of any breach for violation of any term, covenant or condition of this Agreement shall not be deemed to be a waiver of any other term, covenant or condition or any subsequent breach or violation of the same or of any other term, covenant or condition. The subsequent acceptance by the CITY of any fee, tax, or any other monies which may become due from the CONTRACTOR to the CITY shall not be deemed to be a waiver by the CITY of any breach for violation of any term, covenant or condition of this Agreement.
13.13 TRANSITION TO NEXT CONTRACTOR
Requirements in Event of Transition. In the event the CONTRACTOR is not awarded an Agreement to continue to provide Collection Services following the expiration or early termination of this Agreement, the CONTRACTOR shall cooperate fully with the CITY and any subsequent contractors to assure a s mooth transition of services described in this Agreement. Unless otherwise agreed by the CITY and the CONTRACTOR, such cooperation shall consist of:
(a) providing the following information to the subsequent contractor: routing information, route maps, vehicle fleet information, a list of Service Recipients’ contact information and their respective Service Levels , a complete inventory of all Carts and Bins, and any other information deemed necessary by the CITY; and (b) providing adequate labor and equipment to complete performance of all Collection Services required under this Agreement. The CONTRACTOR shall not be eligible for the recovery of any costs associated with these transition activities. However, if the CONTRACTOR is requested to provide additional transition services outside the scope of this Agreement the CONTRACTOR shall be compensated for such services at an amount to be agreed upon between the CITY and the CONTRACTOR prior to the provision of those services.
Item 3E - 165
Palm Springs Draft Agreement Page 85
13.14 CONTRACTOR’S RECORDS
A. Maintenance of Financial Records. The CONTRACTOR shall maintain any and all letters, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to Service Recipients for a minimum period of five (5) years, or for any longer period required by law, from the date of final payment to the CONTRACTOR pursuant to this Agreement.
B. Maintenance of Performance Records. The CONTRACTOR shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of five (5) years, or for any longer period required by law, from the date of termination or completion of this Agreement.
C. Availability of Records. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit at any time during regular business hours upon written request by the Contract Administrator, the CITY Attorney, CITY Auditor, CITY Manager, or a designated representative of any of these officers. Copies of such documents shall be provided to the CITY for inspection at the CITY offices when it is practical to do so. Otherwise, unless an alternative site is mutually agreed upon, the records shall be available at the CONTRACTOR’s address indicated for receipt of notices in this Agreement.
D. Provision of Requested or Demanded Records. Where the CITY has reason to believe that such records or documents may be lost or discarded due to the dissolution, disbandment or termination of the CONTRACTOR’s business, the CITY may, by written request or demand of any of the above - named officers, require that custody of the records be given to the CITY and that the records and documents be maintained in CI TY Hall. Within ten (10) Business Days after receiving the CITY’s written request or demand, the CONTRACTOR shall provide the CITY all requested records and documents. The CITY shall make those records and documents available to the CONTRACTOR, the CONTRACTOR’s representatives, or CONTRACTOR’s successor-in-interest at CITY Hall during regular operating hours.
13.15 NOTICE PROCEDURES
Except as provided herein, whenever either Party desires to give notice to the other, it must be given by written notice addressed to the Party for whom it is intended, at the place last specified as the place for giving of notice in compliance with the provisions of this paragraph. For the present, the Parties designate the following as the respective Persons and places for giving of notice:
As to the CITY:
City Manager
3200 E Tahquitz Canyon Way
Palm Springs, CA 92262
As to the CONTRACTOR:
President
Palm Springs Disposal Services
P.O. Box 2711
Item 3E - 166
Palm Springs Draft Agreement Page 86
Palm Springs, CA 92263
Physical address (for hand or courier delivery):
4690 East Mesquite Avenue
Palm Springs, CA 92264
With copies to:
Rick Wade
Email: [email protected]
Chris Cunningham
Email: [email protected]
Robert Kuznik
4434 W. 14th Street Drive
Greeley, Colorado 80634
Email: [email protected]
A. Notices shall be effective when received at the address as specified above. Changes in the respective address to which such notice is to be directed may be made by written notice only. Facsimile or electronic transmission is acceptable notice, effective upon confirmation, however, facsimile or electronic transmissions received (i.e., printed) after 4:30 p.m. or on weekends or Holidays, will be deemed received on the next Business Day. Receipt is deemed to have taken place within three (3) Business Days of notice mailed by U.S. Postal Service return receipt requested. The o riginal of items that are transmitted by facsimile equipment or electronically must also be mailed as required herein.
B. Notice by the CITY to the CONTRACTOR of a Collection or other Service Recipient problem or complaint may be given to the CONTRACTOR orally by telephone at the CONTRACTOR’s local office with confirmation sent as required above by the end of the Business Day.
ARTICLE 14: MISCELLANEOUS AGREEMENTS
14.1 ENTIRETY OF AGREEMENT
This Agreement and the Exhibits attached hereto constitute the entire Agreement and understanding between the Parties hereto, and it shall not be considered modified, altered, changed or amended in any respect unless in writing and signed by the Parties hereto.
14.2 SEVERABILITY
If any provision of this Agreement or the ap plication of it to any P erson or situation shall to any extent be held invalid or unenforceable, the remainder of this Agreement and the application of such provisions to P ersons or situations other than those as to which it shall have been held invalid or unenforceable, shall not be affected, shall continue in full force and effect, and shall be enforced to the fullest extent permitted by law.
Item 3E - 167
Palm Springs Draft Agreement Page 87
14.3 RIGHT TO REQUIRE PERFORMANCE
The failure of the CITY at any time to require performance by the CONTRACTOR of any provision hereof shall in no way affect the right of the CITY thereafter to enforce same. Nor shall waiver by the CITY of any breach of any provision hereof be taken or held to be a waiver of any succeeding breach o f such provision or as a waiver of any provision itself.
14.4 NON-DISCRIMINATION
In the performance of all work and services under this Agreement, the CONTRACTOR shall not discriminate against any Person on the basis of such Person’s race, sex, color, national origin, religion, marital status, age, disability or sexual orientation. The CONTRACTOR shall comply with all applicable local, State and federal laws and regulations regarding nondiscrimination, including those prohibiting discrimination in employment.
14.5 HEADINGS
The article headings and section headings in this Agreement are for convenience of reference only and are not to be considered in any interpretation of this Agreement.
14.6 EXHIBITS
Each Exhibit referred to in this Agreement forms an essential part of this Agreement. Each such Exhibit is a part of this Agreement and each is incorporated by this reference.
14.7 REFERENCES TO LAWS
All references in this Agreement to laws and regulations shall be understood to include such laws as they may be subsequently amended or recodified, unless otherwise specifically provided herein.
14.8 EFFECTIVE DATE
This Agreement shall become effective at such time as it is properly executed by the CITY and the CONTRACTOR and the CONTRACTOR shall begin Collection Services, as covered herein, as of Effective Date
IN WITNESS WHEREOF, the CITY and the CONTRACTOR have executed this Agreement on the day and year first written above.
City of Palm Springs
Palm Springs Disposal Services
Insert Name Date
Mayor
Signature Date
Print Name of Signatory
Insert Name Date
CITY Manager
Title of Signatory
Item 3E - 168
Palm Springs Draft Agreement Page 88
The Foregoing Agreement has been
reviewed and approval Is recommended:
Signature Date
Name Date
Title, Department name
Print Name of Signatory
Title of Signatory
APPROVED AS TO FORM:
Insert Name Date
CITY Attorney
City Business License #
Resolution Insert Resolution #
ATTEST: Approved by Council
Insert Name Date
CITY Clerk
Item 3E - 169
Palm Springs Draft Agreement Page 89
EXHIBIT 1: MAXIMUM SERVICE RATES
(To be Inserted Upon Execution of Agreement)
Item 3E - 170
Palm Springs Draft Agreement Page 90
EXHIBIT 2A: RATE ADJUSTMENT PROCEDURE – CARTS
Item 3E - 171
·-l
·-2
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s
•
c..h i bit 2A
lh1.te Adj us-tm e.nt Pto ced ute • Ca.rts
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STIP ONE: c.alwlate pe,rcent agie c:b-.,e in CPI
A • C
Perce n t ~
in lnciu
Prev ious-
--·
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-
Index Va lue ' v...._• Column Al • 1J
CPI U"-963 l2S.000 5 .0747V
STIP TWO: New Marteriail Haftl9i "C Component Index
D E F
.. =. Pt-erious bte Chance, In
Faciliti es ' .... New b ~ •
Edom Hil T tamf-cr Station,: RehJse SS1.A9 1-903,.,. SS3.SO Edom Hil Ttadcr Staion,: Green Wa1t:e SS6.01 3.5.,.,. SS8.00 Edom Hil T tadcr Staion,: MilCC!d S91..64 3..666.S~ S9S.OO Coache lb Val er Compost: Ckp~ Waste S75.0D S-.3333'< $79.00 Subto tals Materia l Tons & Cost ~t Commodities
G H
Toru~e Cstimated
U Montbs Materia l
E-C....Se->c> ' Ha n dli..- Cost
U.89W 636,169
2.103.0 lll.974
4.370.0 415,JSO
.
....... Sl.173..293
7 W ...l•h ted A.ven11- Cost -Ton Oo V ..... I SU.8909
STIP TMJlEE: Calcu'-te pet"Centag,e CM~ in Material Manclling: Incle • I J •
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8 Material H.-.dling Ccwnponcot 615540 63.8"09 3 .7964" STIP FOUJl: Cllk~e the Permitted Pen::entage R.te ~
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9 Collection Senioe Co---~ 76.9026" '5.07 47% 3 .9029
10 Mu.irn.wn Allowed Collection Senice Component: ArliU5Ullleflt 1 .__ ,. 6V Mu. in..., ra~ year 11 Material H.-,dlin i, Corr:wponent I 23..0974'XI 3.7964% 0.17~ 12 Totlil Pe,-centage Rate Adjustment .,_,.,.
STIP Five: Cak..._.te the Cost Components Weighq for futwe Rate Adiustment Calcula tion 0 p Q • s
............
Cts.incearJ
°"" ApFfiedto ,._,_, ....
Cmt .... ·-
Co.:upo.c ut Acljusttnent .........
(COl. l ltOW 9 ICOl. M. ltiOW IDae l!SC .-i Cost Cost Compon ent "'"" "" & COI.L,. flOW 9& COl. M. Components ....... .... ....... ·-
Cost Component ll) RDWll ) (0 • P) (0+-QJ Adi-
13 Collection Senioe Co ... 76.9026" S..074i-. 3.9026" 80.8052'< 77.ll:93" 14 Material H.-.dlinR Corr:lponcot 23..0974 'X 3..7964~ ll.8769" D.9743'¥ 22.l!807'J< 15 Total UXJ.00.. 4.78" 104.7&'V 100.00..
PaJm Spr i ngs. Collection Services Ag reemen t
Palm Springs Draft Agreement Page 91
Item 3E - 172
bhibit 2.A
ll1 te Adju stme nt Proce du re • Cu b
P.ge l of l
Il l f or rate adju$tmen t 11pplication for Rite Year July t, 2023, the ~Previous Index V1'1ue" ~1111 be 118..963. f or su~equc nt r.,,te 11djustmc..- 1 pplic.ation~ the r.,,te 1dju~tmcnt ;,ppb tion for R11te Ye11r July l , 2023, the -Previous Index Value" shd be the CPI v11luc fOI' the previous yc11r', rate 11djustmcnt applit1tion . 121 The ~NewlndcK V1luc~ shd be the J;wiw_rrComurnc r Price Index (CPI) · Al Item, in Rivmide-SMI Bem111dir,o.Ont:ario, CA, 111 urban COllSW!lCl'S, not SCMOll~ly lodj""tcd, CUURS49CSAO.
Ill f or rate adju$tmen t 11pplication for Rite Year July t, 2023, the ~Previous Rate~ 101 c.:h facilitysh~ I be the ''Co, t per Ton~ in Exhibit 20, Rows 1 thr0'-'Sh 4, Column B..
f or su~equc nt r.,,te 11djustmc..- 1 pplic.ation~ the "PreYiou, Rate ~ fOI' each facility sh11II be the "'New Rate~ wlucs from the l)l'eYiou~ 'fN''' r.,,te 1dju~tmcnt ;,ppb tion.
14) The ~NewR11te ~ v11h,,c, sMII be the most cun ent per ton t1te cMrgcd 1t e11ch facility.
ISi The Tonqe f01 e11ch facility ~ 1111 be the total ton, delivered to the fdity f01 the p,~o"" U month period enling September 30th. 161 f or rate adju$tmen t 11pplication for Rite Year July t, 2023, the ~Previous Index V~ue" ~1111 be the "lndcK • Wcigllted Avcr.,gc Cost per Ton~ in Exhibit O, Row 6, Column C.
f or su~equc nt r.,,te 11djustmc..- 1 pplic.ation~ the "PreYiou, lndcK V1luc~ shd be the "New Index Value~ from the previous yc.'s mte lodj""tment 11pplic11tion.
171 f or rate adju$tmen t 11pplication for Rite Year July t, 2023, ~ omponc..- Wcighti,-.;• f01 the Motcrial H11ndli11; Component ~1111 be [;(hibit 20 • lnitilll Mate ri11I Hlndli,-.;Componcnt Weigl-ti~ , Row l l, Colwnn G; 11nd. "Component 1/\"cighting" for the Collection Service Component shall be "'1 • 1 Row 11 Column L. ~
f or su~equc nt r.,,te 11djustmc..- 1 pplic.ation~ the ''Component Weiglmng ~ sM11 be Row l l. Column S f01 ~Collectio n Service Componc..-" i nd Row 14, Column s for "Motcri~ H11ndling Component ~ from the previous year's r11te lodj""tment 11pplic11ti011. 181 MHimwn inttell~ of~ per year for Collection Service Component .
Pa lmi Spring, Colle t tiOtl Service1 Agree me nt
Palm Springs Draft Agreement Page 92
EXHIBIT 2B: RATE ADJUSTMENT PROCEDURE – BINS
Item 3E - 173
·-1
·-2
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•
Exhibit 28
Rate Adfust:n'lenl Procedut'e - SIM
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STtP OH£: C.lcubite ~ change in CPI
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Percent OAinse
in lnde:ic
Pr-eWOIJs N ew lnde,t flCoi\.nl n 8 /
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O'I 111!.963 125.000 S..0747"
STCP TWO: New Ma.'terilll Handilii~ Comt,onen t lnde:lt D • •
... '""' ~ew-R.tc Cha~ ln
h>cilities ' .... ,_._a.te •
Edonl Hil Tnrafe,, Station: RehJSe S.SL49 3.9037!if: SS.3..50 Edonl Hil Tnrafe,, Station: Green Waste S.S&..0 1 3.5529!;: SSB.00 Edonl Hil Tnrafe,, Station: Minod "-li rw: S9L64 3.6665!;: $95..00 Co.xhd la V.alky Comp ost Organ ic W ll.ste S7SJ :,O S.333.3 '¥ $79..00 Subtotals Material Ha Tons&Cost
G H
[smnated
Tonna,g e Port·
UMonths Colloctioa
EndingSept,0$ Cost
2.8..015 .0 S 1,.498,803
s
713.0 s 67,735
100.0 s 7,900
,...,. 1,.S,.,438
7 w· ted .-.eni- Cos:t ner Ton tt-lt.Comrnoditv V.ak,e S54.61A9 STCP THREE: CailaA.ate pe,rcentap cha~ in M.terilol Mand lin;g Index I J • PercentOA-nse
in lnde:ic
......... N ew lnde,t fl Cdurn,n, J /
·-
Index lncleat Value • ,,.. .. Cdum nn - 1 1
• MM:erial Hwidling Component 52.4220 S4.6149 4-1832'l< STCP FOUR: C.lcub-t:e the Permitted Pen::~ lbte Charce
I l M N
~ ...
Cha~ ln
lndexlfrom ...........
Compon ... Col.ufTW! Cl & .......... ·-
Cost Comt,onent Weigf,t i~ -, • .17) c ......
• Collectiol,~ I n.A888'l< S.074~ ll324"
10 Maxim um A.Uowed Collection Service Co~ Adi,Jstme,nt • ,_..,..,. 61' Mall in any rate y,u.r 11 r.ute rial Hwiding Component I 22.5 1~1 4 .1832~ 0..94 ,17" 12 Toul PercenUi- lbt:e Ad....,.tment ... ,,.
STCP RV£: C.kul .ate the Cost ~s Weights k,r Future Ible: Adjustment C.cula-tion 0 • Q • s
Percentage- Co,t
~ng-e as eo......,....,
Appied to
·--
to Equal
Cost Adjustment lnu ·ease in Cost Cost~t 1c>o'"Afor
Compon ... (Cdurnn M18 Componont, ln aea.sed ... .... ·- Cost Comt,onent (U8&U9 J &M19J (O • PJ CO + Q)
---13 Collec:tior, Service Componeot n.A888'l< S.07 47!;il: 3.9323" 81 .. 42.U ~ n .6371." ,. Mate rial Hwadi .. Gom;oonent 22.S l ~ 4.1832!if: 0 .9417"A: 23 .. 4529'".t 22.3629" ,s Total 100.""" 4.87"A: 104.87'".t 100.<l<l'J<
Palm Springs Collection Sf'Nkes AgreemMt
Palm Springs Draft Agreement Page 93
Item 3E - 174
Exhibit 28
Rate Adjustment Procedure • Bins
Page2of2
11) F01 rate adj-ustment 11ppliation fOI' Rae Year Jl.ity 1. 2023, the "Previou~ Index Value• shall be 118.963.
F01 su1neque nt rate adjustment 11ppbtio1u , the rate adjustment 11ppb tiol'I fOI' Rate Ye11r Jl.ity 1. 202 3, the "Previous Index Value• shllll be the CPI value for the ptc-.rious '(NI', rate adju$tme nt applie11tion. 12) The "New lndex Value~ sMD be the J11nwrv Cocuumcr Pru Index (CPI) • All Items in Ri'Vt'r~dt'+»rl 8crnardino,On t11rio, CA, al urb11n coc,wme rs, not s~ona llv 11djusted. CULltS49CSAO.
13) F01 rate adj-ustment 11ppliation fOI' Rae Year Jl.ity 1. 2023, the "Previou, Rate• for each fllc:ility shd be the •eo$t per Ton" in 1':1thibit 20, Row, 7 through 10, Column 8.
F01 sub sequent rate adjustment 11ppb tiori,, the -P1cviou~ Rae • for each f11cility ~~I be the ~New Rate" values from the p,ev ious yt'llr"s rate adjustment applicatiori .
(4) The "New Rae • v.due!:$ shd be the mo$t cur1ent per ton rate <h11rged at each facility.
IS) The T011Mge for ~ f11cility ~1111 be the total t011, delivered to the fllc:ility fen the ptevious 12 month period ending September 30th.
16) F01 rate adj-ustment 11ppliation fOI' Rae Year Jl.ity 1. 2023, the "Previou, Index Value• shall be the "lnd e1t • Weigh ted Average Co$t per Ton~ in bhibit D. Row 12. Column C.
F01 su~ equent rate adjustment llppb tiori,, the -P1cviou, Index Value~ sMI be the •New lndex Value~ from the previous '(NI', rate adj-ustment 11ppb tion.
17) F01 rate adj-ustment 11ppliation fOI' Rae Year Jl.ity 1. 2023, -C:omp011ent Weighting" fOI' the Matcri11I Handling Compone nt ~1111 be 1':1thibit 20 • lniti~ Matcri11I Handling Component Weigl,tinp-, Row 14, Column G ; 11nd. ~c omponent Weigl,tirc• for the Collection Service Comp011ent shd be "1 • Row 11 Column L ~
F01 sub sequent rate adjustment 11ppb tiori,, the -C:omp011ent Weighting" ~1111 be Row 13, Column S for ''Collection Service Componen t" 11nd Row 14, Column S for "Msiteri~ H11ndling Comp011ent• from the p,ev ious year's rate adjustment 11ppb tiol'I. 18) Mujmum inete.»e of 6% per yeaf fOI' Collection Service Comp011ent.
Palm Sprln~Coltec.tlon Servic5Agree ment
Palm Springs Draft Agreement Page 94
EXHIBIT 2C: RATE ADJUSTMENT PROCEDURE – DROP BOXES & OTHER SERVICES
Item 3E - 175
Cilltulilte perUfttllC• dl;ang• Ill CPI
·-
IIICl0:,,:
1 "'
ldiibit 2C
bte Adju,tmm t Procedure • 0top 8o11es & Otfle r Services P1plofl
A • C
P«tnlt1e d
Pwtenu ge
Oi;ang• !(COiumn
Pr•YIOIIS Htw lnd•- 8 / COiumn A) •
lnd•-Villu•
. V;alue ' 11
118.963 125.000 S..0147"
I l l The "Previous lndcx V11luc" ib11II be lbe CPI y.i,l;ie f« tl~ ptevl ous yun r111e 11C1Jus1mtcn1 ~ppllu1lon.
Ill The "New lnde,,:v • e• st\11 ~ tM J.i,n...,.,.., Consum er Pike lnde'.il !CPI) •All Items In R.Wr'lide>S.i,n llffN«l lno-Onu rlo, CA, 1111 u t billl consumll'fs, IIOI SU $0,way iidJUSlfd, CUU!IS49CSACL
Palm Springs Draft Agreement Page 95
EXHIBIT 2D: INITIAL MATERIAL HANDLING COST INDEX
(To be Inserted Upon Execution of Agreement)
Item 3E - 176
Row
1 2
3 4
5 6
Exhibit 20
lnltlal Material Hand ling Cost Index