WHEREAS, CONTRACTOR has demonst rated through past performance and in negoti ati ons conduc ted w ith CITY that CONTRACTOR is qualified and compe tent to perform the Solid Waste services desired by CITY.
WHEREAS; CONTRACTOR desires to engage in th e business of Collecting Discarded Materia ls in the CITY; and, Palm Springs Agreement Page 1
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WHEREAS, the CITY further declares its int ent to approve and maintain the maximum approved rates 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, th erefo re, 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 t his 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
"Affili ate" means all businesses, including, without limitation, corporat ions, limited and general partner ships and sole proprietorships, that are directly or indirectly related to the CONTRACTOR by virtue of direct or indirect ownership interest or common management. Such businesses shall be deemed to be "Affiliated with" the CONTRACTOR and included within the term "Aff iliates" as used herein. An Affiliate includes: (i) a business in which t he CONTRACTOR has a direct or indirect owner ship interest; (ii) a business that has a direct or indirect ownership inte rest 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 constru ctive ownership prov isions of Section 318(a) of the Interna l Revenue Code of 1986, as in effect on the Effective Date, provided that ten percent (10%) shall be substitu ted for fifty percent (50%) in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof ; and Section 318(a)(S)(C) shall be disregarded. For purpo ses of determining owner ship under this paragraph and constructive or indirect ownership under Section 318(a), owner ship interest of less than ten percent (10%) shall be disregarded and percentage interests shall be determined on the basis of th e percentage of voting interest of value that the own ership interest represents.
1.2 AGREEMENT
"Agreemen t" means this exclusive Collection Services Franchise Agreeme nt b etween the CITY and CONTRACTOR for th e Collection and subsequent Transfer, Transportati on, Processing, and/or Disposal, of Single-Family, Mult i Family, and Commercial Discarded Materia ls and C&D, including all exhibit s and attachment s, and any amendments thereto.
1.3 ALTERNATIVE DAILY COVER or 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 or AIC
"Alternative Intermedia te 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, permit s, approvals, or other require ment of any governmen tal agency having jurisdiction ove r the Collection, Transportation, Processing, and Disposal of Discarded Materials that are in force on t he Effec tive Date and as may be enacted, issued, or amended during the Term of this Agreement. Applicable Law includes, but is in no way limi ted 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 Facilit y; Approved High Diversion Organic Materials Processing Facility; Approved Organic Materia ls Processing Facility; Approved Source Separated Recyclable Materials Processing Facility; and Approved Transfer Station, each of which are defined in this Artic le and listed in Exhibit 6.
1.7 ASSEMBLY BILL 341 (AB 341)
"AB 341" means AB 341 (Chapter 476, Statutes of 2011) as amended, supplemen ted, super seded and replaced from time to time.
1.8 ASSEMBLY BILL 939 (AB 939) (ACT)
"AB 939" means AB 939 (Chapter 1095, Statu tes of 1989) also known as the California Integra ted 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, Statute s of 2014), as amended , supple mented, superseded, and replaced from t ime to time .
1.10 BACK-HAUL
"Back-Haul" means generating and transporting Organic Waste to a destinat ion owned and operated by the Generator using the Generator ' s own employees and equipment , or as otherw ise defi ned in 14 CCR Section 18982(a){66){A) .
1.11 BIN
"Bin" means a metal or plastic Container with hinged lid(s) and whee ls serviced by a front -end loading Collect ion 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)(S) and shall be used for the purpo se of storage and Collection of Source Separated Recyclable Mater ials.
1.13 BROWN CONTAINER
"Brown Container " has the same meaning as in 14 CCR Section 18982.2(a)(S.S) and shall be used for the purpose of storage and Collection of Source Separated Food Waste.
1.14 BULKY ITEMS or BULKY WASTE
" Bulky Items" or "Bulky Waste" means discarded furn iture (includi ng chairs, sofas, matt resses, carpet, and other similar item s); appliances (includ ing refrigerators , ranges, washers, dryers, water heaters, dishwashers, plumbing, small household appliances, and other simila r 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 , fou r (4) feet in length, and 150 pound s in weig ht per bundl e, scrap wood, in the aggregate not exceeding one (1) cubic yard per Collection unless Contractor allows heavier or larger-sized items); cloth ing; and tires. Any Bulky Items contai ning chlorofluorocarbon (CFC) refri gerant s shall be handled in accordance with Applicable Law. Bulky Items do not include car bodi es or C&D, or any other items that cannot be handled by two (2) Persons. Bulky items do not include item s 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 t hose Bulky Items to the Approved Facility.
1.16 BUSINESS DAYS
"Business Days" mean days during which the CITY's administrative offices are norma lly open to do business with the public.
1.17 CALIFORNIA CODE OF REGULATIONS (CCR)
"California Code of Regulation s" or "CCR" means the State of Califo rnia Code of Regulations. CCR references in this Agreement are preceded with a numb er that refers to the relevant Title of the CCR (e.g., "14 CCR, Division 7, Chapter 12" refers to Titl e 14, Division 7, Chapter 12 of the California Code of Regulations.
1.18 CALRECYCLE
" CalRecycle" means the Californ ia Department of Resources Recycling and Recovery or its successor.
1.19 CART
"Cart" means a heavy plastic receptacl e and a rated capacity of at least thirty -two (32) gallons and not more than ninety-six (96) gallons, having a hinged, tight -fitt ing lid and wheels, that is approved by the Contract Administrator for use by Service Recipient s for Collection Services under this Agreement.
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1.20 CHANGE IN LAW
"Change in Law" means th e following events or conditions:
a. The enactment, adoption, promulgat ion, 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 th e CONTRACTOR, whichever is asserting the occurrence of a Change in Law; provided , however , that the contest ing in good faith or t he failure in good faith to contest any such order or judgment shall not constitut e or be construed as such a wil lful or negligent action, error or omission or lack of reasonable diligence .
1.21 CITY
"CITY" means the City of Palm Springs, Californ ia.
1.22 CITY CLEAN-UP SERVICE
"CITY Clean-up Service" means th e Collection of Source Separated Recyclable Materials, Organic Mater ials, Gray Container Waste and Bulky Items by the CONTRACTOR resulti ng from written or verba l requests from the CITY for temporary clean-up program s at a central ized collection site. Such Service shall include the provision of Bins or Roll Off Boxes by the CONTRACTOR, and the tran sport 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 t he Collection of Solid Waste, Recyclable Materials, and Organic Materials from public litt er Containers and the transport and delivery of the Collected materials to th e appropriate Approved Facility.
1.25 CITY SERVICE UNIT
"CITY Service Unit" means those CITY properties or CITY locations which the Contract Administrator requests that th e CONTRACTOR provide Services as provided in this Agreemen t .
1.26 CITY WASTE
"CITY Waste" means Solid Waste, Recyclable Materials, Green Waste, Organic Materia ls, 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-automa ted or automated means, and transporting such materials to the Approved Facility, pursuant t o this Agreement.
1.28 COLLECTION SERVICES
"Collection Services" means SFD Collection Service, MFD Collection Service, CITY Collect ion 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 prov iding 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 otherw ise defined in 14 CCR Section 18982(a)(7) . For the purposes of this defini tion, Food Recovery Organizations and Food Recovery Services are not Commercia l 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 fo r a Commercial Service Unit .
1.32 COMMERCIAL BUSINESS or COMMERCIAL
"Commercial Business" or "Commercial" means a firm , partnership, propr ietor ship, joint-stock company , corporation , or association, whether for-profit or nonprofit, st rip mall, or industrial facility, or as otherwise defined in 14 CCR Section 18982(a)(6), and any multi -fami ly 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 t he purposes of th is 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 " means any activity that compo sts green mater ial, agricult ural materia l, food material, and vegetative food mater ial, alone or in combina tion, and the total amount of feedstock and Compost on-site at any one time does not exceed 100 cubic yards and 750 square feet, as specified in 14 CCR Section 17855(a)(4); or as otherwise defined in 14 CCR Section 18982(a)(8) .
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1.35 COMPACTOR or COMPACTION
"Compactor," or "Compaction" means a mechanical apparatus tha t compresses materials, the Container that hold s the compressed materials , and/or the process of compressing materials or holding compressed materia ls.
Compactors include Bin Compactors of any size Serviced by front-loading Collection Vehicles and Compactors of any size Serviced by Roll-Off Box Collectio n vehicles.
1.36 COMPOST or COMPOSTING
"Compost" has the same meaning as in 14 CCR Section 17896.2(a)(4), and means the product resulting from the controlled biological decomposition of organic Solid Wastes that are Source Separated from t he municipal Solid Waste stream, or which are separated at a centralized Facility.
1.37 COMPOSTABLE PLASTICS
"Compostable Plastics" or " Compostable Plastic" means plastic mate rials that meet the ASTM D6400 standard for compostability, or as ot herwise described in 14 CCR Section 18984.l (a)(l)(A) or 18984.2(a)(l )(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 mater ial, Inerts, soil, packaging, Yard Trimming s, rubble, and other used or Discarded Materials resulting from construction or demoli tion. Accepted and prohib ited materials are listed in Exhibit 3.
1.39 CONTAINERS
"Container(s)" means a cart , can, comme rcial bin, debris box, or stationary compactor intended for the purpose of depositing waste for disposal, except C&D Debris and Bulky Item s, or Recyclable Material s for diversion. Containers may be provided by CITY or CONTRACTOR, or for manual collection as may be requ ired to be provided by the property owner or occupant generating Solid Waste, Organic Waste or Recyclables.
1.40 CONTAMINATION or CONTAMINANTS
"Contamination" means the inc lusion in a Container of Excluded Waste of any amount; or Organic Materials and/or Recyclable Mater ials placed in a Solid Waste Container; or material s other t han Organic Materials in an Organic Material s Container, or mate rials other tha n Recyclable Material s in a Recyclable Materials Container, which render the contents of the Container mater ially unsuitab le for the intended type of Diversion.
1.41 CONTRACTOR
"CONTRACTOR" means Palm Springs Disposal Services.
1.42 CONTRACT ADMINISTRATOR
"Contract Adminis t rato r" means the Sustainability Director, or any subsequent Person, or his or her designee, designated by the CITY to administer and monitor the provisio ns of this Agreement.
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1.43 CONTRACTOR COMPENSA TION
"CONTRACTOR Compensation " means the monetary compen sation received by th e CONTRACTOR in ret urn for providin g Services in accordance with thi s Agreement as described in Article 10.
1.44 COVERED ELECTRONIC WASTE (CEW)
"Covered Electron ic Waste" or "CEW" means discarded electro nic devices that the California Department of Toxic Substances Control (DTSC) has determined to be a covered electroni c device, as specified by Section 42463 (f) of the Californ ia Public Resources Code. CEW includes cathode ray tube (CRT) devices (includ ing te levisions and computer monitors); LCD desktop monitors ; laptop compu ters with LCD displays; LCD televisions; plasma tele visions; portable DVD players with LCD screens; and oth er electronic devices as may be added by the DTSC from time to time .
1.45 CUSTOMER(S)
"Custome r" means th e Person who receives the CONTRACTOR's Collection services and to whom the CITY or CONTRACTOR submits its billing invoice to and collect s payment fro m, for Collection services prov ided to a Premise. The Customer may be either the occupant, owner , or prop erty manager of th e 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 combinat ion 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 th e CONTRACTOR to use. Any such facility utilized by the CONTRACTOR shall be designed and constru ct ed in accordance wit h Applicable Laws and shall have been issued all permi ts from federal, State, regio nal, county and city agencies necessary for it to operate . Any such facility shall be in full regulatory complia nce with all such permi t s.
1.48 DISCARDED MATERIALS
"Discarded Materia ls" are a form of Solid Waste and shall be regulated as such. For purpo ses of thi s Agreement , material is deemed to have been discarded, without regard to whether it is destine d 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 amou nt, is directly or indirectly solicited from , or, levied, charged, or oth erwise imposed on, or paid by, the Generator or Customer in exchange for handling services. As used herein, handling services include, without limit ation, the Collection, removal, Transportation, delive ry, and Processing and/or Disposal of the materia l.
Discarded Material s do not include Edible Food that is recovered for human consumption and is not discarded. For the purpo ses of this Agreement, Discarded Mater ials include Source Separated Recyclable Materials, Source Separated Green Container Organic Waste, Food Waste, Gray Container Waste, and C&D once the mater ials 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 t hereo f)" means activit ies which reduce or elimina te Discarded Materials from Disposal, includi ng, 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 St ream" or "Dual-St ream" means a Collection method in w hich t he Generators are inst ructed 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
"Dwell ing 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 . Noth ing in this Agreement requires or autho rizes the recovery of Edible Food that does not meet the food safety requirem ents of the California Retail Food Code. If the definition in 14 CCR Section 18982(a)(18) for Edible Food differs from thi s 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.
1.56 ELECTRONIC WASTE or E-WASTE
"Electronic waste" or "E-Waste" means discarded electronic equipment including, without limitat ion, 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 ot her electronic devices.
1.57 ENFORCEMENT ACTION
"Enforcement Action" means an action of the CITY to address non -comp liance including , but not limited to, issuing Palm Springs Agreemen t Page 9
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administrative citations, fines, penalties , or using other remedies.
1.58 ENFORCEMENT ACTION
"Enforcement Inspection " means an examination of Containers by CONTRACTOR performed under the d irect supervi sion of the CITY as a part of an enforcemen t action and shall consist of a physical inspection of each Container used by Customer to determ ine the percenta ge by weight of Material Not Permitted in each of Custom er's Containers.
1.59 ENVIRONMENTAL LAWS
"Environmen tal Laws" means all federal and State statutes , and county and CITY ordinances concerning publ ic health, safety and th e environment including, by way of example and not limi tation, AB 341, AB 939, AB 1826, SB 1383, the Comprehensive Environmen tal 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.; th e Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Occupational Safe ty 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-Pres ley-Tanner Hazardous Substance Account Act, California Health and Safety Code§ 25300 et seq.; th e Porter -Cologne Water Quality Control Act, Califo rnia Water Code § 13000 et seq.; t he Safe Drinking Wat er and Toxic Enforcement Act, California Health and Safety Code § 25249.5 et seq.; as currently in force or as hereaft er amended, and all rules and regulations promulgated thereund er.
1.60 EXCLUDED WASTE
"Excluded Wast e" means Hazardous Substa nce, Hazardous Waste, Infectious Waste, Designated Waste, volatile, corrosive, Medical Waste, infectious, regulated radioactive waste, and toxic substances or materia l that Approved Facility operator(s) reasonably believe(s) wou ld, 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 restrictio ns or conditions, waste that cannot be Disposed of in Class Ill Landfil ls or accepted at the Facility by permit condi tion s, waste that in CONTRACTOR'S reasonable opinion would present a significan t risk to human health or the environment, cause a nuisance or otherwise create or expose CONTRACTOR or CITY to potential liabili ty; but not including de minimis volumes or concentrations of waste of a type and amount norma lly found in Single-Family or Multi-Fam ily Solid Waste after impleme ntation of programs for the safe Collectio n, Processing, Recycling, treatment, and Disposal of batteries and paint in compliance with Sect ions 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 fo r human consump tion which otherwise would be disposed, or as otherwi se 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 ent ities, including, but not limited to:
A. A food bank as defined in Section 113783 of the Health and Safety Code; B. A nonprofit charitable organizatio n as defined in Section 113841 of the Health and Safety code; and, C. A nonprofit charitable tempora ry 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 th is definition, the definition in 14 CCR Section 18982(a)(25) shall apply to thi s Agreement.
1.64 FOOD RECOVERY SERVICE
"Food Recovery Service" means a person or entity that collects and transport s Edible Food from a Commercial Edible Food Generator to a Food Recovery Organization or other enti ties for Food Recovery, or as otherwise defin ed in 14 CCR Section 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 th e Service Area and to use the public rights of way for such purpos e.
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 th at is collected in a Gray Container that is part of a three-Container Organic Waste Collection service th at proh ibit s the placement of Organic Waste in the Gray Container as specified in 14 CCR Sections 18984.l(a ) and (b) or as otherwise defined in 14 CCR Section 17402(a)(6.5). For the purpo ses of Palm Springs Agreement Page 11
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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 t he 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, Californ ia Refund Value revenue, CalRecycle suppl emental payments to registered curbside recycling opera tors, 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 stop s for each segment of th e CITY's Collection service area, or as otherwise defined in 14 CCR Section 18982(a)(3 1.5).
1.74 HAZARDOUS SUBSTANCE
"Hazardous Substance" means any of the follow ing: (a) any substances defined , regulated or listed (direc tly or by reference) as "Hazardous Substances" or hazardous material, Hazardous Waste, toxi c waste, pollutant, or toxic substan ces or similarly identified as hazardous to human health or th e enviro nment , in or pursuant to: (i) th e Comprehen sive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, 42 USC§ 9601 et seq. (CERCLA); (ii) the Hazardous Materials Transpor tation Law, 49 USC § 5101, et seq.; (iii) th e Resource Conservation and Recovery Act, 42 USC§ 6901 et seq.; (iv) the Clean Water Act, 33 USC§ 1251 et seq.; (v) California 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 promulga ted thereunder to such enumerated statute s or acts curren tly existing or hereafter enacted; and, (c) any other hazardous or toxic substance, material, chemical, waste, or pollutant identifi ed as hazardous or tox ic or regulated under any other Applicable Law curre ntly existing or herein after enacted, including , without limitation , friable asbestos, polychlorinated biphenyl's (PCBs), petrole um, natu ral gas, and synth etic fuel prod ucts 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 th e 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 ther eto, and all rules and regulati ons promu lgated thereunder.
1.76 HIGH DIVERSION ORGANIC WASTE PROCESSING FACILITY
"High Diversion Organic Waste Processing Facility" means a facilit y that is in comp liance w ith the reporting requi rements of 14 CCR Section 18815.S(d) and meet s 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, 2025, as calculated pursuant to 14 CCR Section 18815.S(e) for Organic Waste received from th e "Mixed Palm Springs Agreement Page 12
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waste organic collection stream" as defined in 14 CCR Section 17402(a)(11.5); or, as otherwi se defined in 14 CCR Section 18982(a)(33).
1.77 HOLIDAYS
"Holidays" shall mean the observed holiday for Memorial Day, Independ ence 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 t he delivery of medicat ions 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 t ype or those from laptop computer s or cell phones, and common ly used as power sources for consumer electronics devices, including but not limited to zinc oxide, nickel meta l hydride, alkaline, mercury , silver oxide, lithium, lithium ion and carbon zinc, but excluding automotive lead acid batterie s.
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 fut ure amendment s to or recodifications of such statutes or identified and listed as Hazardous Waste by the U.S. EPA, pursuant to th e Federal Resource Conservation and Recovery Act (42 USC § 6901 et seq.), all future amendment s thereto , and all rules and regulat ions promulgated thereunder .
1.81 INCOMPATIBLE MATERIALS
"Incompatible Material" or "Incompatibles" mean(s) human- made inert material, including , but not limited to, glass, metal, plast ic, 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 defined in 14 CCR Sectio n 18983.l(b), or as otherwise defined by 14 CCR Section 17402(a)(7.S).
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 sportin g event or a flea market, that charges an admission price, or is oper ated 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 oth er 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, perfor ming arts center, fairground, museum, theater, or oth er public at tractio n facility. A site under common owners hip or control that includes more than one Large Venue that is contiguous wit h other Large Venues in t he site, is a single Large Venue.
1.86 LIQUIDATED DAMAGES
"Liquidated Damages" means the amounts due by the CONTRACTOR for failure to meet specific quant ifiable standards of perfo rmance 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 dwelling s may authorize a homeowner 's association, property manager, or agent to receive and pay the Solid Waste bill issued by CONTRACTOR as a master-bi lled 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 does not relieve them of their individual responsibilities to arrange and pay for Solid Waste management services.)
1.88 MATERIALS RECOVERY FACILITY or MRF
"Materia ls Recovery Facility" or "M RF" 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 Inerts 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 1898'4.3 to be Transported 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 t he 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 fo r land application specified in 14 CCR Section 17852(a)(24.5)(A){ l ) thro ugh (3). ii. Was produced at one or more of t he following types of Facilities:
a. A compos table material handling operation or facility as defined in 14 CCR Section 17852(a)(12), that is permitted or authorize d under 14 CCR, Division 7, other than a chipping and grinding operation or facility as define d in 14 CCR Section 17852(a)(10); b. A Transfer/ Processing Facility or Transfer/ Processing opera tion 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 t hat 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 t o a High Diversio n Organic W aste Processing Facilit y, or as ot herwise defined in 14 CCR Section 17402(a){ ll. 5}.
1.93 MULTI -FAMILY, MULTI -FAMILY DWELLING, MFD, or MULTI -FAMI LY SERVICE UNIT "Multi-Family," "Mult i-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, apartmen t houses, or mobile home parks, irrespective of whether residence therein is transient, temporary or permane nt w hich receive collection services fro m centralized locations. M ulti-Fami ly premises do not include hotels, motels, or other transient occupancy facilities, whic h are considered Commercia l Businesses.
1.94 NON-COMPOSTABLE PAPER
"Non-Compostable Paper" includes, but is not limited to, paper that is coated in a plastic mater ial 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 for m, as approved in advance by the CITY, used t o notify a Service Recipient of th e reason for the non-Collection of mate rials 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, bott les, cans, metals, plast ics, 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 WAST E or ORGANIC MATERIALS
"Organic Waste" or "Organic Materials" means Solid Waste containing material originated from living organisms and their metabolic waste product s, including, but not limited to, Food Waste, Green Waste, landscape and pruning Palm Springs Agreemen t Page 15
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waste, nonhazardous wood waste, and food-soiled paper waste th at is mixed in with Food Waste.
1.98 PAPER PRODUCTS
"Paper Product s" include, but are not limi ted to, paper janitorial supplies, cartons, wrapping, packaging, file folders , hanging files, corruga ted boxes, tissue, and towel ing; or as otherwise defined in 14 CCR Section 18982(a)(Sl).
1.99 PARENT COMPANY
"Parent Company" means a company that has a contro lling interest in another company, enabling the Parent Company to control management and operations of the Affilia te 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 PRC Section 40170, which states, as of the Effective Date, that a Person includ es an individual, firm , lim ited liabili ty company, association , partnership , political subdiv ision, 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 produc ed, 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, automa ted, 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 otherwi se 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 Cont ainer that are not identified as acceptable Source Separated Recyclable M ater ials for the CITY's Blue Container; (ii) discarded materials placed in the Green Container that are not ident ified as acceptable Source Separated Green Container Organic Waste for t he CITY's Green Container; (iii) discarded materials placed in the Brown Container that are not identified as acceptable Source Separated Brown Contain er Food Waste for the CITY's Brown Containe r; (iv) Palm Springs Agreement Page 16
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discarded materials placed in th e Gray Container that are accepta ble Source Separated Recyclable Mate rials, Source Separated Green Containe r Organic Wastes, and/or Source Separated Brown Container Food Waste to be placed in th e CITY's Blue Cont ainer, Green Cont ainer, and/ or Brown Contai ner; and, (v) non-Solid Waste items placed in any contai ner.
1.106 PROPERTY OWNER
"Property Owner" means the owner of real property, or as oth erwise define d in 14 CCR Section 18982(a)(S7).
1.107 PUBLIC RESOURCES CODE or PRC
" Public Resources Code" or " PRC" means the California Public Resources Code.
1.108 PUTRESCIBLE WASTE
" Putre scible Wast e" mean s wastes that are capable of being decomposed by micro-orga nisms w ith suffi cient rapidity as to cause nuisances because of odo rs, gases, or other offensive conditions, and includes materials such as, but not lim ited to Food Waste, offa l, and dead animals; or as otherwise define d in 14 CCR Section 17402(a)(21).
1.109 RATE
" Rate" means the maximum amount, expressed as a dollar unit, approved by the CITY t hat t he CONTRACTOR may bill a Customer fo r providing specified services under this Agreement. A Ra te has been established for each individual Service Level are presented in Exhibit 1. The Rates approved by t he CITY are the maxim um Rate that CONTRACTOR may charge a Customer for a particular Service Level and CONTRACTOR may, in its sole discret ion, charge any amount up t o and includ ing th e maxim um Rate approved by the CITY. CONT ACTOR has acknow ledged for Organic Waste Collection services th at are not provided to residential customers unt il the Edom Hill Organic Wast e Processing Facility ope ns, t hat Organic Waste Collectio n service rate s will be not be charged until those cust omers actu ally received such service.
1.110 RATE REVENUE
" Rate Revenue " means CONTRACTOR'S income received from Customers for services prov ided in accorda nce with Exhibit 1. Rate Revenue does not include revenues from the sale of Recyclable M aterials, Califo rnia Refund Value revenue, CalRecycle supplemental payment s t o registered curb side recycling opera t ors, revenue from t he sale of processed recycling, Compost, C&D, or miscellaneous income from non-Collection activities.
1.111 RATE YEAR
" Rat e Year" means a 12-mo nth period, beginning July 1 and ending June 30 of the following year, for which the CONTRACTOR's Compensation is calculat ed.
1.112 RECYCLABLES or RECYCLABLE MATERIALS
" Recyclables" or " Recyclable M aterials" means materia l t hat can be separated from waste for the purpose of reusing or returning th ese materials in the form of raw mat eria ls for new, used or reconsti tuted pro ducts that meet t he quality st andard necessary to be used in the marketplace, or for Composting.
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1.113 RECYCLE, RECYCLING
"Recycle" or "Recycling" means the process of Collecting, sort ing, cleansing, treating , and reconfigur ing materials for the purpose of returning th em to the economic mainstream in t he form of raw material for new, Reused, or reconstituted produ cts that meet the quality standards necessary to be used in the market place. Recycling includes processes deemed to constitute a reduct ion of Landfill Disposal pursuant to 14 CCR, Division 7, Chapter 12, Artic le
2. Recycling does not include gasification or transformation as defined in PRC Section 40201.
1.114 REMNANT ORGANIC MATERIALS
"Remnant Organic Materials" means the Organic Waste th at is Collected in a Gray Container tha t is part of the Gray Container Collection stream, or as oth erwise defined in 14 CCR Section 17402(a)(23.5).
1.115 RENEWABLE NATURAL GAS OR RNG
"Renewable Natural Gas" or "RNG" means gas deriv ed fro m Organic Waste that has been diverted from a Landfill and Processed at an in-vessel digestion facility that is permitted or ot herwise aut horized by 14 CCR to recover Organic Waste, or as otherwi se 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 mater ials.
1.117 REUSABLE ITEMS
"Reusable Items" means items that are capable of being Reused after min imal Processing. Reusable Items may be Collected Source Separat ed or recovered throu gh a Processing Facility. Reusable Items may include, but are not limited to, clothing, furniture, and/ or sport ing equipm ent.
1.118 REUSE
"Reuse" or any variat ion the reof, means the use, in the same, or similar, form as it was produced, of a material which might otherwise be discarded, or as oth erwise defined in 14 CCR Section 17402.S(b)(2).
1.119 ROLL-OFF BOX
" Roll-Off Box" means an open - or closed-top metal Container, roll-top Container, or closed compactor Container serviced by a roll-off tru ck 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), whi ch established methane emissions reduction target s in a statewide effort to reduce emissions of short-lived climate polluta nts as amended, supplemented, superseded, and replaced from time to time.
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1.120 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 port ions of regulations of 14 CCR and 27 CCR.
1.121 SERVICE AREA
"Service Area" means t hat 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/un lock 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, or SINGLE-FAMILY SERVICE UNIT "Single-Family," "Single-Family Dwelli ng," "SFD," or "Single-Family Service Unit" means, notwiths tanding any contrary defini tion 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 Commu nity. "Single-Family," "Single-Family Dwelling," "SFD," or "Single-Family Service Unit" includes Residentia l units of a duplex, tri-plex, or fo ur-plex Residential structure prov ided t hat t he owne r 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 nonputre scible solid, semisolid, and liquid wastes, including garbage, trash, refuse, paper, rubbish, ashes, industrial wastes, C&D, abandoned vehicles and parts thereof, discarded home and industrial appl iances, dewatered, treat ed, or chemically fixed sewage sludge which is not hazardou s 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 regulate d pursuant to the Radiation Control Law (Chapter 8 (commenci ng 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, commenc ing 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 or SSGCOW "Source Separat ed 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 textil es. The accepted type s of Source Separated Green Container Organic Waste and process for modifying the accepted types of Source Separated Green Container Organic Waste are specified in Arti cle 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 Separat ed Non-Organic Recyclables. The accepted types of Source Separated Recyclable Materials and process for modifying the accepted types of Source Separated Recyclable Mate rials are specified in Article 5.
1.128 SPECIAL EVENT COLLECTION SERVICE
"Special Event Collection Service" means th e Collection of Solid Waste, Recyclable Materials and Organic Mater ials as appropria te 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 otherw ise allowed pursuant to 14 CCR, Division 7, Chapter 12, Articl e 3.
1.130 STATE
"State" means the State of California .
1.131 SUBCONTRACTOR
"Subcontrac tor" means any Person, fi rm, or ent ity hired by CONTRACTOR to carry out CONTRACTOR's dutie s 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 own ership controlled by CONTRACTOR.
1.133 TERM
"Term" means the period of t his Agreement, including extensio n period s if granted , as provided for in Art icle 3.
1.134 TIPPING FEE
"Tipping Fee" means the cost impo sed at Disposal, Processing and or/ Transfer Facility for the hand ling, Processing or dumping of Solid Waste Collected by CONTRACTOR.
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1.135 TIER ONE COMMERCIA L 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 wi th a total facili ty size equal to or greater than 10,000 square feet.
C. Food Service Provider.
D. Food Distrib utor .
E. Wholesa le 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 th is Agreemen t
1.136 TIER TWO COMMERCIAL EDIBLE FOOD GENERATORS
"Tier Two Commercia l Edible Food Generator" means a Commercial Edible Food Generator that is one of the following, each as defined in 14 CCR Section 18982:
A. Restaura nt with 250 or more seats, or a total facility size equal to or greater than 5,000 square feet.
B. Hotel w ith an on-site food facility and 200 or more rooms.
C. Health facili ty 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 fro m thi s defin ition, the definit ion in 14 CCR Section 18982(a)(74) shall apply to thi s Agreement
1.137 TON
"Ton" or means a unit of weight equal to 2,000 pounds (907.18474 kg).
1.138 TRANSFER
"Transfer" means t he 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 materia ls. 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 t he CITY, or specifically designated by the CITY, designed, operated and legally permitted for th e purpose of receiving and transferring Solid Waste, Recyclable Material s including Green Waste and Food Waste, Bulky Items, and/or C&D Debris.
1.140 TRANSPORT or TRANSPORTATION
"Transport " or "Transportation" means th e act of conveying Collected materials from one location to another .
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1.141 UNIV ERSAL 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 , fluor escent light bulbs, mercury switches, and electronic waste.
1.142 WORK DAYS
"Work Days" or "Worki ng Days" means days on which the CONTRACTOR is required to provide regular ly scheduled Collection services under this Agreement.
1.143 YARD TRIMMINGS or GREEN WASTE
"Yard Trimm ings" or "Green Waste" means types of SSGCOW resulting from normal yard and landscaping installation , maintenance, or removal that th e Generators Source Separate and set out in Green Containers for Collection for the purpo se of Processing by th e CONTRACTOR. The accepted types of Yard Trimmings and process for modifying the accepted types of Yard Trimmings are specifie d in Articl e 5.
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ARTICLE 2: REPRESENTATIONS AND WARRANTIES
The Parties, by acceptance of this Agreement, represent and warrant the conditi ons presente d in thi s Arti cle.
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 it s business as now owned and operated and as required by t his Agreement.
2.2 CONTRACTOR'S CORPORATE AUTHORIZATION
Each signato ry of this Agreement represent s and warrants that he or she has the fu ll legal auth ority 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 afte r reasonable investigation, the execution or delivery of thi s Agreement or the perfo rmance by either Party of the ir respective obligations hereunder does not conflict with, vio late, or result in a breach: (i) of any Applicable Law; or (ii) any term or condition of any jud gment, order, or decree of any court, admin ist rative agency or other governmental aut hority, or any agreement or instrum ent to which the CONTRACTOR or any oth er local governme ntal entity is a party or by which the CONTRACTOR or any of its propert ies 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 author ity, commission, board, agency or instrumen tality decided, pendin g or threatened against any party wherein an unfavorable decision, ruling or finding , in any single case or in the aggregate, would:
• Materially and adversely affect the performan ce by the CONTRACTOR of its oblig ation s 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 perfo rmance under thi s Agreement.
2.5 NO ADVERSE JUDICIAL DECISIONS
To th e best of the CONTRACTOR's and th e CITY's knowledge after reasonable investigation, there is no jud icial decision that would proh ibit this Agreeme nt.
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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 t hrough a referend um or similar peti tion, and to various types of legal and environmenta l challenges (such referenda, similar petition and legal and environmental challenges being referred to collectively as "Legal Challenges"). Accordingly , this Agreement shall not become effective unti l the Contract Administrator reasonably determ ines that (i) any Legal Challenges t hat had been initiated as of the tim e of such determination have been resolved in favor of the CITY's award of th is Agreeme nt to CONTRACTOR; and (ii) the deadline to initiate any additiona l Legal Challenges has expired. To the ful lest extent permitted by law, CONTRACTOR shall defend, indemn ify and hold the CITY, its Mayor, Council, officers, representatives , agents, employees and volun teers, 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 NO 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 proh ibit the performan ce of thei r respect ive obligations under this Agreement and t he contemplated transactio ns.
2.8 CONTRACTOR 'S ABILITY TO PERFORM
The CONTRACTOR warran ts and guarantees that it possesses the business, professional, and technical expertise to perfo rm all Services, obligat ions, and duties as described in and requ ired by this Agreement, including all Exhibit s.
The CONTRACTOR possesses the ability to secure equipment, faci lity, 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 wh ich are satisfacto ry to the CONTRACTOR, of the conditio ns and circumstances surrounding thi s Agreement, its content and prepara tion, and th e wor k to be perfo rmed by the CONTRACTOR under this Agreement. This Agreement accurate ly and fair ly represent s the intentio ns of t he CONTRACTOR, and the CONTRACTOR enters into this Agreement based on the findings of that independent inves tigation and analysis.
ARTICLE 3: TERM OF AGREEMENT
3.1 TERM
The Term of thi s Agreement shall begin October 1, 2022, and term inate on Ma rch 30, 2029, unless sooner termi nated in accordance with the terms prov ided 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 th is 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 thi s Agreement, subject to the limitations described in Article 4.2 and except where otherwise preclud ed by Federal, State, and local laws and regulations.
4.2 LIMITATIONS TO THE SCOPE OF EXCLUSIVE AGREEMENT
Notwith stand ing any provision to the contrary contained in th is Agreement , the exclusive franchise, right and privilege to provide Solid Waste Handling Services at Premises within CITY granted to CONTRACTOR by this Agreement specifica lly excludes the following services, which services may be provid ed 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 Mate rials or Organics Materials by th e Generator to any person or entity ot her 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 term s of the consideration th e Generator is required to pay) shall not be considered a sale or donation. This article shall not be construed to prohibit Commun ity Compost ing facilities from charging a fee for processing Organic Waste.
B. Recyclable Materials or Organics Materials which are removed from the Generator's Premises by the Generator, and tran sported by such Generator (or by his or her full- time employees) to a processing or Disposal Facility, includ ing a Community Composting 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 (PRC Section 14500 et seq.).
D. SSGCOW removed from the Premises by a gardening, landscaping, or tree trimming contractor, utilizing its own equipmen t, as an incidental part of a tot al service offered by that contractor rather than as a hauling service.
E. C&D Debris removed from the Premises 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 transpor ted by th e Generator to another person(s), such as a person from a Food Recovery Organizat ion, for the purposes of Palm Springs Agreement Page 25
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Food Recovery, regardless of whe ther the Generator donate s, 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 distribu ted to oth er person(s) for lawful use as animal feed, in accordance with 14 CCR Section 18983.l (b)(7). Food Scraps intended for animal feed may be Self-Hauled by Generator or hauled by anoth er party.
H. The Collection, Transfer, tran sport, Recycling, Processing, and Disposal of animal waste (excluding horse manure w hich is included in the scope of this Agreemen t) and remain s from slaughterho use or butcher shops for use as tallow . Horse manure may be Self-Hauled.
I. The Collection, Transfer, transport, Recycling, Processing, and Disposal of by-product s of sewage tre atment , including sludge ash, grit and screening s.
J. The Collection, Transfer, tra nsport, Recycling, Processing, and Disposal of Hazardous Substances, Hazardou s Waste, and radioactive waste regardless of it s source.
K. The Collection, Transfer, transpor t, Recycling, Processing, and Disposal of Solid Waste by the CITY throu gh CITY office rs or employees in the norma l course of thei r employment.
L. Solid Waste Handling Services for governmental agencies, other than the CITY, which may have faciliti es in the CITY, but over which th e CITY has no jurisdiction in connection with th e regulation of Solid Waste.
M. Solid Waste Handling Services provided by any person having a legal right to continue doing so, pursuant to PRC Section 49520 et seq., or otherwi se, so long as and to the ext ent such legal right cont inues 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, fo r t he pur poses of Food Recovery; or that is tra nsporte d by the Generator to another location(s), such as the location of a Food Recovery Organizat ion, for t he purposes of Food Recovery, regardl ess of whether the Generator donat es, sells, or pays a fee to the other Person(s) to collect or receive the Edible Food from the Generator.
0 . The hauling of byprodu cts from the processing of foo d or beverages and use of such material as animal feed if the byproducts originate from agricultural or industri al sources, do not include animal (including fish) processing byproducts, are Source Separated by the Generator of t he byproduct s, and are not discarded; and, if the use as animal feed is in accordance with 14 CCR Section 18983.l(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 agreeme nt or arrangement for the Collectio n, Transport, remov al, Disposal, or Processi ng of Recyclable Materials, Organics Materials, Gray Container Waste or Bulky Items from within said CITY bound aries durin g the term of this Agreement, or of any extension or renewal t hereof.
4.4 ENFORCEMENT OF EXCLUSIVITY
All Residenti al Premises, Commercial and community activities of every kind and description that generate Solid Waste and Curbside Recyclable Material s shall be requ ired by CITY to utilize the Collection and Container Services of the CONTRACTOR prov ided for herein.
In the event the CONTRACTOR can produce pictori al evidence or other documentation that other Persons are servicing Collection Containers or are Collecting Recyclable Material s, Organics Mate rials, Gray Contain er Waste or Bulky Items in a manner that is not consistent with thi s Agreement, the CITY may, in its sole discretion, assist CONTRACTOR in the effort s of the CONTRACTOR to enforce its right s under this Agreement.
4.5 APPLICABLE LAW
This Agreement and scope of this Agreement shall be interpre ted to be consistent with Appli cable Law, now and Palm Springs Agreeme nt Page 26
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during the Term of this Agreement. If futu re jud icial interpre tatio ns of current law or new laws, regulations, or judicial interpret ations limit the ability of t he CITY to lawfully contract for the scope of services consistent with the manner and consistent with all prov isions as specifically set forth herein, the CONTRACTOR agrees that the scope of thi s Agreement will be limi ted to those Services and materials which may be lawfully included herein and that the CITY shall not be responsible for any lost profi t s or losses claime d by the CONTRACTOR to arise out of limitations to the scope or provisions of this Agreement set forth herein. In s uch an event, i t shall be the responsibility of the CONTRACTOR to minimize th e financial imp act of such future judicial interpre tations or new laws and the CONTRACTOR may meet and confer with CITY and may petition for a rate adjustment pursuant to Articl e 10. 4 .6 OBLIGATIONS OF PARTIES
In addition to the specific performance required under this Agreement, CITY and the CONTRACTOR shall:
A. Use the ir r easonable efforts to enforce the exclusiveness of thi s Agreement by the CONTRACTOR's identificat ion 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 t his Agreement.
B. Provide tim ely noti ce to one another of a perceived failure to perform any obligations under this Agreement and provide access to information demon strating the Party's failure to perform.
C. Provide t imely access to th e Contract Administrator and the CONTRACTOR's designated representative and provide complete and timely responses to requests of the other Party.
D. Provide time ly 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 Item s, and C&D Debris generated by and placed for Collection by Customer s of the CONTRACTOR's services and the CITY pursuant to the requirements of Article 5;
B. Transporting Collected materials to the appropr iate Approved Facilities pursuant to the requirem ents 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 outrea ch and education requirem ent s pursuant to Exhibit 3; E. Performing all monitoring and auditing requiremen ts pursuant to Exhibit 3; F. Furnishing all labor, supervision, Vehicles, Containers, other equip ment, materials, supplies, and all oth er item s and services necessary to perform its obligations under th is Agreement; G. Paying all expenses related to provi sion of services required by t his 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, Palm Springs Agreemen t Page 27
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permi tting, 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 owne d/operat ed by the CONTRACTOR or th e CONTRACTOR's Affiliate; and, paying all expenses relate d to any construction, any land or facility improvements , any repair and/or replacement of equipmen t and all other expected or unforeseen cost s associated with all Approved Facilit ies owned/operated by the CONTRACTOR or the CONTRACTOR's Affiliate ; H. Perfo rming or providing all services necessary to f ulfill its obligations in full accordance with this Agreement at all t imes using best industry pract ice for comparab le 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 th e residents and businesses within th e Service Area are pro vided reliable, court eous, and high-quali t y service at all times. The enumera tion and specification of partic ular aspects of service, labor, or equipment requireme nts shall not relieve the CONTRACTOR of the duty to perfo rm all other tasks and activities necessary to fulfill its obligations under this Agreement , regard less of whether such requirements are enumerated elsewhere in this Agreement, unless excused in accordance wit h Article 12.8.
The CONTRACTOR shall not knowingly deliver materials Collecte d u nder this Agreeme nt 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 proper ly permi tted to receive material Collected under this Agreemen t, except for any ot her facility that the CITY direct s the CONTRACTOR to use. Failure to comply with this provision may result in the CONTRACTOR being in defau lt under th is Agreemen t .
5.2 FACILITIES
The CONTRACTOR, wit hout constraint and as a free- market business decision in acceptin g 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 othe r 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-Own ed App roved Facilit ies. If the CONTRACTOR or Affiliate owns and/or operates Approved Facility, all expenses associated with perm itting , licensing, regulatory comp liance, closure and post-closure, etc. and all other cost s associated with the opera tion 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 Appro ved Facility(ies) and cooperate with a nd take direction from the operator(s) t hereof with respect t o delivery of D iscarded Materials.
B. Ann ual Notice of F acilities. 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 facili ties 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 lim its established by Applicable Law, including, without limita tion, SB 1383.
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 Palm Springs Agreement Page 28
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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 Subcontractor s 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 Admi nistrat or. If the CONTRACTOR plans t o engage other affiliated or related party ent ities in the provision of services, the CONTRACTOR shall provide the Contract Administrator with thirty {30) days written notificat ion of its plans and provid e an explanation of any potential impacts related to the quality, tim eliness, or cost of provid ing 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 additiona l insured . The Contract Administrator may waive or excuse these insurance requiremen t s in its sole discretion. CONTRACTOR shall require that all Subcontractors that are Affi liates comp ly with all material term s of this Agreement .
5.4 RESPONSIBILITY FOR DISCARDED MATERIALS
Once Solid Waste, Recyclable Materials and Organic Mater ials are placed in the CONTRACTOR's Containers and at the Collection location, the responsibility for their proper handling shall transfer direct ly from the Generator to th e CONTRACTOR, with the exception of Excluded Waste if the CONTRACTOR can identify the Generator. Once Solid Waste, Recyclable Materi als and Organic Materials are deposited by the CONTRACTOR at the appropriate Approved Facility, such materia ls shall become the responsibility of the owner or operator of th e Approved Facility with the exception of Excluded Waste. Responsibility for Excluded Waste t hat 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 eliminat ed services. Such written request shall includ e a specific description and effective date of t he additional, modifi ed or eliminated services.
Within thi rty (30) calendar days of the CITY's written request, CONTRACTOR shall present to CITY a written proposal to provide such additional, modified or eliminat ed services. The CITY shall review the CONTRACTOR's proposal for the change in scope of services.
CITY shall review CONTRACTOR's proposal for t he change in scope of services in a timely manner and the CITY and th e CONTRACTOR shall negotiate the changes in scope and compensation in good faith and shall amend this Agreement, as appropriate, to reflect the mutually agreed-upon changes in scope. If City-Directed changes cause an increase or decrease in th e cost of performing services, such adjustments shall be considered as a part of the rate adjustment process for the next Rate Year.
If the CITY and CONTRACTOR are unable to agree on terms and condition s, including compensat ion adjustm ents, 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 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 thi s Agreement , t he CITY may solicit proposals from other Persons for services not Palm Springs Agreeme nt Page 29
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contempla ted unde r t his Agreement. In the event that contracting with other Persons fo r such services w ill reduce CONTRACTOR's Compensation under thi s Agreement , the CONTRACTOR shall be offered t he oppo rtunity to match any other Person's proposed prici ng, and r etain the added scope o f services. Noth ing in this Agreement shall prevent t he CITY from contracting with o ther Persons in the event that CONTRACTOR is unable or unwilling to provide such services described in CITY'S w ritten request for CITY-direct ed changes to scope.
5.6 SINGLE-FAMILY DWELLING COLLECTION SERVICES
Single Family Dwelling or SFD means each Residential property, including each unit o f a condomin ium project, duplex, triplex, townhou se, apartment building o r mobile home park in w hich each of t he Premises receives individual Solid Waste Collection Service using Carts.
CONTRACTOR shall provide a three-Container Collection program fo r the separate Collection of Source Separated Recyclable Materials, SSGCOW, and Gray Conta iner Waste as specified in this Article, using Containers that comp ly with th e requirements of Arti cle 7. The default Service Level wi ll be weekly , automated Collection of t hree (3) 65- gallon Cart s for each curb-serviced household. Collect ion frequency shall be not less th an once per week from Carts placed at a suitable locati on, which is typically on the curb, but may be in the street against t he curb or in an alley.
Source Separated Recycling Carts and SSGCOW Carts shall be collected on the same day as Solid Waste carts. SFD Customers w ill be requir ed to have SSGCOW Collection whe n services are made available by CONTRACTOR, but no later t han October 1, 2022.
A. Weekly Gray Cont ainer 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 wi th a wheeled Cart for automated Collectio n of Solid Waste. The default Service Level will be a 65-gallon Cart Collected w eekly. The CONTRACTOR shall provide a 95- or a 35-gallon Cart as a subst itute depending on the Customer's prefere nce and need. No discount will be given for u sing 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 M aterials Collection (Blue Container). CONTRACTOR shall provide each SFD wit h a wh eeled Cart for automated Collection of Recyclable Mate rials as defined in this Agreement. The default Service Level will be a 65-gallo n Cart collected week ly. The CONTRACTOR shall provide a 95- or a 35-gallon Cart as a substitute depending on t he Customer's prefer ence and need. No discounts will be given for using smaller Carts. Custome rs may r equest one (1) additional Recycling Cart at no additiona l charge, and addi tional Carts as may be needed at an addit ional charge. Customers will be requi red to place the Cart(s) curbside for collection .
C. Weekly Source Separat ed Green Container Organic Waste Collection. CONTRACTOR will provide each SFD with a wheele d Cart for automated Collection of SSGCOW. The default Service Level will be a 65-gallon Cart collected wee kly. The contractor shall provide a 95- or 35-gallon Cart as a substitute depending on th e Customer's preference and need. No discount will be given for using add additiona l Carts as may be needed at an additi onal charge. Customers will be required t o place th e Cart(s) curbside fo r collection. Custome rs shall bag Food Waste in bags allowe d by t he Facility and comm unicated by the CONTRACTOR before depositing Food Waste in Organic Waste Carts.
Customers with individ ual cart service in multi-dwelling complexes with space constraints, where manual service is currently provided, or as determine d by the CITY and t he CONTRACTOR shall be prov ided with a 2.5-gallon pail to collect Organic Waste.
D. SFD On-Call Bulky Item Collection . CONTRACTOR will prov ide on-call Collection of Bulky Items, as defined in the Agreement subject to the condi tions of that progra m, to SFDs scheduling the service with CONTRACTOR w ith 48 hours' notice, excluding weekends. Items will be collected on Customer's regular Collect ion Day. CONTRACTOR will be required to separate and Recycle all commodities t hat can be feasibly recovere d. Customers may place up to two items o ut fo r Palm Springs Agreement Page 30
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Collection per pick-up. Customers are entitled to the Collection of twe lve (12) Bulky Items per SFD per year at no additional charge. Pick-up of more than two Bulky Item s per Collection or Collections that exceed twelve (12) Bulky Items in a one (1) year 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 Custome r t o donate usable i tems to a community organization and shall provide Customer with contact infor mation of potential community organization alternatives.
E. Annual Holiday Tree Recycling Collection . CONTRACTOR shall provide annual holiday tre e Recycling Collection for curbside residents on their regular Collectio n day. Trees are to be cut into 4-foot maximum lengths with all decorations and stands removed.
5.7 MULTI -FAMILY DWELLING COLLECTION SERVICES
M FD means Residential Premises with five u nit s or more at which Solid Waste is Collected by Bin, and not by Cart, irrespective of whethe r residency at that property is tran sient, 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 fo r an additional fee not to exceed the CITY-approved maximum rate in Exhibit 1 of the Agreement.
MFD Custom ers will be requir ed to have Recycling and Green Waste Collection Services in addition to Solid Waste Collection Services unless they have other acceptable accommodat ions (e.g., landscaper removes all Green Waste, and/or customers self-haul mate rials). 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 t hese services.
CONTRACTOR shall allow MFD Customers to use Carts or Bins for Solid Waste Collection that are shared by the occupants of th e 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 sufficie nt to p rovide 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 considerat ion when determining t he Collection location for Mult i-Fami ly Residential Complexes to ensure that the flow of traffi c is not impede d and that it does not result in aesthetic degradation of an area. The designated Collection locatio n, if disputed by Customer or CONTRACTOR, shall be determine d by the CITY.
Additi onally, if in the CITY's opinio n the locat ion of an existing Collection location is inappropriate , CITY may require the Customer or CONTRACTOR to relocate the Collection Containers.
A. Gray Container W aste 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 w here the Bins are located . The CONTRACTOR shall provide Gray Containers as part of the Collection Service at rat es not to exceed those set forth in Exhibit 1. The size of the Container and the frequency (above the minimum) shall be determined between th e Customer and the CONTRACTOR. Size and frequency shall be sufficien t to provide that no Solid Waste need be placed outside the Container. In special circumstances, Containers with gray lids may be used fo r MFD Collection Service by special arrangement between t he CONTRACTOR and Customer.
B. Source Separat ed Recyclab le Materials Collection (Blue Container). CONTRACTOR will provide Recycling Collection Service to all Customers requesting this service at rates not t o exceed those Palm Springs Agreement Page 31
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set forth in Exhibit l. 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 Materia ls. 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 whee led Carts and Bins for the co-Collection of Green Waste and bagged Food Waste to all Customers request ing this service at rates not to exceed those set forth in Exhibit l. 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 Material s. Collection frequency w ill 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, wit h CITY's administrative assistance in enro lling customers, shall begin enrol ling Multi-Family residential customers not currently enrol led in Green Waste Collection services, in Organic Materials Collection Services.
D. Food Wast e Collection (Brown Contain er). CONTRACTOR will provide optional source-separated Food Waste Collection for Mult i-Family complexes that do not subscribe to SSGCOW Collection .
CONTRACTOR will provide brown wheeled Carts and Bins for Collection of source-separated Food Waste Customer s w ill subscribe to th e 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 compl ies with SB 1383 requirements for Collection of Food Waste. 35- or 65-gallon Carts or 2-cubic yard bins will be made availab le for source-separated Food Waste. The Collection frequency for source-separated Food Waste will be at l east once (1) per week and up to six (6) time s per week. Customers and CONTRACTOR will determine a mutually acceptable Collection locat ion(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 l. The limitations regarding Bulky Item size and type of Bulky Item described for Residential Customer Bulky Item services in Article 5.6 shall apply to Mu lti-Family Dwelling Customers.
F. Annual Holiday T ree R ecycling C ollection. 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-foo t maximum lengths with all decor ations and stands removed.
5.8 COMM ERCIAL COLLECTION SERVICES
Commercial Customers include all ret ail, profe ssion al, office, wholesale and industrial facilities, other Comme rcial enterprises offering goods or services to the pub lic; 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 Mater ials, Organic Mate rials, and Gray Cont ainer Waste Collectio n Service changes with Customer s, CONTRACTOR must prov ide a rate schedule denoting all Service Levels and all possible frequencie s of collection . Commercial Customer s will be required to have Source Separated Recyclable Materials and SSGCOW Collection Services in addition to Gray Container Waste Collection Services.
A. G ray Container Waste Collection . CONTRACTOR will provide Carts with gray lids, gray Bins and/or drop boxes for Collection of Solid Waste. Custom ers will have the opportunity to subscribe to the appropriate Service Level. Bin and compactor services will be made available in sizes including; 2, Palm Springs Agreement Page 32
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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 compacto rs, as provided by cont ractor or by Customer, shall be serviced as needed. Customers and CONTRACTOR will dete rmine a mutually acceptab le Collection Container location. Solid Waste Collection Service is mandato ry for all service location s.
B. Source Separated Recyclable Materials Collection (Blue Container). CONTRACTOR will provide Cart s w ith 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 for th in Exhibit 1.
C. Organic Materials 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 Exhib it
1. Custom ers wil l have the opportunity to subscribe to t he appropria te 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 includ ing: 10, 20, 30 and 40 cubic yards. Customers and CONTRACTOR will determine a mutually acceptable Collection location. Commencing October 1, 2022, CONTRACTOR, with adminis trative assistance in enrolling custome rs shall begin enrolling commercial customers not curren tly enrolled in Green Waste Collection services, in Organic Materia ls 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-sepa rated Food Waste. Customers will subscrib e to th e appropriate Service Level. Should CONTRACTOR and Customer not agree on CONTRACTOR's Container determination , the CITY shall make the dete rmi nation. 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 availab le 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) tim es per week. Customers and CONTRACTOR wil l determine a mutually acceptable Collection location(s). Commencing October 1, 2022, CONTRACTOR, with CITY's adminis trative assistance in enrolling customers, shall begin enrolling comme rcial customers not currentl y enrolle d 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 Commercia l Premises and agreed upon by the Customer or property manager. CONTRACTOR will be require d to separate and Recycle all comm oditi es that can be feasibly recovered . Commercial generators shall pay a separate fee in accordance with the maximum rate approved by the CITY.
5.9 ROLL-OFF SERVICE
CONTRACTOR shall provide exclusive perman ent and tempo rary 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 indu stry standard 10-, 20-, 30-, and 40-cubic yard Roll-Off Boxes. The provision of Compactor Roll -off Boxes, whic h are enclosed Containers attached to a compaction device, is not included in this Agreement , however providing collect ion service to such Compactor Roll-Off Boxes is included.
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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 ty pe of Solid Waste being collected: 10-cubic yard Roll-Off Box (10-tons), 20-cubic yard Roll-Off Box (3-tons), 30-cubic yard box (4-to ns), and 40-cubic yard box (5- ton s).
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 Services include the delivery, removal and Recycling or Disposal of used or discarded materials removed from Premises during demolition, const ruction , repair or renovation of a structure resultin g from construction , remode ling, repair or demolition operation s on any Residential prope rty, Commercial building , pavement , or other structur e and such other material s as may be removed duri ng th e normal cleanup process of such construction , renovation , repair or demoli tion operations . C&D Debris also includes rocks, soils, tree remains and other Green Waste and Large Green Waste which results fro m land clearing or land development operations in preparation for constructio n. C&D Debris does not include Excluded Waste.
A. C&D Collection Service Requirements. CONTRACTOR shall provi de C&D Debris Collectio n 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 Contain er 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 offe red for tires.
B. Diversion Compliance . CITY'S Building Department shall advise applican ts seeking to perform construction and demolit ion work requiring a CITY-issued permit of, and CONTRACTOR shall assist Custom ers 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 Departm ent and CONTRACTOR shall communica te and coordinate with each other to compl y with state and local C&D Debris diversion requirements. The CONTRACTOR shall provide the documentat ion to th e Customer as necessary to meet the requirement s of the CITY'S C&D ord inance (Chapter 6.10 of Tit le 6 of the CITY Code).
5.11 CITY COLLECTION SERVICES
CITY facilities will be provided all services list ed as A-F below at "no charge" exclusive of C&D Debris generated from the removal, construc tion, remode ling or refurbishing of a CITY facility or pub lic works project. Collections will be scheduled at a tim e mutually agreed upon by the CONTRACTOR and the CITY.
A. Weekly Gray Container Waste Collection . CONTRACTOR will prov ide wheeled Carts and Bins for Collectio n of Gray Container Waste. The CITY will have the opportu nity to subscribe to the approp riate Service Level. Carts will be made available including 65 and 95 gallon sizes. 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) t imes per week. Drop Box service wi ll be made available in Container sizes includin g 10, 20, 30 and 40 cubic yards.
B. Source Separated Recyclable Materia ls Collection (Blue Container) . CONTRACTOR will provide Recycling Collection Service at CITY Facilities. CONTRACTOR will provide Carts, Bins and roll-off boxes for Collection of Recyclable Materials.
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C. Organic Materials Collection (Green Container). CONTRACTOR will provid e SSGCOW Collection Service at CITY Facilities. CONTRACTOR will provid e Carts, Bins and Roll-Off boxes for Collection of Organic Material s (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 Collect ion of th ese Organic Materials.
E. Illegally Dumped Bulky Items . CONTRACTOR wi ll provide on-call collection of illegally dumpe d Bulky Items as requested by the CITY. Upon notification by the City, CONTRACTOR shall Collect t he item(s) before the end of the next Business Day.
F. CITY-Sponsored Events. CONTRACTOR will provide Solid Wast e and Recycling Collection and Disposal/processing service for all CITY-sponso red events at no additional charge. CITY will be provided Solid Waste, Recycling, Green Waste and Food Waste capacity at t he appro priate 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 Collection Service for Source Separated Recyclable Materials, SSGCOW, Food Waste, and Gray Container Wast e, and special event boxes and line rs. Availab le Cart sizes include 35, 65 and 95 gallons, except Food Waste which is restricted t o 35- or 65-gal lon Carts. Availab le 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. Collect ion frequency will be provided as needed by CITY. CONTRACTOR shall provide staffing, when necessary, to help educate member s of the public and ensure appropr iate mater ials management. The CITY may require a post-event report including the tons disposed and Diverted. Events for which services are anticipa ted to be provided include , but are not lim it ed t o the event s in Exhibit 5.
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 Facili ti es using a method suitable for the Facility and agreed upon by the CITY. CONTRACTOR will be required to separate and Recycle all com moditi es 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 th at is not placed inside a Residential Conta iner with lid closed, or that has been compacted or othe rwise placed, kept, or accumulated in a manner that the Solid Waste wil l not, of its own weight, fall out of th e Residential Container in which it is placed inwhen such Residential Container is turn ed upside down. In such circumstances, CONTRACTOR shall complete and leave a Non Collection Notice securely attached to any adjacent Residential Cont ainer of Customer. The use of permanent stickers to affix a Non-Collect ion Noti ce will not be allowed.
B. Unsafe Container Location. CONTRACTOR shall provid e Collection Services for all proper ly placed Bins or Resident ial Containers except that CONTRACTOR shall not be required to colle ct any Solid Waste or Recyclable Material s from any Bin or Residential Container wh ich 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 improp erly placed Bin or Residentia l Container.
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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 CONTRACTOR's employees, CONTRACTOR shall immediate ly notify the CITY Representative thereof. Upon City authorization, the CONTRACTOR may discontinue collect ion for any such location until the safety hazard is elimina ted. CONTRACTOR shall complete and leave a Non-Collection Notice securely attached to Customers' Bin or on the door to t he 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's Fire Depart ment immediate ly.
CONTRACTOR shall further not ify CITY of t his fact in its monthly report prepared pursuant t o Article
8.6. E. Inadequate Subscriptions . CONTRACTOR shall collect all Solid Waste in Containers regardless of whet her such waste is in excess of the volum e of waste subscribed to by the Custom er.
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 perman ent stickers to affix a Notice of Excess Waste and Extra Charge will not be allowed.
5.13 PUBLIC EDUCATION AND OUTREACH
Public education activ itie s wil l be conduc t ed by t he CONTRACTOR as described in Exhibit 3 of this Agreement.
5.14 SPECIAL SERVICES
A. Bulk Cardboard Drop -Off. CONTRACTOR shall accept bulk cardboar d fo r 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 providing informa tion abou t proper disposal of special wastes including Home-Generated Sharps, Prescription Medication , Electronic Waste, Household Hazardous Waste, and Non-Automot ive Batteries.
C. Home-Generated Sharps Disposal
1. Home-Generated Sharps. Hom e-Generated Sharps means hypodermic needles, syringes, lancet s, and pen needles.
2. Webpage. CONTRACTOR's Special Waste webpage shall provide info rmat ion on the proper disposal of Home-Generated Sharps including the name, add ress, and phone number of pharmacies in CITY that accept properly contained sharps for disposal.
3. S harps Container s. 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 cont ainers by Customer to County's HHW Facility in CITY or other proper Disposal Facility.
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4. Reporting. CONTRACTOR shall include in its month ly report the numb er of sharps containers distribu t ed.
D. Home Electronic Wast e Drop-Off. Until it become s unmanageable because of abuse or indiscr iminate dump ing, CONTRACTOR shall accept Electronic Waste for drop-off by Residents and businesses at no charge at its Facility between the hour s of 8:00 A.M. and 3:00 P .M. on non-holi day weekdays.
1. Reporting. CONTRACTOR shall include in it s month ly 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 Materia ls Collected to the designated Transfer Station, MRF, Organic M ateria ls Processing Facility or Disposal Facility. The CONTRACTOR agrees t o make all reasonable effo rts to separate Recyclable Materia ls from Solid Waste for Diversion from Landfill Disposal. The CONTRACTOR shall maintain accurat e record s of the quantiti es of Source Separated Recyclable Materials, SSGCOW, and Gray Container Wast e transport ed to th e Transfer Station , MRF, Organic Materials Processing Facility or Disposal Facility and will cooperate with the CITY in any audits or investigat ions of such quantiti es. The CONTRACTOR shall cooperate with the operator of any Transfer Station, MRF, Organic Materials Processing Facility or Disposal Facility with regard to opera tions therein.
6.2 TRANSFER OF DISCARDED MATERIALS
The CONTRACTOR may deliver Solid Waste Collected to a Designated Facility or a permitted Transf er Stat ion. 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 d elivered by the CONTRACTOR are t he sole responsibili ty of the Facility owner. If the CONTRACTOR or Affi liate owns and/or opera tes the Transfer Station, all expenses associated with permit ting, regulatory compliance, etc. and all other costs associated with t he operation and owne rship of the Transfe r Station is t he sole responsib ility of t he CONTRACTOR. Any request to adjust the CONTRACTOR's rates shall be done in accordance with Art icle 10.
6.3 DISPOSAL
The CONTRACTOR shall dispose of Solid Waste Collected, but not sent to a designated Transfer Station, MRF or Organic Materia ls Processing Facility at th e designated Disposal Facility . The designated Disposal Facility is listed in Exhibit 5. All expenses relat ed to th e Disposal of Solid Wast e will be the sole responsibi lity of the CONTRACTOR. All expenses associated w ith the o perati on and ownership of the Disposal Facility is the sole responsib ility of the CONTRACTOR. Any requ est to adjust th e CONTRACTOR's rates shall be done in accordance with Article 10.
6.4 SOURCE SEPARATED RECYCLABLE MATERIALS PROCESSING SERVICES The CONTRACTOR shall deliver all Collected Recyclable Materials to a fully permitted Source Separate d Recyclable Material Processing Facility or a fully permitt ed Transfer Station. The designat ed P rocessing Facility is listed in Exhibit 5. All expenses related to Source Separated Recyclable Mat erial Processing and marketing wi ll be the sole responsibil ity of th e CONTRACTOR. The CONTRACTOR shall ensure that the Recyclable Materia ls Collect ed pursuant to thi s Agreement is diverted from, and not disposed of in, a landfill, except as Residu e result ing from Processing.
Any request to adjust the CONTRACTOR's rat es shall be done in accordance wit h Arti cle 10.
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6.5 ORGANIC MATERIALS PROCESSING SERVICES
The CONTRACTOR shall deliver all Collected Organic Materials to a fully permitted Organic Materials Processing Facility or a fully permitted Organic Materials Transfer Station . The designated Processing Facility is listed in Exhibit
5. All expenses related to Organic Materials Processing and marketing will be the sole responsibili ty 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 Materia ls Collected pursuant to this Agreement is diverted from and not disposed of in th e Landfill except as a Residue resultin g from Processing or Organic Materials loads rejected by the Processing Facility opera tor or Organic Mater ials 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 Materia l loads rejected by the Processing Facility operator or not delivered to the Processing facility due to excessive contamina tion shall be reported to CITY together with information regarding the source or route from whi ch it originated. Failure to do so places the CONTRACTOR in default . The CITY has t he option , but not obligation, to direct t he CONTRACTOR where to deliver the materia l.
A. Status of Organic Materials Processing Facility . The Organic Materials Processing Facility in Exhibit 5 utilized by the CONTRACTOR shall be designed and constructed in accordance with Appl icable Laws. Any such Organic Materials Processing Facility shall have been issued all permits from fede ral, State, regional , county and city agencies necessary for it to accept th e 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 woo d waste, and yard waste.
CONTRACTOR shall not be requ ired to Recycle furnitur e or to disassemble Bulky Items for recycling.
CONTRACTOR shall record by weight (in tons) the Solid Waste Collected under this Article and shall record t he weigh t s (in tons) of Solid Waste if diverted, if any, from the Landfill through Recycling, reuse, or oth er means of diversion .
C. CITY Direction of Bulky Wast e. CITY reserves the right to direct CONTRACTOR to take Bulky Waste Collected pursuant to thi s Article to a designated site or sites within City for the purpose of permi tting 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 th e Bulky Waste remaining at th e directed site or sites after reusers or Recyclers have removed reusable or Recyclable Bulky Waste.
ARTICLE 7: STANDARD OF PERFORMANCE
7.1 GENERAL
The CONTRACTOR shall at all tim es comp ly with Applicable Laws and provide services in a manner that is safe to th e public and the CONTRACTOR's employees. Except to the exten t that a higher performance standar d is specified in this Agreement, the CONTRACTOR shall perform services in accordance with Solid Waste, Recyclable Materi als and Organic Materials management practices common to the Coachella Valley area in California .
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7.2 CONTRACTOR'S OFFICE
CONTRACTOR shall mainta in 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 equippe d with telephone system adequate for all incoming Customer Service-related calls received during normal business hour s 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 thi s Agreement in a thorough and profes sional 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 Term of this Agreement, the CONTRACTOR shall prepare and maintain maps precisely defin ing 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 th e Contract Administrator.
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 thirt y (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 th e propo sed date of implementation.
C. Hours of Collection . Unless otherwise authorized by the Contract Administrator, the CONTRACTOR's days and hour s for the Collection operations shall be as follows :
1. Mond ay-Saturday. CONTRACTOR shall provid e Collection Services between 7:00 a.m. and 6:00 p.m., except as fol lows:
• 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 collect ion areas that do not bord er Residential areas or where th ere are mixed commercial and 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 down town 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, constru ction 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 Saturd ay 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.
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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 withou t 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 th e 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 Premises in the process of providing Collection Services or while its Vehicles 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 immediate ly, at the time of occurrence, clean up such spilled or dropped material s.
1. The CONTRACTOR shall clean up any material s tha t are spilled or scattered by the CONTRACTOR or its employees.
2. The CONTRACTOR shall not be responsible for cleaning up unsanitary condit ions 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 t he Bin for service) the CONTRACTOR shall document the incident with photographs and notify the Customer . If, at the next service, the spilled or dropped materia ls are not cleaned up so as to not imped e service delivery , the CONTRACTOR shall clean up th e 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 debr is 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 t he street surface to provide adequate cleaning. To facil itate such clean-up, the CONTRACTOR's Vehicles shall at all times carry sufficient quanti ties of petroleum absorbent materials along with a broom and shovel.
4. The CONTRACTOR shall not t ransfer loads from one vehicle to another on any public street, unless it is necessary to do so because of mechanical failure, hot load (comb ust ion of material in the truck) , or accidental damage to a vehicle.
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 activit ies related to the spill including placement of absor bent, and application of cleaning agent or notifica tion of CONTRACTOR'S cleaning company. Repairs and clean-up shall be performed in a manner satisfactory to the Contract Adminis t rator and at no cost to the CITY.
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7. Customers that regularly produce more Solid Waste than their curren t subscription service can accommodate may have their Service Level increased in accordance with the followi ng proced ure:
a. First Incident in Three-Month Period
If more Solid Waste is placed for Collection tha n can be accommodated in a Container (Cart, Bin or Roll-Off Box), fille d level full , with lids closed, if so equipped, CONTRACTOR shall photograp h the overflowing Container, collect t he Solid Waste, and send to the Customer (at both th e 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 t he Service Level subscriptio n. CONTRACTOR may charge the Customer the Container Overage Fee included in t he approved Rate Schedule in Exhibit 1. If the Container overflowed suffi ciently to require the driver to leave the collection vehicle to clean aroun d the Container, CONTRACTOR may charge the Container Overage Clean-Up Fee in th e approved Rate Schedule. b. Second Incident in a Three-Month Period
CONTRACTOR shall n otify CITY of any notifications to Customers after the first notification. Upon t he second event of an overfilled Container in a three-month period , CONTRACTOR shall photograph th e overflowing Container, collect the Solid waste, and send to the Custom er the photograph and a lette r instruct ing that a thi rd incide nt in that same thre e-mont h period may result in an increase in the service subscription. If the Container overflowed suffici ently to require the driver to leave t he collecti on vehicle to clean around the Container, Contractor may charge the Containe r 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 thi rd event of an overfilled Container in a three-mon th period , CONTRACTOR shall photograph the overflow ing Container , collect t he Solid waste, and send to t he Custom er the photograph and a letter notifying Customer of an increase in the Service Level subscription. If t he Containe r overflowed sufficie nt ly 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 in Exhibit 1. If Solid Waste was left beside a Container for collection, CONTRACTOR may charge the Container overage fee in the approved Rate Schedule.
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 Materials, and Gray Container Waste, Bulky Items, and Construction and Demol ition Debris shall pass to the CONTRACTOR at such time as said materials are properly containerized, bagged, or bundled and placed at the curb or othe r point of Collection in the manner as set forth herein or as agreed to by th e CONTRACTOR and the Customer.
If materials are placed out for Collection witho ut being properly containerized , bagged, or bundl ed, t itle shall pass to the CONTRACTOR at t he 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 Mater ials Processing Facility other than one operated by the CONTRACTOR, then Palm Springs Agreement Page 41
Item 3B - Page 55
title wi ll again transfer fro m t he CONTRACTOR to the operator of the non-CONTRACTOR Transfer Statio n, Materials Recovery Facility, or Organic Materials Processing Facility upon such delivery.
B. Title to mate rial Collected as part of a CITY Clean-up Service or Special Event Collecti on 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 provide d b y the CONTRACTOR. If Collected materials are delivered to a Transfer Stat ion, Processing Facility, or Organic Waste Processing Facility other than one operated by the CONTRACTOR, then t itl e will transfer from the CONTRACTOR to the operator of the non-CONTRACTOR Transfer Station, Processing Facility or Organic Materials Processing Facility upon such delivery.
C. The CITY and the CONTRACTOR understand and agree that CONTRACTOR shall have the right to retain, Recycle, Process, Dispose of, and o therw ise use Source Separated Recyclable Materials, SSGCOW, and Gray Container Waste Collected pursuant to t he terms hereo f i n any lawful fashion or for any lawful purpose; and, further , shall have the right to retain any benefit resulti ng 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 prog ram 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 t he environment ; (ii) identification of pro hibited materials; and, (iii) emergency notification and response procedu res. Collection vehicle dri vers shall inspect Containers befo re Collection when practical.
B. Response to Excluded Waste Identifi ed During Collection. If the CONTRACTOR determ ines that mate rial placed in any Container for Collection is Excluded Waste or presents a hazard to the CONTRACTOR's employees, t he CONTRACTOR shall have the right to refuse to accept such material.
The Generator shall be contacted by t he CONTRACTOR and requested to arrange pro per Disposal.
If th e Generator cannot be reached immediately, the CONTRACTOR shall, before leaving the Premises, leave a tag at least t wo (2) inches by six (6) inches in size, which indicates the reason for refusing to Collect t he material and lists the phone number of the County of Riverside Department of Environmen tal Health Hazardous Materials Branch. Under no circums tances shall CONTRACTOR's employees know ingly Collect Excluded Waste or remove unsafe or poorly containerized Excluded Waste from a Collection Container. The tag that will be used to notice Customers of reason for non-Collection shall be reviewe d and approved by the Cont ract Adminis trator. If Excluded Waste is found in a Collection Containe r or Collection area that could possibly result in imminen t danger to people or p roperty, the CONTRACTOR shall immediately notify th e Fire Departm ent. If Excluded Waste is found in a Collection Container that p oses an imminent danger to people or property, the CONTRACTOR shall immedia tely notify the appropriate Fire Department and/or other emergency services departments as appropr iate, as well as the CITY.
C. Response to Excluded W aste Identifie d at Disposal or Processing Facility. Materials Collected by t he CONTRACTOR will be delivered to the Approved Faciliti es for pur poses of Processing or Disposal.
In the event t hat load checkers and/or equipmen t operators at such facili t y 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 accorda nce with Palm Springs Agreement Page 42
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Applicable Laws and regulatory requiremen ts. The CONTRACTOR may at it s sole expense attempt to identify and recover the cost of Disposal from the Generator. If the Generator can be successfully ident ified, the cost of this effort, as well as the cost of Disposal shall be chargeable to the Generato r.
7.8 REGULATIONS AND RECORD KEEPING
The CONTRACTOR shall comply with eme rgency notification procedures required by Applicable Laws and regulator y requirement s. All records required by laws and regulations shall be main tained 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 th is Agreemen t 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, blow ing or fall ing 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 recommen ded weight limi t or otherwise operated unsafely or in violation of any Applicable Law.
B. Safety Markings. All Collection equip ment used by th e CONTRACTOR shall have appropria te safety markings including, but not limited to, highway lighting, flashing and warning light s, clearance lights, and warning flags. All such safet y 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 number ed uniquely without repetition and shall have t he CONTRACTOR's name, the CONTRACTOR's Custome r 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 perm itted other than the name of the CONTRACTOR except promotional advertisement of environmental messaging, the Recyclable Mater ials 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 appropria te) during the Term of this Agreement upon request of the CITY and as necessary to maint ain a positive public image.
D. Vehicle Maint enance. The CONTRACTOR shall maint ain Collection equipment in a clean condition and in good repair at all time s. All parts and systems of the Collection equipment shall operate pro perly and be prope rly 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.
The CONTRACTOR shall inspect each vehicle daily to e nsure that all equipment is operating prope rly. Vehicles that are not operating properly shall be taken out of service until th ey are repaired and operate properly . The CONTRACTOR shall repair, or arrange for the repair of, all of it s Vehicles and equipmen t 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 Admini strator may inspect Vehicles at any reasonable time, and with in three (3) calendar days of such a request, to determine compliance w ith thi s Agreement and sanitation requirem ents.
E. Vehicle Noise Level. All Collection operations shall be conducted as quietly as possible and shall conform to applicable Federal, State, County, and th e CITY noise level regulations. The CITY may request the CONTRACTOR to check any piece of equipment for confor mance with the noise limi ts 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 Palm Springs Agreement Page 43
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major equipment used by the CONTRACTOR for Collection or transportation in perfo rmance of services under thi s Agreement . The inventory shall indicate each Collection vehicle by identification number, t he California Department of Motor Vehicles (OMV) license numb er, the age of the chassis and body, type of fuel used, the t ype and capacity of each vehicle, th e date of acquisition, and th e maintenance and rebuilt status. The CONTRACTOR shall submit t o the Contract Administrator an updated inventory including all of the informa tion required above in each annual report, or more often at t he request of the CITY. Each vehicle inventor y shall be accompanied by a certification signed by the CONTRACTOR that all Collection Vehicles meet th e requirement s of this Art icle.
G. Vehicle Registration , Licensing and Inspection. CONTRACTOR shall maintain documentation to verify that each of the CONTRACTOR'S Collection Vehicles are in compli ance with all registrat ion, licensing and inspection requirements of th e California Highway Patro l, the OMV, and any other Applicab le Laws or regulations. Upon writ ten reque st by the Contract Administrator , copies of such documentation shall be provided to the CITY wi th in 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 comp lete the Collection rout e, be dispatched within one (1) hou r of any breakdown . Such reserve equipment shall correspond in size and capacity to the equipment used by th e CONTRACTOR to perform the contrac tual duties.
I. Covering of Loads. All loads not in covered body tru cks shall be tarped or restrained to prevent spilling.
J. Weight Restriction s. The CONTRACTOR shall not load Vehicles in excess of the manufactur er' s recommendations or lim itations imposed by State or local weigh t restrictions on Vehicles. The CONTRACTOR acknowledges that the CITY may document compl iance with this provisio n of this Agreement through review of scale tickets and record s 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, fron t loaders, Roll-Off, and any other types of vehicles) shall opera te in full compliance with the requirements of the California Air Resources Board and the South Coast Air Quality Management District's rules and regulation s including Rule 1193. Route s upervisor's vehicles and all other ancillary veh icles that will operate on a routin e basis in the CITY shall comply with all Appli cable Laws, rules, and regulations , including but not limited to the Califo rnia Air Resources Board and South Coast Air Quality Management District regulations .
7.10 CONTAINER REQUIREMENTS
A. SFD Carts. The Carts shall be of the proper colo r with identifi cat ion of purp ose and labeling comp lying with the requirement s of SB 1383.
B. Purchase and D istribution of Carts and Bins. The CONTRACTOR shall be responsible for the purchase and distribution of fully assembled and functional Carts and Bins to Service Unit s in the Service Area. The CONTRACTOR shall also distrib ute Carts and Bins to new Service Units that are added to the CONTRACTOR's Service Area durin g the Term of this Agreement within three (3) Business Days of receipt of notification from th e CITY or t he Service Unit. Containers shall be designed and const ructed to be watertight and prevent the leakage of liquids. All Containers shall display the CONTRACTOR's name, local telephone number , and some iden tifying inventory or serial numb er.
C. Cart Labels. In the inte rest of creating effect ive and consistent public education and out reach, CONTRACTOR shall utilize it s Containers to reinforce public education messages. All Solid Waste Container lids shall be black in color. All Recyclable Mater ials Container lids shall be blue in color.
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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 colo r selected by th e CONTRACTOR for CITY approval. The CITY reserves the right to reject t he CONTRACTOR'S choice of cart body color. CONTRACTOR's Cont ainers shall also be labeled with a list of accept ed materials and a list of prohibited materials 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 Requirem ents. CITY acknowledges that existing Carts prov ided to Customers may not meet t he requiremen ts of SB 1383 for color and labeling, and City hereby aut horizes CONTRACTOR to t ransition from non-co mpliant t o complian t Carts as part of ongoing replacement of aged-ou t Carts as provi ded for by CalRecycle regulations. For Carts already in service, CONTRACTOR shall affix complia nt sticker labels before January 1, 2023, or as soon as practicable. Cart Cust omers 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 t ake care to preven t d amage to Carts or Bins by unnecessary rough t reatment. Howeve r, a ny Cart or Bin dam aged b y the CONTRACTOR shall be rep laced b y t he CONTRACTOR, at t he CONTRACTOR's expense, within five (5) Business Days after notification by the C ITY or the Service Recipient , at no cost or inconvenience to the Service Recipient or to the CITY.
2. Upon notificat ion to th e CONTRACTOR by th e CITY or a Service Recipient t hat the Service Recipient's Cart(s) or Bin(s) are faulty or have worn out or have been stolen or damaged beyond repair t hrough no fault of t he Service Recipient, the CONTRACTOR shall deliver a replacement Cart(s) or Bin(s) to such Service Recipient with in 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 t hose ins tances where the CONTRACTOR can demons t rate 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 entit led to bill the Service Recipient the cost of the Cart(s) or Bin(s) plus t he delivery charge in an amoun t n ot t o exceed t he a pplicable maximum approve d rates set forth in Exhibit 1 to this Agreement.
3. The CONTRACTOR shall maintain records documenting all Cart and Bin replacemen ts occurring on a mont hly basis. Such information shall be provided to the Contract Adm inistrator upo n 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 t he Cart or Bin, or if necessary, remove t he Cart or Bin for repairs and deliver a replacement Cart or Bin to the Service Recipient. CONTRACTOR shall be responsible fo r graffi ti removal on any Cart or Bin within five (5) business day at no additional charge to the Cust omer or to CITY.
G. Cart or Bin Exchange. Upon notification to the CONTRACTOR by the CITY or a Service Recipien t t hat a change in the size or numb er of Carts or Bins is required, or det erm ination by CONTRACTOR that such a change is require d, 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 Palm Springs Agreeme nt Page 45
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Recycling Cart exchange; and one (1) free Organic Materials Cart exchange per Rate Year during the Term of thi s Agreement. Each MFD, Commercia l or CITY Service Unit shall be entitled to receive one (1) free Solid Waste Cart or Bin exchange, and to the extent such Cart s or Bins are provided by the CONTRACTOR under th e term s of this Agreement , one (1) free Recyclin g Cart or Bin exchange, one (1) free Organics Materia l Cart or Bin exchange per Rate Year during the Term of this Agreement.
Accordingly , th e CONTRACTOR shall be enti tled to charge for exchanges in excess of the limit set forth above per Rate Year, at a rate not exceeding t he "Cart or Bin Exchange" maximum approved rate as set forth in Exhibit 1, as adjusted under th e terms of this Agreement.
H. Additional Gray Container Waste Capacity. Upon notifica tion to the CONTRACTOR by the CITY or a Service Recipient th at additi onal Gray Containe r Waste capacity is requested , the CONTRACTOR shall comp ly by delive ring a larger Cart, an additional Cart, larger Bin or an additi onal Bin, to such Service Recipient no later than the Service Recipient's next regularly scheduled Collection Day. The CONTRACTOR shall be entit led to charge for the cost of the additional Solid Waste capacity in an amount not exceeding the applicable maximum appro ved rate for the larger capacity o r Additional Cart or Bin as set forth in Exhibit 1, as adjusted under the terms of thi s 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 th e addit iona l capacity is used by the SFD Service Unit for the purposes of setti ng out additi onal 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 additiona l Green Carts to SFD Service Units requesting an addit ional Cart no later t han the Service Recipient's next regularly scheduled Collection Day of the request at no additi onal cost provide d tha t 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 additiona l Green Carts beyond th e first additional Cart for a fee as set forth set forth in Exhibit 1, as adjusted under the terms of this Agreement.
K. Ownership of Carts and Bins. Ownership of Carts and Bins shall rest with t he CONTRACTOR, except that , in the case of th e termination of this Agreement prior to its expi ration due to the defau lt of the CONTRACTOR as set forth in Article 12 of thi s Agreement , the CITY shall have the right to take possession of the Carts and Bins and retain such possession under th e terms and condi tions described in Article 12. Upon the receipt of wri tten notice from the CITY, the CONTRACTOR shall submit t o 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, t he cleaning of Bins. The cleaning service shall include the collection of gray water. In the event a Customer requests th e CONTRACTOR to prov ide Bin cleaning more tha n one (1) time per Rate Year, the CONTRACTOR shall have the right to charge the Customer an amou nt not exceeding the maximum approved rate for Bin Cleaning set forth in Exhibit 1.
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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 prov ide Collection Services or maintain non-emergency office hours on t he 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 event ually 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 th is Agreemen t, if a Disposal Facility other than the designated Disposal Facility is used, and it is not owned/opera ted by the CONTRACTOR or its Affiliate (it being understood that such other Disposal Facility wou ld need to be selected by the CONTRACTOR and approved by t he CITY, or specifically designated by the CITY), then the CONTRACTOR's obligations hereunder will not include the landfilling of th e 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 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 th at all Source Separated Recyclable Materials Collected pursuant to this Agreement that are expressly listed in Exhibit 3 (including those materia ls added by t he CONTRACTOR to such list from t ime to tim e) 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 CONTRACTOR or its Affilia te (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).
C. SSGCOW and Brown Container Materials . All SSGCOW Materials and Brown Container Food Waste 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 Mater ials Processing Facility as is approved by the CITY. The CONTRACTOR shall ensure that all SSGCOW Materials and Brown Container Collected pursuant to t his 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 t hat 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 th e CITY, or specifically designated by the CITY), then the CONTRACTOR's obl igations hereunder will not include processing and mark eting of SSGCOW and Brown Container Materials (which will be the responsibility of the Organic Facility operator).
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D. Bulky Items. All Bulky Items Collected as a result of performing Collection Services shall be delivered to the designated Approve d Facility.
E. Bulky Items Cont aining 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 t o regulation as Hazardous Waste under federal, State and/or CITY Applicable Laws or regulations.
7.13 GRAY CONTAINER WASTE - CONTAMINAT ION 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 contamina ted through comming ling with Excluded Waste, the CONTRACTOR shall, if practical, separate the Solid Waste from the contaminan ts. The Solid Waste shall t hen be Collected and t he contaminants shall be left in t he 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 th e Solid Waste and contaminants are commingled to t he 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 instruct ions on the proper procedures for setting out Solid Waste or; 2) leave th e Solid Waste Cart or Bin un-emptied along wit h a Non-Collection Noti ce th at contains instructions on the proper procedures for setting out Solid Waste. On the third (3rd) 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 sett ing out Solid Waste and reduce the Service Level at tha t Service Unit to the minimum level available by exchanging the Solid Waste Container without the authorizat ion of t he Customer. The CITY reserves th e right to requi re further outreach and education by the CONTRACTOR or to conduct it s own notification process prio r to authorizing removal.
7.14 SOURCE SEPARATED MATERIAL S - CONTAMINATION RESPON SE 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 C&D Debris. The first (1'1) time materials to be source separated are contaminated through commingling, th e CONTRACTOR shall contact the Custome r t o 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 Contamina tion and shall Collect the Container and cause the material contained the rein to be disposed or processed in t he most appropr iate manner.
If a third (3rd) insta nce of improper procedure occurs within a rolling t welve -month period , the CONTRACTOR may present documenta tion 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 Commerc ial Service Unit. The CITY reserves the right to require furt her outreach and education by th e CONTRACTOR or to conduct it s own not ification process prior to authorizing removal.
7.15 COM MINGLING OF M ATERIALS
A. Gray Conta iner W aste, Source Sepa rated Recyclable Mater ials, and Organic M aterials. The CONTRACTOR shall not commingle Gray Container Waste Collected pursuant to this Agreement with a ny Source Separated Recyclable Materials, or Organic Materials separated for Collection pursuant to this Agreemen t 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.
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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 materia l Collected by the CONTRACTOR outside the CITY Service Area prior to delivery to the Transfer Station, MRF, Organic Mate rials Processing Facility or Disposal Facilit y as appropriate, unless the CONTRACTOR has provided docume ntat ion that is satisfactory to the Contract Adm inistrator explaining how the commingled material will be allocated.
C. Source Separated Recyclable Materials Collected in the Service Area. The CONTRACTOR shall not comm ingle Source Separated Recyclable Materia ls Collected pursuant to this Agreemen t with any other mat erial Collected by the CONTRACTOR outside the CITY Service Area prior to delivery to the Transfer Stati on, MRF, 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.
D. Organic Materials Collected in the Service Area. The CONTRACTOR shall not commingle Organic Materials Collected pursuant to this Agreement with any othe r material Collected by the CONTRACTOR outside the CITY Service Area prior to delivery to th e Transfer Station, Organic Materials Processing Facilit y or Disposal Facility as appropriate, unless the CONTRACTOR has provided documentation that is satisfactory to the Contract Administra tor 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 contamina ted in which case it shall be classified as Solid Waste.
7.16 PERSONNEL
A. General Personnel Requirement s. The CONTRACTOR shall employ and assign qualified personne l to perform all services set forth herein. The CONTRACTOR shall be responsible for ensuring that its employees comply with all Applicable Laws and regulations and meet all federal , state and local requirement s related to their employment and position.
The CONTRACTOR shall furni sh such qualified driv ers, mechanical, supervisory , Customer service, clerical, and other personnel as may be necessary to provide the services required by this Agreement in a safe and effic ient manner.
The CONTRACTOR shall use its best efforts to assure th at all employees who interact with Customers present a neat appearance and conduct them selves in a courteous manner. The CONTRACTOR shall not permit its employees to accept, demand, or solicit, directly or indirec tly, 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 Collect ion operations and resolution of service requests and complaints. CONTRACTOR shall also provide contact informat ion for a minim um of one (1) point of contact with each CONTRACTOR departmen t, including operations, Customer service, Customer billing and Custome r communica tions. CONTRACTOR shall immed iately inform CITY of any changes in the designated liaison and any departmenta l point of contact. The CITY may also communicate direct ly with Route Manager or other CONTRACTOR personnel.
• CONTRACTOR hereby designates the following individuals:
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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 it s Contract Administ rator.
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-ti me basis) to CITY 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 outrea ch, promote waste reduction, recycling, diversion programs, and provide techn ical assistance to Multi-Fami ly 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.
• The Environmental Coordinator shall work exclusively on the CITY programs and services and shall not have oth er, non-City responsibilities or other CITY responsibilities not related to Environm ental Coordinator responsi bilit ies 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 th e performance of the designated Coordinator. • The Environmental Coordinator will shall cooperate and coordinate with the Contract Administrator to minimize duplicative, inconsistent , or inappropriately timed education campaigns. The CONTRACTOR shall allow the Contract Administrator a reasonable opportunity to review , request modificat ions to, and approve all materials includ ing, but not limited to: print, radio, television, or internet media befo re publication, distribution , and/or release.
D. Driver Qualifications. All drivers must have in effect a valid license, of the appropr iate 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 operationa l and safety training for all of its employee s who operate Collection Vehicles or equipment. The CONTRACTOR shall tra in its emp loyees involved in Collection to identify, and not to collect, Excluded Waste. Upon the Contract Admin istrator's request, the CONTRACTOR shall provide a copy of it s safety policy and safety training program , the name of its safety office r, and th e 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 th e billing and collection of payments for all Collection Services.
The CONTRACTOR shall charge Service Recipients an amoun t which shall not exceed the maximum approved rates attached in Exhibit 1 to thi s Agreement as adjusted under th e terms of thi s 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 .
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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 th irty {30) and multiply ing 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 fo r Collection Services. CITY'S insert shall be limited to one {l) 8.5-inch by 11-inch double-sided page.
C. Residential Exemption . Owners of Premises which have been unoccupied by any human habita tion 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 automati cally 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 disconti nue providing Recycling, Green Waste/Organ ic 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 th e subject residential property in accordance with the provisions set forth in the CITY Code. For Commercial properties, CONTRACTOR may also reduce service levels.
E. Residential Low-Income Financial Assistance Program. a. CONTRACTOR Contribution. On or before October 1, 2022 CONTRACTOR shall contribute Twenty-Five Thousand Dollars ($25,000.00) to a fund to be used exclusively to assist qualified low-income residential Customer s with payment of their Solid Waste bill. Effective October 1, 2023, and each October 1 thereafter, CONTRACTOR'S annual contribution shall be Twenty-Five Thousand Dollars ($25,000.00) , less any unexpended funds cont ributed by CONTRACTOR from the prior year. Each annual contribu tion shall be paid by CONTRACTOR on or before each October 1· At it s sole discretion, CITY may elect to likew ise contribu te to said fund.
Contributions shall not be funded by Customers.
b. Program Admini stration. The Residential Low-Income Financial Assistance Program shall be administered by CITY in consultation with CONTRACTOR. The CITY, in consultation with the CONTRACTOR, may select a local community charitable organization or other designee to administer the program.
c. Accounting~
i. CONTRACTOR shall maintain a separate account exclusively for th e Residential Low Income Assistance Program and program funds shall not be commingled with any other funds of the CONTRACTOR.
ii. Within thirty (30) days following the end of each calendar year, or upon request by CITY, CONTRACTOR shall provide CITY with (i) statement s showing the balance of the account, and (ii) a detailed record of all tran sactions, including :
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1. Contributions and deposits into the account, interest earned on funds held in the account (if any), and any other additions to the account . CONTRACTOR shall identify whether a contr ibution was made by CITY;
2. Amounts dedu cted from the account , including each credit to a qualified low income Customer, listing the Customer's name, mailing address, service address, and account number;
3. Any other use of funds reflected as debits to the account. iii. Except for assistance payments in the amounts authorized by CITY, CONTRACTOR shall make no other disbursement of funds from the account without CITY'S prior written approval.
iv. There shall be no fee charged to any Customer to apply for the Residential Low-Income Financial Assistance Program. CONTRACTOR shall not charge CITY for account administration for the program .
v. In the event CITY contributes funds to the Residential Low-Income Financial Assistance Program, disbursement s shall first b e debited to CONTRACTOR'S contrib utio n before CITY'S funds are disbur sed.
d. Eligibility Criteria .
i. Any residential subscriber to CONTRACTOR'S Basic Curbside Service are eligible to apply for assistance. Low-income assistance shall not apply to customized services. ii. Eligible Customers th at meet the household income criteria of the California Alternate Rates for Energy Program ("CARE") will qualify for low-income assistance. An application accompanied by evidence of curren t approved enrollment in the CARE prog ram of Desert Community Energy, Southern Californ ia Edison or SoCalGas shall serve as an acceptable form of eligibility. The application for assistance shall require applicants to provid e at least the following information: Customer 's account number , name, service address, mailing address, and proof of income eligibility. Applicants not enrolled in the CARE program may submit proof of total household income as an alternative.
iii. Customers are eligible for low-income assistance at the rate established by CITY. As of th e Effective Date, the low-income discount is fifteen percent (15%), and CITY may revise the rate of th e discount with notice to CONTRACTOR. Assistance wil l be prorated for applicants who do not occupy a premise for an ent ire year. iv. Vacation Rental Properties permi tted by CITY, including Home share properties, are not eligible for assistance.
F. Applic ati on and Amount of Assistance.
a. An application for low-income assistance shall be made directly to CITY or CITY's designee and may be made at any time. CITY or CITY's designee shall assist applicants with understanding the program and with the application process.
G. Review by CITY. Following review of the applicatio n by CITY or CITY's designee, CITY shall fo rward to the CONTRACTOR an electronic report that includes the following information : Customer account numbe r, name, service address, mailing address, and whether the Customer qualified or did not qualify for low-income assistance. CITY may require Customers eligible for low-income assistance to provide proof of eligibility each year, or upon request.
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H. Disbursements. For Customers who CITY has determined are eligible for low-income assistance, a disbursement in t he amount determined by the CITY shall be deducted from the account and applied as a credit to t he Customer's account each billing cycle that Customer remains eligible for the program .
The amoun t of the disbursement shall be de termined by CITY and shall be subject to availability of funds.
I. Assistance Program Out reach. CITY and CONTRACTOR shall each maintain a bilingual announcement about the Residential Low-Income Financial Assistance Program on th eir respective websites.
CONTRACTOR shall annually include a bilingual announcement of the program on the January billing stateme nt to all residential Customers and mentio n of the program in it s newsletter for the January Ma rch quarter.
8.2 NON -DISCLOSURE
The CONTRACTOR wi ll not disclose to any Person other than the CITY or official investigations by membe rs of a law enfo rcement agency any infor mation identifying an individua l Customer, t he composition or content s of a Custom er's Discarded Materials, or a Custom er's t rade secret s unless upon the authority of a law, or pursuant to written authorization of the Customer.
8.3 NO MAR KETING
The CONTRACTOR will not market or dist ribute mailing lists with the name or addre ss of Customers. The CONTRACTOR's obliga tions under this subsection are in addition to any other privacy rights accorded Customers under Applicable Law.
8.4 CONTRACTOR'S CUSTOMER SERVICE
All service inquiries and complaint s shall be directed to t he CONTRACTOR. A representat ive of t he CONTRACTOR shall be available to receive th e compla int s during norma l business hours. All service comp laints will be handled by the CONTRACTOR in a promp t, courteous, and efficient manner.
A. Emergency Contacts. CONTRACTOR shall also mainta in a list with contact telephone numbers for at least th ree responsible company representatives capable of immediate ly addressing and responding to emergency situations outside of Phone Hours. This list shall be prov ided to the CITY's emergency dispatch, Police, fire and Public Works Department s, and the City Manager's Offi ce.
B. M ultilingu al, TDD Services. CONTRACTOR shall at all times maintain the capability of respond ing to telephone calls in English, Spanish, and such other languages as CITY may direct. CONTRACTOR shall at all tim es maintain t he capability of responding to telephone calls through Telecomm unications Device for the Deaf (TDD) Services. These capabil ities shall be mainta ined for bot h the local telephone number and the emergency telephone number .
C. Custom er Complaint s and Inquiries. CONTRACTOR shall record in a computerized daily log all complaints, includ ing date, time, complainant 's name and address if the complainant is will ing to give this information , and nature date and manner of resolution of complaint. Any such calls received via CONTRACTOR's answering service shall be recor ded in the log and responded to no later t han 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 call volumes exceed that employee's ability to answer such calls, the call shall be switched to a message center.
D. Response Requi rements. All incoming calls shall be answered within a maximum of four rings. Any call "on-hold " in excess of 3 minutes shall be switched to a message center where CONTRACTOR shall maintain information in a daily log to enable a customer service represen tative to retu rn Palm Springs Agreement Page 53
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customer calls. All "call backs" shall be attempted a minimum of one time prio r to 6:00 p.m. on the day of the call. If the caller is not contacted on the firs t attempt, CONTRACTOR shall make subsequent attempts on t he next working day after the original call. CONTRACTOR shall make a min imum of three attem pt s within 24 hours of the receipt of the call. If CONTRACTOR is unable to reach t he caller on the phone, CONTRACTOR shall send a postcard to t he caller. All attempts to contact the caller shall be recorded on the log kept by CONTRACTOR. In addition, CONTRACTOR shall provide a custome r 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 Officer (CSO) to CITY. CSO shall mon itor t he customer experience by random selecting daily at least 10% of customers who contacted CONTRACTOR's office daily to solicit opinio ns about their experience. Opinion solicitation shall be by email or regular mail. A summary of Results of t he random CSO survey shall be submitted to CITY monthly.
E. Emergency Services. In the event of a tornado, major storm, earth quake, landslide, flood, fire, natural disaster, act of terro rism, or other such event, t he Contract Administrator may, in his or her discretion, grant the CONTRACTOR a variance from regular routes and schedules but no breach, default or oth er 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 Admin istrator when it is anticipated that norma l routes and schedules can be resumed. The Contract Adminis trator shall make an effort through t he local news media to inform the public when regular services may be resumed.
The clean-up from some events may require that the CONTRACTOR hire additional equipment, emp loy additional personnel, or work existing personnel on overtime hours to clean debris resulting from the event . The CONTRACTOR shall receive additiona l compensation , above the normal compensation contained in this Agreement, to cover the costs of collections of disaster debr is includ ing for owned and r ented equipment, additional person nel, overtime hours, and o t her documented expenses fo r Emergency Collection Services, provi ded the CONTRACTOR has first secured wri tten authoriza tion and approval from the CITY through the Contract Admin istrator to perform the work.
CONTRACTOR shall invoice CITY monthly for Emergency Collection Service performed at the rates establis hed in Exhibit 1. CITY'S payment to CONTRACTOR shall be due within th irty (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 regardi ng inqu iries, service requests and complaints thro ugh the use of the CONTRACTOR's ticket report system.
G. W ebsite. The CONTRACTOR shall develop and maintain a website dedicated to services provided in the CITY that is accessible by the publ ic. The web site shall include answers to frequen tly 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 websi te to include an e-mail link to the CONTRACTOR and a l ink to the CONTRACTOR's website. The CONTRACTOR's website shall provide t he public the ability to e-mail complaint s to the CONTRACTOR and request services or service changes.
H. Hazardou s Waste Referrals. The CONTRACTOR shall prov ide informa t ion regarding the Collection of Hazardous Waste to those Service Recipients requesting such information. The informa tion shall at a minimum include information regarding t he CONTRACTOR'S program in the CITY as well as information regarding the services available through the County of Riverside.
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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 addi tional charge. This system should be website based and allow Custom ers to view and pay bills thro ugh CONTRACTOR's we bsite. Through t he CONTRACTOR's website, Customers may request t o cease paper billing and receive all bills through e-mail and/or CONTRACTOR's website. The CONTRACTOR wil l ensure that the electronic billing and payment website conforms to industry-s tandard pract ices for electronic comme rce security. The CONTRACTOR must ensure that t hese Customers are compiled in a list to ensure that billi ng inserts are mai led directly. The CONTRACTOR shall promote the website-based billing and paymen t system on all paper bi lls 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 addit ional charge. Customers shall not b e charged a surcharge or fee.
8.5 RECORD KEEPING
A. Accounting Records. The CONTRACTOR shall maintain full, complete and separate fi nancial, statist ical and accounti ng records, pertaining to cash, billi ng, and provisions of all Collection Services provided under this Agreemen t, prepared on an accrual basis in accordance with generally accepted account ing principles. Such recor ds shall be subject t o audit, copy, and inspection . Gross Billings derived from provision of t he Collection Services, whe ther such services are perform ed by the CONTRACTOR or by an approved Subcontrac tor(s) as set forth in Exhibit 4, shall be recorded as revenues in t he account s of t he CONTRACTOR. These records shall be maintained separate from th e CONTRACTOR's records fo r services provide d outside the Service Area. The CONTRACTOR shall maint ain and preserve all cash, billing and Disposal records for a period of not less th an eight (8) years following the close of each of the CONTRACTOR's fiscal years.
B. Agreement M ateri als Records. The CONTRACTOR shall maintain recor ds of the quanti ties of (i) SFD, M FD, Commercial and the CITY Solid Waste and Construction and Demolition Debris Collected and Disposed under t he terms o f this Agreeme nt; (ii) Recyclable Materials Collected, purchased, Processed, sold, donated or given for no compensat ion; (iii) Organic Materia ls Collected, Processed, sold, donated or given for no compensa tion; and, (iv) C&D Debris Collected, Processed, sold, donated or given for no compensation . CONTRACTOR shall maintain t hese records for a min imum of ten (10) years beyond expiration or earlier termina tion of the Agreemen t . CONTRACTOR shall provide these records to CITY (upon request or at the end of the record ret ent ion period) in an organized and indexed manner rather than destroying or disposing of t hem.
C. CONTRACTOR shall main tain Customer contact data, Customer service, accounting, stat istical, opera ti onal, and othe r records related to its performance as shall be necessary to provide report ing under t his Agreement, Applicable Law, and to demonstrate compl iance with this Agreement. Unless ot herwise required in this Art icle, CONTRACTOR shall retain all records and data required to be maintained by this Agreement in an accessible location and condi tion (which may include t he cloud) fo r th e Term of this Agreement plus three (3) years after its expiration or earlier termination.
Records and data shall be in chronological and organized form and readily and easily interpret ed.
Upon request, any such records shall be retrieved w ithin ten (10) Wor king Days of a request by the Contract Adminis trator 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 eart hquake. Electronically-maintained data and records shall be protect ed and backed-up. To the extent t hat CONTRACTOR utilizes its computer systems to comply wit h record keeping and repor t ing requirements under this Agreement, CONTRACTOR shall, on a monthly basis, save all system-generated reports supporting those record keeping and repor ting requirements in a static format in order to provide an audit t rail for all data required.
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8.6 REPORTING REQUIREMENTS
Monthly reports shall be submit ted to the Contract Administrator no later than thirty (30) calendar days after the end of the report ing month. Quarterly reports shall be submi tted to the Contract Administrator no later than forty five (45) calendar days after th e end of the reporting quarter. Annual reports shall be submitted to the Contract Admini strator no later than March 15 after the end of each preceding Rate Year. Monthly , quarterly and annual reports shall be subm itted in hard copy or provided electronically via e-mail if acceptable to the Contract Admin istrat or. Reporting requirement s fo r mont hly, quarter ly and annual reports are det ailed in Article 8 of the Agreement .
A. State Reporting Assistance. The CONTRACTOR shall, upon request from the CITY, prov ide assistance in completing St at e reports, including but not lim ited to the Cal Recycle 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 furni sh the CITY with any additiona l reports as may reasonab ly be requested by CITY regarding CONTRACTOR's ope rat ions hereunder, such repo rts to be prepared within a reasonable time following the reporting period . CONTRACTOR shall coor dinat e with t he CITY to ensure that any materia ls scheduled to be includ ed in the annual report due in 2022 be provided earlier if necessary for the CITY to comply with the repo rting requ irements of SB 1383 Regulations.
ARTICLE 9: COLLECTOR FEES AND OTHER FEES
9.1 FRANCHISE FEE
CONTRACTOR shall pay CITY a Franchise Fee. The Franchise Fee percentage shall be 4.90% of Gross Billings during the term of this Agreement unless adjusted by the CITY with written notice to CONTRACTOR, except for Gross Billings for Material Handlin g Fees for Roll-Off Box service. CONTRACTOR and CITY agree the Franchise Fee is a negotiated amount th at is reasonably related t o the value of the rights granted to CONTRACTOR under this Agreement. CITY may use the Franchise Fee for any lawful purpose. The Franchise Fee is a cost paid solely by CONTRACTOR.
9.2 CONTRACTOR'S PAYMENTS TO CITY.
CONTRACTOR shall pay CITY an Administra tion Fee, State Administration Fee, and Diversion Facility and Sustainability Fee.
A. City Administration Fee. The City Admin istrative Fee percentage shall be 2.50 % of Gross Billings during the term of this Agreement unless adjusted by the CITY with written notice to CONTRACTOR.
B. State Administration Fee. Pursuant to California Public Resources Code Section 41902, City may directly assess fees or may arrange for the fees t o be collected by CONTRACTOR under this Agreement to pay for its source reduction and recycling elemen t pursuant to the Act. CONTRACTOR agrees to pay or collect, as the case may be, a State Administration Fee percen tage of 0.90% of Gross Billings during the t erm of th is Agreement unless Palm Springs Agreement Page 56
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adjusted by the CITY with written notice to CONTRACTOR.
C. Diversion Facility and Sustainab ility Fee. The Diversion Facility and Sustainability Fee percentage shall be 2.70% of Gross Billings during the term of this Agreement unless adjusted by the CITY with written notice to CONTRACTOR.
The CONTRACTOR shall make payment to t he CITY of the fees set forth in Art icle 9. Payment to the CITY shall be due quarterly on the thirtieth (30th ) day of the month following each calendar quarter during which revenues are bill ed. Each such payment shall be accompanied by an account ing that sets forth CONTRACTOR's Gross 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, tha t 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 and comp lete." 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 CITY may have against CONTRACTOR for any additional sums payable under the provisions of this Agreement. All amounts paid shall be subject to indepe ndent audit and recomput ation by CITY. If, afte r audit , such recom putation indicates an underpayment of less than thre e percent (3%), CONTRACTOR shall pay to CITY th e amount of the underpayment within ten (10) days of receipt of written notice from CITY that such is the case. If, after audit, such recom putati on indicate s an underpayment of equal to or more than three 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 recomputati on within thirty (30) days of receipt of written notice from City that such is the case. If, after audit, such recomputat ion indicates 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 recomputa tion. Should an overpayment be foun d, CONTRACTOR shall offset t he payment of payments (as appropria te) next due following receipt of not ice 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 incur red in connection w ith entering this Agreement .
B. Fees associated with rate adjustments. CONTRACTOR shall pay for th e printing and mailing of Proposition 218 Public Hearing Notices and notices of annual rate adjustments in accordance with Governmen t Code Section 53756. CONTRACTOR shall also pay for the cost of contrac tor review of any proposed extraordinary rate adjustmen ts.
C. Other Fees. The CITY reserves the right to estab lish 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 similat 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 ful ly defi ned as CONTRACTOR Compensation in t his Arti cle, shall be th e maximum amoun t that t he CONTRACTOR may charge Customers, as full, entire and complete compensation due pursuant to thi s Agreement for all labor, equipmen t, materials and suppl ies, fees or surcharges due to the CITY as applicable, taxes, insurance, bonds, letters of credit, overhead, disposal, tran sfer, processing, profit and all other things necessary to perform all the services required by th is Agreement in the manner and at the times prescribed. From time to time, Custom ers may request services for wh ich a rate is not provided in Exhibit 1. In such cases, CONTRACTOR shall so advise th e Contract Administra tor and the Customer and CONTRACTOR shall negotiate a rat e for the requested services. If agreement cannot be reached, the matter shall be referred to the Contract Administra tor for establishmen t of the rate. Approve d rates for requested services shall be included in Exhibit 1 in the next Rate Year. The CONTRACTOR shall impose no other charges for services provid ed under t his Agreemen t to Customer s 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 majori ty protest proceeding under Proposit ion 218 as it deems necessary or advisable. If, at any time, a Rate adjustment determined to be appropriate by both CITY (which determ ination 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 fait h, a reductio n of services equal to the value of the Rate adjustment t hat cannot be implemen ted.
If CITY and CONTRACTOR are unable to reach agreement about such a reduction in services, then CONTRACTOR may termin ate this Agreement upon one hundred eighty (180) days' prior w ritten notice to CITY, in wh ich case the CONTRACTOR and CITY shall each be entitled to payment of amoun ts due for contract performance throu gh th e date of term ination but otherwise will have no furth er obligation to one another pursuant to t his Agreement after the date of such termi nation .
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 amoun t, provided said Franchise Fees, other governmenta l fees, Rates and/or charges disallowed by the court were determined not t o be related to the cost of provi ding service hereunder and had been incorporated in th e Rates charged by CONTRACTOR to it s Customers.
This provision will survive the expiration or earlier termina tio n of this Agreement.
10.3 SCHEDULE OF FUTURE ANNUA L RATE ADJUSTME NTS
A. Rate Adjustm ent Application . Beginning wi th the Rate Year starting July 1, 2023, and for all subsequent Rate Years, the maximum approved rates shown in Exhibit 1 shall be adjusted as described in this Article. The CONTRACTOR shall submit a written Rate Adjustmen t Application directly to t he Contract Administrator or via cert ified mail, on or before March 1, 2023, and on or before M arch 1 of each succeeding Rate Year. CONTRACTOR'S Rate Adjustment Application shall be based on th e 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 Palm Springs Agreement Page 58
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confir mat ion is not received by CONTRACTOR within thirty {30) days, CONTRACTOR shall be autho rized to proceed with the new rates as submitted .
10.4 METHOD OF FUTURE FORMULA RATE ADJUSTMENTS
Pursuant to Article 10.3, t he annual perce ntage adjustment to the maximum approved rates of Exhibit 1 shall be calculated using the Excel workshee t entit led Rate Adjustmen t Procedure PSDS FA. Exhibits 2A through 2C provide examples of the use of th e Excel wo rksheet . Exhibit 2D prov ides initial Materia l 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-On tario Area, calculate t he percentage change in the index reported 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 rote 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, 28 & 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 28, Bin service, the Percent Change in Index carr ies 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 t he current tipping fee per ton for each material facili ty, and the actual total tonnage for each materia l 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 (colum n 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 Weight ed Average Cost Per Ton of $63.8909 (column H, row 7).
For Bin service, Exhibit 28 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 co/cu/ates 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 Permitt ed Percentage in Material Handling Component Index. The increase or decrease in the new Material Handling compon ent index and the previous year's material handling component index will be used to adjust t he materi al handli ng component of the Palm Springs Agreement Page 59
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rates. The initial Mater ial Handling Component Index for Cart service will be $61.5540 as provided in Exhibit 20, column C, row 6 and $52.4220 for Bin service as provided in Exhibit 20, 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, row8).
For Bin service, Exhibit 2 B co/cu/ates 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 Percenta ge Rate Change. Multiply the percentage changes for the collection service component and the materia l handling component by each component's assigned percentage weighting. The initial percentage weightings for the material handling componen t are provided in Exhibit 20, (Note: 6% is the maxim um allowed adjustment to the collection service compone nt 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 % (column 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 4.18% (column N, row 12).
For Bin service, Exhibit 28:
• The Permitted Percentage Change for the collection service component is calculated by multiplying the Component Weighting of 77.4888% (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 Permitt ed Percentag e 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 22.5112 % (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 Materia l 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 Adjustm ent Calculation. Use the procedure set forth in Exhibit 2A (for Cart service) and Exhibit 2B (for Bin service) to recalculate the percentage weigh tings for the collection service componen t and the material handling compon ent 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 Sentries 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 0, 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 multipli ed 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 Sentries 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 Author ized Rates. Using Exhibit 1 calculate the maximum approved rates by mult iplying each current maximum approved rate in Exhibit 1 by the appropria te Total Percentage Rate Adjustment Rate Adjustment (for Cart service, the value plus 1 from Exhibit 2A, column N, row 12; for Bin service, th e value plus 1 from Exhibit 2B, colum n 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 adjuste d by the Total Percentage Rate Adjustment for Cart service plus 1. The maximum approved rate s for Commercial services of Exhibi t 1 involving material handling will be adjusted by the Total Percentage Rate Adjustm ent 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 procedu res will be applied separa tely for Cart service (Exhibit 2A) and Bin service (Exhibit 2B) using the corresponding Excel work sheets.
All other rates including pull charges for Roll-Off Box and Othe r 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 th e actual cost incur red at the materia l handling facility to which the material was delivered.
10.5 EXTRAORDINARY RATE ADJUSTMENTS
It is understood that CONTRACTOR accept s the risk for changes in cost of providing services and the Service Levels requested by Customers and therefore th e extraordinary adjustm ents to Rates shall be limit ed to a Change in Law (wheth er by a legislative action, administrative regulation , or judicial interpre tat ion), or City-directed changes in designated Solid Waste faciliti es. When extraordinary circumstances occur, the CONTRACTOR may petiti on the CITY in writ ing for an adjustment in the maximum rates due to extraordinary circumstances beyond the CONTRACTOR's control. CONTRACTOR may request to be compensated for cost s incurred when the additional costs start to be incurred . The CONTRACTOR shall submit info rmation in support of th e requested adjustment for review within ten (10) business days of subm itti ng it s request. The City Council shall approve or deny the request w ithin six (6) months of submittal, in its reasonable judgment .
The CONTRACTOR shall provide documentation and analysis to the satisfaction of CITY of t he reasons for such adjust ment. Petitio ns regarding extraord inary circumstances beyond the CONTRACTOR's cont rol shall sat isfy all of th e following conditions: (i) mater ially alters CONTRACTOR's operations or overall costs; (ii) could not reasonably have been foreseen by a prud ent operator; and (iii) by all reasonable expectation s will continue for a period of at least six (6) months. Such changes shall include inaccurate estima tes by the CONTRACTOR of its cost of opera tions.
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The CONTRACTOR's request shall contain substantial proof and justificat ion to support t he need for the adjustment.
For each request brought pursuant to t his article CONTRACTOR shall prepare a schedule documen ting 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 showin g 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 th e CONTRACTOR such further informa tion as it deems necessary to fu lly evaluate the request and make its determinat ion. As a privately held company, CONTRACTOR must maintain the confid entia lity of its fin ancial statement s and is unable to release financial statemen t s that could be subject to a public records request . As part of CITY'S review of an extraordinary rate adjustment application by CONTRACTOR, CITY may review CONTRACTOR'S fina ncial statements in a setting that provides the CITY the necessary information it seeks. No copies, reproduc t ions, pictures, or re-creations wil l be allowed to be retained by the CITY or its consultan t. CITY shall review th e CONTRACTOR's request and, in the City Council's sole judgment and absolute, unfetter ed discret ion, make the final determina tion as to whether an adjustment to the maximum rates will be made, and, if an adjustment is permitted , the appropria te 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 extraor dinary rate adjustmen t 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 adjustmen ts shall only be effec tive after approval by the City Council and may not b e 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 t he fullest extent allowed by law, CITY, its officers, official s, employees, volun teers, agent s and assignees (collectively, " lndemnitees "), 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 contributi on or indem nity claimed by t hird parti es (collectively, the "Claims"), arising out of or occasioned in any way by, directly or indirectly, CONTRACTOR's performanc e of, or its failure to perform , its obligat ions under thi s Agreement. The forego ing indemni ty shall not apply to the extent that the Claim is caused solely by the negligence or intentio nal 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 t he occurrence of any Claim, CONTRACTOR, at CONTRACTOR's sole cost and expense, shall defend (with attorne ys reasonably acceptable to CITY) CITY, it s officers, employees, and agents. CONTRACTOR's duty to indemnify and defend shall survive the expiration or earlier termination of this Agreement.
B. CALRECYCLE Indemn ification . CONTRACTOR'S duty to defend and indemnify herein includes payment of all fines and/or penalties imposed by Cal Recycle, subject to the restrictions set forth in Public Resources Code Sect ion 40059.1, if the requirements of AB 939, AB 341, AB 1826, and/or SB Palm Springs Agreemen t Page 63
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1383 and corresponding regulation s are not met by the CONTRACTOR with respect to the Discarded Materials Collected under this Agreement, and such failure is: (i) due to the failure of CONTRACTOR to meet its obligations under thi s Agreement, or, (ii) due to CONTRACTOR delays in providing info rmatio n that prevents CONTRACTOR or CITY from submitting reports required by AB 939, AB 341, AB 1826, and/or SB 1383 and corresponding regulations in a timely manner . The provis ions of this Section shall survive the termination or expira tion of this Agreement.
C. Excluded Waste. The CONTRACTOR acknowle dges that it is responsible for compl iance durin g th e 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 Applicab le Laws. The foregoing notwithstanding, or any other provision of thi s Section 11.1, t he Parties acknowledge that de minimis amounts of excluded waste are generated by households and businesses which may, without the knowledge of CONTRACTOR, improper ly place such materials for collection as Solid Waste. The presence of these materials may not be readily detectible by CONTRACTOR when operat ing an automated collection system . Accordingly, t he Parties agree that t he 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 constitu te negligence on the part of CONTRACTOR, nor shall CONTRACTOR be deemed to have violated Applicab le Law.
In the event that the CONTRACTOR negligently or willfully mishandles Excluded Waste in the cou rse of carrying out its activities under this Agreement, the CONTRACTOR shall at its sole expense promptly take all investigatory and/or remedial action reasonably requ ired for the remediation of such environmental contamination. Prior to undertaking any investigatory or remedia l action , however, the CONTRACTOR shall firs t obtain the Contract Administra tor's approval of any proposed investigatory or remedial action. Should CONTRACTOR fail at any time to prom ptly take such act ion, the CITY may undertake such action at the CONTRACTOR's sole cost and expense, and th e 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 therea fter be deemed delinquent and subject to the delinquent fee payment provision of this Agreement. These obligat ions are in addition to any defense and indemni ty obligations that the CONTRACTOR may have under this Agreement. The provisions of this Article shall survive the termina t ion or expiration of this Agreement.
Notwi thstanding the foregoing, t he CONTRACTOR's duties under this subsection shall not extend to any claims arising from the Disposal of Solid Waste at the Appro ved Disposal Facility, including, but not l imited to, claims arising und er Comprehensive Environmen t al Response, Compensatio n and Liability Act (CERCLA) unless such claim is a direct result of the CONTRACTOR's negligence or will ful misconduct or CONTRACTOR owns or operates the Approved Disposal Facility.
D. Environmental Indemnity. The CONTRACTOR shall defend, indemni fy, and hold the CITY harmless against and from any and all Claims attributable to the negligence or willfu l misconduct of the CONTRACTOR in handling Excluded Waste.
E. Related to Proposition 218. Should there be a Change in Law or a new judi cial interpre tati on of Applicable Law, including, but not limited to, Art icles XIII C and XIII D of t he California Constitution (commonly known as "Pro posit ion 218"), which impacts the CITY'S abili ty to set or change Rates for the Collection services established in accordance with thi s Agreement, CONTRACTOR agrees to Palm Springs Agreement Page 64
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meet and confer with th e 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 appropria te by both CITY and CONTRACTOR to compensate CONTRACTOR for costs or increases in costs as described in this Agreement cannot be mainta ined or implemen ted for any reason, CONTRACTOR and CITY shall negot iate in good faith, a reduction of services equal to the value of the Ra te or Rate adjustment that cannot be implemented . If CITY and CONTRACTOR are unable to reach agreement about such a reduction in services, th en CONTRACTOR may eith er (i) terminate thi s 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 contrac t perfor mance through the date of termination but othe rwise will have no further obligat ion to one another pursuant to thi s Agreement after th e date of such termina tion , or (ii) request that th e matter be referred to a mediator jointly selected by CITY and CONTRACTOR for determi nation. If CITY, at its sole discretion, agrees to mediation, the Parti es 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 regard less of whether a mediator is used.
The CITY shall not be in default of t his Agreemen t, if it is determined by a court of competent jurisdict ion, that CITY lacks the authori ty 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 thi s Agreement, CONTRACTOR shall (i) reduce the Rates it charges Customer s a corresponding amount, providing said fees, Rates and/or charges disallowed by the court are not related to the cost of providing service hereunde r and had been incorporated in the Rates charged by CONTRACTOR to its Customers, or (ii) CONTRACTOR may have the right to term inate 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 thi s Agreement; rather th is Section is prov ided merely to allocate risk of an adverse jud icial interpre tation between the Parties.
Article 11.1, subsections A-E, shall survive t he 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 defen d, hold harmless, and indemnify under Art icle 11 shall not be excused because of the CONTRACTOR's inability to evaluate an lndemnitee's liability or because th e CONTRACTOR evaluat es such liability and determines that th e lndemni tee is not liable to the claimant. Within twenty (20) days of receiving written not ice from the CITY of a claim for which the CITY is enti tled to indemnity, the CONTRACTOR shall confirm to the CITY in wri ting that the CONTRACTOR will provide a defense to the claim and shall take appropriate actions to provide such defense.
11.3 HAZARDOU S SUBSTAN CES IND EMNIFICATION
The CONTRACTOR shall indemnify, defend with counsel acceptable to the CITY, and hold harmless th e CITY, its officers, officials, employees, agents, assigns and any successor or successors to the CITY's interest from and against Palm Springs Agreeme nt Page 65
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all claims, damages (including but not limi ted to special, consequential and natural resources damages) injuries, hazardous material s response, remediat ion and removal cost s, losses, demands, liens, liabili ties, causes of action, suits (including citizen's suit s), legal or administrative proceedings, interest , fines, charges, penalties (including attorney s' fees for the adverse party ), and expenses (including but not limi ted to attorneys' and expert witness fees and costs incurred in connect ion with defending against any of the foregoing or enforcing this indemnity) of any kind what soever paid, incurr ed or suffered by, or asserted against CITY or its officers, official s, employees, agents, assigns, or contractors arising or resulting from any repair, cleanup or detoxification , or preparation and implementation of any removal , remedia l, respon se, closure or other plan (regardless of whether undertaken due to governmen tal action) concerning: (i) any Hazardous Substance or hazardous wastes at any facility where CONTRACTOR tran sports, stores, or causes to be disposed Solid Waste pursuant to thi s Agreemen t; (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 environm ental 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 (i) through (iv), during the Term of thi s Agreement and subject to Articl e 11. The foregoing indemn ity is intended to operate as an agreement to indemnify , defend , insure, pro tect 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 Environmenta l Laws.
11.4 SEPARATE COUN SEL
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 responsib le for paying its separate counsel unless: (i) the CITY reasonably determines and notifies CONTRACTOR t hat separate counsel is required to represent the CITY durin g the resolution of any claim; or (ii) a court of competent jurisdiction rules that the CONTRACTOR has refused to satisfy its obligations under th is Article 11. Notwithstanding th e preceding sentence or the first sentence of Articl e
11.1, with respect to a part icular 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 reimbursement from the CITY with respect to such claim, t he CITY shall not object to th e counsel representing it being the same counsel that repr esents 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 prov ides the aforement ioned conf irmat ion, but th e CITY declines to consent to such joint representation, th e CITY may retain its own counsel at its own expense, t he CITY shall have no right of defense or reimbursement of defense costs w ith respect to such claim (but th e CITY shall still be entitled to indemnity), the CITY shall reasonably coope rate with CONTRACTOR in the defense and settl ement of such claim. If the CONTRACTOR does not provide the aforementioned confirmatio n, or if t he CONTRACTOR provides such confirma tion and the CITY is prohibited by law from providing such waiver, the n the CONTRACTOR shall reimb urse 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 considerat ion inuring to the CONTRACTOR for the executio n of thi s Agreement consist s of the promi ses, payment s, covenant s, rights and responsibilities conta ined in this Agreement and the consideration to the CITY are the Solid Waste Collection Services CONTRACTOR shall perfo rm pursuant to this Agreement .
Palm Springs Agreement Page 66
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11.6 OBLIGATION
The execution of thi s Agreement by the CONTRACTOR shall obligate the CONTRACTOR to comp ly with the forego ing indemnification provis ions; howe ver, the collat eral obligati on of provid ing insurance must also be fully complied with as set forth in Article 11.11 below.
11.7 COLLECTION SERVICES SUBCONTRACTORS
Any Subcont ractor(s), independent contractor(s) or any type of agent(s) perfor ming or hired to perform any term or condi tion of t his Agreement on behalf of the CONTRACTOR, or as may be allowed by this Agreement, shall comply with each term and condition of th is Agreement, including each t erm and condit ion of Art icle 11.11 entitled "INSURANCE" or a more approp riat e level of coverage as determi ned by the City. This applies to subcontracto rs perform ing collection services for CITY facilities. Furthermore, th e CONTRACTOR shall be responsib le for the Subcontract or's act s, omissions and sati sfactory performance of the terms and conditio ns of this Agreement. All Subcontractors, independent contractors and agent s to the CONTRACTOR are disclosed on Exhibit 4, attached hereto.
The CONTRACTOR shall require all Subcontractors performing Collection Services under the terms of t his Agreement to enter into an agreement containing the provisions set forth in t his Article 11 in t heir entirety and Subcont ractor shall fully indemni fy the CITY in accordance with this Agreemen t .
11.8 EXCEPTION
Notw ith stand ing any ot her provision of t his Article 11, the CONTRACTOR's obligat ion to indemnify, hold harmless and defend under thi s Arti clell does not extend to any loss, liability, penalt y, damage, cause of action, s uit, forfeiture , claim, deman d, proceeding, injury, cost, lien, inte rest, fine, charge or expense (i) as to w hich the CONTRACTOR is precluded b y law from indem nifying the lndemnitee, (ii) which arose or resulted from the sole negligence or wi llful miscond uct of any lndemnitee; (iii) perta ining to the process by which the CONTRACTOR was selected, the exclusive Franchise hereun der 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 emp loyees or Subcontractors cause any injury, damage or loss to t he CITY property, including but not limited to the CITY streets or curbs, other than norma l wear and tear from routine opera tions and as set forth in Article 5, the CONTRACTOR shall reimbu rse the CITY for th e CITY's cost of repairing such injury, damage or loss. Such reimbu rsement is not in derogation of any right of the CITY to be indemnifie d by the CONTRACTOR for any such inju ry, damage or loss. With th e prior written appro val of the CITY, the CONTRACTOR may repair t he damage at the CONTRACTOR's sole cost and expense. CONTRACTOR shall not be responsible for damage to pavement that does not meet pavement design, constructio n and maintenance standar ds for truck operat ions.
11.10 SURVIVAL
CONTRACTOR's indem nity obligat ions shall survive th e expiration or termination of this Agreement and continue until such obligations have been fully sat isfied by the resolution of all claims for which indemnity obligations are owed to the CITY.
Palm Springs Agreement Page 67
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11.11 INSURANCE
A. Commercial General Liability. The CONTRACTOR shall, at its sole cost and expense, procure , main tain and keep in full force and effect during the life of this Agreement commercia l general liability (CGL), and if necessary, comme rcial umbrella liability insurance in an amount not less than Nine Million Dollars ($9,000,000) for each occurrence and general aggregate and Product s/Completed Operations aggregate lim its of liability coverage of not less than Nine Million Dollars ($9,000,000).
CGL insurance shall be written on ISO occurrence form CG 00 01 04 13 (or a substitute fo rm providing equivalent coverage) and shall cover liability arising from premises, operations , products comple ted operations, personal and adver tising injury , and liability assumed under an insured contra ct (including th e tort liability of another assumed in a business contract).
CITY shall be included as an insured under th e CGL, using ISO additional insured endorsement CG 20 10 07 /04 and CG 20 37 07 /04 or a substit ute providing equiva lent coverage, and under th e comme rcial 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; alterna tively, 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 lim iting the scope of coverage for liability assumed under a contrac t.
CONTRACTOR waives all rights against CITY and its agents, office rs, directors and employees for recovery of damages to the extent these damages are covered by the commercial general liability or commercial umbrella liabili ty 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 separate ly to t he 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 Agreemen t, automobil e liabi lity insurance and, if necessary, comme rcial umbrella liabili ty insurance for owned, leased, hired or borrowed automobiles in an amoun t not less than Ten Million Dollars ($10,000,000) combined single limit bodily injury and proper t y damage for each accident.
Coverage as req uired 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 equiva lent liability coverage.
Pollution liabili ty coverage at least as broad as that prov ided under th e ISO pollut ion liability broadened coverage for covered autos endorsement (CA 99 48) shall be provided , and t he Motor Carrier Act endorsement (MCS 90) shall be attached.
Palm Springs Agreemen t Page 68
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CONTRACTOR waives all rights against CITY and its agents, officers, directors and emplo yees for recovery of damages to the extent t hese damages are covered by the automo bile liability or commerc ial umbre lla liability insurance obtained by CONTRACTOR pursuant to this Agreemen t.
C. Workers' Compensation and Employer's Liability. The CONTRACTOR shall procure , maintain and keep in full force and effect during th e life of this Agreement workers' compensation coverage in an amount not less than th e State statu tory limits and employers' liability insurance in an amount not less t han One Million Dollar s ($1,000,000) each accident for bodily injury by accident or One Million Dollars ($1,000,000) each employee for bodily inj ury by disease. CONTRACTOR waive s all rights against CITY and its agents, officers , directors, and employees fo r recovery of damages to the extent these damages are covered by the workers compensa tion and employe rs liabi lity or commercial umbrella liability insurance obtained by CONTRACTOR pursuant to this Agreemen t.
CONTRACTOR shall obtain an endorsement equiva lent to WC 00 03 13 to affect this wa iver.
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 Pollut ion and Remediation Legal Liability insurance applicab le to bodily injury; proper ty damage, including loss of use of damaged prop erty or of property that has not been physically injured or destroyed; tran sit exposures, cleanup costs; and defen se, including cost s and expenses incurred in the investigati on, defense, or settl ement 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 conditio ns resulting from the escape or release of smoke, vapors, fum es, acids, alkalis, toxic chemicals, liquids , or gases, waste materials, or other irri tants, contaminan t s, or pollutants.
Said Pollution and Remediation Legal Liability insurance shall be on a claims-made form and shall be retroactive to t he date CONTRACTOR first began prov iding services in the CITY as th e 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 wit h a "Retro Date" prior to the contract effective date , th e CONTRACTOR must purchase "extended reporting " coverage for a minimu m of five (S) years after completion of this Agreemen t.
The CONTRACTOR shall procure , main tain and keep in full force and effect during the life of this Agreement any other insurance required by law. The lim its of insurance herein shall not limit the liability of th e CONTACTOR.
2. CONTRACTOR Pollution Legal Liability-Occurrence form . The CONTRACTOR shall procure, maintain and keep in full force and effect during the life of t his Agreemen t, Contr actors Pollut ion Legal Liability for contracti ng opera tions for the collection , transportation , Palm Springs Agreeme nt Page 69
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temporary storage and Disposal of the waste. Coverage to include unloading and loading of th e waste, all for ms of transpor tat ion, mis-delivery of t he waste and non-ow ned site Disposal coverage. The coverage is to be on an Occurrence fo rm with defense outsi de the limit of liabili ty. The coverage is to apply to pollution conditions arising out of t he services under this Agreement for liability arising for bodily injury, prope rty damage including natu ral resou rce damage liabili ty and cleanup cost s. Coverage shall be mainta ined in amo unt not less t han Five M illion ($5,000,000).
3. Cyber Liability. CONTRACTOR will maintain cyber liability insurance wit h a combined single limi t of not less th an One Million ($1,000,000) per event. CONTRACTOR's cyber policy must include language related to contrac tor data breach. CONTRACTOR shall verify by provid ing Cit y Manage r a copy of the Declarations Page for t he policy for City review prior to the Effect ive Date.
The insurance required by this subsection includes:
1. Premises Operati ons;
2. Indepe ndent Contractor's Protective;
3.Automobile Liability t hat includes Owned, Non-Owned, and Hired Motor Vehicles;
4. Broad Form Property Damage, includ ing Completed Operations.
E. Policy. The policy or policies shall be issued by an insurer licensed to do business in the State.
Mini mum insurance company ratings as deter min ed by t he most current edition of the Best's Key Rating Guide/Property-cas ualty/ United States should be A- (Secure Best's Rat ing) and VIII (Financial Size Category).
F. Additional Requirements. The type and amou nt of coverage require d here under may be amended in the future to lim its reasonably required by th e CITY (such amen dment to be considere d a CITY Directed Change and handled pursuant to Art icle 5.5). The CONTRACTOR shall prov ide the CITY an endo rsement t o its insurance policies specifically naming the CITY, its officers , officials, agents, independent contrac tors, employees and volun teers as additional insureds under the commerc ial general liability and automobi le liability policies, providing coverage for claims tha t arise out of the work or operat ions performed by or on behalf of the CONTRACTOR or t hat 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 addit ional insured arises out of the work of t he named insured, or so long as an additiona l insured's liability arises out of the named insured's performance of thi s Agreement . The CONTRACTOR shall not utilize an omn ibus endorsement but shall prov ide an endorsement that specifically names the CITY, it s officers, officials, agents, independent contrac tors, employees and volun teers as additiona l insureds under the policy. The additiona l insured endorsement shall not contain any provisions not included in th e additional insured forms refe renced in this Agreement which limit or rest rict coverage for the addit ional insureds beyond the extent set for th in this Agreement. The coverage provided to t he CITY shall be equal and ident ical to the coverage of the CONTRACTOR under "Proof of Insurance." Upon commencement of t his Agreement, the CITY shall receive, at a min imum , a certifica te of insurance along with policy Palm Springs Agreement Page 70
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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 th is Agreemen t, which Endorsement shall reflect th e coverage as set forth herein. Following the binding of any policy of insurance, t he 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 liabili ty policies are to contain, or be endorsed to conta in, the following provisions :
1. Primary Insurance. For any claims related to this Agreemen t the CONTRACTOR's insurance coverage shall be prim ary insurance as respects the CITY, its officers, officia ls, agents, independent contractor s, employees, and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officia ls, 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 r equested, of the cancellation, non-renewal or material change of any insurance coverage or policy immedia tely upon receiving notice of cancellation, non renewal or material change.
H. Occurrence-based coverage and Thirty -Day Notice . Except for the pollutio n liability policy, which is written on a claims-made basis, each insurance policy required by thi s 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 direc ted 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 subroga tion against the CITY with t he express intentio n of the Parties being t hat the requi red insurance coverage protects both Parti es as the primary coverage for any and all losses covered by th e above-described insurance. The CONTRACTOR shall ensure that any companies issuing insurance to cover the requirements contain ed in this Agreemen t agree that they shall have no recourse against the CITY for payment or assessments in any form on any policy of insurance .
Palm Springs Agreement Page 71
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The clauses 'Other Insurance Provisions' and 'Insured Duties in the Event of an Occurrence, Claim or Suit' as it appear s in any poli cy of insurance in wh ich the CITY is named as an additional insured shall not apply to th e CITY.
L. Failure to Obta in Insurance. The failure of the CONTRACTOR to obtain and mainta in any required insurance shall not relieve CONTRACTOR of any liability under thi s 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 lim its will necessarily be adequate to protect CONTRACTOR, and such coverage and limit s 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, th e CONTRACTOR shall furni sh to the CITY, and keep current, a perfo rmance bond in a form with language that is acceptable to the CITY, for th e faithful performance of thi s Agreemen t and all obligations . The principal sum of th e bond shall be Two Hundr ed and Fifty Thousand 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 und er the provisions of Article
13.10 entitled "ASSIGNMENT," waiver of the performance bond as set forth in Article 11.12 herein, is automatical ly 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 th e CITY.
A. Requirements. The performance bond shall be executed by a surety company that is: acceptable to the CITY; an admit ted 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 th e CONTRACTOR in a bankrupt cy proceeding.
C. Failure to Provide and M aintain Bonds/Letter of Credit and Coverage. The CONTRACTOR fails to provide or maintain the performan ce bond or letter of credit, if required by this Agreeme nt, or if the Palm Springs Agreement Page 72
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CONTRACTOR fai ls to prov ide or maintain in fu ll fo rce and affect t he workers' compensation, liability, or indemnificat ion coverage as required by t his Agreement.
D. Violations of Regulation . The CONTRACTOR violates any orders or fil ings of any regulatory body having auth ority over CONTRACTOR relative to this Agreement, prov ided that t he CONTRACTOR may contest any such orders or filin gs by appropr iate proceedings conducted in good faith, in whi ch case no breach or d efault of th is Agreement shall be deemed to have occurred unless and until the regulatory body or court determines CONTRACTOR violated such order or fil ing.
E. Violations of Applicable Law. The CONTRACTOR violates Applicable Law relative to this Agreement.
F. Failure to Perform Direct Services. The CONTRACTOR ceases to provi de Collection, t ransporta ti on, or Processing services as requir ed under this Agreement for a period of two (2) consecut ive calendar days or more, for any reason wit hin t he contro l of t he CONTRACTOR. Notwithstanding the foregoing, CONTRACTOR shall not be liable for Liquidated Damages if CONTRACTOR is excused from perfor mance pursuant to Article 12.9.
G. Failure to Comply with Requirements of SB 1383 Regulations. The CONTRACTOR fai ls to comply with requirement s of t he Agreement i ncluding public education, repor ting, contamination monitoring, recordkeeping, or othe r obligatio ns of t his Agreement t hat delegate CITY'S responsibilit y 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 requi red under this Agreemen t including payment of CITY fees, surcharges or Liquidated Damages or refuses to provide the CITY with required information, repor ts, and/or records in a t imely manner as provided for in th is Agreement .
I. Acts or Omissions. Any ot her act or omission by the CONTRACTOR which violates the terms, conditi ons, or requiremen t s of this Agreement, or any law, statute, ordinance , order, directive, rule, or regulation issued thereunder and which is not corrected or remedied within the t ime set in t he written n otice of t he violation or, if the CONTRACTOR cannot reasonably correct or remedy the breach wit hin t he t ime set fo rth in such not ice, if the CONTRACTOR should fail to commence to correct or remedy such violation within the time set forth in such noti ce and diligently effect such correction or remedy the reafter.
J. False, Misleading , or Inaccurate Statements . Any representation or disclosure made to the CITY by the CONTRACTOR in connection with or as an inducement to ente ring into this Agreement, or any fut ure amendment to t his Agreement , which proves to be false or misleading in any mater ial respect as of the t ime such representation or disclosure is made, whether or not any such representation or disclosure appears as part of this Agreement; and, any CONTRACTOR- provided report contain ing a misst atement, misreprese ntation, data manip ulation, or an omission of fact or conten t explicitly defined by t his Agreement, excepting non-num erical typographi cal and grammatical errors.
K. Seizure or Attachment . There is a seizure of, attachment of, or levy on, some or all of the CONTRACTOR's operati ng equi pment, includ ing withou t limits it s equipment, maintenance or office faciliti es, Approved Facility, or any part thereof, which results in a disruption of service.
L. Suspension or Termination of Service. There is any termination or suspension of the t ransaction of business by the CONTRACTOR related to t his Agreemen t, including without limit , due to labor unrest includin g strik e, work stoppage or slowdown, sick-out, picketi ng, or oth er concerted job action lasting Palm Springs Agreeme nt Page 73
Item 3B - Page 87
more than two (2) calendar days and result ing in an imm inent 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) tak en by such person while acting withi n the course and scope of their employment, and with the knowledge, or at th e direction , of CONTRACTOR, and (ii) which relat e directly to the performance of services to the CITY under this Agreement..
N. Assignment without Approval. The CONTRACTOR tran sfers or assigns this Agreement without t he expressed written approval of the CITY unless the assignment is permi tted wit hout approval of the CITY pursuant to Article 13.10 of this Agreemen t .
0 . 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 termina te thi s Agreement immediately upon written noti ce to the CONTRACTOR in the event the CONTRACTOR defa ults under Article 12.1.C. entitled, "Failure to Provide and Maintain Bonds/Lette rs 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 th e CITY's sole opinion , creates an imminent and substant ial public health and safety threat.
The 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 obligat ed to provid e CONTRACTOR with a notice and cure opportunity if the CONTRACTOR has commit ted the same or similar breach/defa ult within a twenty-four (24) month period.
The 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, th e CITY shall not be obligated to provide CONTRACTOR with a notice and cure opportuni ty if the CONTRACTOR has committed the same or similar breach/default within a twenty -four (24) mont h period. Failure to allege breach/default shall not constitute waiver by the CITY.
12.3 CITY'S REMEDIES IN THE EVENT OF DEFAULT
Upon the CONTRACTOR's defa ult, the CITY has the following remedies in the event of the CONTRACTOR defau lt:
A. Waiv er of Defa ult. The CITY may waive any event of default or may waive CONTRACTOR's requiremen t 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 event s of default that may have the same or similar condi tions.
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 tim e frame specified in Article 12.2 until such time the CONTRACTOR can provide assurance of performa nce in accordance with the terms of thi s Agreement.
C. Liquidated Damages . The CITY may assess Liquidated Damages for the CONTRACTOR's failure to meet specific performan ce standards pursuant to Article 12.6.
Palm Springs Agreement Page 74
Item 3B - Page 88
D. Termination . In the event that th e 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 with in ten (10) calendar days if the default creates an imminent and substantial public health and safety threat or arises under Arti cle 12. l. 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 Council meeting to det ermine wheth er this Agreement should be terminated. This Agreement may not be termi nated except by act of the City Council. In the event the CITY decides to term inate t his Agreement, the CITY shall serve twenty (20) calendar days' written notice of its intentio n to terminate upon CONTRACTOR. In the event the CITY exercises its right to terminate this Agreement , the CITY may, at it s option, upon such term ination, either directly undertake performance of the services or arrange with ot her Persons to perform the services with or without a written agreement. This right of termination is in addition to any other rights of t he CITY upon a failure of the CONTRACTOR to perform its obligations under this Agreemen t.
CONTRACTOR shall not be entitled to any further revenues from Collection operations author ized hereunder from and after the date of termina tion except to the extent attributable to services rendered prior to termina tion.
E. Other Available Remedies. The CITY's election of one (1) or more of t he remedies described herein shall not limit the CITY from any and all other remedie s at law and in equi ty includ ing injunctive relief, etc.
12.4 POSSESSION OF RECORDS UPON TERMINATION
In the event of termina tion for an event of default , the CONTRACTOR shall furnish the Contract Administrator with immediate access to all of its business records, including without limitat ion, propr ietary CONTRACTOR computer systems, related to it s 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 te rminate thi s Agreement under Art icle 12.3, and to take possession of the CONTRACTOR's records under Article 12.4 are not exclusive, and the CITY's terminat ion of this Agreement and/or the imposition of Liquidated Damages shall not constitut e an election of remedies. Instead, th ese right s shall be in addition to any and all other legal and equitable rights and remed ies, including but not lim ited to term ination , which the CITY may have.
By virtue of the nature of thi s Agreement, th e urgency of tim ely, 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 specifi c performan ce).
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 th e fo llowing tim es:
1. By CONTRACTOR's serious breach of the terms of thi s Agreement;
2. As part of any review for an Extraordinary Rate Adjust ment.
Palm Springs Agreement Page 75
Item 3B - Page 89
3. At any time such review is ordered by th e City Manager, but not more often than every other year.
B. Components of Performance Review. Perfor mance Review shall consist of any or all of th e following components at the CITY's discretion.
Technical Review to determine the effectiveness of the technolog ies employe d 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 applicat ion of new technologies; (iii) the effect of legislative and regulatory changes; and, (iv) compliance with t he terms of th is Agreement .
Rate Review to assure the rates charged Custome rs are reasonable for th e services and terms and conditions of the Agreement in compar ison to those in other communities wit hin the Coachella Valley mar ket area. The CITY may work with a third party to conduct a review of rate s of othe r valley cities and each uniq ue scope of offe rings.
Service Review to assure t hat services are provided of satisfactory quality and effectiveness in substa ntial comp liance with t he terms of thi s Agreement. Procedures wi ll include condu cting a review of (i) th e services provid ed; (ii) the feasibility of providing new services; (iii) Customer complaints and CONTRACTOR's response to customer complaints; (iv) Recordkeeping; a nd (v) Customer satisfaction surveys.
The Parties agree that the purpose of the survey is to accurate ly and object ively measure Customer satisfaction with CONTRACTOR's performance. Care will be given in the design of th e survey instrum ent to determine the reason behind reports of unsatisfactory performance and to differentia te betw een dissatisfac tion with CONTRACTOR's performanc e and dissatisfaction with policies and/or procedur es determined by CITY or dictated by thi s Agreement. Surveys w ith responses withou t explanatory comme nts or for which such a differentiation cannot be clearly made shall be excluded from tabulatio n.
The Customer satisfaction survey wi ll be dist ributed to a minimum of one thousand (1,000) Residential Customers, stratifi ed by full -time occupied and part-time occupied, and at least fift y percent (50%) of CONTRACTOR's Commercial Custome rs, selected at random .
Compliance Review to assure that CONTRACTOR is in subst antial comp liance with this Agreement and all other applicable provisions of law and all represen tations and warranti es. Procedures w ill include a review of the CONTRACTOR's performance with regard to the provisions of this Agreement and app licable laws, regulation s and requirements.
Financial Review to measure CONTRACTOR's accuracy of Customer b illi ngs 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 Industria l accounts; (iii) obtain bill ing and payment records for the accounts selected for review ; review th e accuracy of CONTRACTOR's Custome r billings; (iv) Review Contractor's records and repo rt s of Custom er Billings, Disposal and Diversion activities; (v) compute amount of CITY Fees due to CITY; analyze CONTRACTOR's payment of CITY Fees; and, (vi) make a determination regarding the accuracy of CONTRACTOR's payment of CITY Fees.
Palm Springs Agreement Page 76
Item 3B - Page 90
C.
D.
Conduct of Performanc e Review . An independ ent 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 documen tation requests in a timely manner. The perform ance review shall be completed within one hundred-fif ty (150) days from the date CITY notifie s CONTRACTOR of its intent to perform the review, and if not comple ted wi thin that timeframe , the review shall be abandoned and it shall be assumed that CONTRACTOR favorably performed in all compone nts and aspects of the review, unless otherwise agreed to by the Parties.
Cost of Performance Review . CONTRACTOR shall be solely responsible for the full cost of each Perfo rmance Review conduc ted as part of any review for an Extraordinary Rate Adjust ment and during the fifth and ten th 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 Perform ance Review is called for unde r t he 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 Performan ce Review. Thirty (30) days prior to t he Performance Review Hearing, CONTRACTOR shall submi t a report to the City Manager wh ich may conta in such informa tion 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 impact s on rates.
B. Any specific plans for provision of changed or new services by CONTRACTOR.
C. Responses to any issues t hat have been raised concerning Services perfor med by CONTRACTOR.
D. The reports requ ired by thi s Agreemen t shall be used as one basis for review of CONTRACTOR's performance , and CONTRACTOR may submit other relevant performance information and report s for considera tion. In addition to the above, CITY may request CONTRACTOR to submit other relevant performance informat ion and reports for consideration. In addition to the above, CITY may request CONTRACTOR to submit any ot her specific info rmation relating to its performan ce.
F. Review Hearing . The City may condu ct the performance review adminis t ratively, or, if in t he opinion of t he City Ma nager 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 publ ication 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 comme nts or complaints during or before the Hearing, either orall y or in writing. CONTRACTOR shall be present at and participate in the Perfo rmance Review Hearing. The Performance Review Hearing may include all components of Performance Review as described herein , including obtain ing new or expanded services. The Cit y Council may use all relevant evidence produced at the Hearing and shall approve a repo rt concerning CONTRACTOR's performance and adopt findings by Resolution. As a result of its findings following any Perfo rmance Review Hearing, CITY may require CONTRACTOR to prov ide expanded Palm Springs Agreemen t Page 77
Item 3B - Page 91
or new services within a reasonable time and CITY may direct or ta ke corrective actions fo r any performance inadeq uacies (although nothing contained in thi s pro vision should be construed as requir ing CITY to hold a Performan ce Review Hearing in order to enforce any rights or remedi es 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 additiona l compensatio n shall be due for such services.
12.7 LIQUIDATED DAMAGES
A. General. The CONTRACTOR acknowledges and agrees that one of th e CITY's primary goals in entering into this Agreement is to ensure that th e provided Collection Services are of th e highest quality; that Service Recipient satisfaction remains at th e highest level; that authorized programs are designed and implemented t o achieve compliance with CalRecycle diversion requirements applicable to CITY; that fees for service remain competitive; and, that materials Collected are put to th e highest and best use to the extent feasible. The Parties find th at as of the time of th e execution of this Agreement, it is imprac tical, if not impossib le, to reasonably ascertain t he 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 th e imprac ti cability of ascertaining damages include, but are not limited to, the fact that:
(i) substant ial damage result s to members of the publ ic who are denied services or denied quality or reliab le service; (ii) such breaches cause inconvenience , anxiety, frustration, and deprivat ion of the benefit s of the Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varyin g degrees of intensity which are incapable of measurement in precise monetary terms; (iii) th at exclusive services might be available at substantially lower cost s than alterna tive services and the monet ary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise mone tary terms; and (iv) the termina tion of this Agreement for such breaches, and oth er remedies are, at best, a means of futu re correction and not remedies w hich make the public whole for past breaches.
B. Service and Diversion Performanc e S tandards; Liquidated D amages for Failure to M eet Standards. The Parties furth er acknowledge that consistent and reliable Collection Service is of utmost importance to the CITY and that the CITY has conside red and relied on CONTRACTOR's representat ions as to its quality-of-service commi tment in ente ring into this Agreemen t with it. The Parties fu rther recognize that some quantified standards of performance are necessary and approp riate to ensure consistent and reliab le service and performance. The Parties fu rther recognize that if the CONTRACTOR fails to achieve the performa nce sta ndards, or fails to submit required documents in a timely manner, the CITY and the CITY's residents and businesses will suffer damages and t hat it i s and will be impractical and ext remely difficult to ascertain and dete rmine 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, th e Parties agree that the liquida ted damages amount defined below represent reasonable estimates of the amou nt of such damages consider ing all of the circumstances existing on the effectiv e date of this Agreeme nt, including the relation ship of the sums to t he range of harm to the CITY, Customers and th e community as a whole that reasonably could be antic ipat ed and t he ant icipation that proof of actual damages wou ld be costly or impracti cal. In placing th eir init ials at the places provided, each Party specifically confirms the accuracy of t he statements made above and the fact that each Party has had ample opportun ity to consult with legal counsel and obtain an explanation of the liquidated damage provisions at t he time that this Agreeme nt was made.
Palm Springs Agreement Page 78
Item 3B - Page 92
C. Procedure for Assessing Liquidated Damag es.
1. The CITY may determine the occurrence of events giving rise to liquidated damages t hrough 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 not ice of its intention to do so. The notice will include a brief description of the incident( s)/non-perfor mance. The CONTRACTOR may review and make copies at its own expense of all informa tion in the possession of the CITY relating to inciden t(s)/non-performance. The CONTRACTOR may, within ten (10) working days after receiving not ice, 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 relevan t to the incident(s)/non-performance . The Contract Administra tor or designee will provide CONTRACTOR with a wri tten explanation of his or her determination on each incident(s)/non-performance prior to authorizing the assessment of liquida ted damages. The decision of the CITY shall be final and the CONTRACTOR shall have been 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 th ird party authorized by the CITY) is performing interim Collection Services except for items 3., 4., 5., 10., 12., or 17., in the table s below occurring after termination of t his Agreement.
3. The CONTRACTOR shall pay any Liquidated Damages assessed by the CITY w ithin ten (10) Business Days of t he 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 amoun t s:
LIQUIDATED DAMAGES
Item Amount
1. Each occurrence of CONTRACTOR Collecting $250/Event
from Customers during unauthorized hours.
2. Failure to prov ide Containers for SB 1383 $1,000 each week.
Collection service, including Organic Materials
Collection by October 1, 2022 to all
customers, unless customer has been granted
a waiver ..
Palm Springs Agreement Page 79
Item 3B - Page 93
LIQUIDATED DAM AGES
Item Amount
3. Failure to comp lete annual outr each and $1,000 per Rate Year. education requirement s as described in
Exhibit 3 by June 30 of any Rate Year to CITY's
satisfactio n.
4. Each failure by CONTRACTOR to develop, $500/Document or Activity produce, and distribute a public outreach
docum ent or perform a comm unity outreach
activity in th e form and manner requ ired
und er the Agreement and approved by CITY.
5. Failure to complete annual SB 1383 $1,000 per Rate Year. monitoring requirem ents as described in
Exhibit 3 by June 30 of any Rate Year to CITY's
sat isfactio n.
6. Failure to complete annual reporting $1,000 per Rate Year. requirements as described in Exhibit 3 by June
30 of any Rate Year to CITY's satisfaction.
7. Commingling Solid Waste with Recyclable $ 1,000 per incident .
Mate rials in Collection Vehicles.
8. Disposal of Recyclable Material s or Organic $1,000 per load.
Materials in the Disposal Facility except as
provided in t his Agreemen t.
9. Failure to deliver any Collected material s to $5,000 first failur e the CITY approved Disposal Facility, Materials $25,000 each subsequent failure.
Recovery Facility, Transfer Station, or Organic
Materials Processing Facility, as appropr iate,
except as otherwise expressly prov ided in this
Agreemen t.
10. Failure to time ly provid e Containers to new $SO/Event service unit s or to tim ely replace Containers
for existing custom ers within five (5) calendar
days of receiving such request.
11. Failu re to prov ide Collection service on the $250/Even t Assigned date/time of scheduled collection.
12. Failure to contact Customers in response to $250/Event complaints with in 24 hours or to resolve or
remedy a Complaint within seven (7) calendar
days of receivi ng such Complaint.
Palm Springs Agreement Page 80
Item 3B - Page 94
LIQUIDATED DAMAGES
Item Amount
13. Failure to label Containers. $250/ Event
14. Failure to issue contaminat ion notices. $SO/Event
15. Failure to conduct comp liance tasks (i.e., $250/Ev ent perform route review s or waste audits).
16. Failure to investigate complain ts. $250/Event
17. Failure to perform re-inspections. $SO/Event
18. Failure to meet Minimum Diversion Rate $1,000 per Rate Year. percentage .
19. Subm ission of a late report. $1,000 per Event.
20. Submission of an inaccurate and misleading $1,000 per Event. report.
21. Failure to fu lfil l anyth ing other obl igation in $250/Eve nt this Agreemen t.
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 jud icial action), and other similar catastrophic events which are beyond the control of and not the faul t of the Party claiming excuse from performance hereunder. In th e 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 th ird party to : (i) provide reasonable assurance of th e safety of th e CONTRACTOR's employees while providing such services; or, (ii) make reasonable accommoda tions with respect to Container placement and poi nt of Delivery, t ime of Collection, or other operating circumstances to minimiz e any confron tation with picket s or t he number of Persons necessary to make Collections shall, to th at limited extent , excuse performance. The forego ing excuse shall be conditioned on the CONTRACTOR's cooperation in performing Collection services at different times and in diffe rent locations. Furt her, in the event of labo r unrest, including but not limit ed to strike, work stoppage or slowdown, sickout, picketing, or other concerte d job action conducted by the CONTRACTOR's emp loyees or directed at th e CONTRACTOR, or a subsidiary, th e CONTRACTOR shall not be excused from performance. In such case, the CONTRACTOR shall conti nue to provide a reasonably satisfactory level of performance during the pendency thereof , but the CONTRACTOR shall not be required to adhere stri ctly to the specific requiremen t s of this Agreement regarding rou tes, Collection times or simi lar matters; provided , however, th at in no event shall more than seven (7) calendar days elapse between pickups for Residential and Commercial Customers.
Palm Springs Agreement Page 81
Item 3B - Page 95
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 thi s Article, the Parties hereby waive any claim against each other fo r any damages sustained thereby .
The partial or complete inter ruption or discontinuance of the CONTRACTOR'S services caused by one (1) or more of the events described in thi s Article shall not constitute a default by the CONTRACTOR under thi s Agreement.
Not withs tanding the foregoing , however, if the CONTRACTOR is excused from performing its obligations hereunde r for any oft he causes listed in this Article for a period of thirty (30) calendar days or more, t he CITY shall nevertheless have t he right, in its sole discretion, to te rminate thi s Agreement by giving ten (10) Business Days' notice to the CONTRACTOR, in whic h case t he prov isions of Article 12.3 shall apply.
12.9 RIGHT TO DEMAND ASSURANCES OF PERFORMANCE
The Parties acknowledge that it is of t he utmost importance to the CITY and the health and safety of all t hose members of the public residing or doing business within the CITY who will be adversely affected by inter rupted waste management service, that th ere is no mater ial interruption in services provided under thi s Agreement.
If the CONTRACTOR: (i) is t he subject of any labor unrest including work stoppage or slowdown, sick-out, 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 crimina l judg ment 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 th is Agreement has thereby been placed in substantial jeopardy, th e CITY may, at their sole opt ion and in addition to all other remedies it may have, demand from the CONTRACTOR reasonable assurances of timely and proper performanc e of this Agreement, in such form and substance as t he CITY believes in good faith is reasonably necessary in the circumstances to evidence continued ability to perfo rm under this Agreement. If the CONTRACTOR fai ls or refuses to provide satisfactory assurances of timely and prope r 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 term s and conditions of thi s Agreement and, accordingly, the rule that a contract or Agreement shall be interpreted stri ctly against the party prepar ing the same shall not apply herein due to the joint contr ibution s of both Partie s.
13.2 FINANCIAL INTEREST
The CONTRACTOR warran ts and represents that no elected official, officer , agent or employee of the CITY has a financial interest, direct ly or indirectly, in th is Agreement or the compensation to be paid under it and, fur t her, t hat no CITY employee who acts in the CITY as a purchasing agent, nor any elected or appointed officer of the CITY, nor Palm Springs Agreement Page 82
Item 3B - Page 96
any spouse or child of such purchasing agent, employee or elected or appointed officer, is a partner , office r, director or proprietor of the CONTRACTOR and, further, that no such CITY employee , purchasing agent, CITY elected or appointed officer, or the spouse or child of any of them, alone or in combinatio n, has a material interest in the CONTRACTOR. Material interest means direct or indirec t ownership of more than five percent {5%) of t he total assets or capital stock of t he CONTRACTOR.
13.3 CONTRACTOR NOT OFFICER, EMPLOYEE OR AG ENT
A. CONTRACTOR IS INDEPENDENT CONTRACTOR . It is understood and agreed, and it is the intention of the Parties hereto, tha t t he 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 oth erwise provi ded in t his Agreement. The CONTRACTOR shall be entirely and solely responsible for its acts and the acts of its agent s, employees, Subcont ractors engaged in the performance of services hereunder. The CONTRACTOR shall have no claim under this Agreemen t or otherwise against t he CITY for vacation pay, sick leave, retirement benefi ts, social security , workers' compensation, disability, or unemploy ment insurance benefi ts or o ther employee benefi ts of any kind. The Parties acknowledge tha t the CITY shall not withhold from the CONTRACTOR'S compensation any funds for income tax, FICA, disability insurance, unemp loyment insurance, or similar withholding and the CONTRACTOR is solely responsi ble for the timely payment of all such taxes and related payments to the State and federa l govern ment for itself and its employees, agents, and Subcontractors who might render services in connection with this Agreement. The CONTRACTOR shall infor m 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 CONTRACTOR S AND SUBCONTRACT ORS. The CONTRACTOR shall be solely responsible for t he acts and omissions of its officers, agents, employees, contractors, and Subcontractors, if any. Neithe r the CONTRACTOR nor its officers , employees, agents, contractors, or Subcontractors shall obtain any right t o retirement b enefits, worke rs' compensation benefi t s, or any other compensation or benefits which accrue to th e CITY employees and t he 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 consti tute delegat ion of the CONTRACTOR's dut ies provided that the CONTRACTOR has received prior writ ten authorization from the Contract Administrator to subcontrac t such services and the Contract Administrator has approved a Subcontractor who will perfor m such services. The CONTRACTOR shall be responsib le for directing the work of the CONTRACTOR's Subcontractors and any compensation due or payable to the CONTRACTOR's Subcontractor shall be t he sole responsibility of the CONTRACTOR. The Contract Administrator shall have the right to require the removal of any approved Subcon tractor for reasonable cause. The Subcontractors listed in Exhibit 4 to thi s Agreement are hereby approved by the CITY.
Palm Springs Agreemen t Page 83
Item 3B - Page 97
13.S COMPLIANCE WITH LAW
The CONTRACTOR shall at all times, at its sole cost, comply wit h 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 adm inistrative 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 requ ired by law or ordin ance, and shall maintain such permit s, licenses and approva ls in full force and effect throughout th e Term of thi s Agreement. The CONTRACTOR shall provid e proof of such permits, licenses or approvals and shall demonstrate compliance with the te rms and conditions of such permits, licenses and approvals upon the request of the Contract Admin istrator.
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 substantia lly affect CONTRACTOR's obligations or t he performance of th e CONTRACTOR's services pursuant to this Agreement. CITY will make effor t s 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 unc;Jer this Agreement and shall govern the interpret ation 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 entitled to recover its reasonable costs and expenses including, without limitati on, reasonable attorneys' fees and costs paid or incurred in good faith. The "prevaili ng Party," for purposes of thi s Agreement, shall be deemed to be that Party who obtains substantia lly the result sought, whether by settlement, dismissal or judgment.
13.8 VENU E
The Parties agree that any litigation between th e CITY and the CONTRACTOR concerning or arising out of this Agreement shall be filed and maintained exclusively in the court s 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 benefi t to and be binding on t he successors and p ermi tted assigns of the Parties.
13. 10 A SSIGN MENT
CONTRACTOR shall not assign its rights nor delegate or otherw ise t ransfer its obligations under this Agreement to any other Person without the prior written consent of th e CITY. Any such assignment made without th e consent of the CITY shall be void and the attempte d assignment shall constitute a material breach of this Agreemen t.
Palm Springs Agreement Page 84
Item 3B - Page 98
For purposes of this Article, "assignment" shall include, but not be limited to: (i) a sale, exchange or othe r transfer of substantia lly all of the CONTRACTOR's local, regional, and/or corporate assets dedicated to service under thi s 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 tha n 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 that no cumulative sale, exchange, or tra nsfer of shares may exceed twenty (20} percent during the Term of th is 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 mem ber owning shares in the CONTRACTOR); (iii) any reorganization , consolidat ion, merger , recapitali zatio n, stock issuance or re issuance, voting trust, poolin g agreement, escrow arrangeme nt, liquidation or oth er t ransaction to wh ich 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, regiona l, and/or corporate stock of the CONTRACTOR; (iv) divestiture of an Affiliate (e.g., t rucking company, materials recovery facility , transfer station , etc.) used by t he CONTRACTOR to fulfil l its obligations under thi s Agreement ; and, (v) any combinatio n of the foregoing (whether or not in related or contemporaneou s transactions) which has the effect of any such transfer or change of local, regional, and/or corporat e ownership and/or control of the CONTRACTOR. For purposes of this Article , the term "proposed assignee" shall refer to the proposed t ransferee(s) or other successor(s) in inte rest pursuant to the assignment.
The 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, effectiv e, and responsible fashion , at all times in keeping with applicable waste management laws, regulations, and good waste managemen t practices; and, (ii) CONTRACTOR's financia l 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 th e CONTRACTOR requests the CITY considerat ion of and consent to an assignment, the CITY may deny or approve such request in their compl ete discretion. No request by the CONTRACTOR for consent t o an assignment need be considered by the CITY unless and until CONTRACTOR has met the following requiremen ts. The CITY may, in its sole discretion , waive one (1) or more of these requirements.
A. On the date the CONTRACTOR submits a written request for the CITY written consent of an assignment, t he CONTRACTOR shall pay the CITY a transfer fee in the amount of one (1) percent of t he Gross Billings for the most -recently comp leted Rate Year. The transfer fee shall be returned to the CONTRACTOR if the CITY denies consent.
B. The CONTRACTOR shall undertake to pay th e CITY its reasonable expenses for attorneys', consultants ', accountants' fees, staff t ime, and investigation cost s necessary to investigate the suitabi lity of any proposed assignee, and to review and finalize any documentation requ ired as a cond ition for approving any such assignment.
C. The CONTRACTOR shall furnish the CITY with audited financial statements of the proposed assignee's operations for the immediate ly preceding three (3) operating years.
D. The CONTRACTOR shall furnish the CITY with satisfactory proof: (i) th at the proposed assignee has at least ten (10) years of Solid Waste, Recyclable Materi als, Organic Material s and C&D Debris management experience on a scale equal to or exceeding the scale of operations conducted by the Palm Springs Agreement Page 85
Item 3B - Page 99
CONTRACTOR under this Agreement; (ii) that in th e last five (5) years, the proposed assignee has not suffered any citation s 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 managemen t laws and that the assignee has provi ded the CITY with a complete list of such citations and censures; (iii) that the propo sed assignee has at all times conducted it s operations in an environ mentally safe and conscientio us fashion; (iv) that the propo sed assignee conduct s it s operations and management practices in accordance with sound waste management practices in full compliance wit h all Federal, State, and local laws regulat ing the Collectio n, tran sportati on, 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 prop osed assignee can fulfill the terms of this Agreement in a timely, safe and effect ive manner.
E. The CONTRACTOR shall provide the CITY with any and all additional records or documentation whic h the CITY reasonably determines would facilitate the review of t he proposed assignment.
Under no circumstance s shall any proposed assignment be considered by the CITY if the CONTRACTOR is in defau lt at any tim e during the period of consideration. If, in the CITY's sole deter mination, there is any doubt regardin g the comp liance of the CONTRACTOR with t his Agreement, th e CITY may require an audit of th e 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 int ended to, and will not be construed to, create any right on th e part of any third party to bring an action to enforce any of it s terms.
13.12 WAIVER
Waiver by the CITY or the CONTRACTOR of any breach for violation of any term, covenant or condit ion of t his Agreement shall not b e deemed to be a waiver of any other term, covenant or conditio n or any subsequent breach or violation of the same or of any other term, covenant or condi ti on. 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 vio lation of any term, covenant or condi tion of this Agreemen t.
13.13 TRANSITION TO NEXT CONTRACTOR
Requirement s in Event of Transition . In the event the CONTRACTOR is not awarde d an Agreement to continue to provide Collection Services following th e expiration or early termination of thi s Agreement, the CONTRACTOR shall cooperate fu lly with th e CITY and any subsequent contractors to assure a smooth trans ition of services described in thi s Agreement. Unless otherwi se agreed by th e CITY and t he CONTRACTOR, such cooperation shall consist of:
(a) providing the following information to th e subsequent contractor: routing infor mation, 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 informat ion deemed necessary by the CITY; and (b) providing adequate labor and equipm ent t o complete performan ce of all Collection Services required under this Agreement. The CONTRACTOR shall not be eligible for the recovery of any costs associated with th ese transition activities. However, if the CONTRACTOR is requested to provid e additional transit ion services outside the scope of this Agreement t he CONTRACTOR shall be compensated for such services at an amoun t t o be agreed upon between t he CITY and the CONTRACTOR prior to the prov ision of tho se services.
Palm Springs Agreement Page 86
Item 3B - Page 100
13.14 CONTRACTOR'S RECORDS
A. Maintenance of Financial Records. The CONTRACTOR shall main tain any and all letters, books of account, invoices, vouche rs, canceled checks, and o ther records or d ocuments evidencing or relating to charges for services or expenditu res and disburseme nts charged to Service Recipients for a min imum period of five (5) years, or for any longer period required by law, from the date of fina l payment to the CONTRACTOR pursuant to thi s Agreemen t.
B. Maintenance of Performance Records. The CONTRACTOR shall maintain all documents and recor ds wh ich demonstrate perfor mance under this Agreement for a minimum period of five (5) years, or for any longer period required by law, from the date of term ination or com pletion of this Agreement .
C. Availability of Records. Any records or documents required to be maintained pursuant t o this Agreement shall be made available for inspection or audit at any time during regular business hours upon writt en request by the Cont ract Admin istrator, the CITY Attorney, CITY Auditor, CITY Ma nager, or a designated representative of any of these offi cers. Copies of such documents shall be provided to the CITY for inspection at the CITY offices when it is practical to do so. Othe rwise, unless an alternative site is mutual ly agreed upon, the records shall be available at t he 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 t hat such records or documents may be lost or discarded due to t he dissolutio n, 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 t he recor ds be given to t he CITY and that the records and documents be maintained in CITY Hall. Wit hin ten (10) Business Days after receiving t he CITY's wri tten request or deman d, th e CONTRACTOR shall provi de the CITY all requested records and docu ments. The CITY shall make those records and documents available to the CONTRACTOR, the CONTRACTOR's representa tives, or CONTRACTOR's successor-in-inte rest at CITY Hall during regular operat ing hours.
13.15 NOTICE PROCEDURES
Except as provided herein, whenever eit her Part y desires to give notice to the other, it m ust be given by written notice addressed to the Party fo r whom it is intended, at t he place last specified as the place for giving of notice in compliance with t he provi sions of this paragraph. For th e present, the Parties designate t he follow ing 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
Palm Springs Agreement Page 87
Item 3B - Page 101
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: rick@palmspri ngsdisposal.com
Chris Cunningham
Email: chris@palms pringsdisposal.com
Robert Kurnik
4434 W. 14th Street Drive
Greeley, Colorado 80634
Email: rwkuznik@g mail.com
A. Notices shall be effective when received at the address as specified above. Changes in the respective address to which such n oti ce is to be directed m ay be made by written notice only. Facsimile or electron ic t ransmission is acceptable not ice, effective upon confir mation, however, facsimile or electronic transmissions received (i.e., prin ted) after 4:30 p.m. or on weeken ds or Holi days, will be deemed received on the next Business Day. Receipt is deemed to have taken place with in t hree (3) Business Days of notice mailed by U.S. Postal Service return receipt requested. The original of items that are t ransmitted by facsimile equipment or electron ically must also be mailed as required herein.
B. Notice b y t he CITY to th e CONTRACTOR of a Collection or other Service Recipient p roblem or complaint may be given to the CONTRACTOR ora lly by telephone at the CONTRACTOR's local office with confirmat ion sent as required above by th e end of the Business Day.
ARTICLE 14: MISCELLANEOUS AGREEMENTS
14.1 ENTIRETY OF AGREEMEN T
This Agreement and t he Exhibits attached hereto constitut e th e entire Agreemen t and understanding between the Parti es hereto, and it shall not be considered modified , altered, changed or amende d in any respect unless in writing and signed by the Parti es hereto.
14.2 SEVERABILITY
If any provision of thi s Agreement or th e application of it to any Person or situation shall to a ny extent be held invalid or u nenfo rceable, the remai nder of th is Agreemen t and t he application of such p rovisions to Persons or situat ions oth er than those as to wh ich it shall have been held invalid or unenforce able, shall not be affected, shall continue in full for ce and effect, and shall be enfor ced to the fullest extent perm itted by law.
Palm Springs Agreement Page 88
Item 3B - Page 102
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 th ereafter 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 of such provision or as a waiver of any provision itself.
14.4 NON-DISCRIMINATION
In t he performance of all work and services under thi s Agreement, the CONTRACTOR shall not discrimina te 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 nondiscrimina tion, including thos e prohibiting discrimination in employmen t .
14.5 HEADINGS
The article headings and section headings in th is 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 thi s Agreemen t forms an essential part of thi s Agreement. Each such Exhibit is a part of thi s Agreement and each is incorporated by this reference.
14.7 REFERENCES TO LAWS
All references in this Agreemen t to laws and regulations shall be und erstood to include such laws as they may be subsequently amended or recodified , unless otherwi se specifically prov ided herein.
14.8 EFFECTIVE DATE
This Agreement shall becom e 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.
Palm Springs Agreemen t Page 89
Item 3B - Page 103
IN WITNESS WHEREOF, the CITY and the CONTRACTOR have executed this Agreement on the day and year first written above.
City of Palm Springs
SIGNED IN COUNTERPART
Grace Elena Garner
Mayor
Date
SIGNED IN COUNTERPART
Teresa Gallavan Date
Interim City Manager
APPROVED AS TO FORM:
SIGNED IN COUNTER?/ K
Jeff Ballinger
City Attorney
Date
ATTEST:
SIGNED IN COUNTERPA1, 1
Brenda Pree
City Cler k
Palm Springs Agreement
Date
Palm Springs Disposal Services
Chief Executive Officer
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President