POINT ARENA CITY COUNCIL
AGENDA ITEM SUMMARY
AGENDA ITEM: IX A
MEETING DATE: 04/28/2024
TITLE
Solid Waste Franchise Agreement Between the City of Point Arena and Redwood Waste Solutions, Inc. dba Solid Waste of Willits
RECOMMENDED ACTION
1. Approve Termination Agreement for contract Granting Franchise for Collection and Removal of Garbage and a Memorandum of Understanding for the Collection of Solid Waste and Recycling with Recology Sonoma Marin.
2. Approve a new Franchise Agreement for Collection, Transportation, and Disposal of Solid Waste and the Collection, Transportation, Processing, and Marketing of Recyclable Materials between the City of Point Arena and Redwood Waste Solutions dba Solid Waste of Willits.
ANALYSIS
Currently, Point Arena has a Franchise Agreement with Recology to provide solid waste collection.
Recology bought Pacific Waste Disposal and assumed its Point Arena Franchise Agreement in 2017.
Recology’s home operating area is in Sonoma and Marin counties, and serving Point Arena has become financially infeasible.
In 2019, the City Council approved Recology’s request to subcontract with Solid Waste of Willits (SWOW) which was already providing waste collection services in County areas both north and south of Point Arena.
Recology’s Franchise Agreement expires December 11, 2025.
In January 2023, Recology requested the City terminate its Franchise Agreement because Recology/SWOW were operating at a significant financial loss under the existing contract. Section 5 of the current Franchise Agreement states that “the rates approved by CITY for the services called for by this Agreement shall provide a reasonable return to COMPANY.” At that time, Council’s directed staff to issue an RFP to locate a new provider for waste collection services. The City did not receive any proposals.
In November 2023, Recology informed the City it would implement a 118% rate increase beginning in 2024. Recology offered an alternate path that the City consider contracting directly with Solid Waste of Willits (SWOW) since they already provided the service through its subcontract with Recology. In January 2024, Redwood Waste Solutions purchased SWOW and is now providing waste collection services in the City of Point Arena.
If the City Council approves a new Franchise Agreement with SWOW, their proposed rate schedule is consistent with the rates they charge in County unincorporated areas surrounding Point Arena. However, they are higher than the current Point Arena fees. The proposed rates are the same as SWOW’s current waste collection rates for County areas north and south of Point Arena.
Given that the City did not receive any responses to the 2023 waste collection RFP and Recology is proposing a 118% increase to their current fees, staff recommends the City Council approve a new Franchise Agreement with Solid Waste of Willits. The chart below compares a few of the City’s current collection rates to the proposed Redwood Waste Solutions/SWOW rates. A complete listing of rates is included in Attachment 1.
RESIDENTIAL RATES
Once/Week
Current
Recology Rate
Current
SWOW Rate
20 Gallon $32.13 $46.93
35 Gallon $36.82 $57.03
65 Gallon $61.38 $79.38
95 Gallon $85.90 $95.58
COMMERCIAL RATES
2 Yard $241.47 $385.45
FISCAL IMPACT
The financial impact extends to both residents and businesses in the City of Point Arena due to the proposed increase in rates. The contract proposes a $12,000 annual franchise fee, double the current $6,000 fee paid by Recology.
ATTACHMENTS
Attachment 1: New SWOW Rates Beginning July 1, 2024.
Attachment 2: Termination Agreement between City of Point Arena and Recology Sonoma Marin Attachment 3: Franchise Agreement between City of Point Arena and Redwood Waste Solutions for solid waste and recycling collection.
CITY MANAGER SIGNATURE
_________________________________
Peggy Ducey, Interim City Manager
Attachment 1
SOLID WASTE OF WILLETS
SOLID WASTE COLLECTION FEES
Residential Customers MONTH
20 gallon cart $46.93
35 gallon cart $57.03
65 gallon cart $79.38
95 gallon cart $95.58
Driveway/Rollout Fee (Weekly Service Only) $10.00
Contamination Processing Fee $27.48
Call back charge $16.49
Special Pickup - 35 gallon cart $31.08
Special Pickup - 65 gallon cart $36.46
Special Pickup - 95 gallon cart $45.73
Restart Fee $5.00
Commercial Customers MONTH
2 yard container
1/week $385.45
3 yard container
1/week $573.48
4 yard container
1/week $784.64
6 yard container
1/week $1,146.96
Container Locking Fee $8.79
Locks each $21.98
Container Delivery Fee $82.83
Restart Fee $17.59
Recycle Container Rental $27.48
Industrial Customers EACH
4 yard Container $272.96
20 yard drop box $1,147.23
30 yard drop box $1,484.37
40 yard drop box $1,555.50
Delivery fee-4 yard Container $162.17
Delivery fee-Drop Box $261.91
Overload Charge per yard $31.74
Attachment 2
TERMINATION AGREEMENT
This Termination Agreement (this “Agreement”) is entered into as of May ___, 2024 between the City of Point Arena, a California municipal corporation (“City”), and Recology Sonoma Marin, a California corporation (“Recology,” and together with City, the “Parties”).
WHEREAS, City and Recology are parties to a Contract Granting Franchise for Collection and Removal of Garbage dated September 23, 1997, and a Memorandum of Understanding for the Collection of Solid Waste and Recycling dated August 13, 2009 (such contract and memorandum of understanding collectively, the “Franchise Agreement”).
WHEREAS, Recology has subcontracted certain of its obligations under the Franchise Agreement to Redwood Waste Solutions dba Solid Wastes of Willits, Inc., pursuant to a subcontract between Recology and SWOW (the “Subcontract”).
WHEREAS, City, Recology and SWOW have mutually agreed that the Franchise Agreement should be terminated and SWOW should begin providing services within City directly pursuant to a separate agreement between City and SWOW.
NOW, THEREFORE, the Parties agree as follows:
1. The Franchise Agreement shall terminate at _________ (the “Termination Date”). City acknowledges that the Subcontract will terminate according to its terms upon the Termination Date.
2. Notwithstanding the foregoing, after the Termination Date Recology may bill and collect from customers in the City for any services provided by Recology under the Franchise Agreement before the Termination Date.
3. Recology will allow SWOW to utilize Recology’s containers, placed at customer locations in the City, for a period of up to 30 days after the Termination Date. After that time (or such other time as is agreed with SWOW) Recology or its agents may retrieve Recology’s containers.
4. Recology will cooperate in good faith with the City and SWOW with a view to ensuring a smooth transition to SWOW. It is understood that Recology shall have no obligation to provide services after the Termination Date and no responsibility for any failure by SWOW to do so.
5. Each party represents and warrants that its entering into and performance of this Agreement has been duly authorized and that the individual signing this Agreement on its behalf is duly authorized to do so.
Attachment 2
6. In the event of any conflict between the Franchise Agreement and this Agreement, this Agreement shall govern. This Agreement may be executed in counterparts (e.g. emailed PDFs of signature pages) and by electronic signatures (e.g. DocuSign).
City of Point Arena
By:
Name: Peggy Ducey
Its: Interim City Manager
Recology Sonoma Marin
By:
Name: Salvatore M. Coniglio
Its: CEO
ATTEST:
_________________________
Paul Anderson
City Clerk
Attachment 3
{00115649.DOCX.3}
FRANCHISE AGREEMENT
between
CITY OF POINT ARENA
and
REDWOOD WASTE SOLUTIONS, INC
_________, 2024
Attachment 3
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FRANCHISE AGREEMENT
BETWEEN
CITY OF POINT ARENA
AND
REDWOOD WASTE SOLUTIONS, INC.
This Franchise Agreement (this “Agreement”) is entered into this ____ day of ________, 2024, between the City of Point Arena (“City”) and Redwood Waste Solutions, Inc., a Delaware corporation qualified to do business in California (“Grantee”), for the Collection, Transportation, and Disposal of Solid Waste and the Collection, Transportation, Processing, and marketing of Recyclable Materials within the incorporated territory of the City.
RECITALS
WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 (“AB 939”), has declared that it is within the public interest to authorize and require local agencies to make adequate provisions for Solid Waste handling within their jurisdictions; and
WHEREAS, pursuant to California Public Resources Code Section 40059(a)(2), the City Council of the City has determined that the public health, safety, and well-being require that an exclusive franchise be awarded to a qualified Solid Waste enterprise for the Collection and recovery of Solid Waste from certain residential, industrial and commercial areas in the City; and WHEREAS, City and Grantee are mindful of the provisions of local, state, and federal laws governing the safe Collection, Transport, Recycling and Disposal of Solid Waste, including, but not limited to, AB 939, the Resource Conservation and Recovery Act (“RCRA”) and the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”); and WHEREAS, Grantee has represented and warranted to City that it has the experience, responsibility, and qualifications to arrange with residents, commercial, industrial, institutional and other entities in the Franchise Area for the Collection and safe Transport to Disposal facilities of Solid Waste, the City Council of the City determines and finds that the public interest, health, safety and well-being would be best served if Grantee were to make arrangements with residents and other entities to perform these services; and
WHEREAS, the City Council of the City declares its intention of maintaining reasonable rates for Collection and Transportation of Solid Waste and Discarded Recyclable Materials within the area covered by this grant of franchise; and
WHEREAS, in 2017, the franchise agreement with Pacific Coast Disposal was converted to Recology upon the sale of the former to the latter with approval of the City Council. Recology requested the City release its obligations to the franchise agreement. City and Grantee now wish to make a new, comprehensive Agreement to extend the term and make other changes that shall replace all previous writings that constituted the Franchise Agreement for City.
Attachment 3
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NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
SECTION 1 – GRANT AND ACCEPTANCE OF EXCLUSIVE RESIDENTIAL AND
COMMERCIAL FRANCHISE
A. City grants to Grantee, for the term of and in accordance with this Agreement (including all extensions or renewals), an exclusive privilege, duty and right to make and enter into independent arrangements with residents of single-family units, residents and/or owners of multifamily units and Persons in charge of commercial, industrial, institutional and other entities in the Franchise Area for the Collection, Transportation and removal to Solid Waste Disposal facilities, all Residential, Commercial, and Industrial Solid Waste, including Discarded Recyclable Materials generated or accumulated within the Franchise Area, with the exception of sewage sludge and seepage, which has been placed in a Grantee-provided Solid Waste Container.
B. Grantee agrees to be bound by and comply with all the requirements of this Agreement.
C. In the event of and to the extent that any of the following (Items 1-3, below) require or are amended to require that either party take certain action or desist from taking certain action that affects the promises, covenants and/or performance of the parties hereunder, then this Agreement shall be amended to provide for the satisfaction of such requirements. Furthermore, should such amendments to this Agreement result in Grantee having to incur additional expenses in performing its obligations hereunder, or if certain cost cutting measures are implemented that justify lower rates, then Grantee or City may seek rate adjustments therefore in accordance with the procedures under Section 15, below.
(1) The Point Arena Municipal Code, the California Public Resources Code, other applicable state and federal laws, rules and regulations promulgated there under. (2) The City-wide Integrated Waste Management Plan and the City’s Source Reduction and Recycling Element and Household Hazardous Waste Element; and (3) Any and all amendments to said laws, plans, and regulations.
SECTION 2 – DEFINITIONS
A. “AB939” means the California Public Resources Code 40000 et. seq. and the regulations promulgated by the California Department of Resources Recycling and Recovery.
B. “Adjusted Gross Revenues” means any and all revenue or compensation (excluding revenues or compensation collected from Independent Government Agencies) in any form derived directly or indirectly by Grantee, its affiliates, subsidiaries, parents or any other Person or entity in which Grantee has a financial interest, in Collecting, Transporting, arranging, handling, and/or Disposing of Solid Waste or Recyclable Material generated in the Franchise Area pursuant to this Agreement, excluding the redemption value of Recyclable Materials purchased, occasional sale of capital equipment, and interest earned.
C. “Agreement” means this Franchise Agreement between the City and Grantee.
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D. “Applicable Law” means all federal, State, and local laws, regulations, rules, orders, judgments, degrees, permits, approvals, or other requirement of any governmental agency having jurisdiction over the Collection, Transportation, Processing, and Disposal of Solid Waste and Recyclable Materials that are in force on the Effective Date and as they may be enacted, issued, or amended during the Term of this Agreement.
E. “Approved Recyclable Materials Processing Site” means the Pacific Recycling Material Processing Facility, 3515 Taylor Dr, Ukiah, CA 95482.
F. “Authorized Recycling Entity” means that person, partnership, joint venture, or corporation authorized by a franchise agreement or permit with the City to collect Discarded and/or Non-Discarded Recyclables Materials. An Authorized Recycling Entity may be a municipal collection service, private refuse hauler, private recycling enterprise, or private nonprofit corporation or association.
G. “Bin” shall mean a container designed for mechanical emptying with a close-fitting cover and of a design approved by the City with capacity of approximately two to six cubic yards.
H. “Bulky Waste” means and includes, but not by way of limitation, discarded white goods (i.e., major household appliances), furniture, tires, carpets, mattresses, and similar large items, which cannot be placed in a covered Container.
I. “Cart” means a plastic container with a hinged lid and wheels that is serviced by an automated or semi-automated Collection vehicle. A Cart has capacity of 20-, 35-, 65-, or 95- gallons (or similar volumes).
J. “Collection” means the act of collecting Solid Waste, Recyclable Materials, and other material at the place of generation in the Franchise Area.
K. “Commercial Solid Waste” includes all types of Solid Wastes generated by commercial, industrial, governmental, and other sources, which have been placed in an authorized Grantee-provided Solid Waste Container used for the temporary storage of Solid Waste awaiting pickup. The term “Commercial Solid Waste” does not include Hazardous Wastes generated by commercial, industrial, governmental, and other sources and which are placed in separate Containers, and which are covered by Hazardous Waste manifests.
L. “Compactor” means a mechanical apparatus that compresses materials and/or the Container that holds the compressed materials. Compactors include two to four cubic yard Bins serviced by front-end loader Collection vehicles and 6 to 50 cubic yard Debris Boxes serviced by roll-off Collection vehicles.
M. “Containers” mean Carts, Bins, Compactors, and Debris Boxes.
N. “City” means the City of Point Arena, a general law city pursuant to the laws of the State of California, and any authorized officer or agent designated by the City of Point Arena to represent it in any matter herein.
Attachment 3
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O. “Customer” means any Person receiving Solid Waste or Recyclable Material service under the provisions of this Agreement.
P. “Debris Box” means an open-top Container with a capacity of 20 to 50 cubic yards that is serviced by a roll-off Collection vehicle.
Q. “Designated Collection Location” shall mean that location at which only an Authorized Recycling Entity may collect materials.
R. “Demolition and Construction Debris” means:
(1) Discarded materials generally considered to be not water soluble and nonhazardous in nature, including but not limited to steel, glass, brick, concrete, asphalt material, pipe, gypsum, wallboard, and lumber from the construction or destruction of a structure as part of a construction or demolition project or from the renovation of a structure and/or landscaping, and including rocks, soils, tree remains, trees, and other vegetative matter that normally results from land clearing, landscaping and development operations for a construction project; (2) Clean cardboard, paper, plastic, wood, and metal scraps from any construction and/or landscape project;
(3) Non-construction and demolition debris wood scraps; (4) Insignificant amounts of other non-hazardous wastes that are generated at construction or demolition projects provided such amounts are consistent with best management practices of the industry; and
(5) Mixing of construction and demolition debris with other types of Solid Waste will cause it to be classified as other than construction and demolition debris.
S. “Designated Recyclable Material Drop-Off Site” means the City’s Community Recycling Center to be operated by the CITY located at the Point Arena Pier or other locations approved by City, in accordance with all regulations of the California Department of Resource Recycling and Recovery.
T. “Designated Disposal Location” means the South Coast Transfer Station, 40855 18 6 Fish Rock Road, Gualala, California and/or Redwood Waste Solutions, Inc. Transfer site at 1280 187 N. Main Street, Fort Bragg, California.
U. “Designated Waste” means non-Hazardous Waste which may pose special Disposal problems because of its potential to contaminate the environment, and which may be disposed of only in Class II Disposal Sites or Class III Disposal Sites pursuant to a variance issued by the California Department of Health Services. Designated Waste consists of those substances classified as Designated Waste by the State of California, in California Code of Regulations Title 23, Section 2522 as may be amended from time to time.
V. “Discarded Recyclable Materials” means any Recyclable Materials which the Generator disposes of without selling or donating.
Attachment 3
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W. “Disposal or Dispose (or variation thereof)” means the ultimate Disposal of Solid Waste at a Disposal Site.
X. “Disposal Site” means a facility for ultimate Disposal of Solid Waste as defined in Public Resources Code Section 401.22.
Y. “Franchise Area” means the incorporated city limits of the City of Point Arena.
Z. “Franchise Fee” means the fee or assessment paid by Grantee to the City and which, inter alia, is intended to compensate City for its expenses in administering this Agreement and other Solid Waste-related costs and activities, and for City’s maintenance thereof resulting from Grantee’s performance of this Agreement.
AA. “Generator” means any Person as defined by the Public Resources Code, whose act or process produces Solid Waste or Recyclable Materials as defined in the Public Resources Code, or whose act first causes Solid Waste to become subject to regulation.
BB. “Grantee” shall mean the Person granted the franchise to arrange for the Collection of Solid Wastes and Recyclable Materials pursuant to this Agreement.
CC. “Green Waste” shall mean those discarded materials that will decompose and/or putrefy, including but not limited to green trimmings, grass, weeds, leaves, prunings, branches, dead plants, brush, tree trimmings, dead trees, small pieces of unpainted and untreated wood, and other types of yard waste. Green Waste to be placed in a Container for Collection shall not exceed six inches in diameter and four feet in length. Tree stumps and logs are not to be considered “Green Waste” unless they are reduced to a chipped form; they shall be considered Bulky Waste.
Biodegradable plant material, which is mixed with other kinds of Solid Waste, shall not be considered “Green Waste.”
DD. “Hazardous Waste or Materials” means any waste materials or mixture of wastes defined as such pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., or the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. Section 9601 et seq., and all future amendments to either of them, or as defined by the California Environmental Protection Agency or the California Department of Resources Recycling and Recovery, or either of them. Where there is a conflict in the definitions employed by two or more agencies having jurisdiction over Hazardous or Solid Waste, the term “Hazardous Waste” shall be construed to have the broader, more encompassing definition.
EE. “Holidays” are defined as Memorial Day, Labor Day, Independence Day, Thanksgiving Day, New Year’s Day, Christmas Day.
FF. “Independent Government Agencies” means any Federal, State or local government agencies, including but not limited to special districts, school districts, Indian reservations, California Department of Parks and Recreation, California State Department of Corrections, United States Forest Service, Bureau of Land Management, United States Corp of Engineers, which due to provisions of California State Law do not have to comply or recognize Grantee as the City’s exclusively franchised Solid Waste Collector.
Attachment 3
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GG. “Industrial Solid Waste” means Solid Waste in an amount exceeding an average of five hundred pounds (500 lbs.) per operating day produced by any Person principally engaged in the business of Processing or manufacturing agricultural, animal, or other products or materials whose principal outlet for such products is wholesale rather than retail, and by any Person engaged in the business of building construction or demolition. Industrial Solid Waste excludes NonDiscarded Recyclable Materials.
HH. “Mixed Organic Waste” shall mean Green Waste, food scraps, paper tissues, paper napkins and towels, coffee grounds and filters, pizza boxes, and food-soiled paper plates and cups.
II. “Multi-Family Units” shall mean any residential building, boardinghouse, apartment building, condominium complex, stock cooperative complex consisting of two or more independent dwelling units which receives Solid Waste and/or Recyclable Material services.
Multi-Family Units does not include motels, hotel, or automobile courts.
JJ. “Non-Discarded Recyclable Materials” means any Recyclable Materials, as defined herein, that the Generator retains, sells, or donates.
KK. “Occupant” means the Person in possession or control of the Premises, including but not limited to Persons such as tenant, lessee, licensee, manager, custodian, or caretaker.
LL. “Owner” means the Person having dominion of or title to Premises.
MM. “Person” means any individual, firm, corporation, partnership, joint venture, association, special district, school districts, limited liability company or partnership, group, any other similar type of organization, or combination thereof, includes the plural as well as the singular.
NN. “Premises” means a parcel of real property to the center of any alley adjacent thereto, located in Franchise Area, upon which is situated any dwelling house or other place of human habitation, including each unit of a multiple dwelling building, or of a mobile home park, or upon which is conducted any business, occupation, or activity which results in the production or accumulation of Solid Waste.
OO. “Processing” means to prepare, treat, or convert through some special method.
PP. “Processing Site” means any plant or site used for the purpose of sorting, cleansing, treating, or reconstituting Recyclable Materials for the purpose of making such material available for reuse.
QQ. “Prohibited Container Contaminants” means Discarded Materials or Solid Waste placed in the Recyclable Material Cart that are not identified as acceptable Recyclable Materials.
RR. “Rate Period” means a 12-month period, commencing January 1 and concluding December 31 for which rates are calculated.
Attachment 3
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SS. “Recyclable Material(s)” includes materials which are reused or Processed or are in the future reused or Processed into a form suitable for reuse through reprocessing or remanufacture, consistent with the requirements of the Public Resources Code. No materials shall be considered Recyclable Materials unless such material is separated from Solid Waste.
Recyclable Materials shall include, but not be limited to: newspaper (including inserts, coupons, and store advertisements); mixed paper (including office paper, computer paper, magazines, junk mail, catalogs, brown paper bags, brown paper, paperboard, paper egg cartons, telephone books, grocery bags, colored paper, construction paper, envelopes, legal pad backings, shoe boxes, cereal and other similar food boxes); chipboard; corrugated cardboard; paper milk cartons; glass containers of any color (including brown, clear, and green glass bottles and jars); aluminum (including beverage containers, foil, food containers); steel, tin or bi-metal cans; plastic containers (no. 1 to 7); aseptic beverage boxes and non-hazardous scrap metal items weighing 10 lbs. or less.
TT. “Residential Solid Waste” means all types of Solid Waste which originate from residents of Single-Family Units and Multi-Family Units.
UU. “Responsible Party” means: (1) any individual or any corporation, partnership or business association or an officer, director, or management employee of a corporation, partnership, or business association that has the authority to make discretionary decisions with respect to the operations or financial management of Grantee; or (2) any corporation, sole-proprietorship, partnership, or business association, or officer, director, or management employee of such entity, that holds at least five percent (5%) equity or debt interest in Grantee. If any holder of such debt or equity is not a natural person, the term “responsible party” includes only the debtor, equity holding Person and officers, directors, and management employees of the debt or equity holder who are empowered to make discretionary decisions with respect to the operation or financial management of Grantee.
VV. “Segregated Recyclable Materials” means those Recyclable Materials which: (1) have been source separated by the Person from whom they are being collected; or (2) are physically separated from other waste material following Collection.
WW. “Single-Family Unit” means a dwelling which receives individual Solid Waste and/or curbside Recyclable Material service.
XX. “Solid Waste” means and includes all putrescible and non-putrescible solid and semisolid wastes (including semi-liquid or wet wastes with insufficient moisture so as not to be free flowing), ashes, Recyclable Materials that have not been separated from Solid Waste, Demolition and Construction Debris and other discarded materials resulting from domestic, institutional, commercial, industrial, agricultural and community operations and activities, and Mixed Organic Waste. Solid Waste shall be expressly deemed to include Bulky Wastes as defined herein. Solid Waste does not include Hazardous Wastes or Designated Waste.
YY. “Solid Waste Collector” means a Person who collects or Transports Solid Waste under authority granted by the City including its agents and employees.
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(6) “Subcontractor” means a party who has entered into a contract, expressed, or implied, with Grantee for the performance of an act that is necessary for Grantee’s fulfillment of its obligations under this Agreement.
ZZ. “Transportation” means the act of transporting or state of being transported.
AAA. “Waste Stream” means the total amount of Solid Waste generated in a given area, such as the City or a specific Franchise Area. Waste Stream does not include Recyclable Materials that have been separated from Solid Waste by the Generator so that the Recyclable Materials never become discarded waste.
SECTION 3 – COMPLIANCE WITH LAWS AND REGULATIONS
Grantee warrants that it will comply with all applicable laws in effect during the term of this Agreement, including implementing regulations, as they may, from time to time, be amended, specifically including, but not limited to the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., the California Public Resources Code Section 40000 et. seq., and all other applicable laws of the State of California, the City, ordinances of the City, the City’s Source Reduction and Recycling Element, the City’s Household Hazardous Waste Element, the City-wide Integrated Waste Management Plan, the requirements of Local Enforcement Agencies and other agencies with jurisdiction relating to the services provided by Grantee under this agreement. In the event of conflict between regulations or statutes, Grantee shall comply with the regulation or statute containing the most stringent applicable standards. Grantee shall comply with all final and binding judgments entered against Grantee regarding its services performed under this agreement.
SECTION 4 – TERM AND SCOPE OF AGREEMENT
A. Term of Agreement.
(1) Effective Date and Commencement Date. The Effective Date of this Agreement shall be the date the latter of the two Parties signs this Agreement. The “Commencement Date” shall be ___________________, 2024, and shall be the date on which Grantee initiates provision of Collection, Transportation, and Processing services required by this Agreement. Between the Effective Date and Commencement Date, Grantee shall perform all activities necessary to prepare itself to start Collection, Transportation, and Processing, services required by this Agreement on the Commencement Date.
(2) Term. The Term of this Agreement shall continue in full force from 12:01 a.m. on the Commencement Date to midnight December 31, 2032 (the “Initial Term”), unless this Agreement is extended by the parties pursuant to Section 4.A.(3) or terminated in accordance with Section 19.C.
(3) Option to Extend Term. Notwithstanding the provisions of Section 4.A.(2) above, this Agreement shall be automatically extended for up to two (2) additional five (5) year terms (each an “Extension Term” and, together with the Initial Term, the “Term”), unless City or Grantee provides not more than three (3) years’ nor less than one (1) year’s written notice prior to Attachment 3
9 {00115649.DOCX.3}
the expiration of the Initial Term or the first Extension Term, as applicable, of its intent not to renew this Agreement for such additional Extension Term. Notwithstanding the foregoing, Grantee may simultaneously exercise both five (5) year terms upon written notice to the City not more than three (3) years’ nor less than one (1) year’s written notice prior to the expiration of the Initial Term, and the City does not object in writing to such exercise within thirty (30) days following receipt of Grantee written notice exercising both Extension Terms. If the City or Grantee fails to provide the written notices specified herein, the Agreement will be automatically extended as provided herein.
(4) City’s Rights upon Expiration or Termination. At the expiration or termination of this Agreement, the City may proceed with a competitive bidding or request for proposal process or exercise any other option available under applicable law.
B. Scope of Agreement. Grantee shall have the exclusive right to service any Occupant or Owner to make all 4 00 Solid Waste and Recyclable Material Collections within the Franchise Area, except as described in Section 4C or except as otherwise precluded by Applicable Law. Grantee, or its Subcontractor(s) shall be responsible for the following services:
(1) Collecting all Solid Waste and Recyclable Materials generated in the Franchise Area and placed by Generator for Collection;
(2) Transporting collected materials to the Designated Disposal Location and an Approved Recyclable Materials Processing Site;
(3) Processing and marketing of Recyclable Materials Collected in the Franchise Area by Grantee;
(4) Collecting Demolition and Construction Debris generated within the Franchise Area;
(5) Furnishing all labor, supervision, vehicles, Containers, other equipment, materials, supplies, and all other items and services necessary to perform its obligations under this Agreement;
(6) Paying all expenses related to provision of services required by this Agreement including, but not limited to, taxes, regulatory fees, pass-through costs, utilities, etc.; (7) Providing all services required by this Agreement in a thorough and professional manner so that residents, businesses, and the City are provided timely, reliable, courteous, and high-quality service at all times;
(8) Complying with Applicable Law; and
(9) Performing or providing all other services necessary to fulfill its obligations under this Agreement.
C. Limitations to Scope. The materials listed below in this Section may be Collected and Transported by other Persons. Such Persons shall do so in accordance with the City Code.
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(1) Industrial Recyclable Materials. Recyclable Materials from a Generator of Industrial Solid Waste that are not disposed of and are recycled including, but not limited to, wood chips from the forest products industry used as boiler fuel, and agricultural waste used to produce compost. If Solid Waste residue in Recyclable Materials exceeds 5% by volume it shall be considered Solid Waste and not Industrial Recyclable Material and shall be collected by Grantee. (2) Non-Discarded Recyclable Materials provided the transporter is paid no direct or in-kind fee for the service and compensates the Generator for the Recyclable Materials. (3) Materials Hauled by Owner, Occupant, or a Cooperative of Persons, or its Contractor. Solid Waste and/or Recyclable Materials that are removed from any Premises by the Owner, Occupant, or a cooperative of persons and are Transported, without compensation, to a Disposal Site or Processing Site by (i) the Owner, Occupant or cooperative of persons of such Premises, (ii) by full-time employee(s) of Owner, Occupant, or cooperative of persons that uses the Owner’s, Occupant’s, or cooperative of persons’ equipment to Transport materials; or (iii) by a contractor whose removal of the Solid Waste and/or Recyclable Materials, and/or Demolition and Construction Debris incidental to the service being performed and such contractor removes materials at no additional or separate fee using contractor’s own equipment and labor. (4) Containers Recycled. Containers delivered for recycling under the California Beverage Container Recycling Litter Reduction Act, Section 14500, California Public Resources Code et. seq. as may be amended from time to time. (5) Animal, Grease Waste, and Used Cooking Oil. Animal waste and remains from slaughterhouse or butcher shops, grease waste, or used cooking oil. (6) Sewage Treatment By-Product. By-products of sewage treatment including sludge, sludge ash, grit, and screenings.
(7) Hazardous Wastes. Household Hazardous Waste, Hazardous Waste, and Designated Waste regardless of its source.
(8) State and Federal Wastes. Materials generated by state and federal agencies, special districts, school districts, State parks, State correction facilities, and Indian reservations. (9) Other Materials. Lead-acid batteries, waste oil, tires, and scrap metal not covered as Discarded Recyclable Materials.
D. Subcontracting. Grantee shall not engage any Sub-grantees for Collection, Transportation, Processing, or Disposal of Solid Waste or Recyclable Materials services without the prior written consent of the City.
E. Franchise Area Limits.
(1) No Persons shall be granted a right to collect Solid Waste or Discarded Recyclable Material in Grantee’s Franchise Area unless approved by the City due to an emergency, a lack of service by Grantee, or as allowed according to Section 20 herein.
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(2) The City may, in its sole discretion, enforce the exclusivity provisions of this Agreement against third-party violators, taking into account the cost of doing so and other factors. Grantee may independently enforce the exclusivity provisions of this Agreement against third-party violators, including, but not limited to, seeking injunctive relief and/or damages, and the City shall use good-faith efforts to cooperate in such enforcement actions brought by Grantee.
The City shall use its best efforts to adopt ordinances, rules or regulations that have the effect of requiring third parties, including, without limitation, customers, to comply with the provisions of this Agreement, including, without limitation, the exclusive service rights granted to Grantee pursuant to this Agreement.
SECTION 5 – SERVICES PROVIDED BY GRANTEE
A. City to Approve All Services. Solid Waste and Recyclable Materials collection services Grantee shall offer and provide to Customers residing or doing business in the Franchise Area during the term of this Agreement are subject to the prior review and approval of the City.
B. Collection Service. Grantee shall collect, in a manner consistent with public health and safety, Solid Waste and Recyclable Materials from its Customers in the Franchise Area as frequently as scheduled by Customer, but not less than once per week. Solid Waste service shall be provided in the Container Sizes and Collection frequencies as set forth in the Rate Table, Exhibit B to this Agreement, and the billings to Customers for Solid Waste service shall incorporate at no extra cost Recyclable Material Collection, except as set forth herein. (1) Single-Family Units. Grantee shall collect Solid Waste (except Bulky Wastes) and Recyclable Materials from Single-Family Units, which have been placed, kept, or accumulated in Grantee-provided Containers, at the curbside or other authorized Collection location if the Customer is physically unable to move the Collection Containers to the curb and is eligible for such service at no additional charge or from a Customer who is willing to pay the additional charge set by the City for such service. Grantee shall provide each Customer with a either a 20-, 35-, 65-, or 95-gallon gray Solid Waste Cart, as requested by the Customer. Grantee shall provide each Customer a 65- or 95-gallon blue Recyclable Material Carts, as requested by the Customer. To the greatest extent possible, Single-Family Unit customers shall place Containers at the City-maintained Road. With the approval of the City, Grantee may service private roads if specific road conditions (roadway width, overhead clearances, adequate turnaround, and pavement conditions), number of customers, and/or a past practice justify such service. Grantee may require the applicable road owner or road association to execute a release of liability. If Grantee elects to service a private road, then the off-road service rate will not be charged. (2) Multi-Family Premises. Grantee shall Collect Solid Waste and Recyclable Materials from Multi-Family Premises as frequently as scheduled by Customer, but not less than once per week. Grantee shall allow a Multi-Family Premises to use Carts or Bins for Collection that are shared by the Occupants of the Premises. Grantee shall provide one or more Carts (with a capacity of 35-, 65-, or 95-gallons) or Bins (with a capacity of two to six cubic yards) to such Premises as requested by Customer. Grantee shall Collect Solid Waste and Recyclable Materials from Carts and Bins at a location selected by Customer and approved by the City.
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(3) Commercial and Industrial Premises. Grantee shall Collect Solid Waste, and Recyclable Materials from Commercial and Industrial Premises as frequently as scheduled by Customer, but not less than once per week. Grantee shall provide one or more Carts (with a capacity of 35-, 65-, or 95-gallons) or Bins (with a capacity of two to fifty cubic yards) to such Premises as requested by Customer. Grantee shall Collect Solid Waste and Recyclable Materials from Carts and Bins at a location selected by Customer. Upon receiving a call for new service from any Commercial or Industrial Customer, Grantee’s Customer service representative shall specifically ask the Customer what Recyclable Materials the Customer expects to generate and shall encourage the Customer to accept Recyclable Materials Containers, emphasizing that recycling Containers are provided without additional charge except as provided herein, and shall make all reasonable efforts to encourage the Customer to divert Solid Waste from disposal.
Recyclable Materials Carts or Bins may be used by the Customer for single-stream mixing of all Recyclable Materials as defined in this Agreement, except that, if Grantee determines that there is sufficient volume of one type of Recyclable Material, Grantee may require Customer to use Segregated Recycled Material Bin(s) for that material. Commercial and Industrial Customers may choose to utilize the same sizes of Carts as provided to Single-Family Units.
C. Recyclable Material Drop-off Facility. The City will continue to maintain and operate the Recyclable Material Drop-off facility located at the City Pier on Port Road. Grantee will provide the collection, hauling and processing of all Recyclable Materials collected.
Containers will be provided by Grantee.
D. Hours of Collection. No Collections shall be made in residential areas prior to 5:00 a.m. or after 6:00 p.m. No Collections shall be made at schools, churches, hospitals, offices, or commercial establishments within 200 feet of said residential districts prior to 5:00 a.m. or after 9:00 p.m. unless a modification of these hours is allowed in writing by the City, which modification may be revoked at the sole discretion of the City. Special arrangements may be made pursuant to the City Code for all categories of Collections provided by Grantee.
E. Collection on Holidays. If the day of Collection on any given route falls on a Holiday, Grantee shall provide Collection service for such route on the workday either before or following such Holiday and shall not provide Collection service on such Holiday, and all subsequent Collection days during that Holiday week shall be adjusted at the discretion of Grantee.
Grantee shall be responsible for Customer notification of Holiday Collection arrangements. If the day of Collection on any given route falls on any remaining Holiday, Grantee may continue to provide Collection service for such route on that workday.
F. Annual Bulky Waste Clean-up Day. Grantee agrees to provide up to two (2) forty (40)-cubic yard containers for one (1) annual weekend Bulky Waste Clean-up Day.
SECTION 6 – SPECIAL PROGRAMS AND SERVICES PROVIDED BY GRANTEE A. Source Reduction and Waste Diversion Programs. Grantee shall provide special programs as are required by federal, state, or local regulations, including but not limited to, the City Integrated Waste Management Plan, the Source Reduction and Recycling Element, and the Household Hazardous Waste Element and as itemized in Exhibit A. If City directs changes in recycling or Mixed Organic Waste services, Grantee shall be entitled to recovery of any additional Attachment 3
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costs through the pass-through rate adjustment procedure of Section 15(A). When introducing new or expanded diversion programs, City shall define the objective of the program and cooperate with Grantee to consider Grantee’s proposal for the methods to achieve the objective, and City shall consider alternative methods so that objectives are achieved while minimizing any costs or operational problems that the new program may cause to Grantee. In exercising its right to direct changes in recycling or Mixed Organic Waste services, City will consider the impact upon rates and the likelihood Grantee can recover all costs with the change.
B. Public Education. Grantee’s public education program shall focus on providing information to Customers in accordance with the specific requirements described in Exhibit D.
Educational media shall include, but not be limited to, newsletters, flyers, door hangers, notification tags, and direct contact. Information shall be provided for initial start of service, to solicit feedback about the service and suggested improvement/change, and to educate Customers about source reduction, reuse, and Recycling opportunities. Materials shall be printed on paper containing the highest levels of recycled content material as is reasonably practical with a minimum requirement of 30% post-consumer content based on Federal standards. Grantee shall allow the City to review and approve all public education materials and may require bilingual English-Spanish text. If Grantee fails to perform some or all of the requirements of the public education program described in this Section and in Exhibit D, Grantee shall pay the City Liquidated Damages as described in Exhibit E.
C. Billing.
(1) General. Subject to City approval and regulation of same, Grantee shall set, impose, and collect all rates from its customers within the City and perform the services required by this Agreement. Use of Grantee’s curbside collection services described herein are provided and made available on contractual arrangement between Grantee and its customers. Grantee shall bill all Customers and collect billings in accordance with City-approved rates. Grantee shall prepare, mail, and collect bills (or shall issue written receipts for cash payments) for Collection services provided by Grantee. The City shall have the right to review and approve the Billing format. Grantee shall arrange to allow its Customers to pay bills through the following means:
check, cash, online, or credit card. Grantee shall maintain copies of all Billings and receipts, each in chronological order, for five years for inspection and verification by City at any reasonable time upon request. Grantee may, at its option, maintain those records in computer form, on microfiche, or in any other manner, provided that the records can be preserved and retrieved for inspection and verification in a timely manner. Grantee shall be responsible for collection of payment from Customers with past due accounts (“bad debt”). Grantee shall make reasonable efforts to obtain payment from delinquent accounts through issuance of late payment notices, telephone requests for payments, and assistance from collection agencies. Accounts that are delinquent for a period of ninety-days (90) or more may be terminated by Grantee. (2) Bill Inserts. City may direct Grantee to insert mailers (which shall be a single sheet of paper no larger than 8.5 inches by 11 inches) relating to service with the Bills. The mailers shall be printed on double-sided, post-consumer content paper and shall fit in standard envelopes. Grantee also agrees to insert with the Billings, mailers describing activities of the City government. City will provide not less than 30 calendar days’ notice to Grantee before the date of any proposed mailing, to permit Grantee to make appropriate arrangements for inclusion of the Attachment 3
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City’s materials. City will provide Grantee the mailers at least 15 calendar days before the mailing date.
(3) Review of Billings. Grantee shall review its Billings to Customers to determine (i) if the amount Grantee is billing each Customer is correct in terms of the level of service (i.e., frequency of Collection, size of Container, backyard service) Grantee is providing such Customer, and (ii) that all parties receiving service are invoiced for service. Grantee shall review all Customer accounts at least every year unless City directs Grantee to do otherwise.
Grantee shall submit to City every year, a written report of the billing review 30 days after the end of each Rate Period. The scope of the review, Grantee’s work plan, and the format of the report (including supporting exhibits) shall be submitted to the City for approval no later than 60 days prior to commencement of the Billing review process. Should Grantee fail to perform any such review, the City may perform this review itself or through use of an agent, at Grantee’s expense.
D. Other Special Services. Grantee shall provide Solid Waste Disposal and Recyclable Materials Collection service without charge to periodic public events sponsored by non-profit organizations, upon request of the City. Grantee shall provide documentation for any construction and demolition contactor who rents an Industrial debris box to be scavenged for divertible material at the Designated Disposal Site. Grantee can provide other special services as related to this Agreement at its discretion provided said services and charges for such services are approved by the City.
E. Containers – Refusal to Pick Up. Grantee shall notify the City whenever Grantee has refused to pick up a Container because the Container contains dangerous and prohibited material. Grantee shall notify the City when any violation of City ordinances pertaining to solid waste is observed.
F. Containers - Noticing Violators. Whenever a Grantee gives or intends to give a Customer violation report to the City, Grantee shall place a notice on the Container or otherwise give the Owner or Occupant notice of the substance of his/her report to the City.
G. Recyclable Material Contamination Surcharges. Customers must comply with any description of and/or procedures with respect to removal of Prohibited Container Contaminants or preparation of Recyclable Materials as reasonably provided by Grantee. If any customer fails to do so, Grantee may decline to collect such Recyclable Materials without being in breach of this Agreement. Grantee shall not be responsible for and has not made any representation regarding the ultimate recycling of such contaminated Recyclable Materials by any third party facilities. Grantee shall assess contamination processing fees on Customers with repeated occurrences of excess Prohibited Container Contaminants. Any contamination processing fee to be assessed for a Customer shall be included and itemized on the Customer’s invoice for the billing period in which Grantee notified the Customer of the assessment of the contamination processing fee.
H. Promotion of Waste Diversion to New Customers. Upon the initial call for service, Grantee will make all reasonable efforts to promote the maximum amount of waste diversion by the new customer. Grantee’s customer service representatives will utilize specific Attachment 3
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scripts, provided to City, for each category of customer (residential, commercial and debris box) for use during calls for service that will at a minimum include:
(1) Statement to Customer that his/her costs may be reduced by recycling diversion.
(2) Question to Customer about what waste materials he/she will generate that may be recycled.
(3) Recommendation of specific services appropriate for the Customer, identifying those that are free or reduced rate.
I. City Facilities. Grantee shall provide as many Containers as the City reasonably needs for Solid Waste and Recyclable Materials at City Hall, City Public Works Corporation Yard, and such other City properties that the City shall designate in writing to Grantee; and Grantee shall additionally collect, transport, and dispose of all Solid Waste and Recyclables deposited in any permanent or temporary street-side public receptacles provided and maintained by the City. The frequency of collection shall be as designated by the City. There shall be no charge by Grantee for the cost of the services described in this paragraph.
SECTION 7 – STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT,
AND PERSONNEL
A. Manner of Collection. All Collection equipment shall be designed and operated such that no material is allowed to blow or drop from vehicles during Transport. Adequacy of load covers, or control measures shall be determined by the City. All Collections shall be made as quietly as possible, and the use of any unnecessarily noisy trucks or equipment is declared unlawful.
B. Vehicles and Equipment – Standards.
(1) General. All Collections shall be made with a vehicle and equipment of design approved by the City according to industry standards. Grantee shall maintain all of its properties, facilities, and equipment used in providing service under this Agreement in a safe, neat, clean, and operable condition at all times.
(2) Cleaning. Collection vehicles shall be thoroughly washed and thoroughly steam cleaned as necessary, to present a clean appearance of the exterior and interior compartment of the vehicle.
(3) Maintenance. Grantee shall inspect each vehicle daily to ensure that all equipment is operating properly. Vehicles that are not operating properly shall be taken out of service until they are repaired and operate properly. Grantee shall perform all scheduled maintenance functions in accordance with the manufacturer’s specifications and schedule or in accordance with California Highway Patrol standards, whichever are more stringent. All vehicles shall be painted in a uniform manner that does not create a resemblance between Grantee’s vehicles and City utility vehicles. Grantee shall keep accurate records of all vehicle maintenance, recorded Attachment 3
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according to vehicle, date, and mileage, and shall make such records available to the City upon request to the extent necessary to perform the inspections described in Section 7 D. (4) Repairs. Grantee shall repair, or arrange for the repair of, all of its vehicles and equipment for which repairs are needed because of accident, breakdown, or any other cause so as to maintain all equipment in a safe and operable condition. Grantee shall maintain accurate records of repair, which shall include the date/mileage, nature of repair and the signature of a maintenance supervisor that the repair has been properly performed.
C. Vehicles – Identification. Grantee shall have printed or stenciled in a prominent place on the exterior of each vehicle used in the Collection of Solid Waste and Recyclable Materials the following information in at least four-inch letters: (1) Truck number; (2) Grantee’s name; and (3) Grantee’s telephone number.
D. Vehicles and Equipment – Inspection. All vehicles and equipment of Grantee shall be available for inspection at Grantee’s place of business or another location within the Franchise Area as designated by the City, on an annual basis. Vehicles and equipment shall conform to the requirements of the California Vehicle Code, this Agreement, and rules or regulations of the City. City shall give Grantee twenty-four (24) hours verbal notification of inspection.
E. Vehicles – Shovel, Broom and Fire Extinguisher Required. Grantee shall equip each Collection vehicle with a shovel, broom, spill kit, and fire extinguisher of a type approved by the City.
F. Container Requirements.
(1) General. Grantee shall provide all Carts, Bins, and Debris Boxes to all Customers as part of its services. Grantee-provided Containers shall be designed and constructed to be watertight and prevent the leakage of liquids. All Containers with a capacity of one cubic yard or more shall meet applicable federal, state, and local regulations for Bin safety and be covered with attached lids. Grantee shall obtain City’s written approval of Cart colors before acquisition. All Containers, except Carts, shall be painted Grantee’s standard color. (2) Cleaning, Painting, and Maintenance. All Containers shall be maintained in a safe, serviceable, and functional condition. Grantee shall steam clean and repaint all Containers, except Carts, at least every two years, or more frequently, to present a clean appearance. Customers using Carts shall be responsible for cleaning such Carts. If any Cart is impacted by graffiti, Grantee shall replace the cart within 72 hours. If any Containers, except Carts, are impacted by graffiti, Grantee shall either replace the Container with a Container which is free of graffiti or repaint the entire Container with Grantee’s standard color for such Container within 30 days. Repainting of the Container shall restore the Container’s aesthetic values to its condition before it sustained the graffiti damage.
(3) Repair and Replacement. Grantee shall repair and, if the repair must be performed off of the Premises, replace all Containers damaged by Collection operations within a one-week period. If the repair or replacement cannot be completed within one week, Grantee shall notify Customer and a Container of the same size or larger shall be made available until the proper Attachment 3
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Container can be replaced. At no additional cost, Grantee shall replace Customer Carts that have been stolen or damaged once per year. Grantee shall allow Customer to exchange Containers for a Container of a different size at no additional cost once per year. Grantee shall charge Customers for additional Cart replacements at City-approved rates. Notwithstanding anything herein to the contrary, in the event that a container becomes lost, unsightly, unsanitary, broken, or unserviceable because of the acts or omissions of a customer (excluding normal wear and tear), the customer will be charged for the resulting repairs or replacement and such amounts will be paid to Grantee upon demand. Any equipment furnished hereunder by Grantee shall remain the property of Grantee; however, customers shall have care, custody and control of the equipment while at the service locations. customers shall use the equipment only for its proper and intended purpose. Customers shall not overload (by weight or volume), move, alter or install any devices on the equipment, and shall not manually or mechanically compact any materials inside the equipment, except inside compactor receiver boxes specially designed for such purpose, and shall not allow any third party to take any such actions. Customers shall pay additional charges each time that a container is overloaded (by weight or volume). Customers must provide unobstructed access to the equipment on the scheduled collection day. The word “equipment” as used in this Agreement shall mean all containers used for the storage of Solid Waste, Recyclable Materials and Mixed Organic Waste.
G. Personnel
(1) General. Grantee shall furnish such qualified drivers, mechanical, supervisory, Customer service, clerical and other personnel as may be necessary to provide the services required by this Agreement in a safe and efficient manner. (2) Provision of Field Supervision. Grantee shall designate at least one qualified employee as supervisor of field operations. The field supervisor will devote time in the field checking on Collection operations, including responding to complaints. (3) Driver Qualifications. All drivers shall be trained and qualified in the operation of Collection vehicles, and must have in effect a valid license, of the appropriate class, issued by the California Department of Motor Vehicles. Grantee shall use the Class II California Department of Motor Vehicles employer “Pull Notice Program” to monitor its drivers for safety. (4) Customer Service Representative Training. Customer service representatives shall be trained on specific City service requirements upon hire and annually thereafter. A City information sheet shall be provided to each Customer service representative for easy reference of City requirements and general Customer needs. The information sheet, training agenda, and associated documentation shall be forwarded to the City. (5) Safety Training. Grantee shall provide suitable operational and safety training for all of its employees who operate Collection vehicles or equipment or who are otherwise directly involved in such Collection, Disposal, or Processing. Grantee shall train its employees involved in Collection to identify, and not to collect, Hazardous Waste or infectious waste. Upon the City’s request, Grantee shall provide a copy of its safety policy and safety training program, the name of its safety officer, and the frequency of its trainings.
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(6) No Gratuities. Grantee shall not permit its employees to accept, demand, or solicit, directly or indirectly, any additional compensation, or gratuity from members of the public for Collection services.
(7) Employee Conduct and Courtesy. Grantee shall use commercially reasonable efforts to assure that all employees present a neat appearance and conduct themselves in a courteous manner. Grantee shall regularly train its employees in Customer courtesy, shall prohibit the use of loud or profane language, and shall instruct Collection employees to perform the work as quietly as possible. If any employee is found not to be courteous or not to be performing services in the manner required by this Agreement, Grantee shall take all appropriate corrective measures.
(8) Uniforms. While performing services under this Agreement, all of Grantee’s employees performing field service shall be dressed in clean uniforms and shall wear badges that include the employee’s name and/or employee number, and Grantee’s name. No portion of this uniform may be removed while working.
SECTION 8 – PUBLIC ACCESS TO GRANTEE
A. Name and Office Hours. Grantee shall not use a firm name containing the words “City” or” other words implying City ownership. Grantee shall establish and maintain a Customer service office where service may be applied for, and complaints made. Grantee’s Customer service office shall be open to the public from 8:30 a.m. to 4:00 p.m. Monday through Friday. The office may be closed on Saturdays, Sundays, and Holidays. Such office shall be equipped with a listed telephone number to which calls from Grantee’s Customers may be placed and shall have a responsible Person in charge or an answering machine in service during normal business hours.
B. Service Complaints. Customer service complaints may be made directly to Grantee by telephone or in writing. Grantee is responsible for rectifying the complaints and for maintaining a log of complaints received, date received, actions taken, and date of actions, as specified in Section 13.
C. Overcharge. All charges or fees for service by a Grantee shall be approved by the City, except a lower charge than approved by the City may be negotiated (to provide for consideration of the weight of the material collected and/or the distance from the operations yard or transfer station) for Industrial Solid Waste Service as provided in Section 14.B.(6). Any Customer contending, they have been required to pay a charge not approved by the City or has in any manner been subject to an overcharge, may file a written complaint with the City setting forth the facts of such alleged miss-charge, and the City shall notify Grantee of the complaint, shall investigate the matter of the complaint, and shall determine the appropriate charge.
SECTION 9 - SERVICE EXCEPTIONS; HAZARDOUS WASTE NOTIFICATIONS A. Responsibility to Identify Hazardous Waste.
(1) Grantee shall keep current with the regulations regarding Hazardous Waste substances and identification of such substances and to comply with all federal, state, and local regulations concerning such substances. Grantee shall make every reasonable effort to prohibit the Attachment 3
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Collection and the Disposal of Hazardous Waste in any manner inconsistent with Applicable Law.
Grantee shall conduct visual inspections of Solid Waste and Recyclable Materials that it Collects, Transports, Disposes, or Processes pursuant to this Agreement for the purpose of discovering, identifying, and refusing to Collect, Transport, Dispose, and/or Process Hazardous Wastes or materials.
(2) Notwithstanding anything herein to the contrary: Grantee shall have no obligation to collect any material which is or contains, or which Grantee reasonably believes to be or contain, Hazardous Waste or any other radioactive, volatile, corrosive, highly flammable, explosive, biomedical, infectious, biohazardous, toxic or hazardous material as defined by applicable federal, state or local laws or regulations (collectively, “Excluded Waste”). If Grantee finds what reasonably appears to be discarded Excluded Waste, Grantee shall promptly notify the City and the producer of the Excluded Waste, if the producer can be readily identified. Title to and liability for any Excluded Waste shall remain with the producer of the Excluded Waste, even if Grantee inadvertently collects or disposes of such Excluded Waste.
B. Response to Hazardous Waste Identified at Disposal Site or Processing Site. (1) If materials Collected by Grantee are delivered to a facility owned or operated by Grantee or an affiliate of Grantee, for purposes of transfer, Processing, or Disposal, load checkers and equipment operators at such facility shall conduct inspections in areas where Collection vehicles unload Solid Waste and Recyclable Materials to identify Hazardous Wastes or unacceptable materials. Facility personnel shall remove these materials for disposal or storage in approved, on-site, hazardous materials storage Container(s). Grantee shall make reasonable efforts to identify and notify the Generator of Hazardous Wastes. Grantee shall arrange for removal of the Hazardous Wastes by permitted haulers in accordance with Applicable Laws and regulatory requirements.
(2) If unacceptable material is delivered to the Designated Disposal Location or Processing Sites by Grantee before its presence is detected, and the Generator cannot be identified or fails to remove the material after being requested to do so, Grantee shall arrange for its proper Disposal. Grantee shall make a good faith effort to recover the cost of Disposal from the Generator, and the cost of this effort, as well as the cost of Disposal shall be charged to the Generator.
C. Notification for Hazardous Waste. Grantee shall, if required based on reportable levels, notify all agencies with jurisdiction, including the California Department of Toxic Substances Control, and, if appropriate, the National Response Center, of reportable quantities of Hazardous Waste, found or observed by Grantee in Solid Waste and/or Recyclable Materials anywhere within the City, including on, in, under or about City property, including streets, easements, rights of way and City waste containers. In addition to other required notifications, if Grantee observes any substances which it or its employees reasonably believe or suspect to contain Hazardous Wastes unlawfully disposed of or released on City property, including streets, storm drains, or public rights of way, Grantee also will notify the City Director of Public Works or his/her designated City employee.
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D. Rights Reserved as to Hazardous Wastes. The City reserves the right to contract with other parties to have household Hazardous Wastes Collected, Transported, Disposed of, Processed and/or diverted.
SECTION 10 – DISPOSAL AND PROCESSING
A. Solid Waste Disposal. Grantee shall Transport and Dispose of all Solid Waste Collected in the Franchise Area at the Designated Disposal Location. Grantee shall pay all costs associated with the Transporting and Disposing of Solid Waste.
B. Recyclable Materials Processing and Marketing
(1) Processing. Grantee shall Transport and deliver all Recyclable Materials collected in the Franchise Area to the Approved Recyclable Materials Processing Site. Grantee shall pay all costs associated with the Transporting and Processing of all Recyclable Materials.
Grantee shall maintain accurate records of the quantities of Recyclable Materials Collected, Transported, and Processed at the Approved Recyclable Materials Processing Site and shall cooperate with the City in any audits or investigation of such quantities. Grantee shall keep all existing permits and approvals necessary for use of the Recyclable Materials Processing Site in full regulatory compliance. Upon request, Grantee shall provide copies of notices of violation or permits to the City.
(2) Marketing. Provided that the Approved Processing Center is owned and/or operated by Grantee or by an Affiliate of Grantee, Grantee shall be responsible for marketing Recyclable Materials collected in the Franchise Area and shall be compensated for such Recyclable Materials at not less than fair market value.
Provided that the Approved Processing Center is owned and/or operated by Grantee or by an Affiliate of Grantee, Grantee shall prepare and maintain a City-approved marketing plan for all Recyclable Materials collected in the Franchise Area. The plan shall be in place on or before the Commencement Date of this Agreement. The marketing plan shall fully describe Grantee’s marketing methods and approach, targeted primary and contingent markets, pricing policy and assumed salvage value for each collected type of Recyclable Material products, and contingency plans if market conditions are severe.
Provided that the Approved Processing Center is owned and/or operated by Grantee or by an Affiliate of Grantee, Grantee shall provide proof to the City that all Recyclable Materials collected are marketed for Recycling or reuse in such a manner that materials shall be considered as diverted in accordance with the State regulations established by the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code), as amended, supplemented, superseded, and replaced from time to time. No Recyclable Material shall be transported to a domestic or foreign location if Solid Waste Disposal of such material is its intended use.
Provided that the Approved Processing Center is owned and/or operated by Grantee or by an Affiliate of Grantee, Grantee shall provide City upon request with a list of broker/buyers it uses each month as required in Section 13. City may audit one broker or buyer per month to confirm that materials are being recycled. If Grantee becomes aware that a broker or buyer has illegally Attachment 3
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handled or disposed of material generated within the Franchise Area or elsewhere, Grantee shall immediately inform the City and terminate its contract or working relationship with such party. If Grantee has provided City with a list of broker/buyers for the month, Grantee shall provide a monthly list only to the extent that the list differs from the list provided in the prior(s) months. (3) Disposal of Recyclable Materials Prohibited. Recyclable Materials may not be disposed of in lieu of Recycling the material.
C. Change in Designated Disposal Location or Recyclable Materials Processing Site. Grantee shall Transport all Solid Waste and Recyclable Materials Collected from the Franchise Area to the Designated Disposal Location and the Approved Recyclable Materials Processing Site, respectively. The City has the right, at its option, to control the Collection, Disposal, and diversion of all Solid Waste and Recyclable Materials generated within the Franchise Area. As part of the rights agreed to herein, the parties hereto agree that:
(1) The City has the right to direct Solid Waste to be Disposed of at any Solid Waste facility or in any manner, respectively, the City may designate; (2) The City has the right to direct Solid Waste to be diverted at any transfer or Processing station the City may designate;
(3) The City has the right to direct Discarded Recyclable Materials collected by Grantee to be Processed at or marketed to a specific facility when in the best interest of the City and provided the collector would receive a reasonable, competitive market value for the Recyclable Materials;
(4) If City directs a change in the Designated Disposal Location, or an Approved Processing Site or Approved Recyclable Materials Processing Site which impacts Grantee’s operational costs, then either party to this Agreement may apply for a rate increase or decrease through the provisions of Section 15A Pass-through Rate Adjustment; (5) Any change in the Designated Disposal Location, an Approved Processing Site or Approved Recyclable Materials Processing Site made by City under this section must comply with all federal, state, and local laws and regulations.
D. Grantee’s Responsibility in Lieu of Direction by City. Throughout the term of this Agreement, unless the City gives notice as provided for herein and subject to the terms of this Agreement, it shall be Grantee’s sole responsibility and duty to Dispose of the Solid Waste Collected and Process the Recyclable Materials Collected in a safe manner and in compliance with all federal, state, and local laws and regulations. Grantee agrees that it shall Dispose of all Solid Waste Collected and Process all Recyclable Materials Collected in the Franchise Area at a Solid Waste facility or Processing facility that is fully licensed and appropriately permitted and, to Grantee’s knowledge, is not in material violation of any health, safety or Hazardous Materials laws, rules, regulations, or orders as long as the cost of disposal and recycling is at no greater cost to ratepayer.
E. Invalidation of City Flow Control Voids Franchise. Should a court of competent jurisdiction rule any provision in this Franchise Agreement related to flow control unlawful or Attachment 3
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unconstitutional, then the entire Franchise Agreement shall become null and void upon the election of the City. However, this Agreement shall not become null and void, and shall remain in full force and effect, as long as Grantee continues to direct Solid Waste, and Recyclable Materials as instructed by the City and abides by all other terms of this section. City deems control of the waste stream a vital component of its waste Disposal program which ensures to the general benefit and welfare of the public. This provision will preserve the City’s ability to pursue any legal methods whereby flow control of waste stream can be achieved.
SECTION 11 – OWNERSHIP OF SOLID WASTE AND RECYCLABLE MATERIALS. All Solid Waste, prior to being placed in a Grantee-provided Container and placed at a designated Collection point, shall be the property of the Generator or producer, if known. In the event said Generator or producer of the Solid Waste is unknown, the Solid Waste shall become the property of the Owner of the parcel upon which said Solid Waste has been deposited. All Solid Waste, upon being placed in a Grantee-provided Container and all Recyclable Materials, upon being placed in a Grantee-provided Container, and placed at a designated Collection point, shall become the property of Grantee. Upon being legally deposited in a Disposal site approved by the Department or transferred to a Processing facility or transfer station not owned by Grantee, all Solid Waste and Recyclable Materials shall forthwith become the property of the permitted operator of the approved transfer station, Disposal site, or Processing facility. Title to and liability for any Excluded Waste shall remain with the producer of the Excluded Waste, even if Grantee inadvertently collects or disposes of such Excluded Waste.
SECTION 12 – PRIVACY
A. Customers Rights of Privacy. Grantee shall use its best efforts to observe and protect the rights of privacy of Customers. Information identifying individual Customers, or the composition of a particular Customer’s Solid Waste or Recyclable Materials shall not be revealed to any Person, private agency, or company, unless upon request of federal, state, or local law enforcement personnel, the authority of a court of law, a statute, or upon valid authorization of the Customer. This provision shall not be construed to preclude Grantee from preparing, participating in, or assisting in the preparation of waste characterization studies or Waste Stream analysis which may be reasonably necessary to comply with AB 939 or any other reports requested by the City under this Agreement or required or requested by any governmental agency.
B. Use of Customer Lists. Grantee shall not market or distribute outside the normal course of its business, mailing lists with the names and addresses of Customers.
SECTION 13 – GRANTEE’S BOOKS AND RECORDS; REPORTS AND AUDITS A. Customer List and Routes. Grantee shall supply the City, upon request, with the name of the Owner or Occupant of each Premise served, the address of the property, the service level subscribed to, and current maps and schedules of Collection routes.
B. Record-keeping and Inspection. Grantee shall maintain detailed records of all receipts and expenditures received or incurred in the operation of such business, including all revenues collected for services rendered. The City, its officers, employees, and agents, shall be entitled to inspect, and audit such books and records upon reasonable notice during normal Attachment 3
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business hours for the purposes of determining actual billings and franchise fee payments and as necessary to determine any adjustment to rates in accordance with Sections 15 A and C of this Agreement. The City will make reasonable effort to protect proprietary information, if labeled.
C. Financial and Operational Records. Grantee shall maintain accurate and complete accounting records containing the underlying financial and operating data relating to and showing the basis for computation of all costs associated with providing services. The accounting records shall be prepared in accordance with Generally Accepted Accounting Principles (GAAP) consistently applied.
D. Collection Service Records. Records shall be maintained by Grantee for City relating to:
(1) Customer services and billing;
(2) Weight and volume of material Collected by type (e.g., Solid Waste and Recyclable Materials);
(3) Routes;
(4) Facilities, equipment, and personnel used;
(5) Facilities and equipment operations, maintenance, and repair; (6) Tonnage of Solid Waste and Recyclable Materials listed by Processing Site or Disposal Site where such materials were delivered;
(7) Recyclable Materials Collection participation and setout rates. Recyclable Materials sales revenue; and
(8) End use and markets for Recyclable Materials.
E. Transfer, Processing, and Disposal Records. Grantee shall maintain records of transfer, Disposal, and Processing of all Solid Waste and Recyclable Materials Collected by Grantee.
F. Customer Service Records. Records shall be maintained by Grantee for City related to:
(1) Categories (compliments, missed pickups, complaints, damage, etc.) of calls;
(2) Complaint log noting the name and address of complainant, date and time of complaint, nature of complaint, and nature and date of resolution; and (3) New Customer accounts.
G. CERCLA Defense Records. City views its ability to defend itself against Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and Attachment 3
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related litigation as a matter of great importance. For this reason, the City regards its ability to prove where Solid Waste Collected are taken for transfer or Disposal, as well as where they are not taken, to be matters of concern. Grantee shall maintain, retain, and preserve records which can establish where Solid Waste Collected was Disposed (and therefore establish where it was not).
This provision shall survive the expiration or earlier termination of this Agreement. Grantee shall maintain these records for a minimum of 3 years beyond expiration or earlier termination of this Agreement and Grantee shall then provide these records to City in an organized and indexed manner rather than destroying or Disposing of them.
H. Quarterly Reports. Quarterly reports, itemized by month, shall present the following information:
(1) Solid Waste Services. Total tonnage Collected and Disposed; (2) Recyclable Materials. Tonnage Collected and Recycled and tonnage of residue Disposed. If the Approved Recyclable Materials Processing Site handles Recyclable Materials Collected in the Franchise Area and from other parties, provide a description of how the quantities of Recyclable Materials are tracked and allocated to the Franchise Area. (3) Customer Service.
(a) Number of Customer calls that pertain to compliments, missed pickups, scheduled clean-ups, Billing concerns, damage claims, etc. (b) Number of complaints received, whether delivered in person, telephone, mail, or others means. The report shall show the date the complaint was received, actions taken to rectify the complaint, and the date the actions were taken. (4) Account Information. In table format, the number of Customers and service levels.
I. Annual Operations Report. Grantee shall submit a written annual report, in a form approved by the City, including:
(1) Information as required pursuant to Section 13.H. of this Agreement, summarized for the preceding four quarters;
(2) Identification of severe market depressions for Recyclable Materials and contingency plans for such events in the future;
(3) Summary assessment of the overall Solid Waste and Recyclable Materials programs from Grantee’s perspective, including but not limited to, (i) highlights of significant accomplishments, (ii) problems, and (iii) recommendations and plans to improve the programs; (4) A revenue statement, showing quarterly Franchise Fee payments; and Attachment 3
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(5) Grantee shall report any events of non-compliance with any provisions of the City Code, state and federal law, regulatory orders, and regulations imposed by other regulatory agencies, and the conditions contained in this Agreement during the prior 12-month period.
J. Annual Disclosure Statement. In conjunction with the annual operations report, as described in Section 131, Grantee shall file a disclosure statement which contains the following information:
(1) A listing of all Subcontractors to this Agreement (including the name, address, and social security or tax identification number of the Subcontractor); (2) A listing of all felony convictions or pleas of nolo contendere of Grantee or Subcontractor by final judgment in any state or federal court within the preceding three years; (3) A listing of any instances in which a permit or contract held by Grantee or Subcontractor was terminated by a final judgment in any state or federal court within the preceding three years;
(4) A listing of all final adjudications finding Grantee or Subcontractor in contempt of any state or federal court order enforcing any state and federal law within the preceding three years; and
(5) A listing of all final convictions or pleas of nolo contendere of Grantee or Subcontractor, under state or local laws governing safety of operations, compliance with environmental and other franchise requirements in the City, whether misdemeanors or infractions.
If Grantee or Subcontractor is a chartered lending institution or a publicly held company or a wholly-owned subsidiary of such a company required to file annual or quarterly reports under the Securities and Exchange Act of 1934, Grantee or Subcontractor may satisfy the above required information by submitting quarterly or annual reports of its publicly held parent company for the preceding three years. If these reports are incomplete or if they fail to contain the information requested in subsection D items 1, 2, 3, 4, and 5 herein, Grantee or Subcontractor shall make such information available to City. The City may also require, at applicant/grantees’ expense, preparation and submittal of a Dunn and Bradstreet, or comparable, report.
If Grantee or Subcontractor has filed a disclosure statement, it shall file a supplemental disclosure statement only to the extent that its status or events differ from those covered by the original disclosure statement.
K. Reporting Requirements.
(1) Grantee may propose report formats that are responsive to the objectives and audiences for each report. The format of each report shall be approved by the City. Grantee agrees to mail a copy of all reports and submit all reports on computer discs, by e-mail or by modem in a format compatible with City’s software and computers at no additional charge.
Grantee will provide a certification statement, under penalty of perjury, by the responsible Grantee official, that the report being submitted is true and correct to the best knowledge of such official after their reasonable memory.
Attachment 3
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(2) Grantee shall submit quarterly reports within 30 calendar days after the end of the reporting month. Grantee shall submit annual reports no later than 60 calendar days after the end of the reporting year.
(3) Grantee shall submit (via mail and e-mail) all reports to the City Manager.
L. Failure to Report. The refusal, failure, or neglect of Grantee to file any of the reports required, or the inclusion of any materially false or misleading statement or representation made knowingly by Grantee in such report shall be deemed a material breach of this Agreement, and shall subject Grantee to all remedies, legal or equitable, which are available to the City under this Agreement or otherwise.
SECTION 14 – GRANTEE’S RATES
A. City’s Powers. Grantee’s rates and charges imposed on City Customers for the services it performs under this Agreement are subject to the prior review, approval, and regulation by City. City approves the rates specified in Exhibit B.
B. Rate Requirements.
(1) Grantee shall provide the services described in this Agreement and be compensated by its Customers at the rates specified in Exhibit B. (2) The rates specified in Exhibit B shall be effective as of the Commencement Date and shall remain in effect until January 1, 2024
(3) The rates specified in Exhibit B may be modified in accordance with the Rate Adjustments as described in Section 15 of this Agreement. (4) All charges or fees for service by a Grantee shall be fixed and approved by the City.
(5) Charges for Industrial Solid Waste removal service may be negotiated between Grantee and the Customer. If the negotiated charges are less than the rates specified in Exhibit B, Grantee shall notify the City in writing of each Customer that is offered and charged a lower rate. In no event shall Grantee charge a rate in excess of those specified in Exhibit B without prior written approval by the City, except for weight overages as provided for in this section. (6) Grantee may not charge residential and commercial Customers at rates other than those specified in Exhibit B except that the City may authorize a Customer to receive reduced service for a reduced charge and may approve an agreement between the Customer and Grantee to provide additional service for an additional charge. These authorized reduced or additional charges may be revised by the City from time to time after a public hearing thereon and a determination by the City that a change is in the public interest and is mutually agreed upon by both parties. (7) Grantee may charge an extra commercial Container overload charge. This extra charge may be levied by Grantee for each occurrence of a Container overload. Overload shall be defined as an excess of solid waste mounded such that Container covers cannot completely Attachment 3
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close. The Container overload charge shall be based on the amount of excess solid waste causing the overload condition. The Container overload charge shall be calculated by the number of 35- gallon Containers that the excess solid waste fills multiplied by the 35-gallon Container once per month rate as set forth in Exhibit B.
(8) All compensation paid to Grantee shall be paid by its Customers and the City is in no way obligated to provide Grantee any compensation for services described in this Agreement.
SECTION 15 – RATE ADJUSTMENT PROCEDURES
A. Pass-through Rate Adjustment.
(1) At any time that the City Council (the “Council”) either establishes a City surcharge on Grantee’s Customers, increases an existing City surcharge on Grantee’s Customers, increases the Franchise Fee rate, increases the Disposal charge at City-owned facilities, Grantee may automatically adjust its rates to offset the new or increased fees. (2) If a jurisdiction other than the City establishes or increases surcharges or fees that affect Grantee’s expenses, Grantee may apply to the City for a pass-through rate adjustment to offset the new or increased fees. In applying for a pass through rate adjustment, Grantee must:
(a) Submit a request for the increase, in writing, to the Department; (b) Specify the amount of the requested increase for each rate given in Exhibits A and B; and
(c) Provide documentation that the specified rate increase calculation is reasonable and appropriate and does not include rate increases for any other reason than to recover the direct cost of the additional pass-through expense.
Provided that the Department staff have received and considered the request and documentation described above, and have concluded that the requested rate adjustment calculation is reasonable and appropriate and is solely to recover the direct cost of the additional pass-through expense, the rates given in Exhibits A and B shall be amended by the Council or its designee. (3) The timely application and request for a pass-through rate adjustment increase rests solely with Grantee. There shall be no retroactive increase billing to Customers. The responsibility to implement timely pass through rate adjustments rests solely with Grantee in accordance with the procedures outlined in this Agreement. If for any reason the county fails to respond within thirty days to a pass through rate adjustment request in accordance with the procedures in this Agreement, the failure to respond shall be deemed a rejection, which Grantee may appeal to the Council. Under no circumstances will Grantee ever be permitted to retroactively bill Customers for any rate adjustment increases not implemented in a timely manner (4) At any time that the Council either eliminates a City surcharge on Grantee’s Customers, decreases an existing City surcharge on Grantee’s Customers, decreases the Franchise Attachment 3
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Fee rate, or decreases the Disposal charge at the City-owned facilities, City may apply to Grantee for a pass-through rate adjustment to offset the eliminated or decreased fees. In applying for a passthrough rate adjustment, the City must:
(a) Submit a request for the decrease in writing to Grantee. (b) Specify the amount of the requested decrease for each rate given in Exhibits A, B, and C.
(c) Provide documentation that the specified rate decrease is reasonable and appropriate and does not include rate decrease for any other reason than to offset the direct cost of the decreased or eliminated pass-through expense. (d) Provided that Grantee has received and considered the request and documentation described above, and have concluded that the requested rate adjustment is solely to offset the direct cost of the decreased or eliminated pass-through expense, the rates given in Exhibit A, B, and C shall be amended by the Council or its designee. (e) If for any reason Grantee fails to respond within thirty (30) days to a pass-through rate adjustment request in accordance with the procedures in this Agreement, the rates given in Exhibit A, B, and C shall be amended by the Council or its designee. (5) If a jurisdiction other than the City eliminates or decreases surcharges or fees that effect Grantee’s expenses, the same procedures as described in (D) above, apply. (6) In the case of a jurisdiction other than the City eliminating or decreasing surcharge or fees that affect Grantee’s expenses, Grantee shall be responsible for notifying the City in writing. If Grantee fails to notify the City of eliminated or decreased surcharges or fees per this section, then the City may apply for and request a retroactive pass through rate adjustment decrease; but never a retroactive increase for any reason.
B. Cost-of-Living & Fuel Rate Adjustments. Every full year of this Agreement effective January 1, beginning on January 1, 2025, Grantee may apply for a rate adjustment to offset adjustments in the cost of providing services (Cost-of-Living), fuel, recycling market pricing, and organics market pricing. Grantee shall submit the rate adjustment request no later than November 15 for rates effective the following January 1. Grantee shall notify the City of the adjustments to take place and shall provide the City with its computations and documentation.
Under no circumstances will Grantee ever be permitted to retroactively bill Customers for any rate adjustment increases not implemented in a timely manner for any reason.
For calculation of adjustments, the rates would be divided into three components- fuel, passthrough and all other. The rate adjustment calculation shall be calculated as follows:
Rate Adjustment (%) = COLA+ COFA + PTRA + RCVA + OCVA, whereby:
COFA is the cost-of-fuel adjustment
COLA is the cost-of-labor adjustment
PTDRA is the pass-through disposal rate adjustment
Attachment 3
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RCVA is the pass-through recycling commodity value adjustment OCVA is the pass-through organics commodity value adjustment The cost-of-fuel adjustment (COFA) component is calculated from the fuel component multiplied by one hundred percent (100%) of the change in the average monthly value over the last twelve (12) months, compared to the average monthly value for the preceding twelve (12) month period, of the most recently published California index for #2 diesel fuel, compiled and published by the U.S. Energy Information Administration or its successor. The fuel component is derived from the most recent Annual Financial Report and is calculated as the total fuel costs divided by the total operating expenses.
The cost-of-living adjustment (COLA) component is calculated from all other component multiplied by ninety percent (90%) of the change in the value of the most recently published All Urban Consumers Index (CPI-U), all items, for the San Francisco Oakland-Hayward, CA, Base Period 1982-1984 = 100, not seasonally adjusted, compiled and published by the U.S. Department of Labor, Bureau of Labor Statistics or its successor and its value twelve months before. The all other component is derived from the most recent Annual Financial Report and is calculated as the (total operating expenses less disposal costs and fuel costs) divided by total operating expenses.
The pass-through disposal rate adjustment (PTDRA) is calculated as the increase or decrease in surcharges, fees, or disposal tipping fees from the City, other jurisdictions, and Designated or Approved Disposal Facilities (as a percentage) multiplied by their relative cost component based on the Annual Financial Report and tonnage reports.
The pass-through recycling commodity value adjustment (RCVA) is calculated as the increase or decrease in monthly average annual (or pro-rated in the first year) tipping fee at the Designated Source Separated Recyclable Materials Processing Facility (as a percentage) multiplied by their relative cost component based on the Annual Financial Report and tonnage reports.
The pass-through organics commodity value adjustment (OCFA) is calculated as the increase or decrease in the monthly average annual (or pro-rated in the first year) tipping fee at the Designated Organic Waste Processing Facility (as a percentage) multiplied by their relative cost component based on the Annual Financial Report and tonnage reports.
C. Larger Rate Increases. No sooner than one year after this Agreement becomes effective, and no more frequently than annually thereafter, Grantee may apply for a rate adjustment in excess of the cost-of-living limitation described in Section 9.2.2., above. In applying for such a rate increase Grantee must:
(1) Notify the Department, in writing, of Grantee’s intent to seek a rate increase in excess of the cost-of-living limitation;
(2) Obtain and submit to the Department an independent financial audit report of Grantee’s operations. The City shall select or approve the auditor to perform the audit. The cost of the audit shall be paid by Grantee. The audit must, at a minimum, determine the profitability of Grantee’s operations specific to services provided under this Agreement.
Attachment 3
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Using information provided in the financial audit, as well as records required to be maintained by Grantee under Article 7 of this Agreement, the City shall perform a rate setting study to determine appropriate rates based on projected profitability of Grantee. The appropriate profit margin, and the means of determining profitability, shall be included as part of the rate setting study. The rate setting study shall be conducted by the City, or by a qualified contractor selected by the City. The cost of the rate study shall be paid by Grantee.
City shall then hold at least one public meeting, at a convenient time and place within Grantee’s Franchise Area, to solicit public comment on the proposed rate increases, as determined by the rate setting study. This public meeting shall be duly noticed and shall be held no less than 14 days before the Council considers adoption of the rate increases.
Provided that the City has received the required information, as described in (1) and (2), above, has completed the rate setting study, and has held at least one public meeting and considered public input, the Council may adopt the new rates by amending Exhibits A, B and C. Under no circumstances will Grantee ever be permitted to retroactively bill Customers for any rate adjustment increases not implemented in a timely manner for any reason SECTION 16 – FEES
A. Franchise Fee – Amount. In consideration of the City’s administrative time and expense in the oversight and management of this Agreement and other solid waste-related costs and activities, and as consideration for Grantee’s use of public streets and for City’s maintenance thereof resulting from Grantee’s performance of this Agreement, Grantee shall pay an annual Franchise Fee to the City of $12,000 payable quarterly and within 30 days from the beginning of the quarter. The Franchise Fee may be revised by the City from time to time after a public hearing thereon and a determination by the City that a change is in the public interest, such increases or decreases determined by the City shall be subject to pass-through rate adjustment.
B. Franchise Fee – Deposit. Franchise fees shall be paid to the City which shall deposit them to the City General Fund.
C. Franchise Fee – Delinquency Penalty. Payments are delinquent if not received by the City within 30 days as provided above. All fees are subject to a delinquency penalty of ten percent (10%), which attaches on the first day of delinquency, plus an additional ten percent (10%) for each additional month the payment remains delinquent. These penalties are in addition to the franchise termination provisions of Section 19.
D. Refund of Franchise Fees. Once Franchise Fee payments are made to the City, Grantee may not ask for refund of all or part of Franchise Fees unless such request is based on a mathematical error in its calculation or a double payment of such payment.
SECTION 17 – BONDS, INSURANCE, AND INDEMNIFICATION.
A. Bonds
(1) The City may require Grantee to post a performance bond at a value up to 25% of the estimated annual revenues generated through this Agreement. If, however, Grantee has Attachment 3
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previously satisfactorily demonstrated that Grantee has the financial means and capabilities to perform required services, the City may waive the performance bond requirement or may reduce the required amount of the performance bond. The amount and specifications of the performance bond required for this Agreement are described in Exhibit C. (2) If the City should impose a surcharge, pertaining to Solid Waste Collection and/or Disposal fees, on Grantee’s Customers, Grantee may be required to post a fidelity bond.
Should this occur, the amount, terms, and conditions of the fidelity bond shall be determined by the City and shall be included in this Agreement through amendment of Exhibit C.
B. Insurance. Insurance policies are to be secured by Grantee and remain in full force and effect at all times to provide protection against liability for damages which may be imposed for the negligence of Grantee or that Persons employees or agents, including, but not limited to, general liability and automobile liability insurance. Grantee shall also provide liability coverage under California Workers’ Compensation laws. The amounts of insurance required are to be established herein. Said amounts shall not be construed to limit Grantee’s liability.
The insurance requirements provided herein may be modified or waived in writing by the City, provided the City determines that such waiver or modification does not unreasonably increase the risk of exposure to the City, including the fact that the parent of Grantee may be selfinsured up to a certain acceptable amount.
(1) Workers’ Compensation Insurance. Grantee shall obtain and maintain in full force and effect throughout the entire term of this Agreement full Workers’ Compensation Insurance in accord with the provisions and requirements of the Labor Code of the State of California. Endorsements that implement the required coverage shall be filed and maintained with the Department throughout the term of this Agreement.
(2) Comprehensive General Liability. Grantee shall obtain and maintain in full force and effect throughout the entire term of this Agreement a Broad Form Comprehensive General Liability (occurrence) policy with a minimum limit of TWO MILLION DOLLARS ($2,000,000.00) aggregate and ONE MILLION DOLLARS ($1,000,000.00) per occurrence for bodily injury and property damage, with any self-insured retention not exceeding TWO HUNDRED THOUSAND ($200,000.00} per occurrence. Said insurance shall protect Grantee and City from any claim for damages for bodily injury, including accidental death, as well as from any claim for property damage which may arise from operations performed pursuant to this Agreement, whether such operations are by Grantee itself, or by its agents, employees and/or Subcontractors. Copies of the policies or endorsements evidencing the above-required insurance coverage shall be filed with the City. Endorsements are required to be made a part of all of the following insurance policies required by this Section:
(a) “The City, its employees, agents, and officers, are hereby added as insureds as respects liability arising out of activities performed by or on behalf of Grantee.” (b) “This policy shall be considered primary insurance as respects any other valid collectible insurance the City may possess including any self-insured retention the City Attachment 3
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may have, and any other insurance the City does possess shall be considered excess insurance and shall not contribute with it.”
(c) “This policy shall act for each insured, as though a separate policy had been written for each. This, however, will not act to increase the limit of liability of the insuring company.”
(d) “Prior written notice by certified mail, return receipt requested, shall be given to the City in the event of the suspension cancellation, or non-renewal of this policy for whatever reason. Such notice shall be sent to the City in accordance with the notice provision of the applicable policy.”
(3) Vehicle Liability. Grantee shall obtain and maintain in full force and effect throughout the entire term of this Agreement a vehicle liability policy with a minimum limit of TWO MILLION DOLLARS ($2,000,000.00) per occurrence for bodily injury and TWO HUNDRED THOUSAND DOLLARS ($200,000.00) per occurrence for property damage. Said insurance shall protect Grantee and City from any claim for damages for bodily injury, including accidental death, as well as from any claim for property damage which may arise from operation of owned and non-owned vehicles. Copies of the policies or endorsements evidencing the aboverequired insurance coverage shall be filed with the City.
The limits of such insurance coverage, and companies, shall be subject to review and approval by the City every year and may be increased at that time and match the coverage provided by the City’s own liability insurance policy. The City shall be included as a named insured on each of the policies, or policy endorsements.
C. Indemnification.
(1) Indemnification of City.
(a) Grantee shall defend the City with counsel reasonably acceptable to the City and indemnify the City from and against any and all liabilities, costs, claims and damages to the extent caused by Grantee’s negligence or failure to comply with applicable laws and regulations, including but not limited to liabilities, costs, claims, and damages described in Section 17B, above.
(b) Grantee agrees that it shall protect and defend the City with counsel reasonably acceptable to City, indemnify and hold harmless City, its officers, employees and agents from and against any and all losses, liabilities, fines, penalties, claims, damages, liabilities or judgments (including reasonable attorney’s fees), to the extent arising out of or resulting in any way from Grantee’s exercise of this Agreement, unless such claim is due to the negligence or willful acts of the City, its officers, employees, agents or contractors, or from City’s grant of this Agreement to Grantee.
(c) In addition, Grantee shall defend the City with counsel reasonably acceptable to the City, indemnify and hold the City harmless from any and all litigation and claims, damages and liabilities arising there from, brought to enforce or to challenge this Agreement and/or Attachment 3
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Grantee’s exclusive rights granted there under; provided, however, that Grantee’s obligations hereunder extend only to actions brought against or by Persons not parties to this Agreement. (2) Indemnification of Grantee.
(a) Except as provided by subparagraph (3) AB939 Indemnification, the City shall defend, with counsel reasonably acceptable to Grantee, indemnify and hold Grantee harmless from any and all fines, penalties and assessments levied against or threatened to be levied against the City and/or Grantee for the City’s failure to meet the requirements of AB939, its amendments or any successor legislation and/or all rules and regulations promulgated hereunder to the extent failure is due to the negligence or misconduct of the City, including but not limited to the City’s failure to adopt Source Reduction and Recycling Elements mandated under AB939. (b) (b) In the event that the City directs Grantee to Dispose of or Transport Solid Waste and/or Recyclable Materials to a specific facility, Grantee shall not be held liable for damages at or to that facility, or to the City as a result of the acts or omissions of that facility, unless the damages are caused by the willful or negligent acts of Grantee. (3) AB939 Indemnification. Grantee shall defend with counsel reasonably acceptable to the City, indemnify and hold the City harmless from any and all fines, penalties and assessments levied against or threatened to be levied against the City for the City’s failure to meet the requirements of AB939, with respect to the Waste Stream under Grantee’s control, its amendments or any successor legislation and/or all rules and regulations promulgated hereunder if said failure results from Grantee’s failure to comply with this Agreement and/or Grantee’s failure to comply with said laws, rules or regulations, including but not limited to failing to timely supply to the City the reports and information required by the City in order to comply with AB939.
SECTION 18 – FRANCHISE TRANSFER, ISSUANCE, AND RENEWAL.
A. Franchise Transfer.
(1) In the event that ownership interest of a Grantee is sold, transferred, leased, assigned, mortgaged, pledged, hypothecated, or otherwise encumbered or Disposed of in whole or in part, directly or indirectly, whether voluntarily or by operation of law or through any stock transfer, transfer in trust, change in control, consolidation or merger, this Agreement will be considered non-transferable unless all of the following conditions are met:
(a) Grantee notifies the City, in writing, at least sixty (60) days in advance of the transfer in ownership interest, as defined above, and submits a Disclosure Statement in accordance with Section 13 K; and
(b) Grantee and the party to which ownership interest is being transferred demonstrate that the party to which ownership interest is being transferred has the financial means, experience, and capabilities to fulfill the requirements of this Agreement; and (c) The party to which ownership interest is being transferred demonstrates that the best interest of the public will be served, and that service levels will not decline, or rates increase as a result of the transfer of ownership.
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(2) If Grantee and the party to which ownership interest is being transferred have satisfactorily complied with all of the conditions described above, the City shall not unreasonably deny the transfer of this Agreement. In the event that ownership interest in Grantee changes as described in this section, and the City has approved the transfer of this Agreement, the City has the right to require competitive bid or request for proposal of said Agreement at any time during the remainder of this Agreement term. A two-year notification of such intent shall be given to the Grantee provided that two or more years remain in Agreement term. (3) Any transfer of ownership interest made without having met the conditions described above, and without City approval to transfer this Agreement, shall constitute good cause for revocation of this Agreement.
(4) Notwithstanding the above, the present stockholders in Grantee shall have the right to transfer stock to their spouses and/or relatives within the first degree. (5) Grantee shall compensate the City for all costs incurred by the City to examine the transfer of this Agreement, whether or not the City agrees to the transfer.
B. General Standards of Responsibility.
(1) The City may refuse to approve the transfer of this Agreement, if the City finds by a preponderance of evidence that the buyer has:
(a) Intentionally misrepresented or concealed any material fact m the disclosure statement;
(b) Obtained a license, permit, contract, or franchise from the City by intentional misrepresentation or concealment of a material fact; (c) Been convicted of a felony or pleaded guilty or nolo contendere to a felony involving the laws of any state or the federal government within the three years preceding the issuance of the license or permit, or execution of the contract or Agreement; (d) Been adjudicated in contempt of an order of any court enforcing laws of this state or the federal government within three years preceding the issuance of the license or permit, or execution of the contract or Agreement; or (e) Disregarded the public safety, as evidenced by convictions or pleas of nolo contendere to the violation of state and local law governing safety of operations, compliance with environmental and other franchise requirements within the City. (2) In deciding whether to renew or allow transfer of this Agreement, the City shall consider the facts and mitigating factors surrounding the foregoing including:
(a) The relevance of the offense to the business for which the license, permit, contract or franchise is issued;
(b) The nature and seriousness of the offense;
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35 {00115649.DOCX.3}
(c) The circumstances under which the offense occurred; (d) The date of the offense; and
(e) The ownership and management structure in place at the time of the offense.
(3) The City shall determine whether the buyer is fit to retain the rights granted under this Agreement. The City shall notify Grantee of its determination within sixty (60) days following Grantee’s submittal of the disclosure form. Failure by the City to make a determination regarding Grantee’s fitness for transfer, within the time frame indicated above, shall in no case result in the revocation of Grantee’s rights under this Agreement, an order to cease operations, or a termination of this Agreement.
C. Opportunity to Demonstrate Rehabilitation.
(1) In determining whether to approve of a transfer of this Agreement, the City shall first allow the buyer to submit evidence of rehabilitation and shall consider the buyer’s efforts to prevent recurrence of unlawful activity. Items to be considered by the City shall include:
(a) The record and history of implementing successful corrective actions undertaken to prevent or minimize the likelihood of recurrence of the offense. (b) Whether the offense was an isolated incident or a series of related incidents.
(c) Whether the buyer cooperated with government bodies during investigations.
(d) The number and types of permits, contracts or franchises held by the buyer.
(e) Implementation by the buyer of formal policies, training programs, and management controls to substantially minimize or prevent the occurrence of future violations or unlawful activities.
(f) Implementation by the buyer of an environmental compliance auditing program to assess and monitor the adequacy of the internal systems to ensure compliance with environmental laws, regulations and conditions set forth in this Agreement. (g) The buyer’s discharge of individuals, or severance of the interest of or affiliation with responsible parties, which would otherwise cause the City to deny the renewal, transfer or refuse to enter into this Agreement; and (8) Consideration of the need for this Agreement in advancing the City’s welfare, health, and prosperity. (2) Where the City determines that pursuant to the above, mitigating factors exist, or, pursuant to this Section 18 C, that the buyer has demonstrated rehabilitation, the City shall approve the transfer of this Agreement.
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SECTION 19 – TERMINATION.
A. Events of Default. Each of the following shall constitute an event of default (“Event of Default”) hereunder:
(1) Grantee has demonstrated an inability to properly perform the franchised activity, failed to comply with one or more of the terms or conditions of this Agreement, or future amendment(s) to this Agreement, failed to comply with any material federal, state, or local laws, ordinances, rules, or regulations pertaining to the franchised activity, or when the franchised activity has become a nuisance or is detrimental to the public health, safety, or welfare. If Grantee does not perform franchise services for a period in excess of 15 consecutive days, this Agreement may be terminated by the City. Grantee shall not be in default of this Agreement if Grantee commences such action required to cure the particular breach within 30 calendar days after such notice, and it continues such performance diligently until completed. (2) Any representation, warranty, or disclosure made to City by Grantee in connection with or as an inducement to entering into this Agreement or any future amendment to this Agreement, which proves to be false or misleading in any material respect as of the time such representation or disclosure is made, whether or not any such representation, warranty, or disclosure appears as part of this Agreement.
(3) There is a seizure or attachment (other than a pre-judgment attachment) of, or levy affecting possession on, the operating equipment of Grantee, including without limit its vehicles, maintenance or office facilities, or any part thereof of such proportion as to substantially impair Grantee’s ability to perform under this Agreement and which cannot be released, bonded, or otherwise lifted within 48 hours excluding weekends and Holidays. (4) Grantee files a voluntary petition for debt relief under any applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, or shall consent to the appointment of or taking of possession by a receiver, liquidator, assignee (other than as a part of a transfer of equipment no longer useful to Grantee or necessary for this Agreement), trustee (other than as security for an obligation under a deed of trust), custodian, sequestrator (or similar official) of Grantee for any part of Grantee’s operating assets or any substantial part of Grantee’s property, or shall make any general assignment for the benefit of Grantee’s creditors, or shall fail generally to pay Grantee’s debts as they become due or shall take any action in furtherance of any of the foregoing;
(5) A court having jurisdiction shall enter a decree or order for relief in respect of Grantee, in any involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or hereafter in effect, or Grantee shall consent to or shall fail to oppose any such proceeding, or any such court shall enter a decree or order appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (orsimilar official) of Grantee or for any part of Grantee’s operating equipment or assets, or orders the winding up or liquidation of the affairs of Grantee; (6) If Grantee (i) is the 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 City to be unable to regularly pay its bills as they become due; or (iii) is the subject Attachment 3
37 {00115649.DOCX.3}
of a civil or criminal judgment or order entered by a federal, state, regional or local agency for violation of an Applicable Law, and the City believes in good faith that Grantee’s ability to perform under this Agreement has thereby been placed in substantial jeopardy, the City may, at its option and in addition to all other remedies it may have, demand from Grantee reasonable assurances of timely and proper performance of this Agreement, in such form and substance as the City believes in good faith is reasonably necessary in the circumstances to evidence continued ability to perform under this Agreement. If Grantee fails or refuses to provide satisfactory assurances of timely and proper performance in the form and by the date required by City, such failure or refusal shall be an event of default.
B. Right to Suspend, Amend, or Terminate. Upon an “Event of Default” by Grantee, the City may suspend, amend, or terminate this Agreement.
C. Procedures.
(1) Prior to suspending, amending, or terminating this Agreement, the City may provide the Grantee with written notice of the proposed action and the reasons for it. The notice shall state that prior to the suspension, amendment or revocation, Grantee is entitled to a hearing before the City if Grantee requests such a hearing in writing and the request is received by the City not more than fifteen (15) days after notice of the proposed action has been mailed to Grantee. (2) If the City does not receive a written request for a hearing within the time period prescribed above, Grantee is deemed to have waived the right to a hearing and the City may immediately suspend, amend, or terminate this Agreement on the terms specified in the notice. (3) In the event of a serious violation, as determined by the City, or in the event of repeated violations of this Agreement, this Agreement shall be terminated by the City Council.
D. Liquidated Damages.
(1) General. The City and Grantee find that as of the time of the execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by City as a result of a breach by Grantee of its obligations under this Agreement. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of this Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that exclusive services might be available at substantially lower costs than alternative services and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the termination of this Agreement for such breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches.
(2) Service Performance Standards; Liquidated Damages for Failure to Meet Standards.
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(a) The Parties further acknowledge that consistent, reliable Solid Waste and Recyclable Materials Collection service is of utmost importance to City and that City has considered and relied on Grantee’s representations as to its quality-of-service commitment in awarding an Agreement to it. The City and Grantee recognize that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable service and performance. The City and Grantee further recognize that if Grantee fails to achieve the performance standards or fails to submit required documents in a timely manner, City and its residents and businesses will suffer damages, and that it is, and will be, impractical and extremely difficult to ascertain and determine the exact amount of damages which City will suffer. Therefore, without prejudice to City’s right to treat such non-performance as an event of default under this Section, the City and Grantee agree that the Liquidated Damages amounts established in Exhibit E of this Agreement and the following Liquidated Damage amounts represent a reasonable estimate of the amount of such damages considering all of the circumstances existing on the Effective Date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be anticipated and the anticipation that proof of actual damages would be costly or impractical.
(b) Grantee agrees to pay (as Liquidated Damages and not as a penalty) the amounts set forth in the Schedule of Liquidated Damages, Exhibit E. (c) City may determine the occurrence of events giving rise to Liquidated Damages through the observation of its own employees or representative or investigation of complaints by Customers, Owners, and Generators. (d) Liquidated Damages will only be assessed after Grantee has been given the opportunity but failed to rectify the damages as described in this Agreement. City shall give Grantee notice of its intention to assess Liquidated Damages. The notice will include a brief description of the incident(s) and non-performance. The City may review (and make copies at its own expense) all information in the possession of Grantee relating to incident(s) and nonperformance. City may, within 15 calendar days after issuing the notice, request a meeting with Grantee. City may present evidence of non-performance in writing and through testimony of its employees and others relevant to the incident(s) and non-performance. City will provide Grantee with a written explanation of his or her determination on each incident(s) and non-performance prior to authorizing the assessment of Liquidated Damages under this Section 19 E (2). The decision of City shall be final, and
(e) Grantee shall not be subject to, or required to exhaust, any further administrative remedies.
(3) Amount. City may assess Liquidated Damages for each calendar day or event, as appropriate, that Grantee is determined to be liable in accordance with this Agreement in the amounts specified in Exhibit E subject to annual adjustment described below. (4) Timing of Payment. Grantee shall pay any Liquidated Damages assessed by City within 15 calendar days of the date the Liquidated Damages are assessed. If they are not paid within the 150-day period, and providing Grantee has exhausted its right to administrative review in accordance with this Section, City may proceed against the performance bond required by this Attachment 3
39 {00115649.DOCX.3}
Agreement, request replacement of Grantee’s general manager, order the termination of the exclusive Collection rights granted by this Agreement, or all of the above.
SECTION 20 – RIGHTS OF CITY TO PERFORM DURING EMERGENCY.
A. Provision of Emergency Services. Grantee shall provide emergency services at the City’s request in the event of major accidents, disruptions, or natural calamities. Emergency services may include, but are not limited to, assistance handling salvaged materials, Processing, Disposing of Solid Waste or Recyclable Materials following a major accident, disruption, or natural calamity. Grantee shall be capable of providing emergency services within 24 hours of notification by the City or as soon thereafter as is reasonably practical in light of the circumstances.
Emergency services, which exceed the Grantee’s obligations, shall be compensated in accordance with Section 15.C. If Grantee cannot provide the requested emergency services, the City shall have the right to provide emergency services itself or contract with another party to provide emergency services.
B. Franchise Revocation – Emergency Actions. Notwithstanding provisions of this Agreement to the contrary, the City may temporarily suspend this Agreement, without prior notice and a hearing, whenever an emergency exists which poses an immediate threat to the public health, safety, or welfare. In such a case, the City shall attempt to notify Grantee at least twenty-four (24) hours prior to the proposed action. A hearing shall be held within seventy-two (72) hours of the action taken to suspend the franchise. Appeals to the City Council are governed by Section 21.
C. Labor Dispute – City Assumption of Duties – Authorized. In the event the refuse Collection of a Grantee is interrupted by a labor dispute and scheduled Collections are discontinued for more than seventy-two (72) hours, the City shall have the right to forthwith to commence providing service itself or contract with another party to provide services for the purpose of continuing the service which Grantee has agreed to provide in order to preserve and protect the public health and safety. Should Grantee fail to demonstrate to the satisfaction of the City that required services can be resumed by Grantee prior to the expiration of the aforementioned one hundred twenty (120) days, the rights and privileges granted to Grantee may be forfeited and the franchise granted herein may be terminated.
D. Labor Dispute – City Assumption of Duties – Use of Revenue. During any period in which the City has temporarily assumed the obligations of Grantee under this Agreement, the City shall be entitled to the Gross Revenues attributable to operations during such period and shall pay therefrom only those costs and expenses, including a reasonable rental for use of trucks and equipment, applicable or allocable to the period. The excess, if any, of revenue over applicable or allocable costs and expenses during such period shall be deposited in the treasury to the City to the credit of the General Fund. Final adjustment and allocation of Gross Revenues, costs and expenses to the period during which the City temporarily assumed the obligations of Grantee shall be determined by an audit, by a certified public accountant or licensed public accountant, and prepared in report form with that persons unqualified opinion annexed thereto.
SECTION 21 – GENERAL PROVISIONS.
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A. Entire Agreement. This Agreement, including the exhibits, represents the full and entire Agreement between the City and Grantee with respect to the matters covered herein.
B. Force Majeure.
(1) Neither party shall be in default under this Agreement in the event and for so long as it is impossible or extremely impracticable for it to perform its obligations due to any of the following reasons: inability to access a container, riots, wars, sabotage, civil disturbances, insurrection, explosion, natural disasters such as floods, earthquakes, landslides, fires, and volcanic eruptions, epidemics or pandemics (or restrictions imposed by governmental authorities in response thereto) strikes, lockouts and other labor disturbances or other catastrophic events which are beyond the reasonable control of Grantee. Labor unrest, including but not limited to strike, work stoppage or slowdown, sick-out, picketing, or other concerted job action conducted by Grantee’s employees or directed at Grantee is not an excuse from performance and Grantee shall be obligated to continue to Collect and Dispose of Solid Waste, notwithstanding the occurrence of any or all of such events; provided, however, that labor unrest or job action directed at a third party over whom Grantee has no control, shall excuse performance. (2) A party claiming excuse under this Section must (i) have taken reasonable precautions to avoid being affected by the cause, and (ii) notify the other party in writing within 5 days after the occurrence of the event specifying the nature of the event, the expected length of time that the party expects to be prevented from performing, and the steps which the party intends to take to restore its ability to perform.
(3) In the event a labor disturbance interrupts Collection, Transportation Disposal, and/or Processing of Solid Waste or Recyclable Materials by Grantee as required under this Agreement, City may elect to exercise its rights under Section 20 of this Agreement.
C. Notice Procedures. All notices, demands, requests, proposals, approvals, consents, and other communications which this Agreement requires, authorizes, or contemplates shall be in writing and shall either be personally delivered to a representative of the Parties at the address below or deposited in the United States mail, first class postage prepaid, addressed as follows:
If to City: City Manager
City of Point Arena
PO Box 67
451 School Street
Point Arena, CA 95468
If to Grantee: Redwood Waste Solutions, Inc.
Attention: District Manager
PO Box 60
Ukiah, CA 95482
With a copy to: Waste Connections US, Inc.
Attention: Legal Department
3 Waterway Square Place, Suite 110
The Woodlands, TX 77380
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The address to which communications may be delivered may be changed from time to time by a notice given in accordance with this Section. Except as otherwise provided herein, the notices required or given pursuant to this title shall be deemed properly served on the day it is personally delivered or when deposited, postage prepaid, in the United States mail, addressed to the address provided to the Department.
D. Independent Contractor. Grantee is an independent contractor and not an officer, agent, servant, or employee of City. Grantee is solely responsible for the acts and omissions of its officers, agents, employees, Grantees and Subcontractors, if any. Nothing in this Agreement shall be construed as creating a partnership or joint venture between City and Grantee. Neither Grantee nor its officers, employees, agents or Subcontractors shall obtain any rights to retirement or other benefits which accrue to City employees.
E. Roadway Damage. Except in the case of Grantee’s negligence or willful misconduct, Grantee shall not be liable for any damages to pavement, curbing, or other driving surface resulting from the weight of its trucks and equipment. This Agreement does not purport to affect, in any way, Grantee’s civil liability to any third parties.
F. Property Damage. Any physical damage caused by the negligent or willful acts or omissions of Grantee, employees of Grantee or Subcontractors of Grantee to private or public property shall be repaired or replaced by Grantee, at Grantee’s sole expense. Grantee’s obligation to repair or replace such damage property shall only apply to the extent such damage was proven to be caused by Grantee, employees of Grantee or Subcontractors of Grantee.
G. Compliance with City Code. Grantee shall comply with those provisions of the City Code which are applicable, and with any and all amendments to such applicable provisions during the term of this Agreement, subject to Section 1.C.
H. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Agreement or any part thereof is, for any reason, held to be illegal, such decision shall not affect the validity of the remaining portions of this Agreement or any part thereof, except as specifically set forth herein.
I. Waiver or Modification. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of both parties to this Agreement.
J. Forum Selection. Grantee and City stipulate and agree that any litigation relating to the enforcement or interpretation of this Agreement, arising out of Grantee’s performance or relating in any way to the work shall be brought in Superior Court in Mendocino County.
K. Court Costs and Attorney Fees. In the event legal action is instituted by either party to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney fees and actual costs in connection with such action.
[Remainder of page intentionally left blank;
Signature page follows.]
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Attachment 3
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IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have affixed their hands on the day and year this Agreement first above written.
GRANTEE:
REDWOOD WASTE SOLUTIONS, INC.
By: ______________________________________
Susan VanDelinder, Division Vice-President
Date: ______________________________________
CITY:
CITY OF POINT ARENA
By: ______________________________________
_____________________, Mayor
Date: ______________________________________
ATTEST:
By: ______________________________________
_____________________, City Clerk
APPROVED AS TO FORM:
By: ______________________________________
_____________________, City Attorney
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EXHIBIT A
SOURCE REDUCTION and WASTE DIVERSION PROGRAMS
SINGLE STREAM RECYCLING: A form of “single stream” curbside recycling service shall be provided to all Single-Family Units, and to any housing units with individual solid waste collection service, including mobile home parks and Multi-Family Units that use separate Carts.
Single stream recycling collection service shall be every week. The single stream recycling Cart will be 95-gallons or 65-gallons. The Cart will be of a style and color approved by the City and will be provided to every customer. Additional Carts will be provided if needed. Recyclable Materials to be collected include, but are not limited to, newspaper, mixed paper, office paper, cardboard, paste board, press board, magazines, aluminum cans, glass containers, small pieces of scrap metal weighing less than 10 pounds and plastic containers No. 1-7. Customers may mix all Recyclable Materials together in the Cart. There shall be no additional charge for the aforementioned service.
COMMERCIAL RECYCLING: A form of Commercial Recycling will be provided to all Commercial Solid Waste customers, including Multi-Family Units that use Bins or Compactors.
Commercial Recycling may be in the form of single stream Recycling Carts, or Bins. Where determined that there is sufficient volume one type of Recyclable Material (greater that one yard per week), Grantee may require Commercial Solid Waste Generator to use Segregated Recyclable Material Bin(s) for the material(s) generated in sufficient volume. Otherwise, Commercial Recycling will be provided as single stream Recycling Carts and Bins. All Carts and Bins will be properly and neatly labeled. Collection will be at a minimum every other week. Recycling Carts will be 95-gallons. Recycling Bins may be of any size deemed necessary by Grantee for the specific Commercial Solid Waste Generator. The Bins and Carts will be of a style and color approved by the City and will be provided to every customer. Additional Bins and Carts will be provided if needed. Recyclable Materials to be collected include, but are not limited to, newspaper, mixed paper, office paper, cardboard, paste board, press board, magazines, aluminum cans, glass containers, small pieces of scrap metal weighing less than 10 pounds and plastic containers No. 1-
7. Customers using single stream recycling may mix all Recyclable Materials together into Carts and bins. There shall be no additional charge for cart recycling service and charges for bin recycling service are set forth in Exhibit B.
CONSTRUCTION AND DEMOLITION WASTE: Grantee shall offer recycling service for segregated unpainted wood, Green Waste, scrap metal, concrete, asphalt, gypsum board (also known as “dry wall”) and carpet padding to Construction and Demolition customers and other renters of roll-off boxes in sizes between 20 and 50 cubic yards. {00115649.DOCX.3}
EXHIBIT B
CITY-APPROVED RATES
Residential Customers MONTH
20 gallon cart $46.93
35 gallon cart $57.03
65 gallon cart $79.38
95 gallon cart $95.58
Driveway/Rollout Fee (Weekly Service Only) $10.00
Contamination Processing Fee $27.48
Call back charge $16.49
Special Pickup - 35 gallon cart $31.08
Special Pickup - 65 gallon cart $36.46
Special Pickup - 95 gallon cart $45.73
Restart Fee $5.00
Commercial Customers MONTH
2 yard container
1/week $385.45
3 yard container
1/week $573.48
4 yard container
1/week $784.64
6 yard container
1/week $1,146.96
Container Locking Fee $8.79
Locks each $21.98
Container Delivery Fee $82.83
Restart Fee $17.59
Recycle Container Rental $27.48
Industrial Customers EACH
4 yard Container $272.96
20 yard drop box $1,147.23
30 yard drop box $1,484.37
40 yard drop box $1,555.50
Delivery fee-4 yard Container $162.17
Delivery fee-Drop Box $261.91
Overload Charge per yard $31.74
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EXHIBIT C
PERFORMANCE BONDING REQUIREMENTS
The City has the right to require Grantee to post a performance bond not to exceed the sum of $100,000 which shall serve as security for the faithful performance by Grantee of all the provisions and obligations of this Agreement.
Due to the demonstrated performance of Grantee in the Collection and Transportation of Solid Waste in City, the City hereby waives the requirement for Grantee to post a performance bond.
However, the City may, at any time during the Term of this Agreement, notify Grantee in writing that this waiver has been rescinded and require the acquisition of a performance bond in the amount and with terms as specified by the City. City agrees that should this waiver be rescinded, the actual cost to Grantee of the bond will be considered a new, City-imposed cost to Grantee that may be recovered as a pass-through rate adjustment as described in Section 15 of this Agreement. {00115649.DOCX.3}
EXHIBIT D
PUBLIC EDUCATION AND COMMUNITY OUTREACH PROGRAMS
Grantee shall perform the following services as part of the public education program. Grantee shall print literature or portions of literature in both English and Spanish if directed by City.
Residential Education Program (minimum requirements)
• Prepare and distribute a brochure describing how to prepare Recyclable Material for Collection. Grantee shall inform residents as to the acceptable materials that can be included in the Recyclable Materials Containers and any common contaminants to be excluded from Collection.
• A bi-annual newsletter shall be distributed to all residents promoting and explaining the programs. The newsletter shall be reviewed and approved by City staff and distributed to residents at the same time Residential bills are issued. • A corrective action notice shall be prepared and used in instances where Customers set out inappropriate materials.
• Non-program related information on source reduction, reuse, and Recyclable Materials (e.g., junk mail reduction, household hazardous waste events, grass cycling, composting, etc.) shall be available.
• Specially designed public education materials and programs to reach multi-Family residents shall be prepared.
Commercial Education Program (minimum requirements)
• Separate “how-to” brochures explaining the Recyclable Materials Collection programs that are tailored to each general business types (i.e., restaurants, office/Commercial buildings, strip malls, and large Commercial businesses). • Prepare and distribute a Recyclable Materials resource guide to provide vendors’ names, numbers, and contacts for purchasing recycled products, re-use donation locations, and other Recyclable Materials companies, to be updated annually. • Prepare and distribute an bi-annual newsletter to be distributed to all businesses promoting and explaining the programs. The newsletter shall be reviewed and approved by City staff.
• Prepare and distribute a corrective actions notice for use in instances where the resident sets out inappropriate materials.
All Customers
• Grantee shall develop and implement a public education program designed to educate Generators regarding proper methods of handling and Disposing of Hazardous Waste and {00115649.DOCX.3}
a load inspection program for Grantee’s personnel to detect and discover Hazardous Waste placed by Generator for Collection by Grantee.
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EXHIBIT E
SCHEDULE FOR LIQUIDATED DAMAGES
Grantee may be assessed Liquidated Damages if Grantee fails to fulfill its obligations with regards to the events listed in this Exhibit in accordance with the terms and conditions of this Agreement with regards to the time frame for accomplishing each event and nature of the responsibility associated with the event unless otherwise stated in this Exhibit. # Obligation Failure Liquidated Damage
Payment
COLLECTION RELIABILITY
1. Maintain Collection Schedule. For each failure over 5 during any Rate Period to Collect from all Customers on a route on the scheduled day (unless non-collection was warranted pursuant to this Agreement) $12.50/Container
2. Start New Customer. For each failure over 10 during Rate Period to commence service to a new Customer within 7 calendar days after order received and account number established
$75/event
COLLECTION QUALITY
3. Leaks, Litter or Spills. For each occurrence over 10 during the Rate Period of unreasonable leaks, litter, or spills of Solid Waste or Recyclable Materials near Containers or on public streets and failure to pick up or clean up such material immediately
$150/event
4. Improper Container Placement. For each occurrence over 20 during the Rate Period of failure to replace Containers in original position, upright, with lids attached to or on Carts or Bins
$75/event
5. Care of Private Property. For each failure over 24 during the Rate Period of not closing a Customer’s gate, crossing planted areas, or damaging private property (including private vehicles)
$150/event
6. Unauthorized Collection. For each occurrence over 10 the during Rate Period of Collecting Solid Waste and Recyclable Materials during unauthorized hours
$300/event
7. Excessive Noise. For each occurrence over 12 during the Rate Period of excessive noise
$150/event
8. Non-Collection Tags. For each failure over 12 during the Rate Period of not tagging Containers which have not been Collected explaining the reason for non-Collection
$75/event
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# Obligation Failure Liquidated Damage
Payment
9. Cleaning Collection Vehicles. For each occurrence over 12 during the Rate Period of failure to clean Collection vehicles at least one time per week
$75/event
10.Discourteous Behavior. For each occurrence of discourteous behavior by Collection vehicle personnel, Customer service personnel, or other employees of Grantee
$250/event
CUSTOMER SERVICE RESPONSIVENESS
11 Call Returns. Failure to return 95 percent of calls received before noon of the following business day
$250/quarter
REPORTING AND NOTICING
12.Quarterly Reports. Failure to submit monthly report (as described in Section 14.H) in the time frame specified in Section 14.L of this Agreement
$50/day report is
overdue
13.Annual Reports. Failure to submit annual reports (as described in Sections 14.1 through 14.K) in the timeframe specified in Section 14.L of this Agreement.
$150/day report is
overdue
14.Report Hazardous Waste. For each failure to notify the appropriate authorities of known reportable quantities of Hazardous Waste within one business day.
$250/event
PUBLIC EDUCATION
15.Failure to prepare and distribute to residents door hanger, flyer or mailer to Customers regarding their specific Collection day and observed Holiday’s
$75/day for each day
until mailer is sent
16.Failure to prepare and mail annual newsletter to all residents by the end of each Rate Period
$75/day for each day
until mailer is sent
BILLING
17 Failure to correctly bill a customer at the approved rate for the service $25 per occurrence OTHER
18 Disposal of Recyclables. For each ton of Recyclable Materials Disposed of without written approval of the City
$250/ton
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# Obligation Failure Liquidated Damage
Payment
19 Use of Unauthorized Facilities. For each ton of Solid Waste or Recyclable Materials Disposed or Processed at a facility not approved for use under the provisions of this Agreement
$250/ton
In placing initials at the places provided, each party specifically confirms the accuracy of the statements made above and the fact that each party has had many opportunities to consult with legal counsel and obtain an explanation of liquidated damage provisions of the time that this Agreement was made.
City Initial Here: _______ Grantee Initial Here: _______