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RESOLUTION NO. 2024-150
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
ACCEPTING TITLE, CONTROL, AND MAINTENANCE
OBLIGATIONS OF A RECONSTRUCTED PORTION OF
DEMENT STREET UPON RELINQUISHMENT BY THE
STATE OF CALIFORNIA AND RECEIPT OF WRITTEN
NOTICE FROM THE STATE THAT THE WORK THEREON
HAS BEEN COMPLETED
WHEREAS, pursuant to “Off-Site Street Construction Permit “No. E 1400631” and plans approved by the City on May 19, 2014, the city allowed the State to perform work on a certain portion of Dement Street, from Post Mile 16.19 to Post Mile 17.1; and WHEREAS, October 23, 2015, the City approved Resolution 2015-232, pursuant to which the City took over the operations and maintenance of Dement Street; and WHEREAS, the State has requested that the City accept title, control, and maintenance obligations of said portion of Dement Street as shown in Exhibit “A” and Exhibit “B”, attached and incorporated herein, upon relinquishment by the State and receipt of written notice from the State that the work has been completed, except for any portion which is adopted by the State as a part of the freeway proper; and
WHEREAS, the State has requested that the City waive the 90-day notice of “Intention to Relinquish” requirement, set forth in Section 73 of the California Streets and Highways Code; and
WHEREAS, the State has requested that the City acknowledge receipt and review of Initial Site Assessment Document EA 0K710, dated October 16, 2023 (“ISA DOC EA 0K710”), and agrees that no dangerous conditions exist on said portion of Dement Street; and WHEREAS, the State has requested that the City accept relinquishment of said portion of Dement Street in its current environmental condition and setting, including, but not limited to, the presence of hazardous materials, as described in ISA DOC EA 0K710; and WHEREAS, the State has requested that the City agree that, within one (1) year of the CTC date of approval of the resolution of relinquishment, the State will conduct a review of the above- referenced ISA DOC EA 0K710, and if the State determines that there is a substantive or potentially substantive adverse change to the environment that did not exist at the time of the above-referenced ISA DOC EA 0K710, the State will immediately notify the City of said changes, and if no substantive or potentially substantive adverse change to the environment is found to exist, then acceptance of this relinquishment in its current environmental condition shall remain in effect; and WHEREAS, the State has requested to be held harmless from and not responsible for any present or future remediation of said hazardous materials upon recordation of the CTC Resolution of
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Relinquishment. Upon said recordation, the City will have all right, title, or interest to said portion of Dement Street shown as proposed Relinquishment No. 498-S on Exhibit “A” and reconstructed Dement Street on Exhibit “B.”
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor and City Council hereby agree to accept title, control and maintenance of said portion of Dement Street upon both relinquishment by the State and receipt of written notice from the State that the work has been completed; and SECTION 2. The Mayor and City Council hereby waive the 90-day Notice of Intent to Relinquish a right of way from the State; and SECTION 3. The Mayor and City Council hereby acknowledge receipt and review of the Initial Site Assessment Document EA 0K710, dated October 16, 2023, and agree that no dangerous conditions exist on said portion of Dement Street; and
SECTION 4. The Mayor and City Council accept relinquishment of said portion of Dement Street in its current environmental condition including, but not limited to, the presence of hazardous materials as described in the above ISA DOC EA 0K710; and SECTION 5. The Mayor and City Council agree that within one (1) year of the CTC date of approval of the resolution of relinquishment, the State will conduct a review of the above-referenced ISA DOC EA 0K710, and if the State determines that there is a substantive or potentially substantive adverse change to the environment that did not exist at the time of the above-referenced ISA DOC EA 0K710, the State will immediately notify the City of said changes, and if no substantive or potentially substantive adverse change to the environment is found to exist, then acceptance of this relinquishment in its current environmental condition shall remain in effect; and SECTION 6. The Mayor and City Council agree the State shall be held harmless from and not responsible for any present or future remediation of said hazardous materials upon recordation of the CTC Resolution of Relinquishment. Upon said recordation, City will have all right, title, or interest to the said portion of Dement Street shown as proposed Relinquishment No. 498-S on Exhibit “A” and reconstructed Dement Street on Exhibit “B”.
SECTION 7. Effective Date. This Resolution shall become effective immediately.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 3rd day of July 2024.
Helen Tran, Mayor
City of San Bernardino
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Attest:
Genoveva Rocha, CMC, City Clerk
Approved as to form:
Best Best & Krieger LLP, City Attorney
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CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2024-150, adopted at a regular meeting held on the 3 rd day of July 2024 by the following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
REYNOSO _____ _____ _______ _______
CALVIN _____ _____ _______ _______
ALEXANDER _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this __ day of July 2024.
Genoveva Rocha, CMC, City Clerk
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EXHIBIT "A"
SHEET 1 OF 1
CITY LIMIT LINE
THE CITY OF SAN BERNARDINO
BY THE STATE OF CALIFORNIA TO
PROPOSED RELINQUISHMENT 498-S
RANCHO MUSCUBIABE
RW
RW
RW
RW
TO VICTORVILLE
TO RIVERSIDE
ACCESS CONTROL
CITY OF SAN BERNARDINO
SAN BERNARDINO
COUNTY OF
DEMENT STREET
STATE ROUTE 215
CITY LIMIT
PORTION TO BE RELINQUISHED
N 44^33'34" W
477.84'445.97'
N 44^30'08" E
50.09'
N15^43'33"E
66.08'
N 48^18'25" W
N45^29'52"W TO BE RELINQUISHED
PORTION OF DEMENT STREET
FOR SPECIFIC R/W DATA.
2. SEE CALTRANS RIGHT-OF-WAY MAP NO. RW000150-06
RESOLUTION
UNTIL THE RECORDATION OF THE RELATED CTC
NOTES: 1. RELINQUISHMENT NO. 498-S IS NOT COMPLETED
COMMUNITY OF DEVORE
UNINCORPORATED
NO SCALE
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STATE OF CALIFORNIA • DEPARTMENT OF TRANSPORTATION
HAZARDOUS MATERIALS DISCLOSURE DOCUMENT - DISPOSAL
ENV-0001-D ( NEW 03/2009)
This document provides written disclosure that the referenced property, as shown on the map(s) attached, has been reviewed by the District Hazardous Waste Technical Staff (located in Environmental or Environmental Engineering) and provides direction regarding property disposal based upon that review.
DATE
APPRAISAL MAP NO.
MAP DATE
DIST/CO/RTE/PM (KP)
EA
PROJECT NAME OR DESCRIPTION
04/01/22 08/SBD/15 PM 14-R16.4/215 PM 16-17.8
503S 08-0K710
n/a I-15/I-215 DEVORE INTERCHANGE IMPROVE
RW PARCEL NUMBER(S):
RW PARCEL NUMBER(S):
Segment 1, Segment 2, Segment 3, Segment 4, Segment 5, Segment 6 RW PARCEL NUMBER(S):
See subsequent pages for detailed information regarding property condition and status.
Form Prepared By:
Approved by District Hazardous Waste Supervisor Date
These Parcels Can NOT Currently Be Sold or Exchanged:
These Parcels Can Be Sold or Exchanged With Full Information Disclosure:
These Parcels Can Be Sold or Exchanged:
ACTION SUMMARY
04/05/2022
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STATE OF CALIFORNIA • DEPARTMENT OF TRANSPORTATION
HAZARDOUS MATERIALS DISCLOSURE DOCUMENT - DISPOSAL
ENV-0001-D ( NEW 03/2009)
HAZARDOUS MATERIALS DISCLOSURE DOCUMENT- DISPOSAL DETAIL Parcel #s
( ) 1. Based upon an Initial Site Assessment, the referenced parcel(s) are considered free of significant hazardous materials (describe potential sources of minor contamination in the Comments section).
Subject parcel(s) can be sold or exchanged.
2. The referenced parcel(s) do not require cleanup cost estimates, but have been identified as having:
( ) (a) minor soil contamination. A hazardous waste Site investigation [ ] been performed on the referenced parcel(s) (if not performed explain the source of knowledge in the Comments section). Subject parcel(s) can be sold or exchanged.; has not has /
( ) (b) contaminated groundwater under the property. A hazardous waste Site investigation [ ] been performed on the referenced parcel(s) (if not performed explain the source of knowledge in the Comments section). The source of contamination has been determined not to be attributed to the Caltrans property or operations (an indemnification letter from the local, state or federal regulatory authority [ ] attached). Subject parcel(s) can be sold or exchanged.;
has not has /
is not is /
( ) (c) contaminated groundwater under the property. A hazardous waste Site investigation [ ] been performed on the referenced parcel(s) (if not performed explain the source of knowledge in the Comments section). However, the source of contamination has been removed or remediated to regulatory cleanup levels (attach closure letter). Subject parcel(s) can be sold or exchanged with full information disclosure.;
has not has /
see above( ) (d) lead soil contamination, probably as a result of aerial deposition of vehicular gasoline emissions. A project specific hazardous waste Site Investigation [ ] been performed on the referenced parcel(s) (if not performed explain the source of knowledge in the Comments section).
Subject parcel(s) can be sold or exchanged with full information disclosure.; has not has /
( ) (e) hazardous materials previously present on the referenced parcel(s) that have been sufficiently remediated. A hazardous waste Site Investigation [ ] been performed on the referenced parcel(s) (if not performed explain the source of knowledge in the Comments section). A regulatory closure letter, if appropriate, is attached. The subject parcel(s) can be sold or exchanged with appropriate and full information disclosure and/or deed restrictions. has not has /
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STATE OF CALIFORNIA • DEPARTMENT OF TRANSPORTATION
HAZARDOUS MATERIALS DISCLOSURE DOCUMENT - DISPOSAL
ENV-0001-D ( NEW 03/2009)
( ) 3. This document includes, as an attachment, a hazardous waste Site Investigation report stating the nature and extent of contamination and cleanup cost estimates for the referenced parcel(s). However, cleanup is not required pursuant to state or federal law. The subject parcel(s) can be sold or exchanged with appropriate and full information disclosure and/or deed restrictions.. ( ) 4. This document includes the hazardous waste Site Investigation work schedule or cleanup plans, schedule, and current status for the referenced parcel(s), as an attachment. The work will be completed by [ ]. The subject parcel(s) can not be sold or exchanged until remediation is complete The District must request a Category 2D Environmental Hold on the subject parcel(s). (Note: Attach this Hazardous Materials Disclosure Document - Disposal to the Application to Hold Excess Land request form - RW 16-3). a responsible party Caltrans /
( ) 5. The referenced parcel(s) have been identified as containing or potentially containing, hazardous materials and can not be sold or exchanged. The District must request a Category 2D Environmental Hold on the subject parcel(s). (Note: Attach this Hazardous Materials Disclosure Document - Disposal to the Application to Hold Excess Land request form - RW 16-3). The Hazardous Materials Disclosure Document - Disposal will be updated when the parcel can be sold or exchanged. In addition:
( ) (a) an appropriate hazardous waste Site Investigation must be performed to determine the nature and extent of contamination, and remedial cost estimates. Proper charging codes and expenditure authorization (EA) need to be provided to the District Hazardous Waste Technical Specialist. Site Investigation is anticipated to be completed by (date).; Comments
ADL is present on site and must be appropriately handled. ( ) (b) a hazardous waste Site Investigation, for potentially contaminated adjacent property, will be scheduled by the District Hazardous Waste Technical Specialist when a permit to enter is obtained by the District/Region Right of Way Office. The permit request was submitted on (date) and the Site Investigation is anticipated to be completed by (date).; ( ) (c) hazardous waste Site Investigation studies are complete and either a regulatory case closure is being obtained or the site requires cleanup or long-term monitoring. Resolution is expected by (date).;
( ) Other: Explain in the Comments section below. (NOTE: Disposal of property without adequate investigation is an unacceptable risk. If adequate investigation has not been completed, use #4 or #5 above).
6. ADA NoticeFor individuals with sensory disabilities, this document is available in alternate formats. For alternate format information, contact the Forms ManagemUnit at (279) 234-2284, TTY 711, or write to Records and Forms Management, 1120 N Street, MS-89, Sacramento, CA 95814.
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State of California California State Transportation Agency
DEPARTMENT OF TRANSPORTATION
“Provide a safe, sustainable, integrated and efficient transportation system to enhance California’s economy and livability” M e m o r a n d u m Making Conservation
a California Way of Life.
This memo presents an assessment of known or likely hazardous materials and waste related concerns pertaining to relinquishment REL - #503S located at route 15 at postmiles R13.8/R14.08, R14.14/R14.43 and route 215 at postmiles 17.04/17.26, 17.19/17.55 in the City of San Bernardino.
Site Description
REL- #503S consists of a 6 segments relinquishing the following streets: Cajon Blvd., Dement St., Cajon Ct., Devore Rd., Nedlee Ave. as identified on the attached KMZ drawing (Attachment 503-S_SHT 01_INDEX_ENV, 503-S_SHT 02_ENV, 503-S_SHT 03_ENV, 503- S_SHT 04_ENV, 503-S_SHT 05_ENV)
See Attachment Relinquishment Map for a site location map.
Current Site Use
The site is presently state highway system.
Use Prior to Acquisition by Caltrans
Based on record search with maintenance, no prior usages with regards to the properties of relinquishment were provided prior to acquisition by Caltrans.
Utility Easements and Pipelines
Based on Caltrans records, no easements and pipelines that may exist on the parcel were provided.
Geotracker/Envirostor Data
The regulatory databases Geotracker and Envirostor maintained by the California State Water Resources Control Board and the California Department of Toxic Substances Control (DTSC), respectively. Caltrans on March 10, 2022, reviewed these regulatory databases and identified 3 regulated properties within 2,640 feet (0.5 mile) of the relinquishment area.
Regulatory No Further Action notices have been issued for the following properties, identified as:
To: NAME Thomas Oatman
Title DEPARTMENT OF TRANSPORTATION
Area District 8 Right of Way
Date:
April 18, 2022
File: 503S
From: NAME Olufemi Odufalu
Title DEPARTMENT OF TRANSPORTATION
Area District 8 Environmental Engineering
Subject: ENVIRONMENTAL DISCLOSURE MEMO: RELINQUISHMENT REL-# 503S
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NAME
April 18, 2022
“Provide a safe, sustainable, integrated and efficient transportation system to enhance California’s economy and livability”
1. Glen Helen Parkway Bridge Project (T10000006459)
Glen Helen Parkway
Devore, CA 92407
2. Glen Helen Regional Park (T0607100575)
2555 Glen Helen Parkway
San Bernardino, CA 92407
There is one active investigation/mitigation sites adjacent to the relinquishment area identified as:
1. Fedex - BNSF Rail Derailment (T10000012364)
7250 Cajon Boulevard
San Bernardino, CA 92407
No permitted underground storage tanks (UST) properties are located adjacent to the relinquishment area.
It is unknown whether any of these sites have impacted the relinquishment area.
Attachment 2 provides a screenshot from Geotracker with the Envirostor layer turned on illustrating the relinquishment parcel and surrounding area.
Based on the CUPA search findings no underground storage records were found near 1677 Devore Rd. which is a site with past underground storage tank history. According to Assessor records available, APN 0349-137-24 has an address of 18345 Cajon Blvd., for which records exist. Past inactive permits/non permits includes the following:
1. Young, Kim
Former International Machine 18345 Cajon Blvd.
San Bernardino
2. Cajon Services
Former Wagon Train Towing 18345 Cajon Blvd.
Devore
3. Wilson's Auto Repair 18345 Cajon Blvd. San Bernardino
Past permits to install, modify, or recover 3 UST’s include the following location:
Kim, Yon Chung 18291/18345 Cajon Blvd. Devore
Sludge discharge occurred on 18345 Cajon Blvd. Devore in 1991 and no site remediation or cleanup records were found.
Aerially Deposited Lead
Tetraethyl lead was first added to gasoline, as an anti-knock additive, in the early 1920s.
California ended the use of leaded fuel for any on-road motor vehicles in 1994, with the
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NAME
April 18, 2022
“Provide a safe, sustainable, integrated and efficient transportation system to enhance California’s economy and livability”
remainder of the United States banning use in 1996. Lead is still an additive to aviation fuels.
Particulate lead was discharged in vehicle exhaust settling on and along California’s highways. The lead discharged from motor vehicles that accumulated in roadside soil is referred to as aerially-deposited lead (ADL). Elevated concentrations of ADL are present in roadside soils throughout California.
Due the use history of the relinquishment area and surrounding area, ADL is present within the area to be relinquished. The areas within the vicinity of the I-15/I-215 Interchange was sampled for ADL which is near the relinquishment area. The Aerially Deposited Lead Investigation and Environmental Evaluation Report dated March 10, 2011, provides the results of this sampling.
This report may be accessed upon request at Caltrans District 8 at 464 W. 4 th St. San Bernardino, CA 92401. Soil with elevated ADL must be appropriately managed.
The EDR section of the ADL report on pages 457 to 468 references the findings of past usages of the area with regards to the properties on Cajon Blvd and Devore Road as well as adjoining properties. The full report is available from this office. See the full report for details.
Striping/Pavement Markings
Lead chromate was a constituent of striping paint and pavement marking materials but has been phased out by Caltrans. However, older striping and pavement marking materials having elevated concentration of lead may still be present. Caltrans did not test these materials to determine if they contain lead chromate. These materials must be appropriately managed if they contain elevated lead chromate.
California Geologic Survey Mineral Hazard Database Review
The California Geologic Survey has compiled maps identifying mineral hazards within California, including petroleum, lithologic units and structures containing naturally occurring asbestos, mercury, asbestos and other mineral hazards. Attachment 3 provides a screenshot of this mapping within the relinquishment area.
These maps indicate that the relinquishment area is not located within a geologic unit known to contain naturally-occurring asbestos or other hazardous minerals.
There are faults mapped on the CGS maps within the relinquishment areas where naturally- occurring asbestos may be present on the slip faces.
There are no known gas wells, oil wells, or seeps identified on the Division of Oil, Gas, and Geothermal Resources (DOGGR) maps within or adjacent to the relinquishment area.
Asbestos Containing Materials/Naturally Occurring Asbestos
Asbestos containing materials (ACM) were frequently used on Caltrans structures in the form of shims, additives to mastics and transite pipe. Materials used in concrete comprising structural elements including bridge decks, buttresses and approaches may contain sand and gravel that may have naturally occurring asbestos. Structures within the relinquishment area may have ACM materials. Caltrans has tested these materials for the presence of asbestos on structures within the relinquishment area to determine if they contain ACM. The report:
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NAME
April 18, 2022
“Provide a safe, sustainable, integrated and efficient transportation system to enhance California’s economy and livability”
Asbestos Containing Materials Survey Report, April 4, 2011, provides the results of this sampling. This report may be accessed upon request at Caltrans District 8 at 464 W. 4th St.
San Bernardino, CA 92401.
Lead Based Paint
Lead-based paint (LBP) was used by Caltrans on many structures. Structures within the relinquishment area may be painted with LBP. In addition, weathered LBP may have fallen into soils beneath structures and be present in elevated concentrations. Caltrans has not tested these materials to determine if they consist of lead-based paint.
Chemically-Treated Wood
Wood products, such as sign posts, are commonly treated with chemical preservatives to protect the wood from insects, microorganisms, fungi, and other environmental conditions that can cause wood decay. Treated wood contains elevated concentrations of hazardous chemicals, once these wood products are removed from service they must be managed under Health & Safety Code §25230 et seq
Spills and Accidental Releases
The Caltrans Maintenance program has no records of spills or accidental releases of hazardous materials within the area of relinquishment.
Visual Observations
Caltrans did not conduct a visual survey of the relinquishment area.
It is unknown whether the identified commercial/industrial uses adjacent to the relinquishment area may have released hazardous materials that could have entered the parcel being relinquished.
Electronic Waste
No electronic wastes were found in the parcel areas.
Site Investigations
The following site investigation reports addressing parcels being relinquished are available in electronic format. These reports may be accessed upon request at Caltrans District 8 at 464 W. 4th St. San Bernardino, CA 92401.
Preliminary Site Investigation Report Former Agricultural Areas within Highway Improvement Zone, dated December 27, 2011
Preliminary Site Investigation Report Former Mobile Service Station, dated December 27, 2011
Preliminary Site Investigation Report Railroad Area Highway Improvements, dated December 27, 2011.
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NAME
April 18, 2022
“Provide a safe, sustainable, integrated and efficient transportation system to enhance California’s economy and livability”
Attachment 1. Map of Relinquishment
Attachment 2. Geotracker and Envirostor Screen Capture
Attachment 3. Naturally Occurring Asbestos Map
Attachment 1. Map shows the 6 segments being relinquished to the County of San Bernardino.
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NAME
April 18, 2022
“Provide a safe, sustainable, integrated and efficient transportation system to enhance California’s economy and livability”
Attachment 2. Geotracker and Envirostor Screenshot showing RWQCB cases in the vicinity of the project site taken on March 10, 2022.
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NAME
April 18, 2022
“Provide a safe, sustainable, integrated and efficient transportation system to enhance California’s economy and livability”
Attachment 3. Naturally occurring asbestos map.
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NAME
April 18, 2022
“Provide a safe, sustainable, integrated and efficient transportation system to enhance California’s economy and livability”
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DISCUSSION
City of San Bernardino
Request for Council Action
Date: July 3, 2024
To: Honorable Mayor and City Council Members
From: Rochelle Clayton, Acting City Manager
Department: City Manager’s Office
Subject: Adopt Resolution Establishing the Homeless
Initiatives Ad Hoc Sub-Committee (All Wards)
Recommendation:
Adopt Resolution No. 2024-141 of the Mayor and City Council of the City of San Bernardino, California, establishing the Homeless Initiatives Ad Hoc Sub-Committee.
Executive Summary
The Homeless Initiatives Ad Hoc Sub-Committee would be a committee composed of less than a quorum of council members and would meet as needed between July 3, 2024, and June 30, 2025. The purpose of the ad hoc sub-committee will be to review and advise staff on policy, program, and project proposals specifically related to the City’s short-term and long-term homeless strategies. This will assist staff in developing future recommendations for addressing the City’s homeless crisis, helping to ensure they are fully vetted and better aligned with Council’s direction.
Background
Chapter 2.76 of the San Bernardino Municipal Code and Section 600 of the City Charter allow the Mayor and City Council to establish sub-committees. These sub- committees must be comprised of less than a majority of Council members, and the sub committees have the power to study, research, and make appropriate recommendations to the Mayor and City Council concerning any matter referred to such committee by the Mayor and City Council.
The power to appoint Council members to sub-committees is established in Section 303 of the City Charter, where it is a power and duty of the Mayor. Specifically, Section 303 (d) of the City Charter states:
Appoint the members and officers of Council committees
(committees made up wholly of less than a majority of City Council members), and perform other duties as specified by the Council.
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The Mayor’s appointment power to sub-committees is also affirmed in Section 2.76.040 of the San Bernardino Municipal Code, whereby the Mayor shall also have the responsibility to designate a chairperson of the sub-committee:
It shall be the responsibility and duty of the Mayor to assign City Council Members to all standing committees and ad hoc sub- committees of the City Council. It shall also be the responsibility and duty of the Mayor to designate chairpersons of all standing sub- committees and ad hoc sub-committees of the City Council.
Discussion
On April 10, 2024, staff presented the Mayor and City Council with an update on the City’s short-term and long-term strategies for addressing the City’s homeless crisis. To ensure that the policies, programs, and projects related to these strategies are properly aligned with Council direction, it is recommended that a Homeless Initiatives Ad Hoc Sub-Committee is established. The proposed Ad Hoc Sub-Committee will review the issues and proposals that are directly related to the implementation of the City’s short- term and long-term homeless strategies and will assist staff in developing recommendations that are to be brought forward for the full consideration of the entire Mayor and City Council. To function as a true “ad hoc” sub-committee, and not a standing committee subject to the Brown Act, the Homeless Initiatives Ad Hoc Sub- Committee would be comprised solely of less than a quorum of council members, have a limited purpose, and have a limited duration. Additionally, the proposed ad hoc sub- committee would be advisory only; the Mayor and City Council cannot delegate any decision-making authority to the sub-committee.
As proposed, the Homeless Initiatives Ad Hoc Sub-Committee would be composed of up to three (3) Council members. The Homeless Initiatives Ad Hoc Sub-Committee would be tasked with the limited purpose of reviewing and vetting policy, program, and project proposals related to the City’s short-term and long-term strategies for addressing the homeless crisis. This includes, but is not limited to, the implementation of the Motel Voucher Program and the development of emergency shelters such as the City’s Navigation Center. The establishment of the Homeless Ad Hoc Sub-Committee would have a set duration, where it would meet as needed between July 3, 2024, and June 30, 2025, at which time it will automatically dissolve. 2021-2025 Strategic Targets and Goals
Establishing the Homeless Ad Hoc Sub-Committee relates to Key Target No 1a:
Establish clear policy direction and predictable organization structures, and Key Target No 3: Improved Quality of Life.
Fiscal Impact
There is no fiscal impact associated with establishing the Homeless Ad Hoc Sub- Committee.
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Conclusion
Adopt Resolution No. 2024-141 of the Mayor and City Council of the City of San Bernardino, California, establishing the Homeless Initiatives Ad Hoc Sub-Committee.
Attachments
Attachment 1 – Resolution No. 2024-141
Attachment 2 – Section 303 of the City Charter
Attachment 3 – Section 600 of the City Charter
Attachment 4 – Chapter 2.76 of the Municipal Code
Ward:
All Wards
Synopsis of Previous Council Actions:
N/A
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RESOLUTION NO. 2024-141
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
ESTABLISHING THE HOMELESS INITIATIVES AD HOC
SUB-COMMITTEE
WHEREAS, under Section 600 of the City Charter and Chapter 2.76 of the San Bernardino Municipal Code, the Mayor and City Council may establish sub-committees to study, research, and make appropriate recommendations to the Mayor and City Council concerning any matter referred by the Mayor and City Council; and
WHEREAS, Section 303(d) of the City Charter states that the Mayor is to appoint the members and officers of Council committees made up of less than a majority of the City Council members; and
WHEREAS, on February 1, 2023, the Mayor and City Council declared a Homelessness State of Emergency; and
WHEREAS, on April 10, 2024, the Mayor and City Council held a study session where staff presented an update on the City’s short-term and long-term strategies for addressing the City’s homeless crisis; and
WHEREAS, the Mayor and City Council now wish to establish an Ad Hoc Sub- Committee to meet as needed until June 30, 2025, to study, research, and make appropriate recommendations to the Mayor and City Council concerning the City’s homeless initiatives.
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1.The above recitals are true and correct and are incorporated herein by this reference.
SECTION 2. The Homeless Initiatives Ad Hoc Sub-Committee is hereby established to meet as needed with the limited purpose of reviewing and vetting policy, program, and project proposals related to the City’s short-term and long-term strategies for addressing the homeless crisis. The Homeless Initiatives Ad Hoc Sub-Committee shall be composed of no more than three (3) City Council members, to be appointed by the Mayor in accordance with Section 303 (d) of the City Charter. The Homeless Initiatives Ad Hoc Sub-Committee may meet as needed between July 3, 2024, and June 30, 2025, at which time it will automatically dissolve.
SECTION 3.The Mayor and City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that
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the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
SECTION 4.Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 5. Effective Date. This Resolution shall become effective immediately.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 3rd day of July, 2024.
Helen Tran, Mayor
City of San Bernardino
Attest:
Genoveva Rocha, CMC, City Clerk
Approved as to form:
Sonia Carvalho, City Attorney
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CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2024-141, adopted at a regular meeting held on the 3 rd day of July 2024 by the following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
REYNOSO _____ _____ _______ _______
CALVIN _____ _____ _______ _______
ALEXANDER _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this ___ day of ____________ 2024.
Genoveva Rocha, CMC, City Clerk
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Section 303. Powers and Duties of the Mayor
The Mayor shall have the following powers and perform the following duties, in addition to others as specified in this Charter:
(a) Attend and preside at meetings of the Council and may participate fully in all discussions, but shall not be entitled to vote except in the event of a tie, to veto a matter, and as otherwise provided in this Charter; (b) Have the authority to veto any Council action approved by fewer than five (5) members of the Council; (c) Shall participate in the vote (1) to appoint or remove the City Manager, City Attorney and City Clerk and fix their compensation and (2) to appoint or remove members of boards, commissions or committees, except committees made up wholly of less than a majority of City Council members; (d) Appoint the members and officers of Council committees (committees made up wholly of less than a majority of City Council members), and perform other duties as specified by the Council; (e) Be recognized as the head of the City government for all ceremonial purposes and by the governor for purposes of military law;
(f) Be the chief spokesperson for the City; and
(g) Represent the City in intergovernmental relations and establish and maintain partnerships and regional leadership roles to advance the City's interest; and may delegate such roles to other members of the Council; and (h) Execute all ordinances, resolutions and contracts approved by the City Council except as otherwise authorized by the City Council.
The Mayor shall have no administrative, appointment or removal powers except as otherwise provided in this Charter.
The office of Mayor shall be a full-time position and the incumbent shall not engage in any business, professional or occupational activities that interfere with the discharge of the duties of the office.
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Section 600. General Provisions
Each board, commission and committee established prior to the adoption of this Charter shall continue to exist, exercise the powers and perform the duties assigned to it upon adoption of this Charter. However, the Council may alter the structure, membership, powers and duties of boards, commissions and committees. The Council also may abolish or create particular boards, commissions and committees, provided that the Council may not abolish the Commissions or Boards specifically provided for in this Charter. The Council may grant powers and duties to boards, commissions and committees that are consistent with the provisions of this Charter.
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Chapter 2.76
COUNCIL COMMITTEES
Sections:
2.76.010 Powers of City Council Sub-Committees
2.76.020 Notice of meetings
2.76.030 Information from City personnel
2.76.040 Assignment of Sub-Committee Members and Designation of Sub-Committee Chairpersons
2.76.010 Powers of City Council Sub-Committees
Any committee appointed by the Mayor from among the City Council membership shall have power to study, research and make appropriate recommendations to the Mayor and City Council concerning any matter referred to such committee by the Mayor and City Council. The scope and function of any such Council Sub-Committee shall be as directed by the Mayor and City Council, which shall provide specific direction as to the purposes and actions of the Council Sub-Committee. (Ord. MC-1455, 2-07-18; Ord. MC-362, 4-17-84; Ord. MC-345, 3-07-84)
2.76.020 Notice of meetings
Each City Council Sub-Committee shall give reasonable notice of time and place of its meetings and shall provide a copy of its agenda, attachments and minutes, to the Mayor, City Council, City Manager, City Attorney and such other City officials as it may deem advisable.
(Ord. MC-1455, 2-07-18; Ord. MC-362, 4-17-84; Ord. MC-345, 3-07-84)
2.76.030 Information from City personnel
Upon the referral of any matter by the Mayor and City Council, such City Council Sub-Committee, whether standing, permanent or temporary, shall have power to request, upon giving reasonable notice, the City Manager to provide or cause to be provided to the Sub-Committee such data reasonably required by the City Council Sub-Committee to carry out its direction.
(Ord. MC-1455, 2-07-18; Ord. MC-362, 4-17-84; Ord. MC-345, 3-07-84)
2.76.040 Assignment of Sub-Committee Members and Designation of Sub- Committee Chairpersons It shall be the responsibility and duty of the Mayor to assign City Council Members to all standing committees and ad hoc sub-committees of the City Council. It shall also be the responsibility and duty of the Mayor to designate chairpersons of all standing sub- committees and ad hoc sub-committees of the City Council. (Ord. MC-1455, 2-07-18; Ord. MC-1289, 11-04-08)
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DISCUSSION
City of San Bernardino
Request for Council Action
Date: July 3, 2024
To: Honorable Mayor and City Council Members
From: Rochelle Clayton, Acting City Manager
Lynn Merrill, Director of Public Works, Operations &
Maintenance
Department: Public Works
Subject: Consideration of the Third Amendment to the City’s Exclusive Franchise Agreement for Integrated Solid
Waste Collection, Processing and Disposal Services
with Burrtec Waste Industries, Inc. (All Wards)
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Resolution No. 2024-111;
1. Approving the Third Amendment to the City’s Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing and Disposal Services with Burrtec Waste Industries, Inc.
Executive Summary
Consideration of approval of the Third Amendment to the Franchise agreement between the City of San Bernardino and Burrtec Waste Industries, Inc. to continue the current $26.42 per month rate for Single Family and Multi-Family Dwelling units and all other per month rates as currently set forth; implementing the SB 1383 Regulations to require residential and commercial waste generators to participate in organic recycling programs, and extending the existing franchise agreement from March 31, 2026 to March 31, 2031.
Background
The City of San Bernardino has an exclusive Franchise Agreement (Agreement) with Burrtec Waste Industries, Inc., (Burrtec) to provide waste and recycling services to all residents and businesses in the City, effective April 1, 2016 through March 31, 2026.
The initial rate set forth for Single or Multi-Family Dwellings for the period April 1, 2016 through June 30, 2017 was $22.84 per month. The original Franchise Agreement has
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been amended twice. The First Amendment to the Agreement made adjustments to the list of City-owned vehicles, including those that were originally purchased by Burrtec. The Second Amendment to the Agreement further revised the list of City-owned vehicles to account for vehicles that had been disposed of by the City. Both the First and Second Amendments were approved in January of 2016.
Under Section 21.1.3 of the Franchise Agreement, Burrtec is allowed to submit a proposed annual Consumer Price Index (CPI) inflationary rate adjustment and rate schedule to the City Manager for review by March 1 each year. The Agreement also caps the annual CPI rate adjustment at 5%, with any amount above 5% or below 0% carried forward and applied in subsequent years. These rate adjustments would take effect July 1st of each year.
Senate Bill (SB) 1383, (Lara, Chapter 395, Statutes of 2016), was passed by the Legislature to reduce greenhouse gases produced by organic material in the waste stream. The California Department of Resources Recycling and Recovery (CalRecycle) adopted regulations to implement SB 1383 (SB 1383 Regulations) and has a large impact on solid waste services the City was required to provide to its residents and businesses beginning January 2022. Because these mandated services are not included in the current Agreement, an amendment is now required to incorporate them.
In 2021, the annual CPI adjustment increased the Single Family and Multi-Family Dwelling rate from $22.84 to $26.42 per month. In 2022, the annual CPI adjustment was deferred due to negotiations with Burrtec. In late 2022, the City and Burrtec commenced negotiations relating to the implementation of the SB 1383 Residential Program and a subsequent rate adjustment as a result of changes in law which required the provision of organic waste programs due to the SB 1383 Regulations. An initial public hearing was scheduled for February 15, 2023 and the Proposition 218 notice was mailed 45 days before the February 2023 hearing. Staff prepared a Third Amendment to the Agreement to include required changes due to the SB 1383 Regulations. However, the City scheduled a subsequent public hearing on May 17, 2023 to provide for adequate notice.
The proposed rate for Single Family and Multi-family dwelling units was $37.97. At the May 17, 2023 Council meeting, Council directed staff to continue the Public Hearing to June 21, 2023 and conduct additional negotiations with Burrtec for a lower rate. On June 31, 2023, staff requested that the Public Hearing be again continued to July 19, 2023. On September 6, 2023, staff again requested that the Public Hearing be continued to January 17, 2024 and staff advised that they had retained R3 Consulting Group (R3 Consulting), a nationally recognized solid waste consulting firm, to conduct the rate analysis and provide draft language for a Third Amendment to the Agreement.
At the January 17, 2024, Council meeting, staff requested that the Public Hearing process be terminated, and that a new rate proposal be brought forward by May 1, 2024.
Over the last eight months, R3 Consulting has assisted the City in negotiations. Staff has worked with R3 Consulting to complete a thorough review of the Agreement, identify
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changes that needed to be made to implement the SB 1383 Regulations, and negotiate revisions to the Third Amendment to incorporate these changes.
Section 4.3 of the Agreement “Term Extensions” permits the City to negotiate at its discretion, one five-year extension to the Agreement, which would extend the term from March 31, 2026, to March 31, 2031. Pursuant to Section 4.3, the City negotiated with Burrtec between April 1, 2023 and ended March 31, 2024.
At the January 17, 2024, Council meeting, staff advised the Council that it was expecting to request proposals for new solid waste and recycling services prior to expiration of the existing Agreement on March 31, 2026. Based on business considerations, on March 29, 2024, Burrtec submitted a proposal to retain the existing rates in exchange for the City extending the term by five years. Staff and R3 reviewed this revised proposal. The key elements of the proposal are set forth in the Discussion section below.
Discussion
SOLID WASTE RATES – Burrtec has proposed to hold the residential solid waste rates to the current monthly rate of $26.42 through June 30, 2025. This means that the City of San Bernardino will have the lowest residential monthly rates of any of the cities within the County. Staff conducted a survey of solid waste rates in the larger San Bernardino and Riverside metropolitan areas, and the result of the survey are shown in the table in Exhibit 1. As shown in Exhibit 1, Residential rates for Single Family dwellings currently range from $28.08 for Loma Linda to $40.77 per month for Redlands. The average residential solid waste rate among the 18 cities is $34.51.
The proposed rate set forth by Burrtec at $26.42 per month for FY 24-25 would place the City at the absolute lowest rate in the Inland Empire among the 18 surveyed cities.
This rate would also serve as the base rate for additional rate increases, starting in July 2025.
SB1383 IMPLEMENTATION – Burrtec proposes to implement the SB1383 Residential and Small Commercial Generator Program, effective July 1, 2024. This will bring the City into compliance with State requirements and will prevent any potential enforcement efforts by CalRecycle, including, but not limited to, possible $10,000 per day fines against the City.
STREET SWEEPING SERVICE ISSUES – Burrtec has retained a new street sweeping contractor who is fully compliant with the requirements of the street sweeping program, and uses Global Position System. This will allow the City to better monitor the sweeping program, including complaint resolution.
PERIOD OF PERFORMANCE – Burrtec is requesting that the City extend the term end date of the Agreement by five years, from March 31, 2026 to March 31, 2031.
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Staff and R3 have reviewed Burrtec’s proposal, which is set forth in the attached Third Amendment. Staff recommends Council adopt the Third Amendment as it offers the best value to the City’s rate payers, makes more staff resources available to achieve high priority goals, avoids costly processing and ensures immediate legal compliance with state laws that could otherwise result in costly fines to the City.
If the Third Amendment is approved, there will be no need to hold a Public Hearing in 2024 to adopt rates, because the rates would remain the same. A Public Hearing would be necessary in May 2025, if Burrtec seeks a rate increase for its annual CPI increase.
This item was originally scheduled for consideration by the City Council at the May 15, 2024, meeting; however, it was determined that additional language changes needed to be negotiated between the City and Burrtec to address, correct and clarify some aspects of the Third Amendment. As a result of final negotiations between the City and Burrtec, the following additional language/changes were agreed to between both parties:
1) Deletion of proposed changes to the Term Extension;
2) Revisions to the “Procurement of Recovered Organic Waste” section to revise the quantity of recovered compost and mulch Burrtec procures on behalf of the City to 30% of the City’s annual recovered organic waste target and to add appropriate language for Burrtec to act as the City’s direct service provider for delivering additional compost and mulch quantities to third parties. Currently, the State requires cities and counties to acquire more recovered organic waste than can be used by the jurisdiction. These additional quantities are being shipped to third party farmers so the City can meet 100% of its annual recovered organic waste target, as required by the SB 1383 Regulations. This language ensures that Burrtec will assist the city in facilitating those third-party deliveries as the City’s direct service provider.
3) The addition of SB1383 requirements for Multi Family and Commercial, including new definitions, review of containers for contamination of materials and the implementation of the edible food recovery program.
4) Expands Burrtec’s responsibilities for Outreach and Education to include both the residential and business communities.
5) Deletes proposed revisions to the “Maximum Permitted Service Rates” section. The current process to adjust rates will remain the same.
6) The “Liquidated Damages” section will be updated to include a new liquidated damages schedule
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2021-2025 Strategic Targets and Goals
Adoption of the proposed Third Amendment to the Franchise Agreement aligns with Key Target No. 3c: Improve Quality of Life by evaluating and enhancing the quality of public safety services and Key Target No. 3d: Improve Quality of Life by improving the City’s appearance, cleanliness, and attractiveness.
Fiscal Impact
There will be no impact on the General Fund. Revenues to the General Fund shall remain the same.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California adopt Resolution No. 2024-111;
1. Approving the Third Amendment to the City’s Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing and Disposal Services with Burrtec Waste Industries, Inc.
Attachments
Attachment 1 Resolution No. 2024-111
Attachment 2 Table of Solid Waste Rates
Attachment 3 Third Amendment to the Exclusive Franchise Agreement Attachment 4 Exhibit 1 – City of San Bernardino Maximum Permitted Rates 2024 Attachment 5 Original Burrtec Franchise Agreement
Ward:
All Wards
Synopsis of Previous Council Actions:
January 25, 2016 – Resolution of the Mayor and City Council of San Bernardino approving a ten-year Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing and Disposal Services with Burrtec Waste Industries, Inc.
December 7, 2022 - Notice of Intent to Conduct a Public Hearing on December 7, 2022, to Consider Adjusting the Maximum Permitted Service Rates for Integrated Solid Waste Collection, and Organic Waste Collection, Processing and Disposal Services, Street Sweeping, and Right-of-Way Cleanup Service.
February 15, 2023 - Public Hearing Regarding Solid Waste Rate Increases and
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Resolution Adopting Rates for Solid Waste Services, Approving Third Amendment to the City’s Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing and Disposal Services with Burrtec Waste Industries, Inc., and Finding the Action Exempt from the California Environmental Quality Act (All Wards).
May 17, 2023 - Public Hearing Regarding Solid Waste Rate Increases and Resolution Adopting Rates for Solid Waste Services, Approving Third Amendment to the City’s Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing and Disposal Services with Burrtec Waste Industries, Inc., and Finding the Action Exempt from the California Environmental Quality Act (All Wards) June 21, 2023 - Continuation, to July 19, 2023, of Public Hearing Regarding Solid Waste Rate Increases and Resolution Adopting Rates for Solid Waste Services, Approving Third Amendment to the City’s Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing and Disposal Services with Burrtec Waste Industries, Inc., and Finding the Action Exempt from the California Environmental Quality Act.
July 19, 2023 – Continuation to September 6, 2023, of Public Hearing Regarding Solid Waste Rate Increases and Resolution Adopting Rates for Solid Waste Services, Approving Third Amendment to the City’s Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing and Disposal Services with Burrtec Waste Industries, Inc., and Finding the Action Exempt from the California Environmental Quality Act.
September 6, 2023 - Continuation, to January 17, 2024, of Public Hearing Regarding Solid Waste Rate Increases and Resolution Adopting Rates for Solid Waste Services, Approving Third Amendment to the City’s Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing and Disposal Services with Burrtec Waste Industries, Inc., and Finding the Action Exempt from the California Environmental Quality Act.
January 17, 2024 - Cancellation of January 17, 2024, Public Hearing Regarding Solid Waste Rate Increases and Resolution Adopting Rates for Solid Waste Services, Approving Third Amendment to the City’s Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing and Disposal Services with Burrtec Waste Industries, Inc., and Finding the Action Exempt from the California Environmental Quality Act.
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Resolution No. 2024-111
Resolution 2024-111
July 3, 2024
5 0
2 3
RESOLUTION NO. 2024-111
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
APPROVING THIRD AMENDMENT TO THE EXCLUSIVE
FRANCHISE AGREEMENT FOR INTEGRATED SOLID
WASTE COLLECTION, PROCESSING, AND DISPOSAL
SERVICES WITH BURRTEC WASTE INDUSTRIES, INC.,
AND FINDING THIS ACTION EXEMPT FROM THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT
WHEREAS, Burrtec Waste Industries, Inc. (“Burrtec”) provides refuse, recycling, and organic waste collection, procession and disposal, street sweeping, and right-of-way clean up services are provided to the City of San Bernardino (“City”) pursuant to an exclusive franchise agreement with the City (“Agreement”); and,
WHEREAS, Burrtec is required to provide such solid waste services (“Services”) as set forth in the Agreement; and
WHEREAS, since the approval of the Agreement, California law changed to now require the City to implement additional solid waste diversion programs; and WHEREAS, Burrtec will continue to provide Services that comply with regulations to implement SB 1383 (Chapter 395, Statutes of 2016) (“SB 1383 Regulations”), to the City; and WHEREAS, pursuant to Section 33.8 of the Agreement, the Agreement may only be amended by written agreement signed by both the City and Contractor; and WHEREAS, the SB 1383 Short-Lived Climate Pollutants Act of 2016, Public Resources Code Sections 42652, et seq. and any regulations adopted by CalRecycle to implement it as they may be amended to require residential and commercial waste generators to participate in organic recycling programs; and
WHEREAS, the SB 1383 Regulations require the City to implement Collection programs, meet Processing facility requirements, conduct contamination monitoring, provide education, maintain records, submit reports, monitor compliance, conduct enforcement, and fulfill other requirements; and, the City has chosen to delegate some of its responsibilities to Contractor, acting as the City’s designee, and Contractor desires to take on these responsibilities; and WHEREAS, The Parties heretofore desire to extend the Term of Agreement from March 31, 2026, to March 31, 2031; and,
WHEREAS, the Parties now desire to modify the Agreement to implement changes required by the SB 1383 Regulations and Term of Agreement.
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Resolution No. 2024-111
Resolution 2024-111
July 3, 2024
5 0
2 3
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. That the foregoing Recitals are true and correct and are incorporated herein by this reference.
SECTION 2. The City Council hereby approves the Third Amendment to the City of San Bernardino’s Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services with Burrtec Waste Industries, Inc., attached hereto as Exhibit A and incorporated herein by this reference.
SECTION 3. This Resolution is not subject to the requirements of California Environmental Quality Act (“CEQA”). The approval of Amendment No. 1 is not a “project” within the meaning of Section 15378 of Title 14 of the California Code of Regulations (“State CEQA Guidelines”) because it has no potential for resulting in direct or indirect physical change in the environment. The documents and materials that constitute the record of proceedings on which these findings have been based are located at 215 North “D” Street, San Bernardino, CA 92401. The custodian for these records is the City Clerk of the City.
SECTION 4. If any section, subsection, subdivision, sentence, clause, or phrase in this Resolution or any part thereof is for any reason held to be unconstitutional, invalid, or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Resolution or any part thereof. The City Council hereby declares that it would have adopted each section irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or ineffective.
SECTION 5. This Resolution shall take effect immediately upon adoption.
SECTION 6. The City Clerk shall attest and certify to the passage and adoption thereof.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 3rd day of July, 2024.
Helen Tran, Mayor
City of San Bernardino
Attest:
Genoveva Rocha, CMC, City Clerk
Approved as to form:
Sonia Carvalho, City Attorney
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Resolution No. 2024-111
Resolution 2024-111
July 3, 2024
5 0
2 3
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2024-111, adopted at a regular meeting held on the 3 rd day of July 2024 by the following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
REYNOSO _____ _____ _______ _______
CALVIN _____ _____ _______ _______
ALEXANDER _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this ___ day of July 2024.
Genoveva Rocha, CMC, City Clerk
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Attachment 2
Table of Refuse Rates
6/27/2024
Jurisdiction Hauler Current
Residential
(proposed
2024-2025)
LINKAGE TO SOURCE OF RATE INFORMATION NOTES
San Bernardino Burrtec 26.42$ 26.42$
Loma Linda CR&R 28.08$ TBD
https://www.lomalinda-ca.gov/services/utility_services/utility_services_charges This rate is the Bi-
monthly 96-gal charge
/2. Bi-monthly 64-gal
charge is
$53 90/2=$26 95
Rancho Cucamonga Burrtec 30.57$ 33.44$ https://www.cityofrc.us/sites/default/files/2023-10/City%20of%20RC%20Rate%20Resolution%202023-062.pdf Moreno Valley Waste Mangement 32.19$ TBD https://www.moval.org/resident_services/waste/trash-rates.html Colton CR&R 32.44$ TBD https://coltonca.gov/1088/Refuse-and-Trash Highland Burrtec 33.95$ 33.95$
https://www.cityofhighland.org/197/Trash-Services
There was no resource
(public notice or
otherwise) verifying
proposed rates for 2024-
2025
Grand Terrace Burrtec 34.05$ 35.58$ https://www.grandterrace-ca.gov/departments/public_works/trash_recycling Rialto Burrtec 34.55$ 34.55$ Unable to verify. Unable to verify Yucaipa Burrtec 34.58$ 42.23$ https://yucaipa.gov/trash-recycling/ 60-gal barrel rate.
Riverside City of Riverside / Athens Disposal 34.72$ 37.32$ https://riversideca.gov/publicworks/trash-recycling/trash/residential-trash-rate Effective July 1, 2024 rate
is $37.32.
Pomona City of Pomona 35.50$ TBD https://www.pomonaca.gov/government/departments/public-works/solid-waste/solid-waste-rates?locale=es Chino Waste Management 35.55$ 37.32$ https://www.cityofchino.org/440/Trash-Street-Sweeping Effective July 1, 2024
$37.32
Fontana Burrtec 36.15$ 36.15$
https://www.fontanaca.gov/541/Trash-and-Recycling-Services No proposed rate
schedule (Public Notice
or otherwise) to verify.
Upland Burrtec 36.58$ 38.09$ https://www.uplandca.gov/trash Montclair Burrtec 37.64$ 38.71$
https://www.cityofmontclair.org/billing-making-a-payment/ No proposed rate
schedule (Public Notice
or otherwise) to verify.
San Bernardino County Burrtec 38.40$ 40.28$ County has individual agreements for each Community Service District with different rates.
Ontario City of Ontario 39.78$ 43.81$
https://www.ontarioca.gov/IntegratedWaste
No proposed rate
schedule (Public Notice
or otherwise) to verify.
Redlands City of Redlands 40.77$ TBD https://www.cityofredlands.org/pod/current-water-wastewater-and-solid-waste-rates 1 90-gallon refuse rate.
Average Rate All Jurisdictions 34.55$
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THIRD AMENDMENT TO THE CITY OF SAN BERNARDINO’S EXCLUSIVE
FRANCHISE AGREEMENT FOR INTEGRATED SOLID WASTE COLLECTION, PROCESSING, AND DISPOSAL SERVICES WITH BURRTEC WASTE INDUSTRIES, INC.
This Third Amendment to the City of San Bernardino’s Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services with Burrtec Waste Industries, Inc. (“Third Amendment”) is made and entered into as o f ________________, 2024 (“Effective Date”) by and between the City of San Bernardino, a charter city and municipal corporation (“City”) and Burrtec Waste Industries, Inc. a California corporation organized under the laws of the State of California (“Contractor”). City and Contractor are sometimes referred to herein individually as a “Party” and collectively as “Parties.”
RECITALS
A. WHEREAS, the City and Contractor entered into an Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services dated January 25, 2016, as amended by the First Amendment to Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services and the Second Amendment to Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services (“Agreement”), for the purpose of providing the collection, recyc ling, diversion and disposal of Solid Waste from Service Units in the City of San Bernardino; and B. WHEREAS, pursuant to Section 33.8 of the Agreement, the Agreement may only be amended by written agreement signed by both the City and Contractor; and C. WHEREAS, SB 1383 (Chapter 395, Statutes of 2016) and the regulations adopted by the California Department of Resources Recycling and Recovery (“ CalRecycle”) to implement it , require residential and commercial waste generators to participate in organic recycling programs; and
D. WHEREAS, the SB 1383 Regulations require the City to implement Collection programs, meet Processing facility requirements, conduct contamination monitoring, provide education, maintain records, submit reports, monitor compliance, conduct enforcement, and fulfill other requirements; and, the City has chosen to delegate some of its responsibilities to Contractor, acting as the City’s designee, and Contractor desires to take on these responsibilities; and E. WHEREAS, the Parties now desire to modify the Agreement to implement changes required by the SB 1383 Regulations.
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants, conditions, and promises contained in this Third Amendment and the Agreement, the Parties mutually agree as follows:
1. Incorporation of Recitals. The recitals listed above are true and correct and are hereby incorporated herein by this reference.
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2. Definitions. The Definitions as stated in Section 1 shall be amended or added to read as follows, and the numbering within Section 1 for each definition shall be deleted:
a. “Compost” has the same meaning as in 14 CCR Section 17896.2(a)(4), as may be amended from time to time.
b. “Consumer Price Index or CPI” means the twelve (12) month annual average percentage change the All Urban Consumers Index (CPI -U), Not Seasonally Adjusted, All Items, Riverside -San Bernardino -Ontario, CA (Series ID:
CUURS49CSA0), as published by the U.S. Department of Labor, Bureau of Labor Statistics, for the most calendar year, compared to the prior calendar year. c. “Edible Food” means food intended for human consumption. For the purposes of this Agreement, Edible Food is not Solid Waste if it is recovered and not discarded.
Nothing in this Agreement requires or authorizes the recovery of Edible Food that does not meet the food safety requirements of the California Retail Food Code. If the definition in 14 CCR Section 18982(a)(18) for Edible Food differs from this definition, the definition in 14 CCR Section 18982(a)(18) shall apply to this Agreement
d. “Excluded Waste” means hazardous substances, Hazardous Waste, infectious waste, designated waste, volatile, corrosive, medical waste, infectious, regulated radioactive waste, and toxic substances or material that facility operator(s), which receive materials from the City and its generators, reasonably believe(s) would, as a result of or upon acceptance, transfer, processing, or disposal, be a violation of local, State, or Federal law, regulation, or ordinance, including: land use restrictions or conditions, waste that cannot be disposed of in Class III Landfills or accepted at the facility by permit conditions, waste that in the City’s reasonable opinion would present a significant risk to human health or the environment, cause a nuisance or otherwise create or expose Con tractor or City to potential liability:, but not including de minimis volumes or concentrations of waste of a type and amount normally found in Single-Family or Multi-Family Solid Waste after implementation of programs for the safe collection, processing, recycling, treatment, and disposal of batteries and paint in compliance with Sections 41500 and 41802 of the California Public Resources Code.
e. “Food Recovery Organization” is as defined in 14 CCR Section 18982(a)(25). f. “Food-Soiled Paper” means compostable paper material that has come in contact with food or liquid, such as, but not limited to, compostable paper plates, paper coffee cups, napkins, pizza boxes, and milk cartons.
g. “Food Scraps” means all food such as, but not limited to, fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese, and eggshells.
Food Scraps excludes liquids, fats, oils, and grease when such materials are Source Separated from other Food Scraps.
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h. “Food Waste” means Source Separated Food Scraps and Food Soiled Paper. Edible Food separated for food recovery shall not be considered Food Waste. i. “Hauler Route(s)” means the designated itinerary or sequence of stops for each segment of the City’s collection service area, or as otherwise defined in 14 CCR Section 18982(a)(31.5).
j. “Organic Waste” means Solid Wastes containing material originated from living organisms and their metabolic waste products including, but not limited, to, Food Waste, yard trimmings, organic textiles and carpets, lumber, wood, paper products, printing and writing paper, manure, biosolids, digestate, and sludges, or as otherwise defined in 14 CCR Section 18982(a)(46). Biosolids and digestate are as defined in 14 CCR Section 18982(a).
k. “Prohibited Container Contaminants” means the following: (i) discarded materials placed in the Recyclable Materials Container that are not identified as acceptable Source Separated Recyclable Materials for the Recyclable Materials Container; (ii) discarded materials placed in the Organic Waste Container that are not identified as acceptable Source Separated Organic Waste for the Organic Waste Container; (iii) discarded materials placed in the Solid Waste Container that are acceptable Source Separated Recyclable Materials and/or Source Separated Organic Waste to be placed in Organic Waste Container and/or Recyclable Materials Container; and (iv) Excluded Waste placed in any Container.
l. “Source Separated” means materials, including commingled Recyclable Materials, and Organic Waste, that have been separated or kept separate from the Solid Waste stream, at the point of generation, for the purpose of additional sorting or Processing of those materials for recycling or reuse in order to return them to the economic mainstream in the form of raw material for new, reused, or reconstituted products which meet the quality standards necessary to be used in the marketplace, or as otherwise defined in 14 CCR Section 17402.5(b)(4). Source Separated shall include separation of Recyclable Materials, Organic Waste, and Solid Waste by the generator into different Containers for the purpose of collection and processing.
m. “Term” means the operative life of this Agreement as stated in Section 4.2. n. ““SB 1383” means Senate Bill 1383 (Chapter 395, Statutes of 2016), and the SB 1383 Regulations adopted by CalRecycle to implement it. o. “Tier One Commercial Edible Food Generator” means a commercial edible food generator that is one of the following, each as defined in 14 CCR Section 18982:
A. Supermarket.
B. Grocery Store with a total facility size equal to or greater than 10,000
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square feet.
C. Food service provider.
D. Food Distributor.
E. Wholesale food vendor.
If the definition in 14 CCR Section 18982(a)(73) of Tier One Commercial Edible Food Generator differs from this definition, the definition in 14 CCR Section 18982(a)(73) shall apply to this Agreement.
p. “Tier Two Commercial Edible Food Generator” means a commercial edible food generator that is one of the following, each as defined in 14 CCR Section 18982:
A. Restaurant with 250 or more seats, or a total facility size equal to or greater than 5,000 square feet.
B. Hotel with an on-site food facility and 200 or more rooms.
C. Health facility with an on-site food facility and 100 or more beds.
D. Large venue .
E. Large Event.
F. A state agency with a cafeteria with 250 or more seats or total cafeteria facility size equal to or greater than 5,000 square feet.
G. A local education agency with an on-site food facility.
If the definition in 14 CCR Section 18982(a)(74) of Tier Two Commercial Edible Food Generator differs from this definition, the definition in 14 CCR Section 18982(a)(74) shall apply to this Agreement
3. Self-Hauling. Section 2.9 shall be amended in its entirety to read as follows:
2.9 Self-Hauling. Self-hauling is allowed as specified in the San Bernardino Municipal Code. This Agreement does not prohibit such materials which are removed from any Service Unit in the City and which are transported personally by the owner or occupant of such premises to a processing or disposal facility pursuant to the San Bernardino Municipal Code. This Agreement shall not prohibit gardeners and landscapers from collecting, transporting and composting or disposing of Green Waste, as long as they transport such Green Waste to an Organic Processing Facility, or other site permitted (or exempt from permitting) by CalRecycle, or its successor agency, in accordance with all governing laws and regulations and submit reports required by City. “Self-hauling” shall have the same definition as in Section 8.24.010 of the San Bernardino Municipal
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Code.
4. Monthly Franchise Fee Payment. The following sentence shall be added to the end of Section 3.4.8:
“The Franchise Fee Payment may be decreased by the City during the Term of this Agreement without Contractor’s prior written consent, and if the Franchise Fee is adjusted, City shall provide written notice to the Contractor .”
5. Term. Section 4.2 shall be amended in its entirety to read as follows:
4.2.1 Term of Agreement. The term of this Agreement shall expire on March 31, 2031, subject to early termination or extension.
6. Container Contamination Minimization. Section 6.9.1 is hereby added to read as follows:
6.9.1 Container Contamination Minimization. Contractor shall assist in minimizing contamination by helping to educate customers on acceptable and non -acceptable materials, by monitoring the contents of collection Containers, and by refusing to collect containers with visible Prohibited Container Contaminants. Contractor shall, at its sole expense conduct hauler route reviews each calendar year for Prohibited Container Contaminants in Containers in a manner that is deemed safe by the Contractor, is approved by the City, and is conducted in a manner that results in all hauler routes being reviewed, in accordance with 14 CCR Section 18984.5(b).
6.9.1.1 Number of Containers to Review . Contractor shall visually inspect the contents of all Solid Waste, Recyclable Materials, and Organic Waste Containers for a sufficient number of residential and commercial accounts to fully comply with the associated SB 1383 requirements per hauler route to search for Prohibited Container Contaminants. At a minimum, the Contractor shall inspect, 3% of all residential Solid Waste, Recyclable Materials, and Organic Waste Containers, and 10% of all commercial businesses, including multi-family units. The Containers shall be randomly selected by a method approved by the City.
6.9.1.2 Route Review Methodology . Contractor shall develop a hauler route review methodology that complies with the requirements of 14 CCR Sections 18984.5(b).
Contractor shall submit its proposed hauler route review methodology for the coming contract year (July – June) to the City no l ater than July 1 of each year, describing its proposed methodology for the calendar year and schedule for performance of each hauler route review. Company’s proposed hauler route review methodology shall include its plan for container inspections and shall also include its plan for prioritizing the inspection of customers that are more likely to be out of compliance. City shall review, comment on, and approve the proposed methodology. Contractor may commence with the proposed methodology upon approval. If the City notifies the Contractor that the methodology is inadequate to meet the requirements of SB 1383, Contractor shall, at its sole expense, revise the methodology and, after obtaining City approval, conduct additional hauler
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route reviews, increased container inspections, or implement other changes using the revised procedure. Contractor shall implement and perform route reviews per the approved methodology beginning July 1, 2024.
6.9.1.3 Scheduling. The City may request, and Contractor shall accept, modifications to the schedule to permit observation by the City subject to reasonable safety protocols. In addition, Contractor shall provide email notice to the City no less than ten (10) working days p rior to each scheduled hauler route review that includes the specific time(s), which shall be within the City’s normal business hours, and location(s).
6.9.1.4 Documentation. Contractor shall document contamination with still pictures or video, and will notify the customer of the contamination and recycling requirements. Contractor may, at its discretion, collect the Container as Recyclable Materials, Organic Waste, or as Solid Waste.
6.9.1.5 Reporting Requirements. Contractor shall maintain records and report to the City on contamination monitoring activities and actions taken. Contractor shall collaborate with the City to obtain records and submit the AB 939/SB 1383 Electronic Annual Report (EAR) on behalf of the City to CalRecycle by August 1 st of each year starting
in 2024. The submitted EAR shall meet the requirements per 14 CCR Section 18794.0.
6.9.1.6 SB 1383 Monitoring and Inspections . Contractor shall perform customer compliance reviews described in this subsection annually, as of the Effective Date, unless otherwise noted.
6.9.1.7 Commercial Generator Compliance Reviews. Contractor shall complete a compliance review of all commercial businesses that generate two (2) cubic yards or more per week of solid waste, including organic waste, to determine their compliance with: (i) generator requirements under the City Code and this Agreement; and, (ii) if applicable for the customer, self -hauling requirements per 14 CCR Section 18988.3. The compliance review shall mean a “desk” review of records to determine customers’ compliance with the above requirements and does not necessarily require on-site observation of service.
6.9.1.8 Compliance Review Process. Contractor shall conduct inspections and/or contact non-compliant entities described in Section 6.9.1.7 at a minimum of once per year or as directed by City to adequately determine the entities’ overall compliance with SB 1383. City may require the Contrac tor to prioritize inspections of entities that the City determines are more likely to be out of compliance.
6.9.1.9 Non-Compliant Entities . When compliance reviews are performed by Contractor pursuant to this subsection, Contractor shall provide City -approved educational materials, in response to violations. Contractor shall provide these educational materials to the non -compliant customers by mail or immediately upon determination of non- compliance if such non -compliance is determined during an inspection or hauler route review. Contractor shall document the non -compliant customers and the date and type of education mat erials provided and report such
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information to the City. Beginning January 1, 2024, the Contractor shall document non - compliant customers determined through Contractor’s compliance reviews, and shall report all customers with SB 1383 violations to the City. The City shall be responsible for subsequent enforcement action.
6.9.1.10 Tier 1 and Tier 2 Edible Food Generators and Food Recovery Organizations. Contractor shall inspect each Tier 1 and Tier 2 edible food generator and food recovery organization within the City annually to determine their compliance with SB 1383 and take reasonable steps to ensure generators are educated on their compliance requirements with regulations and the City is notified of non-compliant entities.
6.9.1.11. Documentation of Inspection Actions . The Contractor shall generate a written or electronic record and maintain documentation for each inspection, including Tier 1 and Tier 2 edible food generators and food recovery organizations, hauler route review, and compliance review conducted. Contrac tor shall provide a copy of that documentation to the City as part of its Annual Report.
6.9.1.12 Documentation of SB 1383 Non-Compliant Complaints. Contractor shall maintain a computer database of all oral and written SB 1383 -related non -compliant complaints reported to Contractor from customers or other persons. Contractor shall provide a copy of the Recyclist Program information collected to the C ity as part of its Annual Report.
6.9.1.12.1 Reports of SB 1383 -Noncompliant Complaints . For reports received in which customers or other persons allege that an entity is in violation of SB 1383 requirements, Contractor shall document such complaint investigations. Contractor shall provide this information in a brief complaint report to the City for each SB 1383 - noncompliant complaints within five (5) working days of receipt of such complaint, and a quarterly summary report of SB 1383-noncompliant complaints.
6.9.1.12.2 Investigation of SB 1383-Noncompliant Complaints. Contractor shall assist City in meeting its obligation to investigate non -compliant complaints by commencing an investigation within thirty (30) days of receiving notice of a complaint in the following circumstances: (i) upon Contractor receipt of a complaint that an entity may not be compliant with SB 1383 and if City determines that the allegations against the entity, if true, would constitute a violation of SB 1383; and, (ii) upon City request to investigate a complaint received by City, in which City determines that the allegations against the entity, if true, would constitute a violation of SB 1383. Contractor is required to investigate complaints against customers and generators, including Tier One and Tier Two Commercial Edible Food Generators, against Edible Food recovery organizations, Edible Food recovery services, and other entities regulated by SB 1383. Contractor shall investigate the complaint by:
i. Reviewing the service level of the customer (if the entity is a customer of the Contractor);
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ii. Reviewing the waiver list, if applicable, to determine if the entity has a valid, City-approved de minimis or physical space constraint waiver; iii. Reviewing the self -haul registration list, if applicable, to determine if the entity has registered and reviewing the entities reported self -haul information;
iv. Inspecting premises of the entity identified in the complaint notice, if warranted;
v. Contacting the entity to gather more information, if warranted; and
vi. Affixing a City-approved notice of non-compliant complaint report on the customer’s container that includes SB 1383 generator requirements and, if applicable, provides a City-approved deadline for correction.
6.9.1.11.3 Reporting. Within ten (10) days of completing an investigation of an SB 1383 -noncompliant complaint, Contractor shall submit to City an investigation complaint report that documents the customer account in question, the nature of the complaint, the investigation performed, and recommends to City whether or not the entity investigated is in violation of SB 1383 based on the Contractor’s investigation. The City shall make a final determination of the allegations against the entity.
Contractor shall provide to City in its reports a list of all customer non-compliant complaint notices that have not been resolved by Contractor within thirty (30) days of receiving such notice. The Contractor complaint list shall include the customer’s account information, including customer’s then- current service level, the nature of the complaint, and Contractor’s efforts to resolve the complaint. City, or its designee, shall be responsible for investigating such outstanding complaints received by Contractor.
Within three (3) business days of the City’s or its designee’s request, Contractor shall provide City or its designee with customer account information and other documentation that may be useful in the investigation such as records of the customer’s most r ecent change(s) in service level and other customer service records.
7. Procurement of Recovered Organic Waste. Section 6.15 is hereby added to read as follows:
6.15 Procurement of Recovered Organic Waste. Contractor shall purchase or procure Compost and or mulch necessary to meet 30% of the City’s annual target amount as specified in SB 1383 Regulations, 14 CCR Section 18993.1. Contractor agrees to act as a direct service provider on behalf of the City for additional quantities of Recovered Organic Waste Products to help the City meet its annual target amount at the City’s expense .
Recovered Organic Waste Products shall comply with 14 CCR 18993.1(f). C ontractor shall comply with the recordkeeping and verification requirements of 14 CCR 18993.2.
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8. Conditions of Service. Section 7.1 is hereby amended to read as follows:
7.1 Conditions of Service. Contractor shall provide SFD collection service to all SFD Service Units whose Solid Waste, Recycle Materials, or Organic Waste are properly placed in Carts.
Except as set forth in Section 7.8, Contractor shall offer Carts for Solid Waste, Recycle Materials, and Organic Waste in 35-, 64-, and 96-gallon sizes. Contractor shall provide, at its sole expense, a senior discount of ten percent (10%) for 35 -gallon Solid Waste Cart service at no cost to the City or other customers. Contractor may offer alternative services to recipients receiving on -premise service. If collection in Carts is not sufficient to accommodate the amount of Solid Waste generated, Contractor may offer Bins or Roll- offs in sizes as allowed under this Agreement.
9. SFD Food Waste Collection Services. Section 7.7.5 (SFD Food Waste Collection Services) is hereby deleted it its entirety and replaced with the following:
7.7.5 SFD Organic Waste Collection Services. No later than September 1, 2024, Contractor shall provide all SFD accounts with Organic Waste Collection Services, including the collection of food waste.
10. MFD Organic Waste Collection Services. Section 8.2 is hereby amended to read as follows:
8.2 MFD Organic Waste Collection Service. For MFD Service Units utilizing Bins or Roll - offs for collection, Contractor shall implement any required MFD Organic Waste Program in accordance with the schedule established under AB 1826 and SB 1383.
11. Commercial Organic Waste Collection Service. Conditions of Service. Section 9.4.1 is hereby amended to read as follows:
9.4.1 Conditions of Service. In accordance with the schedule established under AB 1826 and SB 1383, Contractor shall provide Commercial Organic Waste Collection Service to all Commercial Service Units in the service area who have subscribed for service and whose Commercial Organic Waste materials are properly placed in Containers except as set forth below, where the Containers are accessible. Commercial Organic Waste Collection Service will occur Monday – Friday, and on Saturdays upon request and as necessary.
12. Street Sweeping. A new subsection 11.25 is to be added to Section 11 Street Sweeping and read as follows:
11.25 Review of GPS Data . Contractor shall no less than weekly review GPS data from each street sweeping route to determine if all required street sweeping services have been fully provided. Contractor shall include a written confirmation in each Quarterly Report that the Contrac tor has reviewed the daily GPS data for all Street Sweeping routes and verified that all routes have been fully completed, as scheduled. If that is not the case, Contractor shall provide a list of any and all exceptions.
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13. SB 1383 Outreach and Education. Section 14.9 is hereby added to read as follows:
14.9 SB 1383 Outreach and Education. The Contractor shall conduct a public information program, as directed and approved by the City and meeting the SB 1383 requirements , to inform and remind residents and businesses of the recycling and organic waste programs and their operation. Such program shall include media releases, advertisements, public appearances, community involvement programs to encourage participation in recycling efforts. A program plan shall be submitted to the City prior to July 1 of each contract year for approval. Contractor shall, consistent with 14 CCR Section 18985.1, provide generators with information on properly separating materials, organic waste prevention, on -site recycling, composting, methane reduction benefits, how to recycle organic waste, approved haulers, public health and environmental impacts associated with landfilling organic waste, self -haul requirements, and edible food donation. Contractor shall prepare and distribute public education and outreach materials in non-English languages spoken by a substantial number of the public that are provided organic waste collection services, consistent with the requirements of Government Code section 7295.
Annually Contractor shall provide Tier One and Tier Two Commercial Edible Food Generators with information on the City’s Edible Food Recovery Program, generator requirements, and food recovery.
Contractor shall cooperate and coordinate with the City Manager or his or her designee on public education activities to minimize duplicative, inconsistent, or inappropriately timed education campaigns. Contractor shall obtain approval from the City Manage r or his or her designee on all Contractor - provided public education materials including, but not limited to: print, radio, television, or internet media before publication, distribution, and/or release. City shall have the right to request that Contracto r include City identification and contact information on public education materials and approval of such requests shall not be unreasonably withheld. Contractor shall provide access to the Recyclist Program during the term of the agreement and will provide the records for up to two years after the agreement ends upon request.
14. Container Labeling. A new Section 15.17.9 shall be added and read as follow:
15.17.19 Container labeling . All new and replacement Containers shall be SB 1383 compliant as of the Effective Date of this Amendment.
15. Submission of Reports. Section 24.4 shall be amended to read as follows:
24.4 Submission of Reports. Reports shall be submitted to:
Director of Public Works
City of San Bernardino
290 North D Street
San Bernardino, CA 92401
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16. Liquidated Damages. Section 30.5.5 shall be deleted in its entirety and replaced with the following:
LIQUIDATED DAMAGES
Item Amount
a. Failure or neglect to address each
complaint by the close of the next
working day.
$100 per incident per Service
Recipient
b. Failure to address concerns regarding
maintaining the collection equipment
in a clean, and sanitary manner.
$100 per incident per day.
c. Failure to have a vehicle operator
properly licensed.
$100 per incident per day.
d. Failure to maintain office hours as
required by this Agreement.
$100 per incident per day.
e. Failure to maintain or timely submit to
City all documents and reports
required under the provisions of this
Agreement.
$100 per incident per day.
f. Failure to display Contractor's name
and customer service phone number
on collection vehicles.
$100 per incident per day.
g. Failure to collect a missed collection by
close of the next work day upon notice
to Contractor
$100 per incident per day.
h. Failure to repair or replace damaged
Carts or Bins within the time required
by this Agreement.
$100 per incident per day.
i. Failure to deliver or exchange Carts or
Bins within the time required by this
Agreement.
$100 per incident per day.
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LIQUIDATED DAMAGES
Item Amount
j. Failure to meet vehicle noise
requirements.
$100 per incident per day.
k. Failure to maintain collection hours as
required by this Agreement without
prior City approval.
$250 per incident per day.
l. Failure to offer and provide adequate
facility processing capacity of
Recyclable Materials and Organic
Waste.
$250 per incident per day.
m. Failure to have field personnel in
company/contractor uniform.
$250 per incident per day.
n. Failure to repair damage to customer
property caused.
$500 per incident per location.
o. Failure to repair damage to City
property caused by Contractor or its
personnel.
$500 per incident.
p. Failure to clean up spillage or litter
caused by Contractor.
$500 per incident per location.
q. Failure to properly cover materials in
roll-off containers during transport.
$500 per incident.
r. Changing residential collection days
without property notification to the
City Representative.
$500 per incident per day.
s. Commingled Solid Waste with
Recyclable Materials or Organic Waste,
with the exception of contaminated
recyclables.
$500 per incident.
t. Disposal of Recyclable Materials or
Organic Waste in the landfill without
first obtaining the required permission
$500 per load.
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LIQUIDATED DAMAGES
Item Amount
of the City.
u. Failure to deliver any collected
materials to a permitted Disposal
Facility, Materials Recovery Facility, or
Organic Processing Facility, as
appropriate, except as otherwise
expressly provided in this Agreement.
$5,000 each failure
v. Commingling of materials collected
inside and outside the City of San
Bernardino.
$1,000 per incident.
w. Failure to meet and maintain minimum
annual Diversion Guarantee for two
consecutive years.
$50 per ton for each ton under the
minimum requirement
x. Failure to remove graffiti as specified in
Section 6.10.
$100 per Container per day.
y. Failure to sweep a street after
notification by City that street had not
been swept in accordance with
established schedule or sweeping did
not meet generally accepted industry
standards for sweeping.
$500 per block or lot.
z. Failure to provide Containers for SB
1383 Collection service to all
customers by July 1, 2025 unless
customer is waiting for waiver approval
or has been granted a waiver.
$500 each week.
aa. Failure to complete annual outreach
and education requirements in
accordance with this Agreement and
SB 1383 by July 1, 2025, and each July
1st thereafter
$500 per Agreement Year.
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LIQUIDATED DAMAGES
Item Amount
bb. Failure to complete annual SB 1383
monitoring requirements by July 1,
2025, and each July 1st thereafter, in
accordance with this Agreement and
SB 1383.
$500 per year.
cc. Failure to complete annual calendar
reporting requirements by July 1, 2025,
and each July 1st thereafter, in
accordance with this Agreement and
SB 1383.
$500 per year.
dd. Failure to contact Customers in
response to complaints within one (1)
business day or to resolve or remedy a
Complaint within seven (7) calendar
days of receiving such Complaint.
$100 per incident
ee. Failure to issue contamination notices
in accordance with this Agreement and
SB 1383.
$50 per incident
ff. Failure to conduct compliance tasks
(i.e., perform route reviews or waste
audits) in accordance with this
Agreement and SB 1383.
$100 per incident
gg. Failure to perform re-inspections in
accordance with this Agreement and
SB 1383.
$50 per incident
hh. Submission of a late report required by
the SB 1383.
$500 per incident.
17. Compliance with Laws. The following sentence shall be added to the end of Section 25.6 “Nothing contained herein shall prohibit Contractor from meeting its compliance requirements by any alternative methods or procedures, provided it complies with SB 1383, and/or any other applicable law, as may be amended from time to time.”
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18. Notices. Section 33.9 shall be amended to read as follows:
33.9 Notices. All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered or sent by United States certified mail, postage prepaid, return receipt requested, and by email, addressed as follows:
To City: Rochelle Clayton, Acting City Manager
City of San Bernardino
290 North D Street
San Bernardino, CA 92401 Email:
Copy to: Sonia Carvalho, City Attorney
City of San Bernardino
Best Best & Krieger LLP 18101 Von
Karman Ave., Suite 1000 Irvine,
CA 92612
Email: [email protected]
And to: Lynn Merrill, Director of Public Works
City of San Bernardino
290 North D Street
San Bernardino, CA 92401 Email:
To Contractor: Cole Burr, President
Burrtec Waste Industries, Inc.
9890 Cherry Ave.
Fontana, CA 92335
19. Public Records. The heading of Section 33.12 shall be renamed to “33.12 Public Records.”
20. Replacement of Exhibit 1. Exhibit 1 of the Agreement is hereby replaced with the Exhibit 1 attached to this Third Amendment and incorporated by reference herein.
21. Contractor understands and agrees that it shall comply with any changes to the San Bernardino Municipal Code adopted by City necessary or advisable to ensure compliance with SB 1383 and which are not inconsistent with the terms of this Agreement.
22. Whenever the words “AB 1826” appear in the Agreement, “and SB 1383 ” shall follow.
23. This Third Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
24. This Third Amendment shall affect only the items specifically set forth herein, and all other
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terms and conditions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the Parties hereto have executed this Third Amendment on the Effective date first herein above written.
CITY CONTRACTOR
CITY OF SAN BERNARDINO BURRTEC WASTE INDUSTRIES, INC.
APPROVED BY:
___________________________ ___________________________ Rochelle Clayton Cole Burr
Acting City Manager President
APPROVED AS TO FORM:
___________________________
Best Best & Krieger LLP
City Attorney
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Exhibit 1
Maximum Permitted Service Rates
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Page16 of16
Exhibit1 Maximum Permitted Service Rates
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Burrtec Waste Industries, IncCity of San BernardinoEXHIBIT 1Current CurrentRates RatesResidential/MF Barrel26.42$ Commercial Barrel26.42$ Residential 35 Gal Barreln/a(incl Trash & Recycling Barrel)Residential 35 Gal Barrel Srn/aMobile Home - 3 Barrel Service$ 17.73Commercial CompactorsMobile Home Complex - 2 Barreln/a SizeFreq2 cu. yrd. 1 x Wk $ 152.41Residential Trash Bins2 cu. yrd. 2 x Wk $ 285.57SizeFreq2 cu. yrd. 3 x Wk $ 420.121 cu. yrd. 1 x Wk $ 128.28 2 cu. yrd. 4 x Wk $ 553.861 cu. yrd. 2 x Wk $ 235.06 2 cu. yrd. 5 x Wk $ 687.861 cu. yrd. 3 x Wk $ 348.56 2 cu. yrd. 6 x Wk $ 914.951 cu. yrd. 4 x Wk $ 459.37 3 cu. yrd. 1 x Wk $ 179.871 cu. yrd. 5 x Wk $ 567.48 3 cu. yrd. 2 x Wk $ 335.001 cu. yrd. 6 x Wk $ 757.61 3 cu. yrd. 3 x Wk $ 492.892 cu. yrd. 1 x Wk $ 128.87 3 cu. yrd. 4 x Wk $ 643.922 cu. yrd. 2 x Wk $ 236.22 3 cu. yrd. 5 x Wk $ 805.932 cu. yrd. 3 x Wk $ 350.32 3 cu. yrd. 6 x Wk 1,076.39$2 cu. yrd. 4 x Wk $ 461.70 4 cu. yrd. 1 x Wk $ 179.872 cu. yrd. 5 x Wk $ 570.42 4 cu. yrd. 2 x Wk $ 335.002 cu. yrd. 6 x Wk $ 761.10 4 cu. yrd. 3 x Wk $ 492.893 cu. yrd. 1 x Wk $ 137.52 4 cu. yrd. 4 x Wk $ 643.923 cu. yrd. 2 x Wk $ 260.45 4 cu. yrd. 5 x Wk $ 805.933 cu. yrd. 3 x Wk $ 387.00 4 cu. yrd. 6 x Wk 1,076.39$3 cu. yrd. 4 x Wk $ 508.393 cu. yrd. 5 x Wk $ 632.44Commercial/MF/Resi GW Bins3 cu. yrd. 6 x Wk $ 967.58 SizeFreq4 cu. yrd. 1 x Wk $ 151.54 1 cu. yrd. 1 x Wk $ 123.204 cu. yrd. 2 x Wk $ 286.96 1 cu. yrd. 2 x Wk $ 227.604 cu. yrd. 3 x Wk $ 422.35 1 cu. yrd. 3 x Wk $ 334.684 cu. yrd. 4 x Wk $ 556.44 1 cu. yrd. 4 x Wk $ 441.754 cu. yrd. 5 x Wk $ 690.50 1 cu. yrd. 5 x Wk $ 547.454 cu. yrd. 6 x Wk 1,194.23$ 2 cu. yrd. 1 x Wk $ 124.096 cu. yrd. 1 x Wk $ 219.94 2 cu. yrd. 2 x Wk $ 229.376 cu. yrd. 2 x Wk $ 419.68 2 cu. yrd. 3 x Wk $ 337.336 cu. yrd. 3 x Wk $ 620.77 2 cu. yrd. 4 x Wk $ 445.286 cu. yrd. 4 x Wk $ 827.26 2 cu. yrd. 5 x Wk $ 551.886 cu. yrd. 5 x Wk 1,016.26$ 3 cu. yrd. 1 x Wk $ 133.056 cu. yrd. 6 x Wk 1,207.95$ 3 cu. yrd. 2 x Wk $ 251.253 cu. yrd. 3 x Wk $ 367.95Commercial/MF Trash Bins3 cu. yrd. 4 x Wk $ 484.67SizeFreq3 cu. yrd. 5 x Wk $ 599.991 cu. yrd. 1 x Wk $ 145.42 4 cu. yrd. 1 x Wk $ 145.541 cu. yrd. 2 x Wk $ 266.44 4 cu. yrd. 2 x Wk $ 270.471 cu. yrd. 3 x Wk $ 395.11 4 cu. yrd. 3 x Wk $ 396.781 cu. yrd. 4 x Wk $ 520.70 4 cu. yrd. 4 x Wk $ 524.471 cu. yrd. 5 x Wk $ 643.27 4 cu. yrd. 5 x Wk $ 649.411 cu. yrd. 6 x Wk $ 858.77 6 cu. yrd. 1 x Wk $ 167.502 cu. yrd. 1 x Wk $ 146.08 6 cu. yrd. 2 x Wk $ 311.652 cu. yrd. 2 x Wk $ 267.76 6 cu. yrd. 3 x Wk $ 458.562 cu. yrd. 3 x Wk $ 397.10 6 cu. yrd. 4 x Wk $ 587.642 cu. yrd. 4 x Wk $ 523.35 6 cu. yrd. 5 x Wk $ 746.872 cu. yrd. 5 x Wk $ 646.58 35Gal Barrel 1 x Wk n/a2 cu. yrd. 6 x Wk $ 862.73 35Gal Barrel 2 x Wk n/a3 cu. yrd. 1 x Wk $ 155.88 35Gal Barrel 3 x Wk n/a3 cu. yrd. 2 x Wk $ 295.24 35Gal Barrel 4 x Wk n/a3 cu. yrd. 3 x Wk $ 438.67 35Gal Barrel 5 x Wk n/a3 cu. yrd. 4 x Wk $ 576.27 65Gal Barrel 1 x Wk n/a3 cu. yrd. 5 x Wk $ 716.89 65Gal Barrel 2 x Wk n/a3 cu. yrd. 6 x Wk 1,096.78$ 65Gal Barrel 3 x Wk n/a4 cu. yrd. 1 x Wk $ 171.77 65Gal Barrel 4 x Wk n/a4 cu. yrd. 2 x Wk $ 325.27 65Gal Barrel 5 x Wk n/a4 cu. yrd. 3 x Wk $ 478.754 cu. yrd. 4 x Wk $ 630.74Commercial Food Waste4 cu. yrd. 5 x Wk $ 782.71 SizeFreq4 cu. yrd. 6 x Wk 1,353.70$ 2 cu. yrd. 1 x Wk $ 263.536 cu. yrd. 1 x Wk $ 249.30 2 cu. yrd. 2 x Wk $ 475.266 cu. yrd. 2 x Wk $ 475.72 2 cu. yrd. 3 x Wk $ 670.326 cu. yrd. 3 x Wk $ 703.65 2 cu. yrd. 4 x Wk $ 866.886 cu. yrd. 4 x Wk $ 937.71 2 cu. yrd. 5 x Wk 1,095.40$6 cu. yrd. 5 x Wk 1,151.95$ 2 cu. yrd. 6 x Wk 1,257.62$6 cu. yrd. 6 x Wk 1,369.23$ 35Gal Barrel 1 x Wk n/a35Gal Barrel 2 x Wk n/aCommercial/MF/Resi Recycling Bins35Gal Barrel 3 x Wk n/aSizeFreq35Gal Barrel 4 x Wk n/aAll Sizes 1 x Wk $ 53.59 35Gal Barrel 5 x Wk n/aAll Sizes 2 x Wk $ 107.17 35Gal Barrel 6 x Wk n/aAll Sizes 3 x Wk $ 160.76 65Gal Barrel 1 x Wk $ 78.46All Sizes 4 x Wk $ 215.00 65Gal Barrel 2 x Wk $ 143.25All Sizes 5 x Wk $ 268.58 65Gal Barrel 3 x Wk $ 203.65All Sizes 6 x Wk $ 322.17 65Gal Barrel 4 x Wk $ 264.4065Gal Barrel 5 x Wk $ 333.6365Gal Barrel 6 x Wk $ 385.35 Exhibit 1
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Burrtec Waste Industries, IncCity of San BernardinoEXHIBIT 1CurrentRatesRoll-Off - Service Only- All Refuse Permanent - Plus Disposal 381.73$ - All Refuse Temporary 615.90$ incl Disp- All Recycling (Different Materials) - Plus Disposal 381.73$ - Waste to Energy - Plus Disposal n/aRoll Off Retractable Lid Monthly Rental Fee n/aReceiver n/aCompactor Box n/aWater Reclamation 131.00$ Miscellaneous RO Compactor Repair (per hour) 76.21$ Compactor Cleaning (each/single occurrence) 151.90$ Dry Run / Relocate Roll Offs (Perm & Temp) 85.44$ Roll Off Daily Rental Fee (Perm & Temp) 42.03$ Stand By / Roll-Back Roll Offs (Perm & Temp) 154.58$ per occurrence in excess of 15 minEnd Dump Service (per Hour) n/aCertificate of Destruction 127.03$ Residential/Commercial- Barrel Exchange (first Exchange free) charge does not apply to graffiti 17.24$ or damaged barrelsCommercial- Barrel Replacement comml-lost or stolen 85.16$ Bin Services- Bin Exchange (first Exchange free) charge does not apply to graffiti 86.22$ or damaged bins- Bin Replacement + actual cost of bin comml-lost or stolen 93.98$ Bin Enclosure Cleaning (each/single occurrence) 42.33$ Bin Steam Cleaning (each/single occurrence) 42.33$ Pull Out Service - Backyard Barrel Frail/Handicap (Resi/MH/MF) N/CExtra Trash Barrel (Resi/MF/MH/Commercial) 14.77$ Extra Recycling Barrel (Resi/MF/MH/) N/CExtra Recycling Barrel (Com) 26.98$ Extra Green Waste Barrel (Resi/MF only) 12.93$ Pull Out Service - Bin (1-6 Yard) x1 76.63$ Temporary Bin (3 Yrd) - 7 Day use 78.60$ Temp Bin Dump and Return 78.60$ Clean-Up Service (per 15 min) 41.27$ Recycling Contamination Barrel n/aRecycling Contamination (each bin) 67.20$ Extra Pick-Ups Bins - On Service Day1 & 2 Yard (Trash/Recyc)28.80$ 3 Yard (Trash/Recyc) 31.32$ 4 Yard (Trash/Recyc) 34.31$ 6 Yard (Trash/Recyc) 40.65$ Extra Pick-Ups All Bins - On Non-Service Day (Trash) 51.25$ Extra Pick-Ups All Bins - On Non-Service Day (Recyc) 39.87$ Extra Pick-Ups Compactors (Trash)2 Yard 31.32$ 3 & 4 Yard 34.31$ Extra Pick-Up Barrel - Residential/Mobile Home$ 1 0.56Extra Pick-Ups FW Bins $ 9 9.73Extra Pick-Ups Barrel - FW $ 2 9.69Tilhopper (3 yd) $ 3 4.18Lock $ 2 0.16Late set-out fee $ 3 2.74Late Fee 1.5%Shopping cart retrieval$ 2 5.00 Additional Services
Exhibit 1
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
Franchise Agreement Term April 1, 2016 – March 31, 2026 By and Between
THE CITY OF SAN BERNARDINO
and
BURRTEC WASTE INDUSTRIES, INC.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
TABLE OF CONTENTS RECITALS 5 Section 1. Definitions 7 Section 2. Grant of Franchise 14 Section 3. Contractor’s Payments, Reimbursements, and Additional Revenues to City 17 Section 4. Term and Term Extensions 21 Section 5. Warranties and Representations 22 Section 6. Types and Frequency of Service 25 Section 7. SFD Collection Service 31 Section 8. MFD Collection Services 35 Section 9. Commercial Collection Service 36 Section 10. Collection Service for City Service Units 39 Section 11. Street Sweeping 41 Section 12. Right-of-Way Clean-Up Service 46 Section 13. Collection Routes 49 Section 14. Public Outreach Services. 50 Section 15. Collection Equipment 52 Section 16. Hiring of Displaced City Employees and Local Recruiting 57 Section 17. Privacy 58 Section 18. Service Exceptions; Hazardous Waste 58 Section 19. Customer Service 59 Section 20. Ownership of Solid Waste, Recyclable Materials, Organic Waste and Construction and Demolition Materials 60
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
Section 21. Customer Rates and Billing Procedures 60 Section 22. Contractor’s Books and Records; Audits 65 Section 23. Integrated Waste Management Act; Reporting Requirements 65 Section 24. Activities and Financial Reports; Adverse Information 66 Section 25. Indemnification and Insurance 71 Section 26. Performance Bonds 75 Section 27. Emergency Service 76 Section 28. Administrative Remedies; Imposition of Damages; Termination 77 Section 29. Referral to Referee; Hearing Procedures 80 Section 30. City’s Additional Remedies 83 Section 31. Billing Audit and Performance Reviews 87 Section 32. Franchise Transfer; City Consent; Fees 89 Section 33. General Provisions 90 Exhibit 1 Maximum Permitted Service Rates 95 Exhibit 2 City Facilities 99 Exhibit 3 Contractor’s Facilities 103 Exhibit 4 City Sponsored Events 105 Exhibit 5 Transition Plan 107 Exhibit 6 Public Education & Outreach Plan 111 Exhibit 7 Diversion Plan 113 Exhibit 8 Customer Service Plan 117 Exhibit 10 Displaced City Employee Compensation Minimum Requirements 123 Exhibit 11 Contractor’s Subcontractors 125
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
This Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services (“Agreement”) is hereby entered into by and between the City of San Bernardino, a California Charter City and a municipal corporation organized under the Constitution and laws of the State of California (“City”), and Burrtec Waste Industries, Inc. a California corporation organized under the laws of the State of California (“Contractor”), and is made on the terms and conditions provided below: RECITALS WHEREAS, Article XI, § 7 of the California Constitution authorizes cities to protect public health and safety by taking measures in furtherance of their authority over police and sanitary matters; and WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989, (“AB 939” or the “Act”) established a Solid Waste management process which requires cities and other local jurisdictions to implement plans for source reduction, reuse and recycling as integrated waste management practices for Solid Waste attributed to sources within their respective jurisdictions; and WHEREAS, the Legislature of the State of California, by enactment of its California Global Warming Solutions Act of 2006 (“AB 32”), requires that commercial generators statewide participate in recycling programs; and WHEREAS, the Legislature of the State of California, by enactment of Assembly Bill 341 (“AB 341”) adopted a goal that seventy-five percent of solid waste generated state-wide be diverted from landfill by the year 2020. Furthermore, AB 341 requires that each commercial solid waste generator, including multi-family dwellings of five or more units, provide for recycling programs, and each City or County implement recycling programs for commercial solid waste generators, including multi-family dwellings of five or more units; and WHEREAS, the Legislature of the State of California, by enactment of Assembly Bill 1594 (“AB 1594”) eliminates cities and counties from receiving landfill diversion credit from green waste used being used as Alternative Daily Cover effective January 1, 2020; and WHEREAS, the Legislature of the State of California, by enactment of Assembly Bill 1826 (“AB 1826”) adopted requirements for each commercial solid waste generator, including multi-family dwellings of five or more units, to provide for organics recycling programs, and for each City or County to implement organics recycling programs for commercial solid waste generators, including multi-family dwellings of five or more units by April 1, 2016; and
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
WHEREAS, California Public Resources Code § 40059 provides that aspects of Solid Waste handling of local concern include but are not limited to frequency of collection, means of collection and transportation, level of services, charges and fees, and nature, location and extent of providing solid waste services, and whether the services are to be provided by means of nonexclusive, partially exclusive or wholly exclusive franchise, contract, license or otherwise which may be granted by local government under terms and conditions prescribed by the governing body of the local agency; and WHEREAS, City is obligated to protect the public health and safety of the residents and businesses of the City of San Bernardino and arrangements made by solid waste enterprises and recyclers for the collection of residential and commercial Solid Wastes should be made in a manner consistent with the exercise of the City’s police power for the protection of public health and safety; and WHEREAS, City and Contractor are mindful of the provisions of the laws governing the safe collection, transport, recycling and disposal of residential and commercial Solid Waste, including AB 939, the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901 et seq., the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 et seq.; the Electronic Waste Recycling Act of 2003 (SB 20, Sher, Chapter 526, Statutes of 2003; SB 50, Sher, Chapter 863, Statutes of 2004; AB 575, Wolke, Chapter 59, Statutes of 2011), laws governing Universal Waste, including, but not limited to, Universal Waste Electronics Devices (“UWED”), non-empty aerosol cans, fluorescent tubes, high intensity discharge lamps, sodium vapor lamps, and any other lamp exhibiting a characteristic of a hazardous waste, batteries (rechargeable nickel-cadmium batteries, silver button batteries, mercury batteries, small sealed lead acid batteries [burglar alarm and emergency light batteries] alkaline batteries, carbon-zinc batteries and any other batteries which exhibit the characteristic of a hazardous waste), mercury thermometers, mercury-containing switches; and WHEREAS, City and Contractor desire to leave no doubts as to their respective roles and to make it clear that by entering into this Agreement, City is not thereby becoming a “generator” or an “arranger” as those terms are used in the context of CERCLA § 107(a)(3) and that it is Contractor, an independent entity, not City, which will arrange to collect Solid Waste from SFD, MFD, City and Commercial Service Units in the City, transport for recycling and disposal and dispose of Solid Wastes which may contain small amounts of household products with the characteristics of hazardous wastes, collect and compost Organic Waste and collect and recycle Recyclable Materials from SFD, MFD, City, and Commercial Service Units in the City, and collect and recycle or dispose of Construction and Demolition Materials; and
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
WHEREAS, there are no places within the City limits of the City of San Bernardino where active landfills for disposal are located, or which are suitable for the siting of a landfill and therefore Solid Waste must be exported from the City; and WHEREAS, City and Contractor agree that Contractor, not City, will select the landfill or transformation facility destination of the non-recyclable residential and commercial Solid Waste and Construction and Demolition Materials which Contractor will arrange to collect, that City has not, and by this Agreement does not, instruct Contractor on its collection methods, nor supervise Contractor in the collection of waste and nothing in this Agreement or other action of the City shall be construed to give rise to any inference that the City has any title, ownership or right of possession of such Solid Waste; and WHEREAS, Contractor represents and warrants to City that Contractor has the experience and qualifications to conduct recycling and waste diversion programs, to provide City with information sufficient to meet the City’s reporting requirements to CalRecycle and other agencies under the Act, to meet City’s other requirements under the Act, to arrange with persons in charge of day-to-day activities of Service Units in the City for the collection, safe transport and disposal of Solid Wastes which may contain small amounts of household products with the characteristics of Hazardous Wastes, in a safe manner which shall minimize the adverse effects of collection vehicles on air quality and traffic, and that Contractor has the ability to indemnify City in accordance with this Agreement; and WHEREAS, the City Council of the City of San Bernardino determines and finds pursuant to California Public Resources Code § 40059(a)(1) that the public interest, health, safety and well-being, including the minimization of adverse impacts on air quality and traffic from excessive numbers of collection vehicles, the implementation of measures consistent with the City’s Source Reduction and Recycling Component, and in an effort to reduce the City’s potential CERCLA liability, would be served if Contractor were to be awarded an exclusive Franchise for collection, recycling, diversion and disposal of Solid Waste from Service Units in the City of San Bernardino. NOW, THEREFORE, the City and Contractor, agree as follows: Section 1. Definitions Whenever any term used in this Agreement has been defined by the Municipal Code of the City of San Bernardino (“Municipal Code”) or Division 30, Part 1, Chapter 2 of the California Public Resources Code, the definitions in the Municipal Code or Public Resources Code shall apply unless the term is otherwise defined in this Agreement. For purposes of this Agreement the following definitions apply:
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
1.1 “AB 341” means State of California Assembly Bill No. 341 approved October 5, 2011. AB 341 requires businesses, defined to include commercial or public entities that generate more than 4 cubic yards of commercial solid waste per week or multifamily residential dwellings of 5 units or more to arrange for recycling services, on and after July 1, 2012. AB 341 requires jurisdictions, on and after July 1, 2012, to implement a commercial solid waste recycling program. 1.2 “Act” or “AB 939” means the California Integrated Waste Management Act of 1989, codified in part at Public Resources Code §§ 40000 et seq., as it may be amended and as implemented by the regulations of the California Department of Resources Recycling and Recovery (CalRecycle), or its successor agency. 1.3 “AB 1594” means State of California Assembly Bill No. 1594 approved September 28, 2014. AB 1594 provides that the use of green material as Alternative Daily Cover does not constitute diversion through recycling and would be considered disposal. 1.4 “AB 1826” means State of California Assembly Bill No. 1826 approved September 28, 2014. AB 1826 requires each jurisdiction, on and after January 1, 2016, to implement an organic waste recycling program to divert organic waste from businesses. Each business meeting specific organic waste or solid waste generation thresholds phased in from April 1, 2016 to January 1, 2020 is required to arrange for organic waste recycling services. 1.5 “ADC” or “Alternative Daily Cover” means cover material used to cover compacted Solid Waste in a Disposal Site, other than at least six (6) inches of earthen material, placed on the surface of the active face of the Solid Waste fill area at the end of each operating day to control vectors, fires, odors, blowing litter, and scavenging, as defined in Section 20164 of the California Code of Regulations as may be amended from time to time 1.6 “Agreement” or “Franchise Agreement” means this written Agreement between the City and Contractor, and all exhibits. See Section 2, below. 1.7 “Agreement Year” means each twelve (12) month period from April 1st to March 31st of each year beginning on the Service Commencement Date. 1.8 “Bin” or “Bins” means those 2, 3, 4, and 6 cubic yard containers provided by Contractor for the collection of Solid Waste, Recyclable Material and Organic Waste. 1.9 “Bulky Waste” means large and small household appliances, furniture, carpet, mattresses, white goods, brown goods, clothing, automobile tires, and oversized yard waste such as tree trunks and large branches if no larger than two feet in diameter and four feet in length and similar large items discarded by residential Service Recipients. Bulky Waste is a form of Solid Waste when discarded by the generator into the waste
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
stream. The term “Bulky Waste” does not include consumer electronics, such as televisions, radios, computers, monitors, and the like, which are regarded as Universal Waste Electronic Devices, the disposal of which is governed by regulation of the Department of Toxic Substances Control. 1.10 “Business Days” means Monday through Friday, during the hours of 8:00 a.m., through 5:00 p.m., except for holidays recognized by City. 1.11 “Cart” or “Carts” means those wheeled containers up to 96-gallon capacity provided by Contractor for the collection of Organic Waste, Recyclable Materials, and Solid Waste. 1.12 “City” means the City of San Bernardino, California. 1.13 “City Representative” means the City Manager, or the City Manager’s designee, authorized to administer and monitor the provisions of this Agreement. 1.14 “City Service Unit” means those City properties or locations as set forth in Exhibit 2, “City Facilities”, which is attached to and included in this Agreement. 1.15 “Commercial Service Unit” means, premises in the City, other than SFD, MFD and City Service Units, where Solid Waste, Recyclable Materials, and Organic Waste are generated or accumulated. The term “Commercial Service Unit” includes, but is not limited to, stores; offices; restaurants; rooming houses; hotels; motels; industrial and manufacturing, processing, or assembly shops or plants; hospitals, clinics, convalescent centers and nursing homes (non-medical waste). 1.16 “Commercial Organic Waste” means Green Waste and Food Waste separated at the source of generation for inclusion in the Commercial Organic Waste Collection Service program. 1.17 “Integrated Solid Waste Collection, Processing and Disposal Services” means the collection, transportation, processing, recycling, composting, conversion, retention and disposal of all Solid Waste, Organic Waste, (including Commercial Organic Waste, Food Waste, and Green Waste), Recyclable Materials, Construction and Demolition Materials, Bulky Waste, all as defined in this Agreement, produced, generated and/or accumulated within the City. 1.18 “Construction and Demolition Materials” or “C&D Materials” means discarded building materials, “inert wastes” as defined in Public Resources Code § 41821.3(a)(1) (rock, concrete, brick, sand, soil ceramics and cured asphalt), recyclable construction and demolition materials, packaging, plaster, drywall, rubble resulting from construction, remodeling, repair and demolition operations, but does not include asbestos-containing materials. Construction and Demolition Materials, but not asbestos-containing materials,
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
are within the scope of this Agreement, subject to the licensed contractor exception in Section 2.9, below. 1.19 “Consumer Price Index” or “CPI” means the twelve (12) month annual average percentage change for the most recent period of January 1st through December 31st, versus the prior most recent period of January 1st through December 31st, as published the U.S. Department of Labor, Bureau of Labor Statistics, Series ID: “CUURA421SA0, Not Seasonally Adjusted, All Items, Los Angeles-Riverside-Orange County, CA.” 1.20 “Container” means Cart, Bin, or Roll-off. 1.21 “Contractor” means Burrtec Waste Industries, Inc. a California corporation, a party to this Agreement. 1.22 “Displaced City Employee” means an employee of the City as of the Service Commencement Date who was principally employed in the operation or support of City’s refuse enterprise (such as drivers, motor sweeper operators, maintenance workers, customer service representatives, and administrative support) and who would otherwise be discharged or laid-off as a result of City’s grant of the Franchise to Contractor, or who has waived their bumping rights under the applicable collective bargaining agreement and decided to pursue a position offered by Contractor. 1.23 “Disposal Facility” means such place or places specifically designated by the Contractor as listed in Exhibit 3 for the disposal, or processing as appropriate, of Solid Waste and other materials as appropriate. 1.24 “Effective Date” means the date by which Contractor and City have approved the Franchise Agreement (including all attachments) and their respective authorized representatives have executed the Franchise. 1.25 “Franchise” means the exclusive right and privilege granted by this Agreement. 1.26 “Payments to the City ” means the negotiated payments as listed in Section 3 of this Agreement that are agreed upon by the City and Contractor in consideration of City’s grant of the Franchise to Contractor and which, inter alia, is intended to offset the City’s expenses in administering this Franchise and to compensate City for damage to its streets, sidewalks, curbs and gutters and other infrastructure resulting from Contractor’s exercise of this Franchise, the expenses of administering the program for the Solid Waste stream, reporting requirements under the Act and other related expenses. 1.27 “Food Waste” means food scraps and trimmings from food preparation, including but not limited to: meat, fish and dairy waste, fruit and vegetable waste, grain waste, incidental food packaging and food soiled paper products. Food Waste is synonymous
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
with “garbage” as that term is defined by Section 17225.30 of Title 14, California Code of Regulations. 1.28 “Gross Receipts” means all monies, fees, charges, consideration received or imputed to Contractor and any Affiliate of Contractor, in connection with, arising from, or in any way attributable to the services set forth in this Agreement, including services carried out by any permissible subcontractor hereunder. Gross Receipts include, without limitation, any franchise fee imposed and collected pursuant to this Agreement. For purposes of calculating Monthly Franchise Fee Payments, Gross Receipts does not include revenue from the sale of Recyclable Materials. 1.29 “Green Waste” means leaves, grass clippings, brush, branches and other forms of organic materials generated from maintenance or alteration of landscapes or gardens including, but not limited to, yard clippings, leaves, tree trimmings, prunings, brush and weeds and incidental pieces of scrap lumber, separated from the Solid Waste Stream. “Green Waste” includes holiday trees (except such trees which are frosted, flocked or which contain tinsel or metal), but does not include stumps or branches exceeding four inches (4”) in diameter or four feet (4’) in length, or palm fronds, or yucca, which are not suitable for composting. “Green Waste” is not a “Recyclable Material” but may be a form of Solid Waste if discarded into the waste stream. 1.30 “Hazardous Waste” means any waste materials or mixture of wastes defined as a “hazardous substance” or “hazardous waste” pursuant to the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901 et seq., the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 et seq., the Carpenter-Presley-Tanner Hazardous Substance Account Act (“HSAA”), codified at California Health & Safety Code §§ 25300 et seq.; the Electronic Waste Recycling Act of 2003 (SB 20, Sher, Chapter 526, Statutes of 2003; SB 50, Sher, Chapter 863, Statutes of 2004; AB 575, Wolke, Chapter 59, Statutes of 2011), laws governing Universal Waste, including, but not limited to, Universal Waste Electronics Devices (“UWED”), non-empty aerosol cans, fluorescent tubes, high intensity discharge lamps, sodium vapor lamps, and any other lamp exhibiting a characteristic of a hazardous waste, batteries (rechargeable nickel-cadmium batteries, silver button batteries, mercury batteries, small sealed lead acid batteries [burglar alarm and emergency light batteries] alkaline batteries, carbon-zinc batteries and any other batteries which exhibit the characteristic of a hazardous waste), mercury thermometers, mercury-containing switches, and all future amendments to any of them, or as defined by CalRecycle or the Department of Toxic Substances Control, or by their respective successor agencies. If 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.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
1.31 “Household Hazardous Waste” means dry cell household batteries, cell phones and PDAs; used motor oil; used oil filters when contained in a sealed plastic bag; cooking oil; compact fluorescent light bulbs contained in a sealed plastic bag; E-Waste; cleaning products, pesticides, herbicides, insecticides, painting supplies, automotive products, solvents, stripes, and adhesives, auto batteries; and Universal Waste generated at a SFD or MFD Service Unit. 1.32 “Material Recovery Facility” means any facility, selected by the Contractor as listed in Exhibit 3, designed, operated, and legally permitted for the purpose of receiving, sorting, processing, storing, or preparing Recyclable Materials for sale. 1.33 “Multi-Family Dwelling Service Unit” or “MFD Service Unit” means a multi-family dwelling unit such as mobile home parks, apartments, condominiums and town homes, which utilize Carts, Bins or Roll-offs for the accumulation and collection of Solid Waste, Recyclable Material, and Organic Waste. 1.34 “Organic Waste” means Green Waste and Food Waste. Organic Waste is a form of Solid Waste when discarded into the waste stream. The following list may be modified, by the mutual agreement of City and Contractor memorialized in writing executed by both Parties. As of the date of execution of this Agreement, Organic Waste includes, but is not limited to the following: 1.34.1 Plant material (branches, grass clippings, natural Christmas trees, palm fronds, leaves, shrubbery, tree trimmings, weeds); 1.34.2 Wood (non-toxic wood products without paint and foreign objects of appropriate size for the container); and, 1.34.3 Food Waste (cooked and uncooked food matter, incidental food packaging and food soiled paper products for commercial customers). 1.35 “Organic Waste Processing Facility” means any facility selected by the Contractor as listed in Exhibit 3 that is designed, operated and legally permitted for the purpose of receiving and processing Organic Waste. 1.36 “Parties” means the City and the Contractor. 1.37 "Residence" or "Residential" means any and all dwelling units, as defined in the "Land Use Zoning Ordinance" of the City of San Bernardino, and other buildings used for residential or dwelling purposes. 1.38 “Recyclable Materials” is a part of the waste stream that can be reused or processed into a form suitable for reuse through reprocessing or remanufacture, consistent with the requirements of AB 939. The following list may be modified, by the mutual agreement of City and Contractor memorialized in writing executed by both
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
Parties. As of the date of execution of this Agreement, Recyclable Materials includes, but is not limited to the following: 1.38.1 Plastics (all numbered plastics); 1.38.2 Metals (aluminum cans, aluminum foil, empty aerosol cans, pie tins, tin cans); 1.38.3 Fiber materials (cardboard, cereal boxes, envelopes, file folders, frozen food boxes, junk mail, magazines, mixed paper, office paper, newspaper, telephone books, white paper); and, 1.38.4 Glass (all colors of glass jars and bottles, except light bulbs, mirror and window glass). 1.39 “Roll-off” means those 10 to 40 cubic yard containers that are normally loaded onto a motor vehicle and transported to an appropriate facility. 1.40 “SB 20” means the Electronic Waste Recycling Act of 2003. 1.41 “Scavenging” means the unauthorized removal of Recyclable Materials from designated containers and/or place of collection. Scavenging is prohibited by Public Resources Code § 41950. 1.42 “Service Commencement Date” means April 1, 2016, the date upon which Contractor becomes solely responsible for providing Integrated Solid Waste Collection, Processing and Disposal Services to City and within City’s boundaries. 1.43 “Service Recipient” means SFD Service Unit, MFD Service Unit, City Service Unit, or Commercial Service Unit receiving service by the Contractor as specified by the Agreement. 1.44 “Service Unit” means SFD Service Units, MFD Service Units, City Service Units, and Commercial Service Units. 1.45 “Single-Family Dwelling Service Unit” or “SFD Service Unit” generally means a detached dwelling, or each dwelling unit of a duplex, triplex, or quadplex, a townhouse, a condominium unit or a mobile home which utilizes Carts, or a Bin or Roll-off for the accumulation and collection of Solid Waste, Recyclable Material, and Organic Waste. 1.46 “Solid Waste” means and includes any materials defined as “solid waste” by Section 40191 of the California Public Resources Code, and specifically includes, without limitation, Construction and Demolition Materials, Recyclable Materials, Organic Waste, Bulky Waste, and all other non-hazardous materials, excluding Universal Waste, that are discarded into the waste stream by the generator, or collected in exchange for a fee or any other consideration, regardless of form or amount.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
1.47 “Temporary Bin or Roll-off Container Collection Service” means collection of a three (3) cubic yard Bin or ten (10) to forty (40) cubic yard Roll-off container placed in service by Contractor on a temporary basis for no more than seven (7) days between collections. 1.48 “Term” means the operative life of this Agreement as stated in Section 4.2, which is ten (10) years beginning 12:01 am on April 1, 2016 ending 11.59 pm on March 31, 2026. 1.49 “Transition Period” means the period of time between the Effective Date and the Service Commencement Date. 1.50 “Universal Waste” means and includes, but is not limited to, Universal Waste Electronic Devices” or “UWEDs,” (i.e., electronic devices subject to the regulation of the Department of Toxic Substances Control, 23 CCR §§ 66273.1, et seq.), and other Universal Wastes, including, but not limited to non-empty aerosol cans, fluorescent tubes, high intensity discharge lamps, sodium vapor lamps, and any other lamp exhibiting a characteristic of a hazardous waste, batteries (rechargeable nickel-cadmium batteries, silver button batteries, mercury batteries, small sealed lead acid batteries [burglar alarm and emergency light batteries] alkaline batteries, carbon-zinc batteries and any other batteries which exhibit the characteristic of a hazardous waste), mercury thermometers, mercury-containing switches. 1.51 “Work Days” mean the days Monday through Saturday, during the hours of 5:00 a.m., to 6:00 p.m., which is the general period Contractor provides regular collection services. Section 2. Grant of Franchise 2.1 Binding Agreement. In consideration of mutual promises and agreements made by the Parties and contained in this Agreement the Parties agree to be bound by the terms and conditions of this Agreement and that this Agreement shall be binding upon their successors-in-interest. 2.2 Prior Agreements. 2.2.1 Contractor agrees that the agreement between the City and Contractor titled “Professional Services Agreement For The Processing of Organic Materials, Recycling Materials and Municipal Non-Recyclable Solid Waste Between The City Of San Bernardino And Burrtec Waste Industries, Inc.” dated January 1, 2013 regarding delivery of approximately one half of all City collected Organic Waste, Recyclable Materials, and non-recyclable Solid Waste delivered to Contractor’s East Valley Recycling & Transfer Station located at 1150 & 1250 South Tippecanoe Avenue, San Bernardino, CA 92408 is
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
terminated and superseded on the Service Commencement date of this Agreement. 2.2.2 Contractor agrees that the agreement between the City and Jack’s Disposal Inc. “Agreement Between The City Of San Bernardino And Jack’s Disposal, Inc. For The Collection, Transportation, And Disposal Of Solid Waste And Construction Debris And For Provide Temporary Bin/Roll-off Services” dated May 25, 1995 is terminated and superseded on the Service Commencement date of this Agreement 2.2.3 Contractor agrees to abide by the tonnage delivery and payment provisions terms and conditions as required in the agreement between the City and Republic Services of Southern California, LLC, d.b.a. Inland Regional Material Recovery Facility (IRMRF”) titled “Professional Services Agreement For The Processing Of Organic Materials, Recycling Materials And Municipal Non-Recyclable Solid Waste Between The City Of San Bernardino And Republic Services of Southern California, LLC.” dated January 1, 2013 regarding delivery of approximately one half of all City collected Organic Waste, Recyclable Materials, and non-recyclable Solid Waste delivered to the IRMRF located at 2059 E. Steel Road, Colton, CA 92324. Until such time that the agreement between the City and Republic Services of Southern California, LLC is terminated, Contractor is responsible for all payments due to Republic Services of Southern California LLC for Organic Waste, Recyclable Materials, and non-recyclable Solid Waste delivered by Contractor to the IRMRF. After such time that the agreement between the City and Republic Services of Southern California, LLC, is terminated, Contractor shall direct all Organic Waste, Recyclable Materials and Solid Waste collected by Contractor to permitted facilities as designated by Contractor. Contractor shall not be entitled to any additional compensation by the City or the City’s rate payers for Organic Waste, Recyclable Materials, and non-recyclable Solid Waste delivered by Contractor to the IRMRF, except as may be provided in Section 21.1 of this Agreement. 2.3 Grant of Franchise; Exclusions. Except as expressly called out in this Agreement, Contractor is hereby granted the exclusive franchise, duty, right and privilege to control and direct all Solid Waste collected by the Contractor, including transfer, transport, recycling, processing and disposal of Solid Waste Organic Waste and Recyclable Materials generated within the boundaries of City subject to the terms and conditions set forth in this Agreement. 2.4 Exclusive Franchise. Contractor agrees that this Agreement is an “exclusive franchise” as that term is used in Public Resources Code § 40059.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
2.5 Waiver of Rights. Contractor waives any right it may have to challenge the terms of this Agreement under federal, state or local law, or administrative regulation, except as provided in the dispute resolution provisions of Section 28 and Section 29 of this Agreement. 2.6 Recycling Agent. Contractor is hereby designated the City’s authorized recycling agent as that term is used in Public Resources Code § 41950. 2.7 C&D Materials. The collection and disposal of Construction and Demolition Materials from Service Units through the use of Roll-offs or other Bins is within the scope of this Agreement. Accumulation, collection and recycling or disposal of Construction and Demolition Materials by a licensed contractor utilizing its own employees and equipment at its job site is permissible in accordance with the Municipal Code. 2.8 Sale or Gift of Recyclable Materials. This Agreement does not prohibit any person from selling Recyclable Materials or giving Recyclable Materials away to persons or entities other than Contractor; however, in either instance: (1) the Recyclable Materials must be segregated from and not mixed with Solid Waste; and (2) the seller/donor may not pay the buyer/donee any consideration for collecting, processing or transporting such Recyclable Materials, or as a consultation or broker’s fee for recycling services. A discount or reduction in price for collection, disposal and/or recycling services for any form of unsegregated or segregated Solid Waste is not a sale or donation of Recyclable Materials and such Solid Waste does not qualify for this exception. 2.9 Self-Hauling. City Ordinance MC-1346, which modified Section 8.24.285 of the City’s Municipal Code, permits that a construction contractor may self-haul recyclables or C&D waste generated by the construction contractor at the job site, utilizing its own employees and equipment, with the exception of roll-offs or other bins per the Municipal Code. In addition, San Bernardino Municipal Code section 8.24.010(B) provides that the City does not limit the right of an individual person, organization, or other entity from donating, selling or otherwise disposing of recyclable materials, provided that any such donation, sale or disposal is in accordance with the provisions of Chapter 8.24. In addition, San Bernardino Municipal Code section 8.24.050(E) provides that any person in the lawful possession of any property, other than a place of business, is not prevented from collecting and removing therefrom and, in a vehicle owned or lawfully possessed by him or her, from transporting any refuse, recyclable discards or green waste naturally accumulated upon such property so owned or lawfully possessed by him or her. As such, this Agreement does not prohibit such materials which are removed from any Service Unit in the City and which are transported personally by the owner or occupant of such premises to a processing or disposal facility pursuant to the City’s Municipal Code. This Agreement shall not prohibit gardeners and landscapers from collecting,
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
transporting and composting or disposing of Green Waste, as long as they transport such Green Waste to an Organic Waste Processing Facility, or other site permitted (or exempt from permitting) by CalRecycle, or its successor agency, in accordance with all governing laws and regulations and submit reports required by City. 2.10 Annexation. Territory annexed to the City and which is zoned or rezoned for residential or commercial use and which is not within the service area of another Solid Waste enterprise which qualifies under Public Resources Code § 49521 to continue to provide Solid Waste services shall be added to the Service Area covered by this Agreement. In the event that an annexed area is added to the Service Area, City and Contractor agree that this Agreement shall supersede any previous franchise agreement, permit, or license granted to Contractor by another public entity with respect to the collection of Solid Waste Recyclable Materials, Bulky Waste and Organic Waste within the annexed area. In the event that an annexed area is within the service area of another Solid Waste enterprise which qualifies under Public Resources Code § 49521, City shall, within 30 calendar days of the effective date of annexation or at such time as may otherwise be required by law, mail a certified return receipt letter to the current Solid Waste enterprise informing them of the commencement of the five (5) year wind down notification per Public Resources Code § 49521. 2.11 Other Services; Niche Recycling Services. City reserves the right to enter into agreements with other entities for other collection, diversion and recycling services not provided for in this Agreement, including, but not limited to catch basin clean-outs, contract services and “niche” recycling services which Contractor does not currently provide. In the event the City wishes, to provide a niche recycling service, e.g., collection of water heaters, in residential or commercial areas, Contractor shall have the initial opportunity to provide such niche recycling service at an agreed upon rate by the City and the Contractor. Section 3. Contractor’s Payments, Reimbursements, and Additional Revenues to City 3.1 Contractor’s Payments to City. In consideration of City’s grant of the Franchise, Contractor shall pay and/or reimburse, as the case may be as provided in this Section 3, City in good and immediately available funds in United States Dollars. 3.2 Purchase of City-Owned Equipment/Personal Property. Contractor shall purchase all of City’s equipment/personal property utilized in City’s provision of Comprehensive Solid Wastes Services, as specified on the “List of City’s Equipment/Property” attached to this Agreement as Exhibit 9 for Twelve Million Two Hundred Twenty Five Thousand Dollars ($12,225,000) which represents the Contractor’s value of the specific equipment/personal property. Conveyance of and
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
transfer of title to the personal property shall be effectuated by a Bill of Sale and title document deposited by City into an escrow and by Contractor’s deposit of the Property Payment into the escrow. The Parties shall deposit their respective items into escrow within thirty (30) Business Days after the Effective Date of this Agreement. Escrow shall close on or before the Service Commencement Date. City represents that, as the date of conveyance of the equipment/personal property to Contractor, such equipment/personal property shall be free and clear of liens, encumbrances and of adverse claims of any kind. In addition, as of the date of conveyance, possession of equipment/personal property shall be deemed as being transferred to Contractor. 3.3 Procurement-Related Costs Reimbursement. Within twenty (20) days after the Service Commencement Date of this Agreement, Contractor shall pay City a maximum amount not to exceed of Two Hundred Fifty Thousand Dollars ($250,000) as reimbursement for City’s actual procurement-related costs in undertaking the request for proposal process and for the costs it will incur in transitioning Comprehensive Solid Waste Service to Contractor. Within ten (10) days after the Service Commencement Date of this Agreement, the City shall provide an invoice to Contractor specifying the dollar amount incurred by the City for this procurement. Contractor’s reimbursement payment to the City shall be reduced by the amount of any payments made directly by Contractor to City authorized consultants assisting with this procurement. 3.4 Payments to City. For the privileges granted to and conferred upon Contractor by City under the Agreement, Contractor shall pay to City the amounts set forth below (“City Payments”), over the Term of this Agreement, unless the Agreement is earlier terminated or specifically amended to require otherwise: 3.4.1 One-Time, Up-Front Franchise Payment. No later than five (5) business days prior to Service Commencement Date of this Agreement, Contractor shall pay City Five Million Dollars ($5,000,000) for the right to assume City services. If the Five Million Dollars ($5,000,000) payment is not received by March 25, 2016, this Agreement shall be null and void and the City may exercise its rights for the value of the Performance Bond is Section 26 of this Agreement. 3.4.2 Displaced City Employee Payments. Within 30 days of the Service Commencement Date, Contractor shall pay Five Hundred Thousand Dollars ($500,000) to Displaced City Employees in a method to be determined by the City. 3.4.3 Annual Value Added Franchise Payment. Beginning in Agreement Year 2, Contractor shall pay to City Five Hundred Thousand Dollars ($500,000) each Agreement Year, with the first annual payment due on April 1,
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
2017, and each succeeding installment payment due on April 1st of each year thereafter, with a final payment due on April 1, 2025. The total amount of all Annual Value Added Franchise Payments shall be Four Million Five Hundred Thousand Dollars ($4,500,000). 3.4.4 Host Fee Payment. Contractor shall pay the City a Host Fee as follows: a) Contractor shall make quarterly payments in the amounts as specified in Sections 3.4.4.c, 3.4.4.d, and 3.4.4.e covering the periods January 1st – March 31st, April 1st – June 30th, July 1st – September 30th, and October 1st – December 1st. b) The Host Fee Payment is due on the last calendar day of the month following the prior quarter for services rendered, unless such day is a weekend or holiday, then the Host Fee Payment is due the next Business Day. c) For the period covering July 1, 2017 through December 31, 2017, the Host Fee Payment shall be Eighty One Thousand Two Hundred Fifty Dollars ($81,250). d) For the period covering January 1, 2018 through March 31, 2018, the Host Fee Payment shall be Eighty One Thousand Two Hundred Fifty Dollars ($81,250). e) Beginning April 1, 2018 and thereafter, Contractor shall pay to City Three Hundred Twenty Five Thousand Dollars ($325,000) each Agreement Year during the Term of this Agreement, and as the Term may be extended. f) The Host Fee payment is based on an initial Two Dollars ($2.00) per ton applicable on City Solid Waste and Green Waste tonnage delivered to the East Valley Recycling & Transfer Station. The dollar amounts specified in Sections 3.4.4.c, 3.4.4.d, and 3.4.4.e are the amounts to be paid by Contractor. In addition, Contractor shall pay the City a higher amount if the actual annual tonnage delivered to the East Valley Recycling & Transfer Station when multiplied by a City approved per ton Host Fee results in a higher dollar amount. Contractor shall also pay the City a Host Fee for non-City Solid Waste and Green Waste tonnages delivered to the East Valley Recycling & Transfer Station that may be subject to an
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
approved City Host Fee, provided that the non-City jurisdictions have agreed to pay the Host Fee amount. Reconciliation of actual tons received and any increased payments to be made to the City for the prior calendar year will be on the subsequent April 1st payment period. The Host Fee Payment will increase in the same amount as any change to the Maximum Permissible Service Rates, and/ or in a percentage amount equivalent to any City approved Host Fee increase above the initial $2.00 per ton. 3.4.5 Landfill Maintenance Cost Avoidance Payment. Contractor shall pay to City Five Hundred Thousand Dollars ($500,000) each Agreement Year during the Term of this Agreement, and as the Term may be extended, in quarterly payments being due on July 1st, October 1st, January 1st, and April 1st, with the first quarterly payment being due by July 1, 2016. The Annual Landfill Maintenance Cost Avoidance Payment will increase in the same amount as any change to the Maximum Permissible Service Rates. 3.4.6 BioCNG Biofueling Station Payment. Contractor shall pay to City Five Hundred Thousand Dollars ($500,000) each Agreement Year during the Term of this Agreement, and as the Term may be extended, in quarterly payments being due on July 1st, October 1st, January 1st, and April 1st, with the first quarterly payment being due on July 1, 2016. The BioCNG Biofueling Station Payment will be a concession payment for Contractor’s use of City owned Biofuel station. If Contractor wishes to purchase BioFuel, Contractor and City shall enter into a separate agreement for the purchase of BioFuel. 3.4.7 Infrastructure Repair Fee Payment. Contractor shall pay to City Two Hundred Fifty Thousand Dollars ($250,000) each Agreement Year during the Term of this Agreement, and as the Term may be extended, with the first annual payment due on April 1, 2016, and each succeeding payment due on April 1st of each year thereafter. The Annual Infrastructure Repair Fee Payment will increase at the same amount as any change to the Maximum Permissible Service Rates. 3.4.8 Monthly Franchise Fee Payment. Contractor shall pay City the Twenty Percent (20%) of the total Gross Receipts received by the Contractor for services provided by the Contractor under the terms of this Agreement. The Monthly Franchise Fee Payment is due on the last calendar day of the month for services rendered during the prior month, unless such day is a weekend or holiday, then the Monthly Franchise Payment is due the next Business Day. 3.4.9 Annual Recyclables Revenue Share Payment. Contractor shall pay City an amount equal to fifty percent (50%) of net revenue from the sale of
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
recyclable materials each calendar year during the Term of this Agreement, and as the Term may be extended, with the first annual payment due on April 1, 2017, and each succeeding payment due on April 1st of each year thereafter. For purposes of calculating the Annual Recyclables Share Payments, “net revenue” shall be the total dollar amount during each agreement Year from the sale of Recyclable Materials collected and processed by Contractor under the terms of this Agreement less Contractor’s cost for processing and marketing Recyclable Materials, and Contractor’s cost for disposal of residual from processing Recyclable Materials. Contractor shall provide documentation accordance with Section 24.1.1. to allow the City to verify the amount of the Recyclables Revenue Share Payments 3.4.10 Final Payments. Any Contractor payments due to the City after March 31, 2016, or March 31, 2031 if this Agreement is extended, shall be made on the required scheduled day (April 1st for Sections 3.4.4, 3.4.5, 3.4.6, 3.4.7, and 3.4.9, or last calendar day of the month for Section 3.4.8). Section 4. Term and Term Extensions 4.1 Effective Date. The Effective Date of this Agreement shall be the date entered on the first page of this Agreement which is the date by which Contractor and City have approved the Franchise Agreement (with all exhibits attached) and their respective authorized representatives have executed the Franchise Agreement. 4.2 Term of Agreement. The term of this Agreement shall begin on April 1, 2016 and shall expire on March 31, 2026, subject to early termination or extension as may occur pursuant to this Agreement. 4.3 Term Extension. At City’s sole option, City may invite Contractor to meet, confer, and negotiate regarding one 5-Year extension to this Agreement, provided the Term has not been earlier terminated or has already been set for early termination, and Contractor is not then in material breach of the Agreement. The time period to negotiate any term extension shall commence April 1, 2023, and end no later than March 31, 2024, (“Exclusive Negotiating Period”) All terms and conditions of the Agreement shall be open to negotiation, but neither Party shall be obligated to agree to an extension of the Term nor to any modification of the terms and conditions of the Agreement. In the event, the Parties have not mutually approved an agreement extending the Term by the end of the Exclusive Negotiating Period, then there shall be no further obligation to meet, confer, or negotiate with regard to such extension, and City shall have the right to conduct any solicitation process, negotiate with any other service providers, or to award or approve a contract to any other service provider or to recommence its own Integrated
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
Solid Waste Collection, Processing and Disposal Services, as it may deem appropriate in its sole and absolute discretion. 4.4 Continued Reporting. Section 23, Section 25, and Section 33 of this Agreement also require Contractor to provide services (e.g., access to landfill destination information, insurance and indemnification and an insurance policy repository) beyond the period during which collection services are to be provided pursuant to this Agreement. Section 5. Warranties and Representations Contractor warrants that it shall comply with all applicable laws, including implementing regulations, as they may be amended, specifically including, but not limited to RCRA, CERCLA, the AB 939, SB 20, AB 341, AB 1594, AB 1826, laws governing Universal Waste, including, but not limited to, Universal Waste Electronics Devices (“UWED”), non-empty aerosol cans, fluorescent tubes, high intensity discharge lamps, sodium vapor lamps, and any other lamp exhibiting a characteristic of a hazardous waste, batteries (rechargeable nickel-cadmium batteries, silver button batteries, mercury batteries, small sealed lead acid batteries [burglar alarm and emergency light batteries] alkaline batteries, carbon-zinc batteries and any other batteries which exhibit the characteristic of a hazardous waste), mercury thermometers, mercury-containing switches, regulations and orders of the California Department of Toxic Substances Control, the California Air Resources Board, CalRecycle, and their respective successor agencies, and all other applicable laws of the United States, the State of California, the County of San Bernardino, ordinances of the City, the requirements of Local Enforcement Agencies and all other agencies with jurisdiction. 5.1 Minimum Diversion Requirements. The continued privilege of Contractor to provide Integrated Solid Waste Collection, Processing and Disposal Services to City and within City’s boundaries is subject to the satisfaction of each and all of the conditions set below, each of which may be waived in whole or in part by City. The Contractor must achieve all of the following Minimum Requirements. Failure to meet one or more of these requirements is a material breach of this Agreement and subject Contractor to the assessment of liquidated damages, early termination, or other remedies provided for under this Agreement. 5.1.1 Diversion Guarantee. Contractor must achieve a diversion from landfill rate of thirty-one percent (31%) by December 31, 2016; forty percent (40%) by December 31, 2020, and fifty-five percent (55%) by December 31, 2025. 5.1.2 The Maximum Permissible Customer Rates contemplates these Diversion requirements. Should the law change subsequent to the Effective Date of this Agreement and require higher Diversion rates than provided herein, then
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
Contractor shall comply with such legally required Diversion rates and may adjust the Maximum Permissible Customer Rates as provided under Section 21.1.3(c) “Adjustment Due to Change In Law.” The diversion rate will be calculated as the tons of materials collected by Contractor from the provision of collection services that are sold or delivered to a Material Recovery Facility or Organic Waste Processing Facility, recycler or re-user, net of all residue, as required by this Agreement, divided by the total tons of materials collected under this Agreement by Contractor in each 12-month calendar year (January 1st – December 31st). City may also consider documented third party non-franchised recycling programs conducted within the City in determining compliance with the Minimum Diversion Requirements. In calculating the diversion rate, Contractor may include documentation of Recyclable Materials, Organics, or C&D Materials collected or backhauled by customers for delivery to an end-use market, re-seller, food bank, or processing facility. Documentation may include reports, receipts or other written materials that lists the type of materials and tonnage diverted from the customers’ place of business that would otherwise have been collected by the Contractor as ether Solid Waste, Recyclable Materials, Organics, or C&D Materials. 5.1.3 Failure to Meet Minimum Requirements. Contractor’s failure to meet the minimum requirements set forth in this Section 5 may result in the imposition of liquidated damages as specified in Section 30.5 or denial of an extension to this Agreement as specified in Section 4.3 and City’s exercise of the remedies provided in Section 28 and Section 30.3. In determining the appropriate remedy, City will consider the efforts put forth by the Contractor in implementing the required programs to meet the minimum diversion requirements and the methods, the level of effort of the Contractor to fully implement the work plans attached to and included in this Agreement as Exhibits 5 – 8 and the City’s current Per Capita rate as determined by CalRecycle. 5.1.4 Warranties and Representations. Contractor warrants and represents that it is aware of and familiar with City's waste stream, and that it has the ability to and will provide sufficient programs and services to ensure City will meet or exceed the diversion requirements as set forth in Contractor’s Diversion Guarantee, as well as the diversion requirements of the Applicable Laws (including, without limitation, amounts of Solid Waste to be diverted, time frames for diversion, and any other requirements) governing this Agreement (including AB 341, AB 939, AB 1594, AB 1826, SB 1016 and all amendments and related subsequent legislation), and that it shall do so without imposing any costs or fees other than those set forth in Exhibit 1 (including if new programs are implemented which are not called out herein). The programs identified herein
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
are minimum requirements that must be met, and Contractor shall be responsible for implementing any other programs that may be necessary to achieve the forgoing. 5.1.5 Guarantee and Indemnification. Contractor warrants and guarantees that it will carry out its obligations under this Agreement in a manner consistent with Applicable Laws including specifically AB 939, AB 341, AB 1594, AB 1826 and SB 1016, and Contractor’s actions will provide for the City to meet or exceed the diversion requirements (including, without limitation, amounts of Solid Waste to be diverted, time frames for diversion, and any other requirements) set forth in Contractor’s Diversion Guarantee and the Applicable Laws including AB 939, AB 341, AB 1594, AB 1826, and SB 1016 and all amendments thereto. In this regard Contractor agrees that it will, in addition to any other requirement contained herein, at its sole cost and expense: a) To the extent legally permitted, defend, with counsel approved by City, indemnify, and hold harmless City and City's officials, employees, and agents from and against all fines and/or penalties and other liabilities which may be imposed by CalRecycle or any other regulatory agency if: (1) Contractor fails or refuses to timely provide information relating to its operations which is required pursuant to this Agreement or the Applicable Laws and such failure or refusal prevents or delays City from submitting reports required by the Applicable Laws including AB 939, AB 341, AB 1594, and AB 1826 in a timely manner; or (2) the source reduction and Recycling goals, diversion goals, program implementation requirements, or any other requirements of the Applicable Laws, including AB 939, AB 341, AB 1594, and AB 1826, are not met with respect to the waste stream collected under this Agreement; b) Assist City in responding to inquiries from CalRecycle or any other regulatory agency; c) Assist City in preparing for, and participating in, the CalRecycle’s biannual review of City's SRRE pursuant to Public Resources Code Section 41825; d) Assist City in applying for any extension, including under Public Resources Code Section 41820, if so directed by City; e) Assist City in any hearing conducted by CalRecycle, or any other
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
regulatory agency, relating to City's compliance with the Applicable Laws including AB 939, AB 341, AB 1594, and AB 1826; f) Assist City with the development of and implement a public awareness and education program that is consistent with the City's SRRE and Household Hazardous Waste Element, as well as any related requirements of the Applicable Laws; g) Provide City with Recycling, source reduction, and other technical assistance as may be needed to comply with the Applicable Laws including AB 939, AB 341, AB, 1594, and AB 1826; h) Defend, with counsel acceptable to City, City and City's officials, employees, and agents against the imposition of fines and/or penalties, or any other liabilities, issued by CalRecycle pursuant to the Applicable Laws including AB 939, AB 341, AB 1594 and AB 1826; i) Be responsible for and pay, any fees, penalties or other costs imposed against the City by CalRecycle, and indemnify and hold harmless City from and against any fines, penalties, or other liabilities, levied against it for violation of the diversion requirements, set forth in the Applicable Laws for services provided by Contractor under the terms of this Agreement, including AB 939, AB 341, AB 1594 and AB 1826, or for violation of any other provision of the Applicable Laws, including AB 939, AB 341, AB 1594 and AB 1826, arising from or in any way related to Contractor's performance of its obligations under this Agreement. Section 6. Types and Frequency of Service 6.1 Public Health and Safety - General. In order to protect the public health and safety, arrangements made by Contractor with its Service Recipients within the City for the collection of Solid Waste shall provide for the collection of such waste generated or accumulated in Service Units within the City at least once per week, on the regular collection day, or more frequently as Contractor and its customers may agree. 6.2 Hours of Collection. Subject to the exceptions in Section 6.5, Contractor agrees that, in order to protect the quiet enjoyment of residents of the City, Contractor’s
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
collection of Solid Waste, Recyclable Material, and Organic Waste from SFD Service Units shall take place Mondays through Fridays and shall be made between the hours of 5 a.m. and 6 p.m. SFD collection may occur on Saturdays following an observed holiday. MFD and Commercial/Industrial Solid Waste, Recyclable Material, and Organic Waste collection shall take place Monday through Saturday between the hours of 5 a.m. and 6 p.m. City collection service shall be provided between the hours of 5 a.m. and 6 p.m., Monday through Saturday. The hours, days, or both of collection may be extended with the prior written consent of the City Representative. 6.2.1 Restricted Hours. The City may direct Contractor to restrict the collection hours in areas around schools and in high traffic areas during peak commute hours. When the City is conducting road overlay or slurry projects, the City reserves the right to temporarily redirect or restrict Contractor from collection in the affected areas or temporarily change the collection hours if needed. The hours of collection may be extended due to extraordinary circumstances or conditions with the prior written consent of the City Representative. 6.3 Service Units. Service Units shall include all the following categories of premises which are in the service area as of the Service Commencement Date, and all such premises which may be added to the service area by means of annexation, new construction, or as otherwise set forth in this Agreement during term of this Agreement: 6.3.1 SFD Service Units 6.3.2 MFD Service Units 6.3.3 Commercial Service Units 6.3.4 City Service Units Any question as to whether a premises falls within one of these categories shall be determined by the City Representative and the determination of the City Representative shall be final. 6.4 Service Unit Changes. City and Contractor acknowledge that during the Term of this Agreement it may be necessary or desirable to add or delete Service Units for which Contractor will provide collection services. 6.4.1 Additions and Deletions. Contractor shall provide services described in this Agreement to new Service Units within five (5) work days of receipt of notice from City or new Service Unit to begin such service. 6.5 Holiday Service. Contractor observes January 1st, Memorial Day, 4th of July, Labor Day, Thanksgiving Day, and December 25th as legal holidays. Contractor shall not provide collection service on these designated holidays. In any week in which one of
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
these holidays falls on a work day, Service Unit collection service for the holiday and each work day thereafter will be delayed one work day for the remainder of the week with normally scheduled Friday collection services being performed on Saturday. MFD, commercial and City collection service shall be adjusted as agreed between the Contractor and the Service Recipient. 6.6 Processing and Disposal. 6.6.1 Compliance with Regulations. All materials collected under this Agreement shall be delivered to facilities that comply with the Department of Resources Recycling and Recovery regulations under Title 14, Chapter 3, Minimum Standards for Solid Waste, Recyclable Material, and Organic Waste Handling and Disposal (Article 5.9 – Sections 17380-17386). Contractor, and not the City, must assure that all disposal, transfer, and processing facilities are properly permitted to receive material collected under this Agreement. Failure to comply with this provision is a material breach of the Agreement and may result in the imposition of liquidated damages as specified in Section 30.5 of this Agreement, and subject Contractor to the remedies provided in Section 28 and Section 30. 6.6.2 Permits and Approvals. Contractor must assure that all facilities selected by Contractor shall possess all permits and approvals by local enforcement agencies to be in full compliance with all regulatory agencies to conduct all operations at the approved location. Contractor shall, upon written request from the City, arrange for the facilities selected by the Contractor to provide copies of facility permits, notices of violations, inspection areas or concerns, or administrative action to correct deficiencies related to the operation. Failure to provide facility information is a material breach of this Agreement and may result in the imposition of liquidated damages as specified in Section 30.5 and subject Contractor to the remedies provided in Section 28 and Section 30. 6.6.3 Disposal Facility. Beginning on the Service Commencement Date, except as set forth below, all Solid Waste collected as a result of performing collection services shall be timely transported to a fully permitted Disposal Facility as designated by Contractor, in accordance with applicable law. In the event the Disposal Facility is closed on a work day, the Contractor shall transport and dispose of the Solid Waste at such other legally permitted disposal facility. Failure to comply with this provision is a material breach of this Agreement and may result in the imposition of liquidated damages as specified in Section 30.5 of this Agreement and may subject Contractor to the remedies provided in Section 28 and Section 30.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
6.6.4 Organic Waste Processing Facility. Beginning on the Service Commencement Date, Contractor shall timely deliver all collected Organic Waste to a fully permitted Organic Waste Processing Facility as designated by Contractor, in accordance with applicable law. In the event the facility is closed on a Work Day, the Contractor shall transport and deliver the Organic Waste to such other legally permitted facility. Contractor shall ensure that all Organic Waste collected pursuant to this Agreement, except residue resulting from processing, is delivered to an Organic Waste Processing Facility that operates in compliance with diversion and recycling legislation and regulations. Failure to comply with this provision is a material breach of this Agreement may result in the imposition of liquidated damages as specified in Section 30.5 of this Agreement and may subject Contractor to the remedies provided in Section 28 and Section 30. 6.6.5 Material Recovery Facility. Beginning on the Service Commencement Date all Recyclable Materials collected as a result of performing collections shall be delivered to a legally permitted Material Recovery Facility (MRF). In the event the MRF is closed on a work day, the Contractor shall transport and deliver the Recyclable Material to such other legally permitted MRF. Failure to comply with this provision may is a material breach of this Agreement and may result in the imposition of liquidated damages as specified in Section 30.5 of this Agreement and may subject Contractor to the remedies provided in Section 28 and Section 30. 6.6.6 Transformation Facility. At Contractor’s option, Contractor may direct up to 10% of the City’s total waste stream to a waste-to-energy facility for diversion purposes provided that such diversion is allowable and deemed to be diversion by CalRecycle. Contractor is not entitled to any additional compensation associated with Contractor’s use of any Transformation Facility unless the City specifically directs Contractor to use a Transformation Facility. 6.6.7 Use of ADC (ADC). Contractor may utilize ADC for diversion of Green Waste provided that such diversion is allowable and deemed to be diversion by CalRecycle and higher use of Green Waste is not feasible. 6.7 Inspections. The City shall have the right to inspect the Contractor’s facilities or collection vehicles and their contents at any time while operating inside or outside the City. 6.8 Commingling of Materials. 6.8.1 Source Separated Organic Waste and Recyclable Materials. Contractor shall not at any time collect source separated Organic Waste or source
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
separated Recyclable Materials with any Solid Waste collected pursuant to this Agreement, without the express prior written authorization of the City Representative. 6.8.2 Organic Waste, Recyclable Material or Solid Waste Collected in City. Contractor shall not at any time collect any Organics, Recyclable Materials, or Solid Waste collected pursuant to this Agreement, with any other material collected by Contractor outside the City without the express prior written authorization of the City Representative. 6.9 Contamination. Contractor shall only be required to collect Recyclable Materials if they have been separated by the Service recipient from Solid Waste and Organic Waste, and shall only be required to collect Organic Waste if it has been separated by the Service Recipient from Solid Waste and Recyclable Materials. If Recyclable Materials are commingled with Solid Waste or Organic Waste, or Organic Waste is commingled with Solid Waste or Recyclables, to the extent that renders the entire Recyclable Materials or Organic Waste container contaminated, then Contractor will leave the container unemptied along with a non-collection notice which contains instructions on the proper procedures for setting out Recyclable Materials or Organic Waste. The Service Recipient has the option of removing the contaminated materials and the Contractor shall collect the Recyclables Materials or Organic Waste at the next scheduled collection day for no additional charge. If, however, the Service Recipient does not remove the contaminated materials, then the Contractor shall collect the contaminated Recyclable Materials or Organic Waste as Solid Waste on the Service Recipient’s next regularly scheduled Solid Waste collection day. Contractor may charge for this service at the applicable Solid Waste collection rate for the type of customer and size of container as specific in EXHIBIT 1. 6.10 Graffiti Removal 6.10.1 Graffiti Removal from Carts or Bins. If Carts or Bins have been marked or tagged with graffiti, within 48 hours of being identified by the Contractor or City, Contractor shall either remove the graffiti or replace any and all Carts or Bins that have been marked or tagged with graffiti. Contractor shall not deliver a Cart or Bin with any graffiti visible on the Cart Bin. 6.10.2 Graffiti Removal from Temporary Bins and Roll-offs. If Temporary Bins or Roll-offs have been marked or tagged with graffiti, by the next regular scheduled collection day, but no longer than seven (7) calendar days of being identified by the Contractor or City, Contractor shall either remove the graffiti or replace any and all Temporary Bins or Roll-offs that have been marked or tagged
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
with graffiti. Contractor shall not deliver a Temporary Bin or Roll-off with any graffiti visible on the Roll-off. 6.11 Spillage and Litter. The Contractor shall use its best efforts to not litter premises in the process of providing collection service or while its vehicles are on the road. The Contractor shall transport all materials collected under the terms of this Agreement in such a manner as to prevent the spilling or blowing of such materials from a Contractor’s vehicle. The Contractor shall exercise all reasonable care and diligence in providing collection service so as to prevent spilling or dropping of Solid Waste, Organic Waste, or Recyclable Materials and shall immediately, at the time of occurrence, clean up such spilled or dropped materials. 6.11.1 Carelessness of Service Recipient. The Contractor shall not be responsible for cleaning up unsanitary conditions caused by the carelessness of the Service Recipient; however, the Contractor shall clean up any material or residue that are spilled or scattered by the Contractor or its employees. 6.11.2 Liquids from Operations. Equipment oil, hydraulic fluids, spilled paint, or any other liquid or debris resulting from the Contractor’s operations or equipment repair shall be covered immediately with an absorptive material and removed from the surface. When necessary, Contractor shall apply a suitable cleaning agent to the street surface to provide adequate cleaning. Contractor’s vehicles shall at all times carry sufficient quantities of petroleum absorbent materials along with a broom and shovel. 6.11.3 Spillage and Litter from Operations. The above paragraphs notwithstanding, Contractor shall clean up any spillage or litter caused by Contractor within two (2) hours upon notice from the City. 6.12 Hazardous Waste. 6.12.1 Hazardous Waste. Under no circumstances shall Contractor’s employees knowingly collect Hazardous Waste, or remove unsafe or poorly placed Hazardous Waste, from a collection Container. If Contractor determines that material placed in any Container for collection is Hazardous Waste, or other material that may not legally be accepted at the Disposal Facility or one of the processing facilities, or presents a hazard to Contractor's employees, the Contractor shall have the right to refuse to accept such material. The generator shall be contacted by the Contractor and requested to arrange for proper disposal service. If the generator cannot be reached immediately, the Contractor shall, before leaving the premises, leave a non-collection notice, which indicates the reason for refusing to collect the material, and how the Hazardous Waste can be properly disposed or recycled.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
6.12.2 Notification of City. If Hazardous Waste is found in a collection Container that poses an imminent danger to people or property, the Contractor shall immediately notify the City Representative and the City’s Public Safety (Police) Department. The Contractor shall immediately notify the City of any Hazardous Waste that has been identified. 6.12.3 Disposal. If Hazardous Waste is identified at the time of delivery to the Disposal Facility, or one of the processing facilities and the generator cannot be identified, Contractor shall be solely responsible for handling and arranging transport and disposition of the Hazardous Waste. 6.13 Regulations and Record Keeping. Contractor shall comply with emergency notification procedures required by applicable laws and regulatory requirements. All records required by regulations shall be maintained at the Contractor’s facility. These records shall include waste manifests, waste inventories, waste characterization records, inspection records, incident reports, and training records. 6.14 Transition. Contractor understands and agrees that the Transition Period is intended to provide the Contractor with ample and sufficient time to, among other things, order equipment, prepare necessary routing schedules and route maps, obtain any permits and licenses, establish/build facilities, and begin the public awareness campaign as part of the Contractor’s transition program as specified in Exhibit 5 which is attached to and included in this Agreement. Contractor shall be responsible for the provision of all collection services beginning on the Service Commencement Date. Section 7. SFD Collection Service In addition to the general requirements in Section 6, these services shall be governed by the following terms and conditions: 7.1 Conditions of Service. The Contractor shall provide SFD collection service to all SFD Service Units whose Solid Waste, Organics, or Recyclable Materials are properly placed in Carts, except as set forth in Section 7.8, Contractor shall offer Solid Waste Carts in 64 and 96-gallon sizes, and Recyclables Materials and Organic Waste Carts in 64 or 96-gallon sizes. Contractor may offer alternative services to recipients receiving on-premise service. If collection in Carts is not sufficient to accommodate the amount of Solid Waste generated, Contractor may offer Bins or Roll-offs in sizes as allowable under this Agreement. 7.2 Collection Service. SFD collection shall be done where Solid Waste, Recyclable Materials, and Organic Waste Carts are placed within two (2) feet of the curb, swale, or at edge of street pavement for streets without curbs. This shall apply to
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
both public and private streets. Contractor may charge for collection at the rates as set forth in Exhibit 1. 7.2.1 On-Premise Collection Service – Physical Disability. A SFD Service Recipient, and all other adults living at the Service Unit residing therein, who have disabilities that prevent him/her from being physically unable to place Carts at the curb for collection shall receive on-premise collection service where all Carts are collected from a side-yard, backyard, or other off-street location agreed on between the Contractor and the Service Recipient. Contractor shall provide this service at the collection rates as set forth in Exhibit 1. 7.3 Frequency and Scheduling of Service. SFD Solid Waste, Recyclable Materials and Organic Waste shall be provided one (1) time per week on a scheduled route basis. SFD collection services shall be scheduled so that a SFD Service Unit receives SFD Solid Waste collection service and SFD Recyclable Materials collection service, and SFD Organic Waste collection service on the same Work Day. 7.4 Non-collection. Contractor shall not be required to collect any Solid Waste, Recyclable Material, or Organic Waste that is not placed in a Cart. In the event of non-collection, Contractor shall affix to the Cart a non-collection notice explaining why collection was not made. Contractor shall maintain a copy of such notices during the term of this Agreement. 7.5 SFD Solid Waste Collection Service. This service will be governed by the additional following terms and conditions: 7.5.1 Additional Carts. Contractor shall provide additional Carts to SFD Service Recipients within five (5) working days of request at rates per Exhibit 1, provided that additional Carts are used by Service Recipients for the purposes of setting out additional Solid Waste Materials for regular Solid Waste Material collection service. 7.5.2 Solid Waste - Changes to Work. Should changes in law arise that necessitate any additions or deletions to the work described herein including the type of items included as Solid Waste Materials, the parties shall negotiate any necessary cost changes and shall enter into an Agreement amendment covering such modifications to the work to be performed and the compensation to be paid before undertaking any changes or revisions to such work. 7.6 SFD Recyclable Materials Collection Service. This service will be governed by the additional following terms and conditions: 7.6.1 Additional Carts. Contractor shall provide additional Carts to SFD Service Recipients within five (5) working days of request at no additional cost provided
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
that additional Carts are used by Service Recipients for the purposes of setting out additional Recyclable Materials for regular Recyclable Material collection service. 7.6.2 Recycling - Changes to Work. Should changes in law arise that necessitate any additions or deletions to the work described herein including the type of items included as Recyclable Materials, the parties shall negotiate any necessary cost changes and shall enter into an Agreement amendment covering such modifications to the work to be performed and the compensation to be paid before undertaking any changes or revisions to such work. 7.7 SFD Organic Waste Collection Service. In addition to the requirements of Section 6, this service will be governed by the following terms and conditions: 7.7.1 Organic Waste Processing Services. Contractor shall ensure that all Organic Waste collected pursuant to this Agreement are diverted from the landfill in accordance with AB 939 and any subsequent or other applicable legislation and regulations. Contractor reserves the right to dispose, rather than divert, any Organic Waste that is contaminated to an extent it is not suitable for processing. 7.7.2 Organic Waste Disposal. Contractor shall ensure that the Organic Waste collected pursuant to this Agreement is not disposed of in a landfill, except as a residue resulting from processing. For purposes of this Agreement, the application of Organic Waste as Alternative Daily Cover (“ADC”) shall not constitute disposal, so long as, it is applied in accordance with standards adopted by the State of California and is allowable under AB 1594. 7.7.3 Additional Organic Waste Carts. Contractor shall provide additional SFD Organic Waste Carts to SFD Service Recipients within five (5) working days of request. Contractor shall be compensated for the cost of additional Organic Waste Carts in accordance with the “Additional Organic Waste Cart” Service Rate as set forth in Exhibit 1 or as may be adjusted under the terms of this Agreement. 7.7.4 Holiday Tree Collection Service. Contractor shall collect Holiday Trees from all SFD Service Units as part of the SFD Organic Waste collection services. Contractor shall provide this service beginning on the first work day after December 25 until the end of the second collection week in January, or dates approved by the City. a) Contaminated Holiday Trees. Holiday trees that are flocked contain tinsel or other decorations or that do not have their stands removed may be delivered to the Disposal Facility at the discretion of the Contractor.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
b) Trees must be no taller than six (6) feet in length. Trees taller than six (6) feet in length must be cut in half for safe collection. 7.7.5 SFD Food Waste Collection Service. At such time as State Law mandates a separate residential Food Waste Program, Contractor and City shall negotiate the specific program requirements and costs to implement such Food Waste Program. 7.7.6 Non-collection. Contractor shall not be required to collect any Organic Waste that is mixed with either Solid Waste, or Recyclable Materials. In the event of non-collection, Contractor shall affix to the Organic Waste Cart a non-collection notice explaining why collection was not made. Contractor shall maintain a copy of such notices during the term of this Agreement. 7.8 On-Call Bulky Waste Collection Service. This service will be governed by the following terms and conditions: 7.8.1 Conditions of Service. The Contractor shall provide On-Call SFD Bulky Waste collection service to all SFD Service Units in the service area whose Bulky Waste have been placed within two (2) feet of the curb, swale, paved surface of the public or private roadway, closest accessible roadway, or other such location agreed to by the Contractor and Service Recipient, that will provide safe and efficient accessibility to the Contractor's collection crew and vehicle. Each SFD Service Unit in the service area shall be entitled to receive free Bulky Waste collection service a maximum of two (2) collection times per calendar year, five (5) items per collection such as a TV, couch, or water heater. Automobile tires will be limited to two (2) tires per collection request. In accordance with the “Special Collection” service rate as set in Exhibit 1, Contractor shall be compensated for the cost of collecting Bulky Waste in excess of two (2) Bulky Waste collections per year, or more than five (5) items per collection during any single Bulky Waste collection. 7.8.2 Frequency of Service. SFD Service Recipients must call at least forty-eight (48) hours in advance to schedule SFD Bulky Waste collection service. Collection will occur on customer’s next scheduled service collection day. 7.8.3 Bulky Waste Containing Freon. In the event Contractor collects Bulky Waste that contains Freon, Contractor shall handle such Bulky Waste in a manner such that the Bulky Waste is not subject to regulation as Hazardous Waste under applicable state and federal laws or regulations. 7.9 SFD Temporary Collection Service. Upon forty-eight (48) hours request by a SFD Service Unit, Contractor shall provide a 3 cubic yard Bin or Roll-off at the Service Unit. Such SFD temporary collection service shall be on a temporary basis not to
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
exceed seven (7) days without collection, emptying, and replacement of the Bin or Roll-off. 7.9.1 Bins or Roll-offs shall be transported by Contractor to an approved processing facility to achieve maximum diversion. 7.9.2 Charges for temporary Bins Roll-offs shall be in accordance with Exhibit 1 of this Agreement. 7.9.3 The Contractor shall provide SFD temporary collection services with as little disturbance as possible and shall leave any Bins or Roll-off at a location without obstructing alleys, roadways, driveways, sidewalks, or mail boxes. Contractor shall only place Bins or Roll-offs in strict adherence with the City’s right-of-way requirements and Municipal Code. Section 8. MFD Collection Services 8.1 MFD collection services for MFD premises utilizing Carts will be governed by all conditions of service as specified in Section 7 of this Agreement and those MFD premises utilizing Bins or Roll-offs will be governed by all conditions of service as specified in this agreement. Contractor may charge for collection at the rates as set forth in Exhibit 1. In addition, the following additional services shall apply: 8.2 MFD Organic Waste Collection Service. For MFD Service Units utilizing Bins or Roll-offs for collection, Contractor shall implement any required MFD Organic Waste Program in accordance with the schedule established under AB 1826. 8.3 On-Call MFD Bulky Waste Collection Service. The Contractor shall provide on-call MFD Bulky Waste collection service to all MFD Service Units in the service area whose Bulky Waste have been placed within five (5) feet of the curb, swale, paved surface of the public or private roadway, closest accessible roadway, or other such location agreed to by the Contractor and Service Recipient or property manager, that will provide safe and efficient accessibility to the Contractor's collection crew and vehicle. In accordance with the “Bulky Waste Collection” service rate as set in Exhibit 1, Contractor shall be compensated for the cost of collecting MFD Bulky Waste. 8.4 MFD Temporary Collection Service. Upon forty-eight (48) hours request by a MFD Service Unit, Contractor shall provide a 3 cubic yard Bin or Roll-off at the Service Unit. Such MFD temporary collection service shall be on a temporary basis not to exceed seven (7) days without collection, emptying, and replacement of the Bin or Roll-off. 8.4.1 Bins or Roll-offs shall be transported by Contractor to an approved processing facility to achieve maximum diversion.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
8.4.2 Charges for temporary Bins Roll-offs shall be in accordance with Exhibit 1 of this Agreement. 8.4.3 The Contractor shall provide MFD temporary collection services with as little disturbance as possible and shall leave any Bins or Roll-off at a location without obstructing alleys, roadways, driveways, sidewalks, or mail boxes. Contractor shall only place Bins or Roll-offs in strict adherence with the City’s right-of-way requirements and Municipal Code. Section 9. Commercial Collection Service 9.1 Conditions of Service. The Contractor shall provide commercial Solid Waste collection service, commercial Recyclable Material collection service, Commercial Organic Waste collection service, and Commercial Roll-off collection service to all Commercial Service Units in the service area pursuant to the requirements of Section 6 and this Section 9. Contractor may charge for collection at the rates as set forth in Exhibit 1. For new customers, and any change in service, Contractor shall have a written service agreement with each Commercial Service Unit that specifies the services to be provided and the Maximum Permitted Rates to be charged for the agreed on services. The service agreement shall reflect any change in services as requested by the Commercial Service Unit. 9.1.1 Required Container Sizes. Contractor shall offer Solid Waste Carts in 64 and 96-gallon cart sizes, and Recyclable Materials and Organic Waste Carts in 64 or 96-gallon cart sizes. Contractor shall offer Bins in 2, 3, 4, and 6 cubic yard sizes. Contractor shall offer Roll-offs in 10, 20, and 40 cubic yard sizes. 9.1.2 Required Capacity. Contractor shall provide commercial Recyclable Materials collection service to all Commercial Service Units in the service area at no additional cost and Commercial Organic Waste collection service shall be provided upon subscription. For each Service Unit, Contractor shall offer a minimum capacity of commercial Recyclable Material collection as requested by the Service Recipient. The maximum capacity offered shall be measured as the total cubic yards collected weekly for commercial Solid Waste collection service. 9.1.3 Accessibility. Contractor shall collect all Containers that are readily accessible to the Contractor's crew and vehicles and not blocked. However, Contractor shall provide “pull-out services” as necessary during the provision of commercial collection services. Pull-out services shall include, but not be limited to moving manually or by a specialized “scout” truck the Containers from their storage location for collection and returning the Containers to their storage location and will be charged as outlined in Exhibit 1.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
9.1.4 Manner of Collection. The Contractor shall provide commercial collection service with as little disturbance as possible and shall leave any Container at the same point it was originally located without obstructing alleys, roadways, driveways, sidewalks or mail boxes. 9.1.5 Size and Frequency. The size of the Container and the frequency (above the minimum) of collection shall be determined between the Service Recipient and the Contractor provided it meets the City’s development and permitting requirements. However, the size and frequency shall be sufficient to provide that no Solid Waste, Recyclable Material, or Organic Waste need be placed outside the Container. Commercial collection service shall be provided as deemed necessary and as determined between the Contractor and the customer, but such service shall be received no less than one (1) time per week with no exception for holiday(s) as set forth herein, except that collection service scheduled to fall on a holiday may be rescheduled as determined between the customer and the Contractor as long as the minimum frequency requirement is met. Service may be provided by Bin, Cart or Roll-off at the option of the customer. The Contractor shall provide Solid Waste, Organics Waste, or Recyclable Materials Containers as part of the commercial collection service rates set forth in Exhibit 1; however, customers may own their compactor provided that the customer is completely responsible for its proper maintenance and such compactor shall be of a type that can be serviced by the Contractor's equipment. 9.2 Commercial Solid Waste Collection Service. This service shall be governed by the following additional terms and conditions: 9.2.1 Commercial Solid Waste Overflow. Where Contractor identifies instances of overfilling of Container, it will document the overfilling through verbal or written reports and/or digital photography. Contractor will meet with the customer to review evidence of the overfilling of containers. Where such evidence was presented to the commercial/industrial account and Contractor documents another instance of overfilling within one (1) month of such presentation, Contractor is authorized to charge an overage fee as outlined on Exhibit 1. In addition, Contractor will contact the customer to discuss the option of delivering a next larger-sized Container to the commercial/industrial premises. 9.2.2 Non-collection. Contractor shall not be required to collect any commercial Solid Waste that is not placed in a Cart, Bin, or Roll-off. In the event of non-collection or material overflow, Contractor shall affix to Cart, Bin, or Roll-off a non-collection notice explaining why collection was not made.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
9.3 Commercial Recyclable Material Collection Service. This service will be governed by the following terms and conditions: 9.3.1 Additional Bins or Carts. Contractor shall provide additional Cart, Bin, or Roll-off to commercial Service Recipients within five (5) days of request provided that additional Bins and Carts are used by commercial Service Recipients for the purposes of setting out additional Recyclable Materials for regular weekly Recyclable Materials collection service. Contractor may charge for additional Bins or Carts in accordance with EXHIBIT 1. 9.3.2 Recycling - Changes to Work. Should changes in law arise that necessitate any additions or deletions to the work described herein including the type of items included as Recyclable Materials, the parties shall negotiate any necessary cost changes and shall enter into an Agreement amendment covering such modifications to the work to be performed and the compensation to be paid before undertaking any changes or revisions to such work. 9.4 Commercial Organic Waste Collection Service. This service shall be provided on a customer subscription basis and will be governed by the following terms and conditions: 9.4.1 Conditions of Service. In accordance with the schedule established under AB 1826, Contractor shall provide Commercial Organic Waste Collection Service to all Commercial Service Units in the service area who have subscribed for service and whose Commercial Organic Waste materials are properly placed in Containers except as set forth below, where the Containers are accessible. Commercial Organic Waste Collection Service will occur Monday – Friday, and on Saturdays upon request and as necessary. 9.4.2 Commercial Organic Waste - Changes to Work. Should changes in law arise that necessitate any additions or deletions to the work described herein including the types of items included as Organic Waste, the parties shall negotiate any necessary cost changes and shall enter into an Agreement amendment covering such modifications to the work to be performed and the compensation to be paid. 9.5 Commercial Roll-off Collection Service. Upon request of a Commercial Service Unit, Contractor shall provide a commercial Roll-off collection service on a temporary basis or permanent basis. 9.5.1 Roll-offs shall be transported by Contractor to an approved processing facility to achieve maximum diversion.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
9.5.2 Charges for Roll-offs shall be in accordance with Exhibit 1 of this Agreement. 9.5.3 The Contractor shall provide commercial Roll-off collection services without obstructing alleys, roadways, driveways, sidewalks, or mail boxes. Contractor shall only place Roll-offs in strict adherence with the City’s right-of-way requirements and Municipal Code. Section 10. Collection Service for City Service Units 10.1 General. Contractor shall provide Solid Waste, Recyclable Material, and Organic Waste collection services, and Roll-off collection service to City Service Units as deemed necessary and as determined between the Contractor and the City, but such service shall be received no less than one (1) time per week. Contractor Service may be provided by Bin, Cart or Roll-off at the option of the City. Contractor shall offer Solid Waste Carts in 64 and 96-gallon cart sizes and Bins in 2, 3, 4, and 6 cubic yard sizes, and Recyclables Materials and Organic Waste Carts in 64 and 96-gallon cart sizes and Bins in 2, 3, 4, and 6 cubic yard sizes. Contractor shall offer Roll-offs in 10, 20, and 40 cubic yard sizes. The size of the Container and the frequency (above the minimum) of collection shall be determined between the City and the Contractor. However, size and frequency shall be sufficient to provide that no Solid Waste, Recyclable Materials, or Organic Waste needs to be placed outside the Container. City Service Units are listed in Exhibit 2. Contractor shall not charge for collection of Solid Waste, Recyclable Materials or Organic Waste generated within the normal course of business. 10.2 Public Containers Collection. Contractor shall provide collection, transportation and disposal or processing service to those public Solid Waste, Organic Waste or Recycling Containers in place or placed by the City, or as designated by the City, and other City properties during the term of this Agreement. Frequency of collection shall be a maximum of six (6) days per week per Container. 10.3 Accessibility. Contractor shall collect all Carts, Bins and Roll-offs that are readily accessible to the Contractor's crew and vehicles and not blocked. However, Contractor shall provide “pull-out services” as necessary during the provision of City collection services. Pull-out services shall include, but not be limited to, dismounting from the collection vehicle, moving the Bins or Carts from their enclosure location for collection and returning the Bins or Carts to their enclosure location. 10.4 Contractor Additional Services. Contractor will provide the following additional services at no cost to the City: 10.4.1 City Sponsored Events. Contractor shall provide collections services at City-sponsored events as requested by City. Such services shall be provided in
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
such a manner that all collection, processing and disposal needs for the event are adequately and properly provided for by Contractor. City Sponsored Events are set forth on Exhibit 4, attached to and included in this Agreement. Contractor agrees to establish a program under which it will donate free or reduced cost services as a gesture of corporate good will to charitable or other non-profit community groups for events sponsored by such groups within the City’s boundaries. 10.4.2 Neighborhood Watch Program. Contractor shall implement a neighborhood watch program in cooperation with the City Representative and City’s Police Chief. The purpose of the program is to enhance the standard of living in City’s neighborhoods by utilizing Contractor’s drivers and supervisors to keep a watchful eye out for flagged activities or circumstances. Contractor will work with City to identify preferred reporting methodologies as well as the identification of certain problem areas or flagged actives or circumstances. Contractor will train drivers on how to safely report potential incidents of crime, vandalism or child safety. 10.4.3 Local Purchase Preference Program. Contractor shall make good faith efforts to purchase goods and services from businesses located within City’s boundaries (“San Bernardino Business”) that are reasonably cost effectively able to supply parts, services or support to Contractor in performing its obligations under this Agreement. 10.5 Community Development Department Reviews. Contractor, upon City’s request, shall assist the City in the review of applicants’ plans for projects covered by Public Resources Code § 42911, including commercial and multi-family projects, to provide for effective and economical accumulation and collection of Organic Waste, Recyclable Materials and Solid Waste. 10.6 Enforcement. Contractor and City will take reasonable measures, including, but not limited to, legal actions (e.g., actions seeking to enjoin scavengers) to discourage Scavenging of Recyclable Materials from the Solid Waste, Recyclable Material, and Organic Waste Stream. Contractor agrees to assist the City to further develop or implement Anti-Scavenging Ordinances, Construction & Demolition Ordinances, and Mandatory Commercial and Multi-Family Recycling Ordinances to assist in meeting CalRecycle diversion program requirements, maximize the Exclusive Franchise provisions of this agreement, and to deter illegal hauling from occurring in the City.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
Section 11. Street Sweeping 11.1 Street Sweeping Services. Beginning on the Service Commencement Date, and continuing until the expiration or termination of this Agreement, Contractor or Contractor’s subcontractor as listed in Exhibit 11, shall provide street sweeping services at no additional cost in accordance with the terms and conditions of this Agreement. 11.2 Manner of Service. Contractor shall provide a complete sweep of all publicly maintained City Streets. Within any curb mile, Contractor shall be responsible for sweeping all curbs including median islands and the corners from any cross street intersecting the subject street. Contractor shall obey all laws governing the operation of the sweepers on a public street, and shall perform its operations so that sweepers are traversing their routes in the normal direction of traffic. 11.3 Water. Contractor may obtain water from City designed facilities at rates set by the City for the water necessary in the street sweeping operation within City. Alternatively, Contractor may make arrangements to obtain water from other water purveyors within the area at Contractor’s sole cost and expense. To the extent possible, Contractor shall use reclaimed or recycled water. 11.4 Sweeper Speed. Contractor shall operate the sweepers at a speed of not more than six (6) miles per hour when sweeping or when the sweeper brooms are down, unless Contractor can demonstrate that the sweeper can operate efficiently and safely at a higher speed. City will use NPDES Permits requirements, Environmental Protection Agency information, generally accepted industry standards, and the sweeper manufacturer's recommendation on the speed of sweepers when considering speeds greater than six (6) miles per hour. 11.5 Width of Sweeper Path. Contractor shall sweep a path, with all brooms down, with a width of not less than eight (8) feet unless parked vehicles, structures, or other objects prohibit the safe sweeping of this path width. The path shall begin at the face of the curb, and include the flow line of the gutter. Unless blocked by parked cars or Containers the face of the curb and gutter shall always be included within the sweeper path. On those residential streets with no curb, the width of the sweeper path shall be not less than eight (8) feet measured from the edge of the pavement toward the center of the street. 11.6 Noise. To protect peace and quiet in service areas, the noise level generated by street sweepers during normal sweeping shall not exceed a single-event noise level of eighty-five (85) decibels (dBA) at a distance of twenty-five (25) feet from the street sweeper measured at an elevation of five (5) feet above ground level. Contractor shall, upon request, submit to City a certificate of vehicle noise level testing by an independent
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
testing entity of any street sweepers used by Contractor in the City, which has been the subject of more than one noise complaint within any twelve-month period. 11.7 Global Positioning Systems (GPS). Contractor shall provide street sweeping vehicles with fully functioning on-board GPS systems. 11.8 Frequency and Day of Service. 11.8.1 Residential Streets. Contractor shall provide street sweeping service for each curb mile of residential streets in the City twice per month on a scheduled route basis. However, in those instances where the scheduled street sweeping service day falls on a holiday, Contractor shall provide street sweeping services on the following scheduled sweeping service day. 11.8.2 Major Arterial Streets. Contractor shall provide street sweeping service for each curb mile of major arterial streets in the City twice per month on a scheduled route basis. However, in those instances where the scheduled street sweeping service day falls on a holiday, Contractor shall provide street sweeping services on the following scheduled sweeping service day. 11.8.3 Downtown Area Streets. Contractor shall provide street sweeping service for each curb mile of the downtown area streets in the City twice per month on a scheduled route basis. However, in those instances where the scheduled street sweeping service day falls on a holiday, Contractor shall provide street sweeping services on the following scheduled sweeping service day. 11.8.4 City Owned Parks Parking Lots. Contractor shall provide street sweeping service for each City owned parks parking lots in the City once monthly on a scheduled route basis. Parks parking lots shall be swept on the same day of the month that routine sweeping of the adjoining residential neighborhood takes place. However, in those instances where the scheduled street sweeping service day falls on a holiday, Contractor shall provide street sweeping services on the following scheduled sweeping service day. 11.9 Hours of Service. Contractor shall provide street sweeping service on major arterial streets commencing no earlier than 4:00 a.m. and terminating no later than 7:00 p.m., Monday through Friday with no service on Saturday (except for holiday service as set forth in Section 6.5 of this Agreement in which case normal collection hours may be utilized or as set forth in this Section) or Sunday. The hours, days, or both of service may be extended due to extraordinary circumstances or conditions with the prior verbal consent of the City Representative. Sweeping in residential areas shall be coordinated with collection services to ensure that sweeping occurs after collection of all Carts has been completed on a specific street.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
11.10 Street Changes. City and Contractor acknowledge that during the term of this Agreement it may be necessary or desirable to add or delete City streets for which Contractor will provide street sweeping service. City will provide notification of changes to Contractor through the customer service system. Conditions which may cause the City Representative to order a street or an area to be bypassed temporarily include the following: 11.10.1 Construction or development on or along a street. 11.10.2 Pavement maintenance activities, including the chip seal program or the slurry seal program. 11.10.3 Inclement weather when running water is in the gutter or street such that sweeping is ineffective. 11.10.4 Special sweeping on alternative schedule. 11.10.5 Consistent non-compliance of citizens to remove parked cars during sweep days. 11.10.6 Other legitimate reasons that make sweeping impractical as determined by the City Representative. 11.11 Street Additions. As new streets are constructed and accepted by City, City may, at City’s sole option, designate such streets as part of the service area for the purposes of street sweeping service. If the City Representative designates such streets as part of the service area (after final cap has been laid down) Contractor shall provide street sweeping service on such streets under the terms and conditions of this Agreement within fifteen (15) work days of receipt of notice from the City Representative to begin service. 11.12 Street Deletions. City may require some City streets to be temporarily or permanently removed from the list of scheduled streets for which Contractor provides street sweeping service under this Agreement. Contractor shall immediately cease providing street sweeping service to any City street upon receipt of notice from the City Representative to stop such service. When a City street has been temporarily removed from the list of scheduled streets, Contractor shall resume street sweeping service on such street in the next regularly scheduled cycle following notification from the City Representative that normal street conditions exist in order to resume service. 11.13 Revised Maps. Contractor shall revise the street sweeping service route maps to show the addition or deletion of City streets as provided above and shall provide such revised maps to the City Representative as requested. The maps shall be provided in a format that can be posted to the City website.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
11.14 Temporary Changes in Sweeping Schedule. In the event that the City Representative notifies Contractor not to sweep on a temporary basis, no liquidated damages will be assessed for failure to sweep such streets. The City Representative shall notify Contractor of the temporary suspension of service at least one day prior to the scheduled sweep, except that in the case where the reason for not performing service is because of inclement weather, the City Representative may notify Contractor at any time. 11.15 Parking Restrictions. The City shall also notify Contractor of any streets when permit parking may impact scheduled street sweeping service. Contractor may be required to adjust sweeping schedule to sweep prior to the parking permit hours’ restrictions. 11.16 Signage. Should the City change street sweeping days, or add street sweeping signage Contractor shall be responsible for the cost and installation of any such modified or new signs as directed by the City. 11.17 Hazardous Waste. Contractor shall not be required to remove any Hazardous Waste from the street surface. If in the course of performing street sweeping services, any suspected Hazardous Wastes are encountered, Contractor shall immediately report the location to the San Bernardino Fire Department or any other responsible agency and to the City Representative. 11.18 Disposal of Sweeper Waste. Contractor shall transport and deliver all sweeper waste and debris collected as a result of performing street sweeping services to a facility as listed in Exhibit 3. 11.19 Spillage. During hauling, all sweep waste shall be contained, covered or enclosed so that leaking, spilling and blowing of the sweep waste is prevented. Contractor shall be responsible for the immediate cleanup of any spillage caused by Contractor. 11.20 Street Sweeping Service Routes. Within ten (10) days of the Effective Date of this Agreement, City shall provide Contractor with a street sweeping database for use in developing routes and maps. Contractor shall develop the routes and maps using this data. Within thirty (30) days of receiving City provided route maps, Contractor shall submit to the City Representative, service area maps, precisely defining the sweeper routes for review and approval by the City Representative. The route maps shall include the days of the month sweeping shall occur, the portions of the City to be swept, and any special needs such as early starts, and late finishes. The City Representative may provide written comments on the preliminary maps to Contractor no later than ten (10) work days after receipt of the maps from Contractor. Contractor shall revise the maps to reflect such comments and return them to the City Representative within ten (10) work
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
days after receipt of the City Representative’s comments for City corroboration. Upon approval by the City Representative of the final sweeper route maps, Contractor shall develop and maintain the sweeping routes on a computerized mapping system that is compatible with City’s mapping system to the extent possible. Street sweeping maps provided to the City shall be in a format that is suitable for posting to the City website. 11.21 Addition or Deletion of City Streets. Changes in maps due to addition and deletion of certain City streets shall be provided by City, and Contractor shall update the maps in Contractor’s system every month. Such changes shall also be reflected in Contractor’s printed route maps. 11.22 Service Route Changes. Contractor shall submit to the City Representative, in writing, any proposed route change (including maps thereof) not less than forty-five (45) calendar days prior to the proposed date of implementation. The City Representative may provide written comments to Contractor on such proposed change no later than ten (10) work days after receipt of the proposal from Contractor, and Contractor shall revise the routes to reflect such comments and return them to the City Representative within ten (10) work days of receipt of such comments, for City corroboration. Contractor shall not implement any route changes without the prior approval of the City Representative. If the approved route change will change the day on which street sweeping service will occur, Contractor shall notify the affected Service Recipients of route changes not less than thirty (30) work days before the proposed date of implementation in a manner approved by the City Representative. 11.23 Other City Street Sweeping Service. If during the Term of this Agreement, circumstances exist which require work associated with the street sweeping service program that are not specifically provided for in this Agreement, the City Representative may require Contractor to perform such other associated work (OAW). When Contractor performs OAW, the labor, materials, and equipment used in the performance of such work shall be subject to the prior written approval of the City Representative and charged at an amount agreed to between the City and Contractor. Examples of OAW that Contractor may be required to perform include: flood clean-up and, construction clean up services caused private contractors, City requested clean-up services and any contingency where sweeper and supporting sweeper equipment could assist in a particular instance. 11.24 Street Sweeping Quality of Work. The standards of performance, which Contractor is obligated to meet, are those good street sweeping practices, which leave the serviced area in a debris and dirt free condition.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
Section 12. Right-of-Way Clean-Up Service 12.1 Approach. Contractor will perform a proactive and comprehensive Right-of-Way Clean-Up Services at a high level of cleanliness at the gateway entry points of the City, Downtown and Civic Center District as well as other designated areas identified by the City. 12.1.1 Contractor’s Right-of-Way Clean-Up Services will consist of seven (7) components: a) Removal of litter, vegetation and accumulated roll-off from City gateways, alleys, major thoroughfares (including center islands and landscape medians), and the Downtown District; b) Removal of memorials c) Removal of waste generated at homeless/transient encampments; d) Shopping cart, and tire removal; e) Storm channel and storm drain cleaning; f) Metrolink clean-up; and, g) Warrant abatements, vacant lot clean-ups and illegal dumping clean-ups. 12.2 Personnel. Contractor will deploy ten (10) maintenance workers and one (1) maintenance supervisor fulltime to perform Right-of-Way Clean-Up Services. The workweek of the Right-of-Way Clean-Up crewmembers will be assigned so as to provide coverage from 6:00 AM to 6:00 PM, Monday through Friday and 6:00 AM to 2:00 PM on Saturdays. 12.3 Equipment. At a minimum, Contractor will perform this work with no less than four (4) vehicles, each equipped with a two-way radio, a flashing arrow sign (FAS), ten (10) 28-inch orange cones with reflective bands, two (2) “Roadwork Ahead” signs, each equipped with a caution light, and necessary commercial hand tools, including but not limited to, clippers, hand saws, chainsaw, rakes, brooms, shovels, pitch forks, weed eaters and personal safety equipment consisting of reflective garments, protective chainsaw chaps, gloves, helmets and eye and ear protection. 12.4 City Work Orders. Contractor will respond to the City’s written Work Orders for Right-of-Way Clean-Up Services within two (2) business days. Emergency notifications
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
may be directed to Contractor’s division office, which shall then dispatch Contractor’s Right-of-Way Maintenance Supervisor to the scene for assessment and resolution. 12.5 Diversion. To the extent practical, Contractor will divert from disposal the materials collected. 12.6 Compensation. Work for components (a) through (f) will be performed at no additional cost to the City. Work for component (g) will be performed in response to a duly noticed code enforcement action with the expectation that the property owner will bear the cost of the service and that if payment is not made, the City will process the collection as a debt utilizing the County tax bill lien procedure available to it with compensation due to Contractor when collected by the City. 12.7 Scope of Services for Right-of-Way Clean-Ups 12.7.1 Routine Patrol. Contractor’s Right-of-Way maintenance crews will complete routine patrols removing all litter, vegetation and accumulated roll-off from: a) City gateway entry points and the Downtown and Civic Center District, once weekly; and, b) Assigned Right-of-Way routes for major thoroughfares, center islands and landscaped medians from the centerline of the roadway in both directions to ten (10) feet off of the road edge, once every twenty (20) business days; and c) Any public alley from the centerline in both directions to the property line as determined by fences, landscaping, changes in surface material, or line of sight once every twenty (20) business days. 12.7.2 Removal of Memorials. Within two (2) business days following written notification from City, Contractor will remove and dispose of memorials, which shall include but not be limited to trash, bedding and personal effects. 12.7.3 Removal of Homeless Encampments. Subject to the following provisions, within two (2) business days following written notification from the City, Contractor will remove and dispose of materials from homeless or transient encampments, which shall include but not be limited to trash, bedding and personal effects. In each such case, City will make its Police force available to Contractor to coordinate the removal of such materials in a lawful manner and in a manner, which ensures the safety of Contactor’s employees. City will be responsible for complying with all applicable laws related to the removal of such
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
materials. In addition, City agrees to indemnify, defend, protect and hold harmless Contractor, its officers, employees and assigns from and against all losses, liabilities, claims, actual damages (including but not limited to special and consequential damages) and expenses (including but not limited to attorneys’ and expert witness fees and costs incurred in connection with defending against any of the foregoing or enforcing this indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted against, Contractor or its officers, employees or agents arising from or attributable to any act or omission of City or Contractor or Contractor’s officers, employees or agents in the removal of such materials, and/or any failure to fully comply with all applicable laws in connection with the same. 12.7.4 Shopping Cart Removal. Contractor’s Right-of-Way Maintenance Crews shall remove shopping carts as a part of its routine patrol and upon the written direction of the City. Contractor will transport shopping carts to its facility and will attempt to contact the retail outlet from which shopping carts bearing identification originated. Retail outlets will be given five (5) business days after notification to retrieve their shopping carts subject to a recovery costs of $25.00 per shopping cart. Unclaimed shopping carts will be recycled. 12.7.5 Storm Channels and Storm Drains. Storm channels identified in a listing to be provided by City will be cleaned once annually not later than September 1st. Storm drains and drain easements identified in a listing to be provided and maintained by the City will be cleaned once annually between October 1st and December 1st. 12.7.6 Metrolink. The Contractor Right-of-Way maintenance crew will visit the Metrolink Station located at 1204 W. 3rd Street once each week to remove litter and accumulated debris from the grounds and parking lot. Twice annually, the Contractor Right-of-Way maintenance crew will patrol the Metrolink rail line within the City in coordination with Metrolink maintenance services. 12.7.7 Warrant Abatements, Vacant Lot Clean-Ups, Illegal Dumping Clean-Ups. Within two (2) business days of receipt of a written order of the City’s code enforcement officer delivered by the City’s Contract Administrator, the Contractor Right-of-Way maintenance crew will respond to perform clean-up on private property as part of an enforcement action. Contractor will maintain a record of hours worked, personnel and equipment utilized, and disposal expenses and shall issue a bill to the City for the services performed. The City shall follow its usual collection procedures, which may include causing a lien to be assessed against the property on the County property tax bill. The City will then compensate Contractor when the City collects payment.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
12.8 Exceptions. Hazardous or toxic substances, motor vehicles, motor vehicle parts and objects larger than seven (7) feet in length or weighing more than two hundred (200) pounds are excluded from the Scope of Services for Right-of-Way Clean-Up. 12.9 Lease of Contractor’s Vehicles. Contractor agrees that after the Service Commencement Date, the City may lease vehicle numbers 08223 and 739 as listed in Exhibit 9 for an amount of One Dollar ($1.00) per Agreement Year. In the event that City leases vehicle numbers 08223 and 739, the City shall be responsible for the associated insurance, vehicle licensing, maintenance and fueling costs of vehicle numbers 08223 and 739 during the time these vehicles are leased by the City. The terms and conditions of any vehicle lease agreement shall be negotiated between the City and Contractor. Section 13. Collection Routes 13.1 Collection Routes. During the Transition Period, but before the Service Commencement Date, Contractor shall coordinate with City staff to define the existing collection routes. Any proposed changes to current routing shall be reviewed and approved by the City prior to any notification or implementation with the customers. 13.2 Subsequent Collection Route Changes. During the first four to six months, no changes will be made to residential service route days. The Contractor shall submit to the City, in writing, any proposed route change (including maps thereof) not less than sixty (60) calendar days prior to the proposed date of implementation, except for route changes agreed to by City and Contractor. To the extent possible, Contractor will provide the map data in a GIS format that is compatible with the format used by the City. The Contractor shall not implement any route changes without the prior review of the City Representative. If the route change will change the collection day for a Service Recipient, the Contractor shall notify those Service Recipients in writing of route changes not less than ten (10) days before the proposed date of implementation. 13.3 Collection Route Audits. The City reserves the right to conduct audits of Contractor’s collection routes. The Contractor shall cooperate with the City in connection therewith, including permitting City employees or agents, designated by the City Representative, to follow behind the collection vehicles in order to conduct the audits. The Contractor shall have no responsibility or liability for the salary, wages, benefits or worker compensation claims of any person designated by the City Representative to conduct such audits.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
Section 14. Public Outreach Services 14.1 General. Contractor, at its own expense, shall prepare, submit and implement an annual Public Education and Outreach Plan that incorporates key feature of Contractor’s Public Education Program (Exhibit 6). The proposed action plans must be submitted annually for City approval no later than sixty (60) days following the Service Commencement Date and each year thereafter. The program must include specific steps designed to increase diversion and participation, for the City’s residents and businesses. A minimum of two (2) annual campaigns should target certain diverted materials or “problem” areas of the Contractor’s service area where improvements can be maximized. Targets of outreach should be based on local trends and recycling patterns based on information obtained by both the City Representative and Contractor staff. The Contractor shall provide space in Contractor’s public outreach materials, such as mailers, flyers and newsletters, for the City to include announcements, community information, articles, and photographs such that it does not impact the current mailing cost components. 14.2 Transition. Contractor will provide transition activities, during the Transition Period, including, at minimum, conducting eight (8) (one in each ward and one general at a location to be determined) community workshops and meetings outlining the transition to the services provided by the Contractor’s services and how billing will be done. Contractor shall also provide information on proper how to participate in recycling and organics services, and where to take HHW materials for proper recycling or disposal, how to arrange for Bulky Waste Collection, and the days and hours that collection and Street Sweeping will occur. 14.3 Recycling Coordination Support. Contractor will provide staff resources to serve as recycling coordination support to promote Contractor’s public education, recycling and waste diversion, waste prevention, and grant application and coordination programs provided to the City. 14.4 Annual Collection Service Notice. Each Agreement Year the Contractor shall publish and distribute notices to all Service Units regarding the types of services available. The notice can be in the form of a separate mailer, one of the quarterly newsletters distributed by Contractor, or as a billing insert. To the extent appropriate, based on the category of customer receiving the notice, it shall contain at a minimum: definitions of the materials to be collected, procedures for setting out the materials, collection and disposal options for unacceptable materials such as Hazardous Waste, and the Contractor customer service phone number and website address. The notice shall be provided in English, and in Spanish if requested by City, and shall be distributed by the Contractor each Year.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
14.5 Additional Public Outreach Programs and Services. Contractor shall provide additional Public Outreach Programs and Services as requested by City at a price to be mutually agreed upon between the Contractor and the City within the City Manager’s contract signing authority. In the event the Contractor and the City cannot reach a mutually agreed upon price for the requested service or program, City shall have the right to procure the service of other vendors or contractors to provide the requested service. 14.6 News Media Relations. Contractor shall notify the City Representative by Fax, e-mail or phone of all requests for news media interviews related to the collection service program within twenty-four (24) hours of Contractor’s receipt of the request. Before responding to any inquiries involving controversial issues or any issues likely to affect participation or Service Recipient perception of services, Contractor will discuss Contractor’s proposed response with the City Representative. 14.6.1 Copies of draft news releases or proposed trade journal articles shall be submitted to City for prior review and approval at least five (5) work days in advance of release, except where Contractor is required by any law or regulation to submit materials to any regulatory agency in a shorter period of time, in which case Contractor shall submit such materials to City simultaneously with Contractor’s submittal to such regulatory agency. 14.6.2 Copies of articles resulting from media interviews or news releases shall be provided to the City within five (5) Business Days after publication. 14.7 Website. Contractor shall develop and maintain a state-of-the-art website accessible to the public, dedicated to services provided in the City that is accessible by the public. The web site shall include answers to frequently asked questions, list of Recyclable Materials and Organic Waste, and other related topics. The Contractor’s website shall provide the public the ability to e-mail complaints to Contractor and request services or service changes. Contractor’s website shall also promote reuse and recycling, graphics and statistic illustrating the City progress toward meeting City’s diversion goals, other City’s environmental programs, and other materials as requested by the City. The City shall review and approve Contractor’s website as it relates to the City of San Bernardino’s page(s). 14.8 Waste Generation and Characterization Studies. Contractor acknowledges that City must perform Solid Waste generation and characterization studies periodically to comply with AB 939 requirements. Contractor agrees to participate and cooperate with City and its agents and to perform studies and data collection exercises, as needed, to determine weights, volumes and composition of Solid Waste generated, disposed, transformed, diverted or otherwise processed to comply with AB 939.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
Section 15. Collection Equipment 15.1 General. Contractor warrants that it shall provide adequate numbers of vehicles and equipment for the collection, transportation, recycling and disposal services for which it is responsible under this Agreement. All collection vehicles used by Contractor in the performance of services under this Agreement shall be of a high quality. At the start of this Agreement, all collection vehicles utilized by Contractor pursuant to this Agreement shall be those outlined below in conjunction with vehicles owned by the Contractor. 15.2 Use of Purchased City Equipment. In accordance with this Agreement, Contractor shall purchase the City’s personal property used as listed in Exhibit 9. 15.3 Vehicle Transition Plan. Contractor shall re-brand all previously owned City of San Bernardino vehicles as outlined in the Transition Plan attached in Exhibit 5. 15.4 Temporary Access to and Use of City Corporation Yard. Contractor contemplates requiring access to and use of City’s Corporate Yard for up to ninety (90) days after the Service Commencement Date for temporary storage of Containers and collection vehicles. City and Contractor will separately meet and confer with regard to the scope and terms of conditions of such temporary use after the Effective Date of the Agreement, but City will not unreasonably refuse such access and use provided Contractor does not undertake any maintenance, repair, cleaning, or fueling of any vehicles, nor refurbishment or maintenance of Containers, does not store nor dispose of any Solid Waste, Hazardous Waste or Universal Waste at the Corporate Yard, maintains insurance acceptable to City, and repairs any damages caused by Contractor’s use. 15.5 Long Term Use of City Corporation Yard. In the event that City wishes to provide long-term use or purchase of the City’s Corporate Yard to Contractor, any such agreement will be done separately from this Agreement. 15.6 Noise. To protect peace and quiet in service areas, the noise level generated by compaction vehicles using compaction mechanisms during the stationary compaction process shall not exceed a single-event noise level of eighty-five (85) decibels (dBA) at a distance of twenty-five (25) feet from the collection vehicle measured at an elevation of five (5) feet above ground level. Contractor shall, upon request, submit to City a certificate of vehicle noise level testing by an independent testing entity of any collection vehicles used by Contractor in the City, which has been the subject of more than one noise complaint within any twelve-month period. 15.7 Compliance. Contractor warrants that it will comply with all measures and procedures promulgated by all agencies with jurisdiction over the safe and sanitary operation of all its equipment.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
15.8 Private Streets, Alleys and Parking Lots. Contractor agrees to use its best efforts to prevent damage to private streets, alleys and parking lots over which its collection equipment may be operated, to obtain all required approvals for operation of its collection vehicles on private streets, alleys and parking lots. 15.9 Vehicle Registration, Licensing and Inspection. Upon City request during the term of this Agreement, Contractor shall submit documentation to the City Representative to verify that each of the Contractor’s collection vehicles is in compliance with all registration, licensing and inspection requirements of the California Highway Patrol, the California Department of Motor Vehicles, and any other applicable laws or regulations. Contractor shall not use any vehicle to perform collection service that is not in compliance with applicable registration, licensing and inspection requirements. Each vehicle shall comply, at all times, with all applicable statutes, laws or ordinances of any public agency. Collection vehicles will be subject to routine inspections by the California Highway Patrol and will be subject to bi-annual inspections. Certificates for said inspection shall be filed with the City upon request. 15.10 Clean Air Vehicles. During the term of this Agreement, to the extent required by law, Contractor shall provide its collection vehicles to be in full compliance with local, State and federal clean air requirements that were adopted including, but not limited to, California Air Resources Board and South Coast Air Quality Management District. 15.11 Safety Equipment. All collection equipment used by Contractor shall have appropriate safety markings including, but not limited to, highway lighting, flashing and warning lights, clearance lights, and warning flags. All such safety markings shall be in accordance with the requirements of the California Vehicle Code, as may be amended from time to time. All collection vehicles shall be equipped with audible back-up warning devices. 15.12 Vehicle Signage and Painting. Collection vehicles shall have with the Contractor's name, Contractor’s customer service telephone number, and the number of the vehicle. No advertising shall be permitted other than the name of the Contractor except promotional advertisement of the Recyclable Materials and Organic Waste programs. Contractor shall repaint all vehicles (including vehicles striping) during the term of this Agreement on a frequency as necessary to maintain a positive public image as reasonably determined by the City Representative. 15.13 Vehicle Maintenance. Contractor shall maintain collection vehicles in a clean condition and in good repair at all times and ensure that no collected materials, oil, grease, or other substances will blow, fall out, escape or leak out of the vehicle, with the exceptions of vehicle emission. All parts and systems of the collection vehicles shall
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
operate properly and be maintained in a condition satisfactory to City. Contractor shall wash all collection vehicles at least once a week. 15.14 Maintenance Log. Contractor shall maintain a maintenance log for each collection vehicles. The log shall at all times be accessible to City upon request of City Representative, and shall show, at a minimum, each vehicle’s Contractor-assigned identification number, dates of performance of routine maintenance, dates of performance of any additional maintenance, and description of additional maintenance performed. 15.15 Equipment Inventory. Upon City’s request, Contractor shall provide to City an inventory of collection vehicles and major equipment used by Contractor for collection or transportation and performance of services under this Agreement. The inventory shall indicate each collection vehicle by Contractor assigned identification number, DMV license number, the age of the chassis, type of fuel used, the type and capacity of each vehicle, the number of vehicles by type, and the maintenance status. Upon City request, Contractor shall submit to the City Representative, either by Fax or e-mail, an updated inventory annually to the City or more often at the request of the City Representative. Each vehicle inventory shall be accompanied by a certification signed by Contractor that all collection vehicles meet the requirements of this Agreement. 15.16 Reserve Equipment. The Contractor shall have available to it, at all times, reserve collection equipment which can be put into service and operation in the event the disabled vehicle cannot return to service that day. Such reserve equipment shall correspond in size and capacity to the equipment used by the Contractor to perform the contractual duties. 15.17 Containers. 15.17.1 Carts. Carts may be new, existing or refurbished as of the Service Commencement Date, and are to be hot-stamped, embossed, or laminated, and in-molded with the type of materials to be collected (i.e., Solid Waste, Organic Waste, Recyclable Materials). In-molding on the Carts shall be on the lids. Contractor’s name and/or logo shall be included on the body of Carts. Labeling and graphics of the Carts shall be approved by the City. 15.17.2 Bins. Bins may be new, existing, or refurbished at the start of the Agreement. Bins are to be painted and be labeled with either the type of materials to be collected (i.e., Solid Waste, Organic Waste, Recyclable Materials) or the type of material prohibited from being disposed in the Bin. 15.17.3 Roll-offs. Roll-off containers may be used, provided they are newly painted, properly marked and in good working order. The City retains the right to
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
inspect any such used Roll-off and direct the Contractor to replace such a used Roll-off if it is deemed to be not acceptable. 15.17.4 Purchase and Distribution of Carts and Bins. The Contractor shall be responsible for the purchase and distribution of fully assembled and functional Carts and Bins to Service Units in the Service Area throughout the term of this agreement. Contractor shall also distribute Carts and Bins to new Service Units that are added to Contractor’s service area during the Term of this Agreement as required. The delivery of containers shall be completed within five (5) Work Days. 15.17.5 Replacement of Carts and Bins. Contractor’s employees shall take care to prevent damage to Carts or Bins by unnecessary rough treatment. However, any Cart or Bin damaged by the Contractor shall be replaced by the Contractor, at the Contractor's expense, within five (5) Work Days at no cost or inconvenience to the Service Recipient. a) Upon notification to the Contractor by the City or a Service Recipient that the Service Recipient’s Cart(s) and Bin(s) have been stolen or damaged beyond repair through no fault of the Contractor, the Contractor shall deliver a replacement Cart(s) and Bin(s) to such Service Recipient within five (5) Work Days. The Contractor shall maintain records documenting all Cart and Bin replacements occurring on a monthly basis. b) Where such Cart is lost, stolen or damaged beyond repair through no fault of the Contractor, each SFD Service Unit shall be entitled to the replacement of one (1) lost, destroyed, or stolen Solid Waste Cart, one (1) lost, destroyed, or stolen Recyclable Materials Cart, and one (1) lost, destroyed, or stolen Organic Waste Cart, during each of the ten (10) Agreement Years at no cost to the Service Unit. c) Where such Cart or Bin is lost, stolen or damaged beyond repair through no fault of the Contractor, each MFD Service Unit shall be entitled to the replacement of one (1) lost, destroyed, or stolen Solid Waste Cart or Bin, one (1) lost, destroyed, or stolen Recyclable Materials Cart or Bin, and one (1) lost, destroyed, or stolen Organic Waste Cart or Bin during each of the ten (10) Agreement Years at no cost to the Service Unit.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
d) Where such Cart or Bin is lost, stolen or damaged beyond repair through no fault of the Contractor, each Commercial and City Service Unit shall be entitled to the replacement of one (1) lost, destroyed, or stolen Solid Waste Cart or Bin, one (1) lost, destroyed, or stolen Recyclable Materials Cart or Bin, and one (1) lost, destroyed, or stolen Organic Waste Cart or Bin during each of the ten (10) Agreement Years at no cost to the Service Unit. e) Where such Bin or Cart replacement occurs through no fault of the Contractor, Contractor shall be compensated for the cost of those replacements in excess of the requirements set forth above in accordance with the “Cart or Bin” Service Rate, as appropriate, as initially set by the City or as may be adjusted by the City as provided under the terms of this Agreement. 15.17.6 Repair of Carts and Bins. Contractor shall be responsible for repair of Carts in the areas to include but not be limited to, hinged lids, wheels and axles. Within five (5) Work Days of notification by the City or a Service Recipient of the need for such repairs, the Contractor shall repair the Cart or Bin or if necessary, remove the Cart or Bin for repairs and deliver a replacement Cart or Bin to the Service Recipient. 15.17.7 Cart or Bin Exchange. Upon notification to the Contractor by the City or a Service Recipient that a change in the size or number of Carts or Bins is required, the Contractor shall deliver such Carts or Bins to such Service Recipient within seven calendar days to allow for the exchange to occur on the regular scheduled collection day. At no charge, each SFD, MFD, Commercial, and City Service Unit shall be entitled to receive one (1) Solid Waste Cart, Recyclable Materials, or Organic Waste Carts exchange, per Agreement Year during the term of this Agreement. Contractor shall be compensated for the cost exchanges in excess of one (1) per Agreement year, in accordance with the “Cart or Bin Exchange” service rate as Set forth in Exhibit 1. 15.17.8 Ownership of Carts, Bins and Roll-Off Containers. Ownership of Carts, Bins and Roll-Off Containers on the Service Commencement Date, and Carts, Bins and Roll-Off Containers distributed by the Contractor after April 1, 2016 shall rest with the Contractor. However, in the case of the termination of the Agreement prior to the expiration of the Term, or optional Term Extension, the City shall have the right to take possession of the Carts, Bins and Roll-Off Containers and shall retain such possession until satisfactory arrangements can be made to provide collection services using other equipment. Such time of
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
possession shall be limited to twelve months, and no monies will be owed to the Contractor from the City for the use of the equipment. Upon the receipt of written notice from the City, Contractor shall submit to the City Representative an inventory of Carts, Bins and Roll-Off Containers, including their locations. Section 16. Hiring of Displaced City Employees and Local Recruiting 16.1 CONTACTOR shall offer employment to all “qualified” Displaced City Employees and shall hire such Displaced City Employees if they timely accept the offer of employment. An applicant is deemed “qualified” where he or she has undergone and passed the Contractor’s required standard pre-employment physical, background check and drug screening. Displaced City Employees shall be hired in accordance the following and the provisions of Exhibit 10. 16.1.1 Contractor shall maintain all Displaced City Employees at the same level of pay as was paid to the displaced employee by the City as of the Service Commencement Date. 16.1.2 Displaced City Employees will be eligible for annual reviews. 16.1.3 In determining the rate of accrual for paid vacation and sick days for Displaced City Employees, Contractor agrees to apply each Displaced City Employee’s years of service with City as if they were years of service with Contractor. 16.1.4 Contractor shall pay a total of Five Hundred Thousand Dollars ($500,000) as a hiring bonus distributed to Displaced City Employees who are hired by the Contractor within 30 days of Service Commencement Date. The allocation method for distributing the hiring bonus paid to Displaced City Employees will be determined by the City. 16.1.5 Contractor shall not discharge any Displaced City Employee hired by Contractor for at least one hundred eighty (180) days after the Service Commencement Date, except “for cause” as that term is defined in the employee personnel policies of Contractor effective as of the Effective Date of this Agreement. Thereafter, the continued employment of Displaced City Employees shall be under the terms and conditions established for all Contractor’s workers in the particular classification. 16.2 Local Recruiting. Contractor’s Human Resources Department will attempt to fill job openings with City residents through the following means:
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
16.2.1 All Contractor employees residing in the City will be advised of Contractor’s job openings in advance of general postings and announcements and will be encouraged to refer friends and family residing in the City; 16.2.2 City publications will be included in any media job postings; 16.2.3 For special recruitments, Contractor will utilize a job fair; 16.2.4 Flyers and promotions for events sponsored by Contractor within the City will carry a message inviting residents to consider employment with Contractor; and, 16.2.5 When two or more equally qualified job candidates are considered for employment with Contractor in the City, preference will be shown to the candidate residing in the City. Section 17. Privacy 17.1 General. Contractor shall observe and protect the rights of privacy of Service Recipients. Information identifying individual Service Recipients, or the composition or contents of a Service Recipient’s Solid Waste, Recyclable Materials, or Organic Waste shall not be revealed to any person, governmental unit, private agency or company, unless upon the authority of a court of law, by statute, or upon valid authorization of the Service Recipient. This provision shall not be construed to preclude Contractor from preparing, participating in, or assisting in the preparation of waste characterization studies or waste stream analyses which may be required by the Act, or preparing and distributing public awareness materials to Service Recipients. 17.2 Mailing Lists. Contractor shall not market or distribute mailing lists with the names and addresses of Service Recipients. 17.3 Privacy Rights Cumulative. The rights accorded Service Recipients pursuant to this Section shall be in addition to any other privacy rights accorded Service Recipients pursuant to federal or state law. Section 18. Service Exceptions; Hazardous Waste 18.1 Hazardous Waste Inspection, Diversion and Reporting. Contractor reserves the right and has the duty under law, to inspect Solid Waste put out for collection and to reject Solid Waste observed to be contaminated with Hazardous Waste. Should Contractor find or observe reportable quantities of Hazardous Waste put out for collection with Solid Waste, Contractor shall notify all agencies with jurisdiction, including the California Department of Toxic Substances Control and Local Emergency Response Providers and, if appropriate, the National Response Center, of reportable quantities of
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
Hazardous Waste, found or observed in Solid Waste observed or collected anywhere within the City. In addition to other required notifications, if Contractor 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 storm drains, streets or other public rights of way, Contractor shall notify the City Manager, or the City Manager’s designee immediately. Section 19. Customer Service 19.1 Office Hours. Contractor must maintain an office accessible by a local or toll free telephone number each Business Day. 19.2 Service Recipient Calls. At Contractor’s expense, its regular telephone numbers shall be listed in San Bernardino-area telephone directories under Contractor’s name. Contractor shall maintain a telephone answering system capable of accepting at least ten (10) incoming calls at once. 19.3 Emergency / After Hours Telephone Number. 19.3.1 For City. Contractor will provide cell phone numbers and/or other required contact information to City Staff to be used in case of an emergency. These emergency numbers can be used outside normal business hours and will be kept confidential. 19.3.2 For Service Recipients. Contractor shall have an after-hours message center where customers can leave messages. Contractor will also provide and maintain a website where customers may leave messages by e-mail. Contractor will retrieve all voice and email messages the following business day. 19.4 Multilingual. Contractor shall at all times maintain the capability of responding to all telephone calls in English, Spanish and such other languages City reasonably determines to be necessary for communication with service recipients. 19.5 Customer Service and Complaint Logs. Contractor shall update customer records with any inquiries, service requests and complaints into a customer data base which shall be maintained in a manner that it is reasonably available for inspection and review by City upon request. All calls shall be logged in the account record. Contractor shall note the name and address of the complainant, the date and time of the complaint, the nature of the complaint, the name of the Contractor’s employee taking the complaint, and the nature and date of Contractor’s resolution of the complaint. Contractor shall inform all Service Recipients that all complaints shall be directed to Contractor. The Complaint Log shall be maintained on a computerized data base format. The Complaint Log shall be available for inspection and review by City upon request. Contractor shall
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
provide a summary of the Complaint Log to City monthly during the first (1st) year of service and then quarterly thereafter for the duration of the Term. 19.6 Response to Calls. Contractor will use its best efforts to answer all incoming calls within five (5) rings. Any call “,on-hold” will be placed in a queue and answered in the order in which it was received. 19.7 Service Responses. City and Contractor agree that the protection of public health, safety and well-being require that service complaints be acted on promptly. Contractor shall be responsible for the prompt and courteous attention to, and prompt and reasonable resolution of, all Service Recipient complaints. 19.7.1 Missed Pick-Ups. In the case of a complaint of a missed collection, Contractor shall make the collection no later than the following collection day 19.7.2 Other Complaints. Contractor will respond to all complaints from Service Recipients, other than missed-pickups, within one (1) Working Day of receiving the complaint. Section 20. Ownership of Solid Waste, Recyclable Materials, Organic Waste and Construction and Demolition Materials Ownership of Solid Waste, Organic Waste, and Recyclable Materials shall pass, by operation of law, to Contractor at such time as said materials are placed for collection in Containers for collection by Contractor. Ownership and the right to possession of Solid Waste, Recyclable Material, Organic Waste and Construction and Demolition Materials placed for collection shall transfer directly from the Service Recipient to Contractor, by operation of law and not by virtue of this Agreement. At no time does the City obtain any right of ownership or possession of Solid Waste or any Hazardous Waste illicitly placed for collection in a Solid Waste Container, and nothing in this Agreement shall be construed as giving rise to any inference that City has any such rights. Section 21. Customer Rates and Billing Procedures 21.1 Rates for Service. 21.1.1 Maximum Permitted Service Rates. Contractor shall not charge rates (or additional charges, fees, or penalties) in excess of the Maximum Permitted Service Rates specified on Exhibit 1 attached to this Agreement. 21.1.2 City Service Units. Contractor shall not charge or bill City for services to City Service Units, Street Sweeping, or abandoned waste Collection and Right-of-Way Clean-Ups.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
21.1.3 Adjustments To Maximum Permitted Service Rates. The adjustments to Maximum Permissible Customer Rates shall be calculated as follows: a) Annual Adjustment. July 1, 2017, and each July 1st thereafter, Contractor may increase the Maximum Permitted Service Rates for all Service Recipients by CPI. Any City Approved Host Fees shall be considered as pass-through cost and added to the CPI adjustment to the Maximum Permitted Service Rates. Contractor shall send the proposed rate adjustment calculations and full rate schedule to the City Manager for review by March 1st of each Agreement year, or no adjustment shall be made for that Agreement Year. The City Manager shall respond to Contactor within thirty days (30) after receipt of Contractor’s proposed changes to the Maximum Permitted Service Rates if the proposed percentage increase is calculated correctly in accordance with this Agreement. If the proposed Maximum Permitted Service Rates are correctly calculated, the new rates will be implemented by Contractor beginning July 1st of the Agreement Year. If the City Manager finds that Contractor’s proposed changes to the Maximum Permitted Service Rates are not correctly calculated, Contactor shall have thirty days (30) days to correct and resubmit proposed changes to the Maximum Permitted Service Rates. If Contractor does not resubmit corrected Maximum Permitted Service Rates within 30 days of notice by the City Manager, no adjustment to the rates shall be made. b) Maximum Annual Increase. In no event may the increase in Maximum Permissible Service Rates increase by more than five percent (5%) during any July 1st – June 30th period regardless of the amount increase in the CPI. If, however, the changes to the CPI result in an increase above five percent (5%) or a negative number, any amount above five percent (5%) or below zero percent (0%), shall be carried forward or applied in subsequent years. c) Adjustment Due to Change In Law. As used herein, “Change in Law” means the enactment, issuance, adoption, repeal,
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
amendment or modification of any federal, state or local statute, ordinance or regulation, or a regulatory agency or other administrative agency interpreting a regulation or statute, or a judicial decision interpreting a law, statute, ordinance or regulation, in a manner different than relied upon by municipalities and the solid waste and collection industry. Contractor may adjust the Maximum Permissible Service Rates by an amount equal to the increase or incremental increase, as the case may be, in the costs (i.e. on any direct or indirect cost, whether fixed or variable) of Contractor’s provision of services under this Agreement that are caused by the Change in Law and that have been demonstrated to the City Council. d) The City Council shall not unreasonably refuse to approve rate adjustments, nor shall the City Council unreasonably delay review and approve of any such adjustment. 21.1.4 Rounding. Calculation of rates and determination of any annual adjustments shall be made only in units of one cent ($0.01) and shall not result in a decrease to the rates currently in effect. Fractions of less than one cent ($0.01) shall not be considered in making adjustments. The indices shall be truncated at four (4) decimal places for the adjustment calculations. 21.2 Contractor Billing. The Contractor shall be solely responsible for the billing and collection of payments for all Integrated Solid Waste Collection, Processing and Disposal Services to Service Recipients, except as provided in the Transition Plan. The City’s Representative may review the initial format for all Service Recipient bills. 21.3 Partial Month Service. If, during a month, a Service Unit is added to or deleted from Contractor’s service area, the Contractor’s billing shall be pro-rated based on the daily rate (monthly rate multiplied by 12 months and then divided by 365 days). The daily rate is assessed for the actual number of days the account was serviced. 21.4 Production of Invoices for Service Units Utilizing Cart Service. The Contractor shall produce an invoice for Service Recipients utilizing Carts received under this Agreement bi-monthly in arrears. The Contractor’s invoice shall be remitted to the Service Recipient no earlier than the last day of the 2nd month of the period for which service is being billed. The payment due date will be the 15th day of the month following the close of the billing period. Contractor shall provide notice to affected customers of a proposed rate increase one full billing cycle in advance of implementing the rate increase. Where the exact amount of the increase proposed is not known a billing cycle in advance, Contractor may satisfy this requirement by referring to a measure by which
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
the rate will increase (e.g. by reference to the CPI or by reference to an increase caused by a Change in Law). 21.5 Production of Invoices for Service Units Utilizing Bin Service. The Contractor shall produce an invoice for Service Recipients utilizing Bins received under this Agreement in arrears but no fewer than twelve (12) times per year. The Contractor may invoice the Service Recipient no earlier than the last day of the month for which service is being billed. 21.6 Production of Invoices for Roll-off Collection Service. The Contractor shall produce an invoice for Roll-off collection services received under this Agreement in arrears for services during the prior month. Service recipients utilizing Roll-off collection services may be invoiced upon completion of the service. 21.7 Production of Invoices for Temporary Bin or Roll-off Collection Service. The Contractor may bill for temporary Bin or Roll-off Collection Services in advance on a Cash on Delivery basis (COD), or another billing arrangement mutually agreed on between Contractor and Service Recipient requesting Temporary Bin or Roll-off Collection Service. Contractor may also bill for collected tonnage in arrears based on the actual weight of materials by material type. 21.8 City Provided Billing Inserts. City may provide educational and other material to Contractor for inclusion in the invoices mailed by Contractor to SFD, MFD and Commercial Service Units for collection services. Contractor shall not charge the City for the inclusion of additional educational or other materials in the invoices provided the inclusion of such City requested materials does not exceed the cost for standard postage for any mailing. City shall be responsible for the additional postage costs if applicable. 21.9 Methods of Payment. Contractor shall provide the means for Service Recipients to pay bills through the following methods: cash, checks, credit cards, internet payment service or automatic withdrawal from bank account. On-line (E-Pay) bill methods shall be password protected and comply with federal regulations protecting the privacy of customer credit information. Contractor shall provide evidence of such security certifications and advise the City of Contractor’s security measures implemented for on-line payment. 21.10 Remitting Receivables. Contractor shall remit to City any payments received from service units for services provided by City prior to the Service Commencement Date, and City shall remit to Contractor any payments received from service units for services provided by Contractor after the Service Commencement Date. Such remittance shall be made within fifteen (15) days of receipt of payment.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
21.11 Delinquent Service Accounts. 21.11.1 Residential Accounts. Contractor agrees not to discontinue service to residential SFD and MFD (5 or fewer units) cart customers. Contractor may recover any and all payments in accordance with Section 21.11.3 below. 21.11.2 Commercial Accounts. Contractor agrees to not permanently discontinue service to a commercial or Roll-off customer for non-payment. Contractor may temporarily suspend services for maximum of fourteen calendar days if customer’s account has been delinquent in payment for a period of at least forty-five (45) days. If Contractor temporarily suspends service to any non-paying person, corporation or entity, such person, corporation, or entity as a condition precedent to re-establishment of regular service, shall comply fully with all of the then billing policies and practices of the Contractor, including, but not limited to, requirement of payment by cash or cash equivalent, prepayment of one full billing cycle, a security deposit, payment of all costs of collection of monies owed to Contractor, and payment of a reinstatement fee. In addition, delinquent accounts shall be charged a 1.5% monthly late fee. If the Contractor temporarily suspends service for non-payment of the customer’s account, Contractor shall, upon City request, give written notice to the City Manager of any suspension of service for nonpayment of account, giving the name and address of the customer(s). If payment is not received after the temporary suspension of services, Contractor shall resume regular services and shall be entitled to recover any and all payments in accordance with Section 21.11.3 below. 21.11.3 Non-Payment. Customers (Owners or tenants) who have not remitted required payment within forty-five (45) days after the date of billing shall be notified by Contractor on forms that contain a statement that if payment is not received within fifteen (15) days from the date of the notice, the delinquent and unpaid charges, including a 10% penalty and 1.5% monthly interest, as well as all direct and indirect costs incurred by City and Contractor may be placed on the San Bernardino County annual secured property tax rolls and that any amount owing would then become a lien on the property. Contractor shall provide such notice to customers as is legally required, including notification via U.S. Mail to the current billing address on file. The City agrees to annually levy delinquent charges for the prior calendar year for collection with property taxes. The parties intend that while the City will elect in accordance with State Law to place delinquent and unpaid solid waste assessments on the secured property tax rolls, Contractor understands and agrees that the City has no obligation to foreclose on any tax bill. Contractor shall pay all fees charged by San Bernardino County in connection with the establishment of this secured tax roll billing and
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
collection program and shall pay all direct and indirect costs incurred by the City in processing delinquent and unpaid assessments through the secured property tax roll procedure. Section 22. Contractor’s Books and Records; Audits 22.1 Contractor shall maintain all records relating to the services provided hereunder, including, but not limited to, all costs of collection and disposal, customer lists, billing records, maps, records substantiating the information furnished by Contractor to City pursuant to Section 24 of this Agreement and Service Recipient complaints for the period during which collection services are to be provided pursuant to this Agreement and an additional period of not less than three years, or any longer period required by law. The City shall have the right, upon fifteen business days advance notice, to inspect, copy and audit all records relating to this Agreement, including, but not limited to, Service Recipient lists, billing records, maps, and customer complaints. Such records shall be made available to City at Contractor’s regular place of business, or other place agreed to by City and Contractor, within the County of San Bernardino. 22.2 Should any examination or audit of Contractor records reveal an underpayment of any payment required to be paid to City under this Agreement, the amount of such underpayment, plus interest at the maximum rate permitted under California law, shall become due and payable to City not later than thirty days after written notice of such underpayment is provided to Contractor by City. Should an underpayment of more than five percent (5%) be discovered, Contractor shall bear the entire cost of the examination or audit. Section 23. Integrated Waste Management Act; Reporting Requirements 23.1 Contractor-City Cooperation. Contractor shall cooperate with City in Solid Waste Disposal Characterization Studies and waste stream audits and shall implement measures adequate to achieve the diversion goals set forth in this Agreement. (See also Section 5, and Section 30.3 below.) During the Term of this Agreement, Contractor, at no expense to City, shall submit to City all relevant information and reports required to meet the reporting obligations imposed by CalRecycle under the Act, as amended. Contractor agrees to submit such reports and information by email or on computer discs, in a format acceptable to City at no additional charge, if requested by City. 23.2 Change in AB 939, RCRA, CERCLA and Related Laws. This Agreement is part of City’s efforts to comply with the provisions of the Act as it may be amended and as implemented by the regulations of CalRecycle, or its successor agency, as they may be amended, and the City’s Source Reduction and Recycling Component, as it may be
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
amended. In the event that the Act or other state or federal laws (including, but not limited to CERCLA and RCRA) or regulations enacted or amended after this Agreement has been executed, prevent or preclude compliance with one or more provisions of this Agreement, or significantly increase or decrease Contractor costs, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. 23.3 Changes in Other Laws. In the case of changes in the laws other than amendments to the Act, which increase or decrease the cost of Contractor’s service, Contractor or City may seek a rate increase or decrease to reflect the increase or decrease in costs directly attributable to the amended or newly enacted provision of law or regulations, specifying, in writing, the law to which the additional costs or savings are attributed, and how they would result in increased costs. City Council must approve any changes in the Maximum Permitted Service Rates resulting from any Change in Law. Section 24. Activities and Financial Reports; Adverse Information 24.1 Reports. Contractor, at no additional expense, shall submit to the City such information or reports in such forms and at such times as the City reasonably may request or require, including, but not limited to the following, submitted not less often than as indicated: 24.1.1 Format and Type of Reports. Reports shall be submitted to City, transmitted in a format acceptable to City, as an attachment to e-mail. The following reports shall be submitted to City Monthly until the first anniversary of the Service Commencement Date and then Quarterly thereafter. Reports shall include the following: a) Summary of Contractor Payments to the City. A summary of all payments made to the City under this Agreement for the reporting period. b) Summary of Contractor Gross Receipts Received. A summary of all Contractor Gross Receipts received for services provided under the terms of this Agreement broken down by Residential, Commercial and Construction and Demolition Services. c) Disposal and Diversion Summary. A summary table showing the total tonnage of Solid Waste, Recyclable Materials, Organic Waste, Construction and Demolition Materials, Bulky Waste collected, processed or disposed, and the percentage of total diversion achieved as measured in accordance with Section 5.1.2
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
for each month during the reporting period. d) Solid Waste Data. (1) The report shall show (a) the number of tons collected each month broken down by Residential, Commercial, and City Service Units and (b) the total Solid Waste tonnage delivered to Disposal Facilities. (2) All tonnage data should be compared to the corresponding tonnage data from the prior year comparable period e) Recyclable Materials Data. (1) The report shall show (a) the number of tons collected each month broken down by Residential, Commercial, and City Service Units, (b) the tonnage delivered to Material Recovery Facilities (c) total tonnage by type of Recyclable Materials processed and marketed during each month and (d) total tonnage of Recyclable Materials’ residual disposed at landfill, and (e) the revenue received from the sale of recyclables minus the cost for processing the Recyclable Materials and residual disposal. (2) All tonnage data should be compared to the corresponding tonnage data from the prior year comparable period. (3) A narrative description of problems encountered and actions taken, including efforts to deter and prevent Scavenging. A report of recycling program promotional activities, including materials distributed by Contractor to its Service Recipients. f) Organic Waste Data. (1) The report shall show (a) the number of tons collected each month broken down by Residential, Commercial, and City Service Units, (b) the tonnage delivered to Organic Waste Processing Facilities, (c) total tonnage by type of Organic Waste processed and marketed during each month, and (d) total tonnage of Organic Wastes residual disposed at the disposal facility. (2) All tonnage data should be compared to the corresponding tonnage data from the prior year comparable
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
period. g) Street Sweeping Data. The quarterly report shall show the total curb miles swept, gallons of water used, and tonnage of street sweeping fines collected and taken to a Disposal Facility or Organic Waste Processing Facility. h) Bulky Waste Data. The number of Bulky Waste collections made, the tonnage delivered to the disposal facilities used for processing or disposal of Bulky Waste. i) Construction and Demolition Materials Data. (1) The total tonnage of C&D collections made, the type of C&D Materials collected, and the facilities used for processing or disposal of C&D Materials. j) Local Purchase Preference Program Data. The dollar value, of purchases made from businesses that are located within the City. k) Service Complaints. A summary of the type, number and disposition of complaints received during the reporting period. A copy of the customer complaint log may, upon City request, be submitted with the report not later than fifteen days after the close of the reporting period. l) Certification. Contractor will provide a certification statement, to the best of their knowledge the report is true and correct. 24.2 Annual Report. By March 1st, beginning in 2017 and each year thereafter that collection services are provided pursuant to this Agreement, Contractor shall submit to City a written year-end Annual Report in a form approved by the City. The Annual Report shall include the following information for the year ending on the preceding December 31st. 24.2.1 General Information. General information about Contractor, including a list of Contractor’s officers and members of its board of directors. 24.2.2 Prior Year’s Activities. A cumulative summary of the Quarterly Reports and information and statistics with respect to City’s compliance with AB 341, AB 939, AB 1594, and AB 1826.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
24.2.3 Account Service Data. A table summary of the total number Residential, Commercial, Roll-off and City Service Units. The summary shall also show the net change in Service Units both as compared to the number of Service Units as of the Service Commencement Date and as compared to the prior Agreement Year. City recognizes that the data used to determine Service Date Commencement information will be generated in conjunction with City data bases. Contractor will work with the City to provide this information in a timely basis in order to comply with this initial reporting requirement. 24.2.4 Vehicle and Container Replacement Data. a) The number, type, fuel type used and date placed in service of new collection vehicles purchased to service in the City. b) The number, type, fuel type used and date returned to service of used collection vehicles refurbished to provide service within the City. c) The number, type, fuel type used, date removed from service of collection vehicles permanently removed from providing service within the City. d) The total number and type of new containers placed in service during the prior year of service. 24.2.5 Recommendations. Changes in integrated waste management, including projections and proposed implementation dates and costs, recommended by Contractor and recommended amendments to the City’s Source Reduction and Recycling Element or this Agreement, based on developments in applicable law or technology. Contractor’s recommendations with respect to compliance with AB 341, AB 939, AB 1594, and AB 1826 and shall state the specific requirement that the implementation of the recommendation is intended to satisfy. 24.3 Reporting Additional Matters. Contractor shall provide to the City Manager all correspondence, reports, pleadings, applications, notifications, notices of violation, communications or other material relating specifically to Contractor’s performance of services pursuant to this Agreement, submitted by Contractor to, or received by Contractor from, the United States or California Environmental Protection Agency, CalRecycle, or its successor agency, the California Department of Toxic Substances Control, or its successor, the Fair Political Practices Commission, the cognizant Local Enforcement Agency, or its successor, the Securities and Exchange Commission or any other federal, state or county agency, including any federal or state court. Copies shall
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.
be submitted to City within a reasonable time subsequent to Contractor’s filing or submission of such matters with said agencies. Contractor’s routine correspondence to said agencies need not be routinely submitted to City, but shall be made available to City upon written request. 24.4 Submission of Reports. Reports shall be submitted to: Director of Public Works City of San Bernardino 300 North “D” Street, 5th Floor San Bernardino, CA 92418 24.5 Failure to Report. The refusal or failure of Contractor to file any required reports, or to provide required information to City, or the inclusion of any materially false or misleading statement or representation by Contractor in such report shall be deemed a material breach of the Agreement and shall subject Contractor to all remedies which are available to the City under the Agreement; provided, that the City must follow the dispute resolution provisions of Section 28 of this Agreement before declaring any material breach. 24.6 Costs. All reports and records required under this Agreement shall be furnished at the sole expense of Contractor 24.7 City’s Right to Request Information. The City believes and Contractor agrees that cooperation between City and Contractor is critical to the success of this program. City reserves the right to request, and Contractor agrees to provide, additional information reasonably and directly pertaining to this Agreement on an “as-needed” basis. 24.8 CERCLA Defense Records. City views the ability to defend against CERCLA and related litigation as a matter of great importance. For this reason, the City regards the ability to prove where its Solid Waste was taken, as well as where it was not taken, to be matters of concern. Contractor shall maintain data retention and preservation systems, which can establish where Solid Waste collected in the City was landfilled (and therefore establish where it was not landfilled) and a copy or summary of the landfill disposal reports required by Section 24 for twenty (20) years after the term during which collection services are to be provided pursuant to this Agreement and to notify City’s Risk Manager and City Attorney before destroying such records. This provision shall survive the expiration of the period during which collection services are to be provided under this Agreement.
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City of San Bernardino Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services With Burrtec Waste Industries, Inc.