Agreement with Zanker Road Resource Management, LLC Page 1 of 39
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EBIX Insurance No. *S20000_____
AGREEMENT FOR DISPOSAL SERVICES
BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
ZANKER ROAD RESOURCE MANAGEMENT, LLC]
PREAMBLE
This Agreement is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Zanker Road Resource Management, LLC, a California Limited Liability Corporation, (Contractor). City and Contractor may be referred to individually as a “Party” or collectively as the “Parties” or the “Parties to this Agreement.”
RECITALS
A. Enacted in 2016, Senate Bill (SB) 1383 establishes methane emissions reduction targets in a statewide effort to reduce emissions of short-lived climate pollutants; B. To ensure citywide compliance with SB 1383 by January 2025, City sought proposals from qualified contractors licensed to provide solid waste disposal services (Services) as more fully described at Exhibit A entitled, “Scope of Services,” and selected Contractor to perform the Services;
C. Contractor represents that it, and its subcontractors, if any, have the professional qualifications, expertise, necessary licenses and desire to provide certain goods and/or required Services of the quality and type which meet the objectives and requirements of City; and,
The Parties have specified herein the terms and conditions under which such Services will be provided and paid for.
AGREEMENT TERMS AND CONDITIONS
1. AGREEMENT DOCUMENTS
The documents forming the entire Agreement between City and Contractor shall consist of these Terms and Conditions and the following Exhibits, which are hereby incorporated into this Agreement by this reference:
Exhibit A – Scope of Services and Performance Schedule
Exhibit B – Compensation
Exhibit C – Insurance Requirements
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Exhibit D – Definitions
Exhibit E – Monthly Reporting
Exhibit F-1 – Ethical Standards
Exhibit F-2 – Affidavit of Compliance with Ethical Standards This Agreement, including the Exhibits set forth above, contains all the agreements, representations, and understandings of the Parties, and supersedes and replaces any previous agreements, representations, and understandings, whether oral or written. In the event of any inconsistency between the provisions of any of the Exhibits and the Terms and Conditions, the Terms and Conditions shall govern and control.
2. TERM OF AGREEMENT
A. Initial Term. Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment, the term of this Agreement shall begin on January 1, 2025 and shall continue for i) a period of eleven and a half (11.5) years, terminating on June 30, 2036, or (ii) the Disposal Facility’s End of Useful Life, whichever is earlier.
B. Renewal. After the Initial Term and only if the Disposal Facility has not reached its End of Useful Life, this Agreement may be extended by one additional five-year period (Extension Term), at City’s sole discretion, by written amendment to this Agreement. City will give Contractor written Notice of Intent to Extend no later than June 30, 2035. Contractor shall provide City with notice at least four years prior to the Disposal Facility’s End of Useful Life. The Initial Term and Extension Term shall be collectively referred herein as “Term.”
C. Facility Expansion and Right of First Refusal. If the Disposal Facility reaches its End of Useful Life during the Term of this Agreement but Contractor extends its useful life and increases its capacity through a facilities expansion, the Parties shall meet and confer on a term extension and tipping fee. Contractor grants City a right of first refusal for access to the increased capacity for the extended life of the Disposal Facility at a mutually agreed-upon tipping fee.
3. SCOPE OF SERVICES AND PERFORMANCE SCHEDULE
A. Scope of Processing Services.
i. Contractor shall perform those Services specified in Exhibit A within the time stated in Exhibit A.
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B. Permits and Compliance.
i. Contractor will comply with all Permits, including any mitigation measures related to the operation and maintenance of its Facility.
Contractor is solely responsible for paying any fines or penalties imposed for noncompliance with or violation of Permits or failure to obtain Permits. Under no circumstances shall any provision of this Agreement obligate Contractor to violate any of its Permits. ii. Contractor shall maintain a Solid Waste Disposal Facility in compliance with the requirements of the California Department of Resources, Recycling, and Recovery (CalRecycle) throughout the Term of the Agreement. The Facility Permit must authorize Contractor to accept the types of Solid Waste generated by the City. Contractor must notify City before accepting any deliveries if there are any change in such status.
iii. Contractor shall maintain all required Permits from authorities having jurisdiction to operate a Solid Waste Disposal Facility.
Permits shall include but not be limited to CalRecycle, Local enforcement Agencies, Regional Water Quality Control Board, Air Quality Management District, and others, as appropriate. iv. Contractor shall demonstrate adequate financial responsibility sufficient to finance Contractor’s closure and post closure plan as submitted to state and local permit enforcement agencies.
C. Compliance with all Applicable Laws and Regulations.
Contractor shall comply with all federal, state, and local regulations in the performance of this Agreement.
D. Notification of Violations.
During the Term of this Agreement, Contractor shall provide a copy of any notices of violation that it, or its subcontractors, receives from any Regulatory Agency related to the operation of the Facility or the performance of the Services. Contractor shall provide the City a copy within three (3) business days of receiving the notices.
E. Right to Enter Facility and Observe Operations.
Given a 24 hour minimum notice to Facility Manager, the City designated representative(s) may enter, observe and inspect operational lines that process City Materials at the Facility during operating hours; conduct studies or surveys of the Facility; and meet with the Facility manager(s) or their representatives giving 24 hours minimum notice , provided that the City’s representative(s) comply with Contractor’s reasonable safety and
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security policies and do not interfere with the work of the Contractor or its subcontractors. However, if the Facility manager(s) are not present at the Facility during a City’s designated representative(s) announced visit, Contractor may limit the visit of the City’s designated representative to the public areas of the Facility. In that event, Contractor will arrange for City’s designated representative(s) to return for a visit of the entire Facility within 24 hours of the City’s unannounced visit. Upon City direction, Contractor will provide an escort to accompany City employees on inspections.
Contractor will ensure that its employees cooperate with the City and respond to the City’s reasonable inquiries.
4. CONTRACTOR COMPENSATION
A. General.
The Contractor will perform all of its obligations, responsibilities and duties under this Agreement, including paying costs associated with obtaining and complying with all Permits, and operating the Facility in full compliance with Applicable Laws.
B. Disposal Rate and Annual Rate Adjustments.
The Contractor will be compensated on a per ton basis for Materials delivered by the Designated Hauler and accepted by Contractor for Processing and Disposal.
Exhibit B (Rates) provides the initial Rates by Material Type.
5. WARRANTY
Contractor expressly warrants that all materials and services covered by this Agreement shall be fit for the purpose intended, shall be free from defect and shall conform to the specifications, requirements, and instructions upon which this Agreement is based. Contractor agrees to promptly replace or correct any incomplete, inaccurate, or defective services at no further cost to City when defects are due to Contractor’s negligence, errors or omissions. If Contractor fails to promptly correct or replace materials or services, City may make corrections or replace materials or services and charge Contractor for the cost incurred by City.
6. QUALIFICATIONS OF CONTRACTOR - STANDARD OF CARE
Contractor represents and maintains that it has the expertise in the professional calling necessary to perform the services, and its duties and obligations, expressed and implied, contained herein, and City expressly relies upon Contractor’s representations regarding its skills and knowledge. Contractor shall perform such services and duties in conformance to and consistent with the professional standards of a specialist in the same discipline in the State of California.
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7. FAITHFUL PERFORMANCE BOND
Contractor shall file with City a bond securing its faithful performance of its obligations under this Agreement within thirty (30) days of the date this Agreement is executed. The bond shall be in the amount of Two Million Dollars ($2,000,000) in a form acceptable to the City. The term of the bond shall be for five (5) years. It is the intention of this section that there be in full force and effect at all times a bond securing the Contractor’s faithful performance of the Agreement, throughout its Term. The performance bond shall be executed by a surety company licensed to do business in the State of California and acceptable to the City having an “A-” or better rating by A. M. Best or Standard and Poor’s and included on the list of surety companies approved by the Treasurer of the United States. Failure to provide this bond within the timeframe called for by this section shall constitute a default and grounds for immediate termination of this Agreement.
8. DEFAULT AND TERMINATION
A. Default and Remedies.
Each of the following shall constitute a default under this Agreement (a “Default”):
1) Fraud or deceit.
2) Failure to maintain insurance coverage described herein. 3) Violation of orders or filings of a regulatory body having a material impact on Contractor’s ability to perform its obligations as required by this Agreement.
4) Loss of any required operating “facility” permit (air, water, waste, etc.) 5) Failure to perform Services as required by this Agreement for two (2) or more consecutive days or for any seven (7) days in a 30-day period of 30 days.
6) Failure of Contractor to provide reports and/or records as provided for in this Agreement.
7) Any act or omission by Contractor which violates the terms of this Agreement.
8) Any false or misleading representations by Contractor. 9) Filing of a voluntary petition for debt relief.
10) Bankruptcy of Contractor.
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11) Failure to provide a performance bond within thirty (30) days of execution of this Agreement.
B. Termination.
Upon any Contractor default, City shall attempt to mediate dispute with Contractor as described in Section 27 (Mediation) of this Agreement. If a resolution is not met within the Mediation process the City may terminate or suspend this Agreement, in whole or in part. Such termination or suspension shall be effective thirty (30) days after City gives notice as provided in Section 20 (Notices), except that the Agreement may be terminated or suspended in a shorter time period or immediately if the Contractor’s default endangers the health, welfare and safety of the public. If Contractor fails to cure the Default within the timeframe shown in the Notice to terminate or suspend, the City may, at its option, terminate this Agreement.
C. Specific Performance.
By virtue of the nature of this Agreement, the urgency of timely, continuous and high-quality Services, the lead time required to effect alternative Services, and the rights granted by City to Contractor, the remedy of damages for a breach hereof by Contractor is inadequate and City shall be entitled to injunctive relief.
D. Damages.
Contractor shall be liable to City for all direct, indirect, special and consequential damages arising out of Contractor’s default. This section is intended to be declarative of existing California law.
E. City’s Remedies Cumulative.
City’s rights to suspend or terminate the Agreement and to obtain specific performance are no t exclusive, and City’s exercise of one such right shall not constitute an election of remedies. Instead, they shall be in addition to any and all other legal and equitable rights and remedies that City may have, including a legal action for damages or imposition of liquidated damages.
F. Liquidated Damages.
The Parties acknowledge that performance by Contractor is of utmost importance and City has considered and relied on Contractor’s representations as to its quality of service commitment in entering into th is Agreement. The Parties further recognize that quantified standards of performance are necessary and appropriate to ensure consistent and reliable service. The Parties further recognize that if Contractor fails to perform, City and its residents will suffer damages and that it is and will be impracticable and extremely difficult to ascertain and determine the exact amount of damages that City will suffer.
Therefore, the Parties agree that liquidated damages in the amount of $5,000
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per day represent a reasonable estimate of the amount of such damages considering all of the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be anticipated and recognition that proof of actual damages would be costly or inconvenient. By initialing the places provided, each Party specifically confirms the accuracy of the statements made above and the fact that each Party had ample opportunity to consult with legal counsel and obtain an explanation of this liquidated damage provision at the time that this Agreement was made. Contractor agrees to pay (as liquidated damages and not as a penalty) the amount set forth.
Contractor Initial Here: City Initial Here:
City’s right to recover liquidated damages for Contractor’s failure to meet the service performance standards shall not preclude City from obtaining equitable relief for persistent failures to meet such standards nor from terminating the Agreement for such persistent failures.
9. FORCE MAJEURE
Contractor shall not be in default under this Agreement in the event, and for so long as, it is impossible or extremely impracticable for it to perform its obligations due to any of the following reasons: riots, wars, sabotage, civil disturbances, insurrection, explosion, natural disasters such as floods, earthquakes, landslides, fires, and volcanic eruptions, strikes, lockouts and other labor disturbances or other catastrophic events which are beyond the reasonable control of Contractor.
Labor unrest, including but not limited to strike, work stoppage or slowdown, sick- out, picketing, or other concerted job action conducted by Contractor's employees or directed at Contractor is not an excuse from performance, provided, however, that labor unrest or job action directed at a third party over whom Contractor has no control, shall excuse performance.
Contractor must (i) have taken reasonable precautions to avoid being affected by the cause, and (ii) notify the other Party in writing within 5 days after the occurrence of the event specifying the nature of the event, the expected length of time that the party expects to be prevented from performing, and the steps which the party intends to take to restore its ability to perform.
10. CONTRACTOR’S REPRESENTATION AND WARRANTIES
A. Legal Status.
Contractor is a corporation or LLC organized and operating under the laws of the State of California
B. Authorization.
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Contractor represents and warrants that it has the authority to enter into and perform its obligations under this Agreement. The Contractor has taken all actions required by law to authorize the execution of this Agreement. The person signing this Agreement on behalf of Contractor has authority to do so.
C. Agreement Will Not Cause Breach.
To the best of Contractor's and City's knowledge, after reasonable investigation, neither the execution or delivery of this Agreement, nor the performance of this Agreement: (i) conflicts with, violates, or results in a breach of any applicable law; or (ii) conflicts with, violates, or results in a breach of any term or condition of any judgment, order or decree of any court, administrative agency, or other governmental authority, or any agreement or instrument to which Contractor or City is a party or by which Contractor or City or any of its properties or assets are bound, or constitutes a default thereunder
D. No Litigation.
To the best of Contractor's knowledge, after reasonable investigation, there is no action, suit, proceeding, or investigation, at law or in equity, before or by any court or governmental authority, commission, board, agency, or instrumentality decided, pending, or threatened against Contractor wherein an unfavorable decision, ruling or finding, in any single case or in the aggregate, would materially adversely affect the performance by Contractor of its obligations hereunder or which, in any way, would adversely affect the validity or enforceability of this Agreement or which would have a material adverse effect on the financial condition of Contractor or any surety guaranteeing Contractor's performance under this Agreement, which has not been waived by the City in writing.
E. Ability to Perform.
Contractor possesses the business, professional and technical expertise to manage, handle, treat, store, process, materials, and possesses the equipment, plant, and employee resources required to perform this Agreement.
11. ASSIGNMENT AND SUBCONTRACTING
City and Contractor bind themselves, their successors and assigns to all covenants of this Agreement. Contractor shall not assign or transfer its obligations under this Agreement without the prior written approval of City.
Contractor shall not hire subcontractors without express written permission from City. Contractor shall be as fully responsible to City for the acts and omissions of its subcontractors, and of persons either directly or indirectly employed by them, as Contractor is for the acts and omissions of persons directly employed by it.
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12. NO THIRD-PARTY BENEFICIARY
This Agreement shall not be construed to be an agreement for the benefit of any third party or parties and no third party or parties shall have any claim or right of action under this Agreement for any cause whatsoever.
13. INDEPENDENT CONTRACTOR
Contractor and all person(s) employed by or contracted with Contractor to furnish labor and/or materials under this Agreement are independent contractors and do not act as agent(s) or employee(s) of City. Contractor has full rights to manage its employees in their performance of Services under this Agreement.
14. CONFIDENTIALITY OF MATERIAL
All ideas, memoranda, specifications, plans, manufacturing procedures, data, drawings, descriptions, documents, discussions or other information developed or received by or for Contractor and all other written information submitted to Contractor in connection with the performance of this Agreement shall be held confidential by Contractor and shall not, without the prior written consent of City, be used for any purposes other than the performance of the Services nor be disclosed to an entity not connected with performance of the Services. Nothing furnished to Contractor which is otherwise known to Contractor or becomes generally known to the related industry shall be deemed confidential.
15. OWNERSHIP OF MATERIAL
All material, which shall include, but not be limited to, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports, designs, technology, programming, works of authorship and other material developed, collected, prepared or caused to be prepared under this Agreement shall be the property of City but Contractor may retain and use copies thereof. City shall not be limited in any way or at any time in its use of said material. However, Contractor shall not be responsible for damages resulting from the use of said material for work other than Project, including, but not limited to, the release of this material to third parties.
16. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR
City, through its authorized employees, representatives or agents shall have the right during the term of this Agreement and for four (4) years from the date of final payment for goods or Services provided under this Agreement, to audit the books and records of Contractor for the purpose of verifying any and all charges made by Contractor in connection with Contractor compensation under this Agreement, including termination of Contractor. Contractor agrees to maintain sufficient books and records in accordance with generally accepted accounting principles to establish the correctness of all charges submitted to City. Any expenses not so recorded shall be disallowed by City. Contractor shall bear the
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cost of the audit if the audit determines that there has been a substantial billing deviation in excess of five (5) percent adverse to the City.
Contractor shall submit to City any and all reports concerning its performance under this Agreement that may be requested by City in writing. Contractor agrees to assist City in meeting City’s reporting requirements to the State and other agencies with respect to Contractor’s Services hereunder.
17. HOLD HARMLESS/INDEMNIFICATION
A. To the extent permitted by law, Contractor agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including all costs and attorney’s fees in providing a defense to any such claim or other action, and whether sounding in law, contract, tort, or equity, in any manner arising from, or alleged to arise in whole or in part from, or in any way connected with the Services performed by Contractor pursuant to this Agreement – including claims of any kind by Contractor’s employees or persons contracting with Contractor to perform any portion of the Scope of services – and shall expressly include passive or active negligence by City connected with the Services. However, the obligation to indemnify shall not apply if such liability is ultimately adjudicated to have arisen through the sole active negligence or sole willful misconduct of City; the obligation to defend is not similarly limited.
(1) Health Insurance.
To the extent Contractor is obligated to provide health insurance coverage to its employees pursuant to the Affordable Care Act (“Act”) and/or any other similar federal or state law, Contractor warrants that it is meeting its obligations under the Act and will fully indemnify and hold harmless City for any penalties, fines, adverse rulings, or tax payments associated with Contractor’s responsibilities under the Act.
(2) Indemnification of Contractor.
The duty of Contractor to indemnify and save harmless, as set forth herein, shall include the duty to defend as set forth in Section 2778 of the California Civil Code, provided, however, that nothing herein contained shall be construed to require Contractor to indemnify City, its Board, officers, employees and agents against any responsibility or liability in contravention of Section 2782 of the California Civil Code.
(i) Contractor’s responsibility for such defense and
indemnity obligations shall survive the termination or
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completion of this Agreement for the full period of time allowed by law.
(ii) The defense and indemnification obligations of this agreement are undertaken in addition to, and shall not
in any way be limited by, the insurance obligations
contained within this Agreement.
18. INSURANCE REQUIREMENTS
During the Term of this Agreement, and for any time period set forth in Exhibit C, Contractor shall provide and maintain in full force and effect, at no cost to City, insurance policies as set forth in Exhibit C.
19. WAIVER
Contractor agrees that waiver by City of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Neither City’s review, acceptance nor payments for any of the Services required under this Agreement shall be constructed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement.
20. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows:
City of Santa Clara
Attention: Public Works
1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at [email protected]
And to Contractor addressed as follows:
Zanker Road Resource Management, LLC
Attention: Francine Areas
601 East Gish Road
San Jose, CA
[email protected]
The workday the e-mail was sent shall control the date notice was deemed given.
An e-mail transmitted after 1:00 p.m. on a Friday shall be deemed to have been transmitted on the following business day.
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21. COMPLIANCE WITH LAWS
Contractor shall comply with all applicable laws and regulations of the federal, state and local government, including but not limited to “The Code of the City of Santa Clara, California” (“SCCC”). Contractor’s attention is called to the regulations regarding Campaign Contributions (SCCC Chapter 2.130), Lobbying (SCCC Chapter 2.155), Minimum Wage (SCCC Chapter 3.20), Business Tax Certificate (SCCC section 3.40.060), and Food and Beverage Service Worker Retention (SCCC Chapter 9.60), as such Chapters or Sections may be amended from time to time or renumbered. Additionally, Contractor has read and agrees to comply with City’s Ethical Standards
(http://santaclaraca.gov/home/showdocument?id=58299).
22. CONFLICTS OF INTEREST
Contractor certifies that to the best of its knowledge, no City officer, employee or authorized representative has any financial interest in the business of Contractor and that no person associated with Contractor has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Contractor is familiar with the provisions of California Government Code section 87100 and following and certifies that it does not know of any facts which would violate these code provisions. Contractor will advise City if a conflict arises.
23. FAIR EMPLOYMENT
Contractor shall not discriminate against any employee or applicant for employment because of race, sex, color, religion, religious creed, national origin, ancestry, age, gender, marital status, physical disability, mental disability, medical condition, genetic information, sexual orientation, gender expression, gender identity, military and veteran status, or ethnic background, in violation of federal, state or local law.
24. NO USE OF CITY NAME OR EMBLEM
Contractor shall not use City’s name, insignia, or emblem, or distribute any information related to Services under this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City.
25. GOVERNING LAW AND VENUE
This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California. The venue of any suit filed by either Party shall be vested in the state courts of the County of Santa Clara, or if appropriate, in the United States District Court, Northern District of California, San Jose, California.
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26. SEVERABILITY CLAUSE
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect.
27. MEDIATION
Should any dispute arise out of this Agreement, the parties shall meet in mediation and attempt to reach a resolution with the assistance of a mutua lly acceptable mediator. Neither Party shall be permitted to file legal action without first meeting in mediation and making a good faith attempt to reach a mediated resolution. The costs of the mediator, if any, shall be paid equally by the Parties. If a mediated settlement is reached neither Party shall be deemed the prevailing Party for purposes of the settlement and each Party shall bear its own legal costs.
28. AMENDMENTS
This Agreement may only be modified by a written amendment duly authorized and executed by the Parties to this Agreement.
29. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.
SIGNATURE BLOCK ON NEXT PAGE
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The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives.
CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
Approved as to Form: Dated:
GLEN R. GOOGINS
City Attorney
JŌVAN D. GROGAN
City Manager
City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“CITY”
*INSERT CONTRACTOR’S NAME
*choose one: a[n] __________ (insert State) corporation/partnership/individual
Dated:
By (Signature):
Name:
Title:
Principal Place of
Business Address:
Email Address:
Telephone: ( )
Fax: ( )
“CONTRACTOR”
Exhibit A to Agreement with Zanker Road Resource Management, LLC Page 15 of 39 Rev. 04-25-23
EXHIBIT A
SCOPE OF SERVICES
Contractor shall provide qualified personnel, facilities, equipment, and materials to provide municipal solid waste (MSW) landfill disposal and processing services (Services), as described herein.
1. GENERAL
1.1. Contractor shall operate and maintain a Facility located at: 675 Los Esteros Road, San Jose, CA 95134
1.2. Contractor will operate the Facility between the hours of 5:00 a.m. to 5:00 p.m. local time, Monday through Saturday. The Facility will be closed on Sundays and Holidays. Contractor will accept the City’s MSW during these hours of operation and may not change the hours or reduce the total number of hours without prior approval from the City, except for reductions required by a change in a Permit subsequent to the commencement of services.
1.3. Contractor shall manage deliveries in amounts of up to 200% of the average daily tonnage needed to accept the annual tonnages listed in Table 1 below.
1.4. During the City’s annual cleanup campaign held in April and May, Contractor shall accept unlimited MSW deliveries at the Facility from the City.
1.5. City shall use reasonable efforts to prevent deliveries to the Facility of Excluded Waste or other unauthorized materials, other than MSW, by its Designated Haulers.
2. BASIC SERVICES
2.1. City shall deliver or cause delivery of MSW to the Facility. Contractor will accept and dispose of the MSW in accordance with this agreement.
2.2. Contractor shall accept materials as designated by the City, which may include one or more of the MSW types at the estimated weights set forth in Table 1 below.
[Table 1: City’s Solid Waste by Source and Type]
SOURCE WASTE TYPE ANNUAL
TONNAGE
City’s Annual Clean-up
Campaign Cleanup Campaign Waste 6,000
City Department Dirt 7,500
City Department Inerts 1,000
Exhibit A to Agreement with Zanker Road Resource Management, LLC Page 16 of 39 Rev. 04-25-23
City Department Construction and Demolition
Material 100
Other Other Solid Waste Up to 25,000 tons
2.3. Contractor will provide each driver a receipt showing the date, time, and quantity of City’s MSW that the vehicle delivered to the Facility.
3. SCALE OPERATION
3.1. Contractor will maintain state-certified scales that link to a centralized computer recording and billing system. Scales must track the origin, destination, and tonnage of all incoming and outgoing loads. Upon City’s request, Contractor will promptly provide the City with copies of weighing reports.
3.2. Contractor shall weigh all materials accepted from the City using certified scales. Information shall be tracked by material type with amounts to be reported monthly, in accordance with section 8 below.
4. TRAFFIC CONTROL AND DIRECTION
4.1. Contractor will direct Facility traffic and provide a safe working environment.
4.2. Contractor will provide necessary signs and personnel to direct drivers to designated unloading areas.
5. VEHICLE TARE WEIGHTS
5.1. When Designated Hauler places a new vehicle into service, Contractor will promptly weigh the new vehicle and determine its unloaded (“tare”) weight.
5.2. Contractor will record tare weight, hauler name, and vehicle identification number. Within ten (10) Working Days of weighing, Contractor will provide the City and Designated Hauler with a report listing vehicle tare weight information.
5.3. Contractor has the right to request re-determination of tare weights of vehicles twice per Calendar Year.
5.4. If there is reasonable suspicion or evidence that tare weights are not accurate, Designated Hauler may request, up to four (4) times per Calendar Year, a re- determination of tare weights, in which case Contractor will promptly re- determine tare weights for requested vehicles.
5.5. Contractor may update tare weights, at its own initiative, more frequently.
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6. SCALE TESTING
6.1. Contractor will test and calibrate all scales at least once every twelve (12) months, or more frequently if prescribed by Applicable Law, including but not limited to NIST Handbook 44 and requirements imposed by the state and/or local Department of Weights and Measures.
6.2. In addition, Contractor will test and calibrate any or all scales within three (3) Working Days of a request by the City.
6.2.1. If test results indicate that a scale complies with Applicable Law, the City will reimburse Contractor the Direct Costs of the test.
6.2.2. If test results indicate that a scale does not comply with Applicable Law, Contractor will bear the costs of the test and, at its own expense, adjust and correct weight measurements recorded and disposal tipping fees calculated from the date of the City’s request.
6.3. Upon City’s request, Contractor will promptly provide the City with copies of test results.
7. RECORDS AND REPORTING
7.1. Contractor will maintain scale records and reports, including date of receipt, inbound time, origin, destination, weight of inbound and outbound loads, inbound and outbound weights of vehicles, and vehicle identification number.
7.2. Records shall be available to the City for review and copying during regular business hours at Contractor’s place of business, or as otherwise agreed upon by the Parties.
7.3. Contractor will provide the City a detailed monthly report as described and exemplified in Monthly Reporting (Exhibit E), including a detailed monthly reporting on City materials inbound/outbound, materials mass-balance, and material market outlets. These reports shall include adequate detail and information for the City to complete necessary compliance reports and should include products made, volume and disposition of “overs”, volume and disposition of residuals, and any other information required by the City.
8. SAFETY
Contractor shall conduct operations of the Facility in a safe manner, in accordance with federal, state, and local laws and regulations.
9. STANDARDS OF PERFORMANCE
Exhibit A to Agreement with Zanker Road Resource Management, LLC Page 18 of 39 Rev. 04-25-23
In the performance of Services, Contractor shall meet or exceed the following performance standards:
9.1. Contractor will operate the Facility so that it meets the City’s Maximum Vehicle Turnaround Time (MVTT) which is 30 minutes. The MVTT is measured from the time the City’s Transfer Company’s vehicles arrive at the Contractor’s scales until the time when the vehicles are processed, unloaded, and exit the Facility.
9.2. Contractor may not exceed the MVTT more than ten (10) times per month. For each load that exceeds the MVTT beyond the ten (10) grace loads per month, the City will assess liquidated damages against Contractor equal to $100.00 per load.
Exhibit B to Agreement with Zanker Road Resource Management, LLC Page 19 of 39 Rev. 04-25-23
EXHIBIT B
COMPENSATION
1. General.
The Contractor will perform of its obligations, responsibilities, and duties under this Agreement, including paying costs associated with obtaining and complying with all Permits, and operating the Facility in full compliance with Applicable Laws.
2. Disposal Rate and Annual Rate Adjustments.
The Contractor will be compensated on a per ton basis for materials delivered by the Designated Hauler and accepted by Contractor for Disposal and Processing.
2.1. Rates.
2.1.1. Contractor’s per ton compensation for the disposal of processed Cleanup Campaign Waste at Disposal Facility shall not exceed $85.00 per Ton, inclusive of Taxes and fees.
2.1.2. Contractor’s per ton compensation for the disposal of unprocessed Cleanup Campaign Waste at Disposal Facility shall not exceed $75.00 per Ton, inclusive of Taxes and fees.
2.1.3. The Tipping Fee for the recycling of Mixed Construction and Demolition materials shall not exceed $85.00 per ton inclusive of Taxes and fees.
2.1.4. The Tipping Fee for Source Separated Construction and Demolition materials shall not exceed $ 55.00 per ton inclusive of Taxes and fees.
2.1.5. The Tipping Fee for inert material shall not exceed $ 17.00 per ton inclusive of Taxes and fees.
The Tipping Fee for dirt shall not exceed $ 50.00 per ton inclusive of Taxes and fees.
2.1.6. Notwithstanding the foregoing, for Debris Boxes containing source separated loads of concrete or clean soil the City shall be charged the gate rates for concrete and clean soil, respectively, provided application of those gate rates results in a lower cost to the City.
2.2. Annual Rate Adjustments
Rates will be adjusted annually as shown below, effective January 1 of each year of the Term, including extensions. Commencing January 1, 2026 and thereafter on each January 1, this Agreement is in effect, including any extension years, the
Exhibit B to Agreement with Zanker Road Resource Management, LLC Page 20 of 39 Rev. 04-25-23
rates stated above shall be increased by the change in the value of the Consumer Price Index, All Urban Consumers, Water and Sewer and Trash Collection Services, U.S. City Average, Seasonally Adjusted, Series ID: CUSR0000SEHG, published by the U.S. Department of Labor, Bureau of Labor Statistics, or its successor, for the previous October and its value twelve months before.
Exhibit B to Agreement with Zanker Road Resource Management, LLC Page 21 of 39 Rev. 04-25-23
3. Special Rate Review and Adjustments.
3.1. Contractor may request a special review and adjustment of Rates, over and above the annual CPI-based adjustment set forth in this Exhibit, in the event that there is a change in Applicable Law.
3.2. Contractor’s written request for a special review and adjustment of Rates shall specify the event or circumstance giving rise to the request, Contractor’s reasonable additional costs arising from or related to such event or circumstance, and the change in the Rates that Contractor proposes to cover such additional costs.
3.3. Contractor must submit its written request for a special review and adjustment of Rates at least 90 days in advance of the desired effective date of the adjustment, together with supporting cost and operational data.
3.4. In a special review under this section, Contractor shall bear the burden of justifying to the City by substantial evidence the change in Applicable Law. If the City determines that the Contractor has not met its burden, it shall notify Contractor that it is prepared to deny Contractor’s request for an increase in Rates. Within ten (10) days after such notice, Contractor may request a hearing before the City Manager, or designee, to produce additional evidence.
3.5. Based on evidence presented to it, including, that submitted by Contractor, the City Manager, or designee, may grant some, all, or none of the requested increase.
3.6. Contractor shall bear all reasonable costs incurred by City, including assistance provided to it by City, for a special review which it has requested. Costs of a review requested by Contractor may not be included in Contractor’s Rates.
Exhibit C to Agreement with Zanker Road Resource Management, LLC Page 22 of 39 Rev. 04-25-23
EXHIBIT C
INSURANCE REQUIREMENTS
Without limiting the Contractor’s indemnification of the City, and prior to commencing any of the services required under this Agreement, the Contractor shall provide and maintain in full force and effect, at its sole cost and expense, the following insurance policies with at least the indicated coverages, provisions and endorsements:
A. COMMERCIAL GENERAL LIABILITY INSURANCE
1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$5,000,000 Each occurrence
$5,000,000 General Aggregate
$5,000,000 Products/Completed Operations Aggregate
$5,000,000 Personal Injury
$5,000,000 Project Aggregate
2. Exact structure and layering of the coverage shall be left to the discretion of Contractor; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.
3. The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Contractor to comply with the insurance requirements of this Agreement:
a. Coverage shall be on a “pay on behalf” basis with defense costs payable in addition to policy limits;
b. There shall be no cross-liability exclusion which precludes coverage for claims or suits by one insured against another; and c. Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.
B. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01 with policy limits a minimum limit of not less than five million dollars ($5,000,000) each accident using, or providing coverage at least as broad as, Insurance services Office form CA 00 01. Liability coverage shall apply to all owned, non-owned and hired autos.
Exhibit C to Agreement with Zanker Road Resource Management, LLC Page 23 of 39 Rev. 04-25-23
In the event that the Work being performed under this Agreement involves transporting of hazardous or regulated substances, hazardous or regulated wastes and/or hazardous or regulated materials, Contractor and/or its subcontractors involved in such activities shall provide coverage with a limit of two million dollars ($2,000,000) per accident covering transportation of such materials by the addition to the Business Auto Coverage Policy of Environmental Impairment Endorsement MCS90 or Insurance services Office endorsement form CA 99 48, which amends the pollution exclusion in the standard Business Automobile Policy to cover pollutants that are in or upon, being transported or towed by, being loaded onto, or being unloaded from a covered auto.
C. WORKERS’ COMPENSATION
1. Workers’ Compensation Insurance Policy as required by statute and employer’s liability with limits of at least one million dollars ($1,000,000) policy limit Bodily Injury by disease, one million dollars ($1,000,000) each accident/Bodily Injury and one million dollars ($1,000,000) each employee Bodily Injury by disease.
2. The indemnification and hold harmless obligations of Contractor included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Contractor or any subcontractor under any Workers’ Compensation Act(s), Disability Benefits Act(s) or other employee benefits act(s).
3. This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents.
D. POLLUTION LIABILITY
In the event that this Agreement involves hazardous or regulated wastes and/or hazardous or regulated materials, Contractor and/or its subcontractors shall provide a Contractor’s Pollution Liability Insurance policy with coverage limits not less than five million dollars ($5,000,000) each claim in connection with the Work performed under this Contract. All activities contemplated in this agreement shall be specifically scheduled on the policy as “covered operations.” Any deductible must be declared to and approved by City. Such policy shall cover, at a minimum, liability for bodily injury, damage to and loss of use of property, and clean–up costs arising from sudden, accidental and gradual pollution and remediation in connection with the Work under this Agreement. Contractor will use its best efforts to have the City, Council, officers, employees and volunteers added as additional insureds under this policy. The following provisions shall apply:
1. The policy shall provide coverage for the hauling of waste from the project site to the final disposal location, including non-owned disposal sites.
Exhibit C to Agreement with Zanker Road Resource Management, LLC Page 24 of 39 Rev. 04-25-23
2. Products/completed operations coverage shall extend a minimum of three (3) years after project completion.
3. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors.
4. If the insured is using subcontractors, the Policy must include work performed “by or on behalf” of the insured.
5. Policy shall contain no language that would invalidate or remove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer.
E. HAZARDOUS MATERIALS STORAGE LIABILITY
Contractor and/or its subcontractors shall provide Hazardous Materials Storage Liability Insurance policy with coverage limits not less than three million dollars ($3,000,000) each claim and ten million dollar ($10,000,000) policy aggregate covering liability arising from the release of waste materials and/or irritants, contaminants or pollutants including any personal injury, bodily injury and property damage arising out of the sudden and accidental release of any hazardous materials or wastes during storage at facilities operated by Contractor or controlled by Contractor in the performance of the Services required under this Agreement. Such coverage shall, if commercially available, without involvement of the City, automatically broaden in its form of coverage to include legislated changes in the definition of waste materials and/or irritants, contaminants or pollutants. The policy shall stipulate this insurance is primary and no other insurance carried by the City will be called upon to contribute to a loss suffered by the Contractor hereunder and waive subrogation against the City and other additional insureds.
F. COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.
1. Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in respect to liability arising out of Contractor’s work for City, using Insurance services Office (ISO) Endorsement CG 20 10 11 85 or the combination of CG 20 10 03 97 and CG 20 37 10 01, or its equivalent.
2. Primary and non-contributing. Each insurance policy provided by Contractor shall contain language or be endorsed to contain wording making it primary insurance as respects to, and not requiring contribution
Exhibit C to Agreement with Zanker Road Resource Management, LLC Page 25 of 39 Rev. 04-25-23
from, any other insurance which the indemnities may possess, including any self-insurance or self-insured retention they may have. Any other insurance indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Contractor’s insurance.
3. General Aggregate. The general aggregate limits shall apply separately to Contractor’s work under this Agreement providing coverage at least as broad as Insurance services Office (ISO) Endorsement CG 2503, 1985 Edition, or insurer’s equivalent (CGL);
4. Cancellation.
a. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided due to non-payment of premiums shall be effective until written notice has been given to City at least ten (10) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least ten (10) days prior to the effective date of non-renewal.
b. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided for any cause save and except non-payment of premiums shall be effective until written notice has been given to City at least thirty (30) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least thirty (30) days prior to the effective date of non- renewal.
5. Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specified in the description of required insurance set forth in Sections A through E of this Document 00820.
G. ADDITIONAL INSURANCE RELATED PROVISIONS
Contractor and City agree as follows:
1. Requirements of specific insurance coverage features described in this Agreement shall not be construed to be a limitation of liability on the part of Contractor or any of its subcontractors, nor to relieve any of them of any liability or responsibility under the Contract Documents, as a matter of law or otherwise. Such requirements are not intended by any Party to be limited to providing coverage for the vicarious liability of the City or to the supervisory role, if any, of City. All insurance coverage provided pursuant to this Agreement in any way relating to City is intended to apply to the full extent of the policies involved.
Exhibit C to Agreement with Zanker Road Resource Management, LLC Page 26 of 39 Rev. 04-25-23
2. Contractor shall maintain all required insurance policies in full force and effect during entire period of performance of the services under this Agreement of Contract Documents. Contractor shall also keep such insurance in force during warranty and guarantee periods. At time of making application for extension of time, Contractor shall submit evidence that insurance policies will be in effect during requested additional period of time.
3. City reserves the right, at any time during the term of this Agreement to change the amounts and types of insurance required by giving the Contractor thirty (30) days advance written notice of such change. If such change results in substantial additional cost to the Contractor, the City will negotiate in good faith additional compensation proportional to the increased benefit to City.
4. Any type of insurance or any increase of limits of liability not described in this Exhibit which Contractor requires for its own protection or in compliance with applicable statutes or regulations, shall be Contractors’ responsibility and at its own expense.
5. No liability insurance coverage provided by Contractor to comply with the terms of this Agreement shall prohibit Contractor, or Contractor’s employees, or agents, from waiving the right of subrogation prior to a loss.
Contractor waives its right of subrogation against Indemnitees. Any property insurance policies affected by Contractor shall be endorsed to delete the subrogation condition as to indemnitees or shall specifically allow Contractor to waive subrogation prior to a loss. Contractor hereby waives any right of recovery against the indemnitees and agrees to require any subcontractor to do so.
6. Contractor agrees to ensure that subcontractors, and any other party involved with the services who is brought onto or involved in the performance of the services by Contractor, provide the same minimum insurance coverage required of Contractor, except as with respect to limits. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement. Contractor agrees that upon request by City, all agreements with, and insurance compliance documents provided by, such subcontractors and others engaged in the project will be submitted to City for review.
7. Contractor shall cooperate fully with City and Contractor’s insurance companies in any safety and accident prevention program and claims handling procedures as established for the performance of services under this Agreement.
Exhibit C to Agreement with Zanker Road Resource Management, LLC Page 27 of 39 Rev. 04-25-23
8. All coverage types and limits required under this Agreement are subject to approval, modification and additional requirements by the City, as the need arises. Contractor shall not make any reductions in scope of coverage which may affect City’s protection without City’s prior written consent.
9. For purposes of applying insurance coverage only, all contracts pertaining to the performance of services will be deemed to be executed when finalized and any activity commences in furtherance of performance under this agreement.
10. Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform Contractor of non-compliance with any of the insurance requirements set forth in this Agreement in no way imposes any additional obligations on City nor does it waive any of the City’s rights under this Agreement or any other regard.
11. Any provision in this Agreement dealing with the insurance coverage provided pursuant to these requirements, is subordinate to and superseded by the requirements contained herein. These insurance requirements are intended to be separate and distinct from any other provision in this Agreement and are intended by the Parties here to be interpreted as such.
12. Contractor agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Contractor for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.
13. Contractor agrees to obtain and provide to City evidence of Professional Liability insurance for Architects or Engineers if engaged by Contractor to perform any of the services required under this Agreement. City shall determine the minimum coverage and policy limits required, after consultation with Contractor.
14. The City acknowledges that some insurance requirements contained in this Agreement may be fulfilled by self-insurance on the part of the Contractor. The Contractor’s insurance obligations under this Agreement under may be satisfied in whole or in part by adequately funded self- insurance retention, but only after approval from the City Attorney’s Office upon satisfactory evidence of financial capacity.
Exhibit C to Agreement with Zanker Road Resource Management, LLC Page 28 of 39 Rev. 04-25-23
15. The City reserves the right to withhold payments from the Contractor in the event of material noncompliance with the insurance requirements set forth in this Agreement.
H. EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Contractor, and each and every subcontractor (of every tier) shall, at its sole cost and expense, provide and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement. Such insurance coverage shall be maintained with insurers, and under forms of policies, satisfactory to City and as described in this Agreement. Contractor shall file with the City all certificates and endorsements for the required insurance policies for City’s approval as to adequacy of the insurance protection.
I. EVIDENCE OF COMPLIANCE
Contractor or its insurance broker shall provide the required proof of insurance compliance, consisting of Insurance services Office (ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set forth below, at or prior to execution of this Agreement.
Upon City’s request, Contractor shall submit to City copies of the actual insurance policies or renewals or replacements. Unless otherwise required by the terms of this Agreement, all certificates, endorsements, coverage verifications and other items required to be delivered to City pursuant to this Agreement shall be mailed to:
EBIX Inc.
City of Santa Clara - Department of Public Works
P.O. Box 100085 – S2 or 1 Ebix Way
Duluth, GA 30096 John’s Creek, GA 30097
Telephone number: 951-766-2280
Fax number: 770-325-0409
Email address: [email protected]
J. QUALIFYING INSURERS
All of the insurance companies providing insurance for Contractor shall have, and provide written proof of, an A. M. Best rating of at least A minus 6 (A- VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.
Exhibit D to Agreement with Zanker Road Resource Management, LLC Page 29 of 39 Rev. 04-25-23
EXHIBIT D
DEFINITIONS
1. “Actions” means all actions including claims, demands, causes of action, suits, mediation, arbitration, hearings, investigations, inquiries and proceedings, whether legal, judicial, quasi -judicial, governmental or administrative in natur e and whether threatened, brought, instituted or settled.
2. “Affiliate” means any of the Contractor's officers, directors or shareholders, and any corporation, partnership, joint venture or other entity directly or indirectly controlling the Contractor, or d irectly or indirectly owned or controlled by the Contractor or its officers, directors or shareholders.
3. “Agreement” means this Agreement between the City and Contractor, including all exhibits, schedules and attachments (which are hereby incorporated in this Agreement by this reference), as this Agreement may be amended and supplemented.
4. “Applicable Law” includes without limitation, AB 341, AB 876, AB 901, AB 939, AB 1594, AB 1826, SB 1016, SB 1383 and all amendments and related subsequent legislation, as well as all law s, statutes, rules, regulations, guidelines, Permits, actions, determinations, orders, approvals or requirements of the United States, State, regional or local government authorities, agencies, boards, commissions, courts or other bodies having applicable jurisdiction, that from time to time apply to or govern services or the performance of the Parties' respective obligations under this Agreement.
5. “Assign” means:
(i) selling, exchanging or other wise transferring effective control of management of the Contractor (through sale, exchange or other transfer of outstanding stock or otherwise);
(ii) issuing new stock or selling, exchanging or otherwise transferring 20% or more of the then outstanding common stock of the Contractor; (iii) any dissolution, reorganization, consolidation, merger, re - capitalization, stock issuance or re - issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction which results in a change of Ownership or control of Contractor; (iv) any assignment by operation of law, including insolvency or bankruptcy, making assignment for the benefit of creditors, writ of attachment of an execution, being levied against Contractor, appointment of a rece iver taking possession of any of Contractor’s
Exhibit D to Agreement with Zanker Road Resource Management, LLC Page 30 of 39 Rev. 04-25-23
tangible or intangible property;
(v) any combination of the forgoing (whether or not in related or contemporaneous transactions) which has the effect of any that transfer or change of Ownership or control of Contractor.
6. “Calendar Year” means a successive period of 12 months commencing on January 1 and ending on December 31.
7. “Commencement Date” means the later date of execution by the City or Contractor on the execution page of this Agreement.
8. “Contractor” means a corporation organized and operating under the laws of the State of California.
9. “Contractor Default ” has the meaning provided in Section 8 of this Agreement.
10. “City” means the City of Santa Clara.
11. “Designated Hauler” means the waste hauler or haulers named by City to deliver Municipal Solid Waste to Facility.
12. “Direct Cost” means Contractor’s reasonable costs incurred for materials testing, sorting, or cleaning. Direct Cost of labor and equipment use does not include profit, overhead or administrative expense.
13. Disposal” means the final disposition of Solid Waste at a permitted Landfill or other permitted Solid Waste disposal facility, as defined in California Public Resources Code 40192(b).
14. “Disposal Facility” means the permitted place or places as County‑approved locations for the Disposal of Garbage or other materials as appropriate and acceptable.
15. “Diversion” (or “Divert”) means to divert from Disposal or use anywhere at or on a Disposal Facility through source reduction, reuse, recycling, composting.
16. “End of Useful Life” means the point at which the Disposal Facility reaches its permitted capacity, which when reached, will not allow for any more materials to be disposed of at the Facility.
17. “Excluded Waste” means Biomedical Waste, Hazardous Waste, sludge, automobiles, automobile parts, boats, boat parts, boat t railers, internal combustion engines, and those wastes under the control of the Nuclear Regulatory Commission.
Exhibit D to Agreement with Zanker Road Resource Management, LLC Page 31 of 39 Rev. 04-25-23
18. “Facility” means the facility that will dispose of solid waste , from City collection and delivery.
19. “Goods and Services” means all goods and services used in providing services, including labor, leases, subleases, equipment, supplies and capital related to furnishing services; insurance, bonds or other credit support if the insurer is an Affiliate or a captive of Contractor or any Affiliate; and legal, risk management, general and administrative services.
20. “Governmental Fees” means fees or taxes imposed upon Facility by any governmental body or Regulatory Agency, other than those imposed upon the Facility in connection with th e repair, remediation, improvement, addition, or expansion of the Facility.
21. “Holidays” means New Year’s Day, Labor Day, Fourth of July, Thanksgiving Day, and Christmas Day.
22. “Hazardous Substance” means any of the following:
(i) any substances defined, regulated or listed (directly or by reference) as "hazardous substances", "hazardous materials", "hazardous wastes", "toxic waste", "pollutant" or "toxic substances" or similarly identified as hazardous to human health or the environment, in or pursuant to the:
(ii) Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 USC §9601 et seq.;
(iii) Hazardous Materials Transportation Act, 49 USC §1802, et seq.; (iv) Resource Conservation and Recovery Act, 42 USC §6901, et seq.; (v) Clean Water Act, 33 USC §1251, et seq.;
(vi) California Health and Safety Code §§25115-25117, 25249.8, 25281, and 25316;
(vii) Clean Air Act, 42 USC §7901, et seq.; and
(viii) California Water Code §13050;
(ix) any amendments, rules or regulations promulgated thereunder to such enumerated statutes or acts currently existing or hereafter enacted; and
(x) any other hazardous or toxic substance, material, chemical, waste or pollutant identified as hazardous or toxic or regulated under any other applicable federal, state or local environmental laws currently existing or hereinafter enacted, including, without limitation, friable
Exhibit D to Agreement with Zanker Road Resource Management, LLC Page 32 of 39 Rev. 04-25-23
asbestos, polychlorinated biphenyl’s ("PCBs"), petroleum, natural gas and synthetic fuel products, and by-products.
23. “Household Hazardous Waste ” means any Hazardous Substance generated incidental to owning or maintaining a place of residence, excluding any Hazardous Substance generated in the course of operation of a business concern at a residence, in accordance with Section 25218.1 of the California Health and Safety Code.
24. “Liabilities” means all liabilities, including:
(i) Actions;
(ii) Awards, judgments and damages, both: (a) actual damages, whether special and consequential, in contract or in tort, such as natural resource damages, damage for injury to or death of any Person; and damage to property; and (b) punitive damages;
(iii) Contribution or indemnity claimed by Persons other than the Parties; (iv) Injuries, losses, debts, liens, liabilities;
(v) Costs, such as response remediation and removal costs; (vi) Interest;
(vii) Fines, charges, penalties, forfeitures; and
(viii) Expenses such as attorney’s and expert witness fees, expenditures for investigation and remediation, and costs incurred in connection with defending against any of the foregoing or in enforcing Indemnities.
25. “Material Type ” means segregated Plant Materials, segregated Wood Waste, segregated Food Scraps or Organic Materials (Commingled Plant Materials & Food Scraps).
26. “Maximum Vehicle Turnaround Time ” means 30 minutes, measured from the time a vehicle enters either the Facility property and until it exits the Facility property, including but not limited to gross and net weights, tipping and transportation throughout the facility. The calculation of the times will be based on time stamp tickets at the scale house.
27. “Monthly Report ” means that which is described in Exhibit E, Monthly Reporting.
28. “Municipal Solid Waste ” means all substances or materials that are generally discarded or rejected as being spent, useless, worthless or in
Exhibit D to Agreement with Zanker Road Resource Management, LLC Page 33 of 39 Rev. 04-25-23
excess to the owners at the time of rejection, including, without limitation, trash, garbage, refuse and rubbish, and which are generated by all residential, commercial, industrial, institutional, municipal, agricultural and other activities within the City; provided, however, Municipal Solid Waste does not include Excluded Waste , Source Separated Organic Materials, and Source Separated Recyclables.
29. “Ownership” has the meaning provided under the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986 except that (1) 10 percent is substituted for 50 percent in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; (2) Section 318(a)(5)(C) is disregarded; (3) ownership interest of less than 10 percent is disregarded; and (4) percentage interests is determined on the basis of the percentage of voting interest or value which the ownership interest represents, whic hever is greater.
30. “Party” or “Parties” means the City and Contractor, individually or collectively.
31. “Permit(s)” means all federal, State, City, other local and any other governmental unit permits, orders, licenses, approvals, authorizations, consents and e ntitlements that are required under Applicable Law to be obtained or maintained by any Person with respect to services, as renewed or amended from time to time.
32. “Person(s)” includes an individual, firm, association, organization, partnership, corporation, trust, joint venture, the United States, the State, local governments and municipalities , special purpose districts , and other entities.
33. “Rate” means the amount established under Article V, Contractor Compensation and Exhibit B, Compensation, of this Agreement to be charged to the City by Contractor for disposal of solid waste."
34. “Regulatory Agency ” means any federal, state or local governmental agency, including California Department of Transportation, California Department of Motor Vehicles, EDD, U.S. Immigration and Naturalization services, California Air Resources Board, state or regional water or air quality control boards or districts, California Department of Toxic Substances, California Department of Resources, Recycling, and Recovery (CalRecycle), the Local Enforcement Agency, federal and state Environmental Protection Agencies and other federal or state health a nd safety departments, applicable to Services.
35. “Records” means all ledgers, book of account, invoices, vouchers, canceled checks, logs, correspondence and other records or documents of Contractor evidencing or relating to Rates, tonnage of materials, satisfaction
Exhibit D to Agreement with Zanker Road Resource Management, LLC Page 34 of 39 Rev. 04-25-23
of Contractor’s obligations under this Agreement and performance of the terms of this Agreement, damages payable under this Agreement and Contractor Defaults.
36. “Recycle” or “ Recycling” means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise become solid waste, and returning 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.
37. “Services” means the work that is performed for the City by the Contractor under this Agreement and described in Exhibit A (Scope of Services).
38. “Solid Waste” means and includes all putrescible and nonputrescible solid, semisolid, and liquid wastes, including garbage, trash, refuse, rubbish, ashes, industrial wastes, discarded home and industrial appliances, manure, vegetable or animal solid and semisolid wastes, and other discarded solid and semisolid wastes, as defined in California Public Resources Code §40191 , as that section may be amended from time to time. For the purposes of this Agreement, “Solid Waste” does not include Hazardous Substances, low -level radioactive waste, medical waste, or Organic Materials.
39. “Subcontractor” means any Person to which Contractor subcontracts any portion of the Services, whether pursuant to a formal, written agreement or otherwise.
40. “Term” means the time period or duration for which the Agreement is in effect.
41. “Ton” or “Tonnage” means a short ton of 2,000 standard pounds where each pound contains 16 ounces.
42. “Tipping Fees” means amounts approved by the Board of Supervisors and charged by Contractor to, and collected by Contractor from, any Person using the Facility and/or delivering Wastes to the Facility. Tipping Fees will be established in accordance with Exhibit B.
43. “Transfer Company ” means the Person that City directs to transport municipal solid waste and residual waste to the Disposal Facility.
44. “Violation” means any notice, assessment or determinat ion of non - compliance with Applicable law from any Regulatory Agency to Contractor, whether or not a fine or penalty is included, assess, levied or attached.
45. “Working Day” means any day, Monday through Saturday, that is not a Holiday as set forth in this Agreement.
Exhibit E to Agreement with Zanker Road Resource Management, LLC Page 35 of 39 Rev. 04-25-23
EXHIBIT E
MONTHLY REPORTING
Contractor will provide the City a monthly report that summarizes the inbound and outbound materials, a materials mass -balance by supplier, and material market outlets as well as the detail scale reports and other documentation that supports the data in the summary report. The Contractor shall provide, and the City shall approve, the report structure.
The monthly statement shall include the following items for the overall MSW stream received:
Monthly Statistics
1. Disposal Cost Per Ton
The Disposal Cost is the cost per ton to process the overall MSW stream. The Cost will be updated throughout the Agreement Term, with annual CPI increases as agreed upon by the City of Santa Clara.
2. Total Volume Received
The Total Volume Received is the total tons of MSW received by the contractor.
Backup documentation shall be provided each month showing the date, time, vehicle identification number, and tonnage received for each load.
3. Total Loads Received
The Total Loads is the number of loads received by Contractor in the given reporting period. A total monthly load count shall be provided on the Total Volume Received backup report.
Exhibit F-1 to Agreement with Zanker Road Resource Management, LLC Page 36 of 39 EXHIBIT F-1
Ethical Standards for Collectors Seeking to Enter into an Agreement with the City of Santa Clara, California
Termination of Agreement for Certain Acts.
A. The City may, at its sole discretion, terminate this Agreement in the event any one or more of the following occurs:
i. If a Collector1 does any of the following:
a. Is convicted2 of operating a business in violation of any Federal, State or local law or regulation;
b. Is convicted of a crime punishable as a felony involving dishonesty3;
c. Is convicted of an offense involving dishonesty or is convicted of fraud or a criminal offense in connection with:
(1) obtaining; (2) attempting to obtain; or, (3) performing a public contract or subcontract;
d. Is convicted of any offense which indicates a lack of business integrity or business honesty which seriously and directly affects the present responsibility of Collector in the performance of this Agreement; and/or,
e. Makes any false statement(s) or representation(s) with respect to this Agreement.
ii. If fraudulent, criminal or other seriously improper conduct of any officer, director, shareholder, partner, employee or other individual associated with the Collector can be imputed to the Collector when the conduct occurred in connection with the individual’s
1 For purposes of this Agreement, the word “Collector” (whether a person or a legal entity) means any of the following: an owner or co -owner of a sole proprietorship; a person who controls or who has the power to control a business entity; a general partner of a partnership; a principal in a joint venture; or a primary corporate stockholder [i.e., a person who owns more than ten percent (10%) of the outstanding stock of a corporation] and who is active in the day to day operations of that corporation.
2 For purposes of this Agreement, the words “convicted” or “conviction” mean a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere within the past five (5) years.
3 As used herein, “dishonesty” includes, but is not limited to, embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, failure to pay tax obligations, receiving stolen property, collusion or conspiracy.
Exhibit F-1 to Agreement with Zanker Road Resource Management, LLC Page 37 of 39 performance of duties for or on behalf of the Collector, with the Collector’s knowledge, approval or acquiescence, the Collector’s acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval or acquiescence.
iii. The City may also terminate this Agreement in the event any one or more of the following occurs:
iv. If City determines that Collector no longer has the financial capability4 or business experience5 to perform the terms of, or operate under, this Agreement; or,
v. If City determines that the Collector fails to submit information, or submits false information, which is required to perform or be awarded a contract with City, including, but not limited to, Collector’s failure to maintain a required State issued license, failure to obtain a City business license (if applicable) or failure to purchase and maintain bonds and/or insurance policies required under this Agreement.
vi. Provided, however, that the City shall not exercise its rights pursuant to this Section B unless the City gives written notice to Collector of its determination, including the factual basis for making its determination, and Collector fails to eliminate the cause for the determination within forty-five (45) days on those matters which may be cured within forty-five (45) days and is taking reasonable action to eliminate those matters which cannot be cured within a forty-five (45) day period.
vii. In the event the Agreement is terminated pursuant to these provisions, Collector may appeal the City’s action to the City Council by filing a written request with the City Clerk within ten (10) days of the notice given by City to have the matter heard. The matter will be heard within thirty (30) days of the filing of the appeal request with the City Clerk. The Collector will have the burden of proof on the appeal. The Collector shall have the opportunity to present evidence, both oral and documentary, and argument.
4 Collector becomes insolvent, transfers assets in fraud of creditors, makes an assignment for the benefit of creditors, files a petition under any Section or chapter of the federal Bankruptcy Code (11 U.S.C.)., as amended, or under any similar law or statute of the United States or any state thereof, is adjudged bankrupt or insolvent in proceedings under such laws, or a receiver or trustee is appointed for all or substantially all of the assets of Collector.
5 Loss of personnel deemed essential by the City for the successful performance of the obligations of the Collector to the City.
Exhibit F-2 to Agreement with Zanker Road Resource Management, LLC Page 39 of 39 EXHIBIT F-2
Affidavit of Compliance with Ethical Standards
[City of Santa Clara]
I, _________, being first duly sworn, depose and say that I am the President of _________, and I hereby state that I have read and understand the language, titled “ETHICAL STANDARDS FOR COLLECTORS SEEKING TO ENTER INTO AN AGREEMENT WITH THE CITY OF SANTA CLARA, CALIFORNIA” (herein “Ethical Standards”) set forth in Exhibit F-1 of this Agreement. I have authority to make these representations on my own behalf or on behalf of the legal entity identified herein. I have examined appropriate business records and I have made inquiry of those individuals potentially included within the definition of “Collector” contained in the Ethical Standards.
Based on my review of the appropriate documents and the necessary inquiry responses, I hereby state that neither the business entity nor any individual(s) belonging to a category identified in footnote #1 of Exhibit F-1 of this Agreement [i.e., owner or co- owner of a sole proprietorship, general partner, person who controls or has power to control a business entity, etc.] has been convicted of any one or more of the crimes identified in Exhibit G-1 of this Agreement within the past five (5) years.
The above assertions are true and correct and are made under penalty of perjury under the laws of the State of California.
NOTARY’S ACKNOWLEDGMENT TO BE ATTACHED