Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
36 substantially the form set out in Exhibit K and containing, at a minimum, the information listed therein. These reports shall be due each year on the fifteenth day of April, July, October, and January.
c. Annual. Collector shall submit annual reports to
City in written form and compatible computerized format totaling the information contained in the quarterly reports for the previous year, in substantially the form set out in Exhibit L and containing, at a minimum, the information listed therein. These reports shall be due within 30 days of the end of the reporting year.
d. SB 1383 Reporting. Collector shall assist City in
reporting information about implementation and compliance with SB 1383 Regulations and in accordance with Article 13 of Chapter 12 of Title 14 of the CCR.
e. Additional Information. Collector shall use
Reasonable Business Efforts to incorporate additional information from Records promptly upon Notice from City.
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
37 ARTICLE 8 INDEMNITIES, INSURANCE, BONDS
8.01 Collector Indemnification and Defense.
a. Indemnification of City. Collector agrees that it
shall protect, defend, indemnify and hold harmless City, its elected officials, officers, employees, volunteers and agents from and against any and all losses, liabilities, fines, penalties, claims, damages, liabilities or judgements, including attorneys’ fees and costs arising out of or resulting in any way from City’s grant of this franchise to Collector or Collector’s exercise of the franchise including the provision of Services under this Agreement, unless such claim is due to the sole negligence or willful acts of City, its elected officials, officers, employees, volunteers or agents.
Subject to the scope of this indemnification and upon demand of the City, made by and through the City Attorney, Collector shall protect City and appear in and defend the City its elected officials, officers, employees, volunteers and agents, in any claims or actions by third parties, whether judicial,
administrative or otherwise, including, but not limited to disputes and litigation over the definition of “Solid Waste,” “Recyclables” or “Organic Waste” or the limits of City’s authority with respect to the grant of franchises, exclusive or otherwise, involving the collection of Solid Waste, arising out of the exercise of this Agreement by Collector or claims by other Persons disputing the rights and privileges granted by City in this Agreement. This provision shall survive the expiration of the period during which Collection Services are to be provided under this Agreement. City and Collector agree to confer following any trial to decide jointly whether to appeal, or to oppose any appeal.
In the event City and Collector jointly agree to appeal, or to oppose any appeal, City and Collector agree to share equally cost of appeals. Should either City or Collector decide to appeal, or to oppose appeal, and the other decide not to appeal, or to oppose appeal, the party which decides to appeal, or oppose appeal, shall bear all fees and costs of the appeal or the opposition to the appeal.
b. Hazardous Substances Indemnification. Collector
shall indemnify, defend, protect and hold harmless City, its elected officials, officers, employees, agents, assigns and any successor or successors to City’s interest from and against all claims, actual damages (including but not limited to special and consequential damages), natural resources damages, punitive damages, injuries, costs, response, remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action,
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
38 suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses (including but not limited to attorney’s and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) or any kind whatsoever paid, incurred or suffered by, or asserted against, City or its elected officials, officers, employees, volunteers or agents arising from or attributable to any repair, cleanup or detoxification, or preparation and implementation of any removal, remedial, response, closure or other plan (regardless of whether undertaken due to governmental action) concerning any hazardous substance or Hazardous Waste at any place where Solid Waste collected pursuant to this Agreement is or has been transported, transferred, processed, stored, disposed of or has otherwise come to be located by Collector or its activities pursuant to this Agreement that result in a release of hazardous substances into the environment. The foregoing indemnity is intended to operate as an agreement pursuant to Section 107(e) of the Comprehensive Environmental Response, Compensation and Liability Act, “CERCLA”, 42 U.S.C. Section 9607(e), and California Health and Safety Code Section 25364, to defend, protect, hold harmless and indemnify City from all forms of liability under CERCLA, the Resource Conservation and Recovery Act, “RCRA”, 42 U.S.C. Sections 6901 et seq. or other similar federal, state or local law or regulation for any and all matters addressed in this Section 8.01. This provision shall survive the expiration of the period during which Collection Services are to be provided under this Agreement.
c. AB 939 Indemnification. Collector agrees to
implement all requirements of the City’s Source Reduction and Recycling Element and to develop new requirements, as needed, in order to cause the City to be in compliance with AB 939. Collector agrees to protect, defend, indemnify and hold City harmless against all fines or penalties imposed by the California Department of Resources Recycling and Recovery in the event the diversion, source reduction and recycling goals of AB 939 are not met by the City of Upland with respect to the waste stream covered by this Agreement, City’s Source Reduction and Recycling Element is determined to be deficient, or Collector’s delays in providing information prevent City from submitting reports required by AB 939 in a timely manner.
City and Collector agree to negotiate with respect to any additional AB 939 related services, which Collector and City agree to implement. The above indemnification shall be implemented in accordance with Applicable Law in the manner which provides the City with the maximum indemnification rights allowed by Applicable Law.
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
39 d. Liabilities During Term Only. Such indemnification shall be limited to Liabilities resulting from Services from and after the date hereof through the Term, it being specifically understood that any liabilities attributable to the Collector’s actions prior to the date hereof are excluded from such indemnification. However, SUCH INDEMNIFICATION RESULTING FROM
SERVICES DURING THE TERM SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
e. Reduction of CERCLA and Other Liability. City and
Collector agree to meet annually in the second calendar quarter of each calendar year to discuss ways to reduce their respective potential CERCLA and other liabilities to third parties.
8.02 Insurance.
a. Insurance Requirements. The Collector shall, at
Collector’s sole cost and expense, secure and maintain insurance acceptable to the City (Attorney or Risk Manager) in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by the Collector, its agents, representatives or employees. The Collector shall maintain the types and amounts of insurance coverage, together with related specified deductibles, listed in this Section 8.02 or required by Applicable Law, whichever is greater.
b. Minimum Limits of Insurance. Collector shall
maintain limits of insurance no less than:
General Liability: $10,000,000 aggregate and $5,000,000 per occurrence for bodily injury, personal injury and property damage.
If Comprehensive General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the activities related to this Agreement or the general aggregate limit shall be twice the required occurrence limit.
Commercial Auto Liability: $10,000,000 per accident for bodily injury, including accidental death, and property damage that may arise from operations pursuant to this Agreement.
Workers’ Compensation and Employers’ Liability Insurance: Workers’ Compensation as required by the Labor Code of the State of California and Employers Liability limits of at least a minimum $1,000,000 per accident.
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
40 c. Other Insurance Provisions. The insurance required by this Agreement shall be with insurers, which are Best A- rated, or better. The City shall be included as an additional insured on each of the policies and policy endorsements. The Collector shall obtain the written consent of the City’s Risk Manager prior to changing insurers providing insurance under this Agreement, which consent shall not be withheld unreasonably. The following language will be made a part of all insurance policies required by this Section:
(1) “The City of Upland, its officials, officers
employees, volunteers, and agents, are hereby added as additional insureds as respects liability arising out of activities performed by or on behalf of Collector.”
(2) “This policy shall be considered primary
insurance as respects any other valid and collectible insurance the City of Upland may possess including any self-insured retention the City of Upland may have, and any other insurance the City does possess shall be considered excess insurance and shall not contribute with it.”
(3) “ This policy shall act for each insured, as
though a separate policy had been written for each. This, however, will not act to increase the limit of liability of the insuring company.”
(4) “ Thirty (30) days’ prior written notice by
certified mail, return receipt requested, shall be given to the City of Upland in the event of suspension, cancellation, reduction in coverage or in limits or non-renewal of this policy for whatever reason. Such notice shall be sent to the City Manager, City Attorney and City Clerk.”
d. Evidence of Insurance Coverage; Insurance
Repository. Collector shall provide insurance in the coverage areas and in the dollar amounts specified in this Article 8 upon execution of this Agreement. Thereafter, copies of the Collector’s Certificate(s) of Insurance shall be provided to the City within thirty (30) days of each Agreement Year. Collector shall file copies of the policies and executed endorsements evidencing the above required insurance coverage with the City Clerk. Collector also agrees to establish an insurance policy repository and to maintain copies of insurance policies required pursuant to this Agreement for one hundred (100) years after the end of the Term during which Collection Services are to be provided pursuant to this Agreement. Collector shall notify City’s Risk Manager and City Attorney before destroying copies of such policies. This
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
41 provision shall survive the expiration of the period during which Collection Services are to be provided under this Agreement.
8.03 Performance Bond. Collector shall secure and throughout the Term maintain in full force and effect a performance or surety bond to guarantee and assure the timely and complete performance of Services in an amount no less than one million dollars ($1,000,000), fully prepaid for each Agreement Year. The performance bond shall be delivered by the Collector to the City within thirty (30) days of execution of this Agreement. Proof of renewal shall be provided to the City every twelve (12) months.
Collector shall ensure that the bonding company provides the City with notice of non-renewal within ten (10) days of any non-renewal.
Such bond shall a name the City as obligee and provide at least thirty (30) days’ prior notice of any cancellation. Collector shall procure such bond from underwriters approved by the City Manager, licensed in California, rated not less than “A- VII” by A.M. Best Company, Inc. The form of the bond and the surety are subject to the approval of City’s Risk Manager and the City Attorney. The condition of the performance bond shall be such that if Collector shall well and truly perform the covenants, promises,
undertakings, and obligations contracted by Collector to be performed under this Agreement, then the obligation of the bond shall be void; otherwise it shall remain in full force and effect.
The bond shall terminate and be canceled upon the completion of all of Collector’s obligations under this Agreement. City shall execute and deliver to Collector or Collector’s surety company promptly upon Collector’s completion of all of Collector’s obligations under this Agreement such certificates or other documents as either of them may reasonably request for the purpose of terminating and canceling such performance bond.
8.04 Letter of Credit. As an alternative to such performance bond, at City’s option Collector may deposit with City a fully prepaid, irrevocable letter of credit for at least the duration of the Agreement Year for which the letter of credit is deposited in the same amount as such performance bond. The form of the letter of credit and the issuer of the letter of credit are subject to approval of the City Manager and the City Attorney. Nothing herein shall in any way obligate City to accept a letter of credit in lieu of the performance bond.
8.05 City’s Right to Draw Against Performance Bond/Letter of Credit. City shall have the right to draw against the performance bond or the letter of credit in the event of a breach or default of this Agreement or the failure of Collector to perform fully any obligation under this Agreement. Within five (5) calendar days of receipt of notice from City, Collector shall renew or replace such
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
42 sums of money as needed to bring the faithful performance bond or letter of credit current.
8.06 Financial Guaranty Agreement. Collector shall ensure that parent corporation or its successors or assigns acceptable to the City, execute and maintain a legal, valid, and binding Financial Guaranty Agreement in the form appended hereto as Exhibit O, and maintain that Financial Guaranty Agreement in effect as of the date hereof and throughout the Term. Collector shall cause a fully executed original of the Financial Guaranty Agreement to be delivered to City within thirty (30) days of execution of this Agreement.
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
43 ARTICLE 9 CRIMINAL ACTIVITY OF COLLECTOR.
9.01 Criminal Activity of Collector. Should the Collector or any of its officers or directors have a criminal conviction from a court of competent jurisdiction with respect to conviction for any crime, including racketeering, indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of the Collector or its officers or directors; or should the Collector or any of its respective officers or directors have made an admission of guilt or pled nolo contendere to the conduct described in this subsection above, which is a matter of record, then each employee, officer, or director, as the case may be, of the Collector responsible for such proscribed conduct shall be promptly terminated and/or replaced.
Collector shall have fifteen (15) days’ notice and opportunity following such conviction to present evidence in mitigation thereof, and on and after such fifteenth day, if such employee, officer, or director is not promptly terminated or replaced, the City reserves the right to unilaterally terminate this Agreement or to impose such other sanctions (which may include financial sanctions, temporary suspensions, or any other condition deemed appropriate short of termination) as it shall deem proper.
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
44 ARTICLE 10 SERVICE FEES
10.01 Collector Service Fee. The Collector shall receive payment, net of any applicable liquidated damages, for services rendered under this Agreement as compensation for performing Services (the “Service Fee”) or portion thereof, according to rates set forth for each Customer’s individual Services in Exhibit M.
The Service Fee includes all Collector’s Direct Costs and Indirect Costs plus profit or return, of providing Services including all fueling costs, regardless of the location of the fueling station and/or fuel types and labor and travel time to/from the fueling station. No compensation shall be provided or paid to Collector by City or by any Customer except as expressly provided herein.
10.02 Franchise Fee. Collector shall pay a Franchise Fee to City each month. Collector has proposed and City has agreed that the amount of the Franchise Fee shall be a fixed amount per residential and commercial rate, established by the City for all services performed under this Agreement and shall be paid monthly by check. The Franchise Fee amount shall be increased annually by the same CPI percentage as the rate adjustment factor calculated for that rate period.
City may use the Franchise Fee for any lawful purpose.
The Franchise Fee shall be considered a pass through fee that is reasonably related to the City’s administrative costs under this agreement.
Exhibit M shows both the total Service Fee and the Total Customer Rates. The Service Fee is the compensation to be paid to the Collector for services provided pursuant to this Agreement. The Total Customer Rates, consisting of the Service Fee plus the Franchise Fee Component, are the total rates to be paid by residential and commercial customers. The Program Cost Component consists of costs incurred by the City for the green waste and recycling program, landfill post-closure fees, administrative overhead, and other costs relating to the solid waste and recycling program. The Franchise Fee Component of the Total Customer Rates are paid to or retained by the City, as applicable. The City shall pay the Service Fee for Recycling and Organic Waste Collection Services to the Collector out of the Franchise Fee Component.
10.03 Recyclables Revenue. The Collector shall pay to
the City fifty percent (50%) of all revenue earned from the sale of recyclables, and may keep the remainder.
10.04 Additional Revenue; Rebates; State, Local, or
Federal Grants and/or Incentive Money. Any additional revenue,
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
45 rebates, state, local, or federal grants and/or incentive money generated as a result of source reduction, public education, recycling, organic waste, used motor oil, or HHW programs earned, received, or collected by the Collector shall be paid to the City.
10.05 Collector Payment to the City. Collector shall make payment to the City for items listed in Section 10.04 on a quarterly basis, on the fifteenth day of the month following the prior quarter ending date. Each such payment shall be accompanied by an accounting, which sets forth Collector’s gross receipts collected during the preceding calendar quarter.
Additionally, The City shall receive as credit against
Collector’s monthly billing for the following: i) Three Hundred Fifty Thousand Dollars ($350,000) annually for maintenance and repair of City street, alleys and public right of ways used or impacted by Collector, ii) One Hundred Fifty Thousand Dollars ($150,000) annually for HHW and home generated sharps waste (“SHARPS”) as defined in Section 117671 of the California Health and Safety Code. These amounts will be adjusted annually in accordance with Section 10.06 (collective, the "City Credits”), except that no downward adjustment shall be made.
No acceptance by City of any payment shall be construed as an accord that the amount is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim City may have against Collector for any additional sums payable under the provisions of this Agreement or any amendment to this Agreement. All amounts paid shall be subject to independent audit and recomputation by City. If, after audit, such recompuatation indicates an underpayment of less than three percent (3%), Collector shall pay to City the amount of the underpayment within ten (10) days of receipt of written notice from City of the amount owed. If, after audit such recomputation indicates an underpayment of equal to or more than three percent (3%), Collector shall reimburse City for all reasonable costs and expenses incurred in connection with the audit and recomputation, and the amount underpaid, within ten (10) days of receipt of written notice from City of the amount owed. If, after audit, such recomputation indicates overpayment, City shall notify the Collector in writing of the amount of the overpayment, less costs and expenses incurred in connection with the audit and recomputation. Collector may offset the payment of payments (as appropriate) next due following receipt of such notice by the amount specified therein.
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
46 10.06 Adjustments.
a. Automatic Fee Adjustments to Service Component and
Franchise Fee Component.
(1) Description of the Adjustment. Upon the
effective date of this Agreement, and annually thereafter, the Collector shall, at Collector’s expense, subject to compliance with all provisions of this Article, and subject to the notice and hearing requirements of Proposition 218, receive an annual adjustment in the Service Fees.
The Service Component and the Franchise Fee Component of the Total Customer Rate shall be increased or decreased by the percentage change in the published Consumer Price Index (CPI), All Urban Consumers for the Riverside-San Bernardino-Ontario, CA Metropolitan Area. This adjustment shall not exceed five percent (5%) per annum, regardless of the percentage change in the CPI. If the CPI for the previous year was in excess of five percent (5%), the additional percentage may be rolled over to the following year so long as the CPI adjustment for that year does not exceed five percent (5%). The disposal and processing fee adjustments shall be considered pass through fees.
(2) Procedure. On or before April 1, 2023 and
annually thereafter, Collector shall deliver to the City documentation showing the percentage change in the CPI during the previous calendar year. The Collector shall deliver at the same time adjusted rate sheets for the Total Customer Rates specified in Exhibit M, showing an upward or downward adjustment resulting from the application of the percentage change in the CPI to the Service Component and the Franchise Fee Component. Annual adjustments shall be made only in units of one cent ($0.01).
Fractions less than one cent ($0.01) shall not be considered in making adjustments.
b. Special Rate Review.
(1) Description of the Adjustment. Collector is
entitled to apply to City for consideration of a Special Rate Review, or City may initiate such a review, upon the occurrence of an Uncontrollable Circumstance which increases or decreases Collector’s Direct Costs and/or Indirect Costs of Services (provided that Collector shall first apply the proceeds of any insurance available to mitigate or eliminate the need for any such adjustment). Any change to the Service Fees resulting from an Uncontrollable Circumstance shall be an adjustment of the Service Component of the Service Fee, as applicable. No rate adjustment
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
47 shall be made pursuant to this paragraph “c” for events or circumstances occurring prior to the Effective Date.
(2) Procedure. Collector shall seek no more than
a single annual adjustment, which adjustment (if approved by City), shall become effective at the time of the CPI adjustment described in paragraph “b” of this Section 10.06. Collector must submit its request for a Special Rate Review and complete cost and operational data in a form and manner specified by City no later than April 1 of the year in which the proposed change in the Service Fee is to take effect.
Should Collector request a Special Rate Review, City shall have the right to review any or all costs associated with Collector’s Services under this Agreement. For each such request, Collector shall prepare a schedule documenting the extraordinary costs. Such request shall be prepared in a form acceptable to the City with support for assumptions made by Collector in preparing the estimate, and shall include documentation supporting its request. Additionally, if required by the City, Collector shall also provide a copy of its certified annual financial statements prepared by a Certified Public Accountant or a licensed public accountant, which shall have been prepared in compliance with Rule 58 of the “Rules and Regulations of the State Board of
Accountancy,” as established by the California Code of
Regulations, Title 16, Division 1. Such Certified Public Accountant or licensed public accountant shall be entirely independent of the Company and shall have no financial interest whatsoever in the business of the Company. The City may specify the form and detail of the financial statements. The City shall have the right to verify the Company’s reported changes in costs. (3) Decision; Remedy. Collector shall bear the
burden of justifying to City by substantial evidence any entitlement to an increase in the Service Fees under this Section.
The City Council shall review Collector’s request and, in the City Council’s sole judgment (subject to compliance with Article XIII D, Sec. 6(a) of the California Constitution, to the extent applicable) make the final determination on the appropriate amount of the adjustment if any within 30 days of receipt of Collector’s request.
The City Council may grant some, all or none of the requested increase. If City rejects a special rate adjustment requested by Collector, grants a rate increase less than what was requested by Collector, or fails to act in a timely manner upon all or any part Collector’s special rate adjustment application, Collector’s sole remedies against City are (a) to file a petition for writ of
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
48 mandate pursuant to Code of Civil Procedures Section 1085; or (b) withhold special services and/or new services. Collector expressly agrees that it does not have a cause for action for damages against City.
c. Changes in Scope of Service. The City shall approve
adjustments of the Service Fee for changes in the scope of Services as specified in Article 6 of this Agreement. In the event either party requests a modification of a Service provided pursuant to this Agreement, or additional services not currently included within this Agreement, Collector shall furnish City with complete, projected operational and cost data for the modified or additional Service. City reserves the right to require that Collector supply any additional cost data or other information it may reasonably need to ascertain the appropriate adjustment. City further reserves the right to employ qualified independent consulting services to review data submitted by Collector. For Collector- initiated proposals for service modifications or additional services, Collector shall pay all City consultant and attorney expenses relating to the review.
d. Customer Notification. No later than May 15 prior
to the date the adjusted rates become effective each year, Collector shall notify Customers of any changes in their Solid Waste Collection Service rates.
e. No Release or Assumption of Liability. Collector
agrees that payment to the Collector by the City for changes in scope of Service or Uncontrollable Circumstances shall not constitute nor be deemed a release of the responsibility and liability of Collector, its employees, subcontractors, agents, and consultants for the Services performed hereunder nor shall such payment be deemed to be an assumption of responsibility or liability by City for any defect or error in such Services.
10.07 Collector Billing.
a. Billing and Payment – Residential Customers.
Subject to the provisions of this Section 10.07 and Exhibit H, Beginning July 1, 2023, Collector shall be responsible for billing Residential Customers on behalf of the City. Residential Customers shall be billed for Solid Waste Collection Services bi-monthly, in arrears. Collector shall calculate each Customer’s bill for Solid Waste Collection Service based on the Customer’s Service requirements. The Service Fees shall not exceed current rates approved by the City. Collector may itemize or identify such costs, with prior approval by City. Collector shall submit an itemized invoice to City once per month for the Service Fees for Residential
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
49 Customers, which invoice City shall pay within thirty (30) days of receipt, less any liquidated damages or other sums due City. b. Billing – Commercial Customers. Collector shall be
responsible for billing Commercial Customers on behalf of the City.
Commercial Customers shall be billed for Solid Waste Collection Services monthly in arrears. Collector shall calculate each Customer’s bill for Solid Waste Collection Service based on the Customer’s Service requirements. The Service Fees shall not exceed current rates approved by the City. Collector may itemize or identify such costs, with prior approval by the City. Collector shall submit an itemized invoice to City once per month for the Service Fees for Commercial Customers, which invoice City shall pay within thirty (30) days of receipt, less any liquidated damages or other sums due City.
c. Collector Mailing. Collector shall incorporate with
the billing additional information as required by City, including Collector’s telephone number for Customers to call with questions and/or disputes on Solid Waste Collection Service billing, and shall enclose flyers or other notices provided by the City to Customers as required hereunder. Collector shall mail bills substantially in accordance with billing policy and rules of the Collector and approved by the City. Collector billing policy and rules are attached as Exhibit G, in effect as of the date hereof.
Collector shall train Collector employees in maintaining records of payments, delinquencies, late charges (if any), as well as promptly responding to billing inquiries and resolving billing disputes. Collector shall mail the Service bills to Commercial Customers no later than ten (10) days following the last day of each month. Collector shall incorporate with the billing additional information as required by City, including Collector telephone number for Customers to call with questions and/or disputes on Service billing, and shall enclose flyers or other notices provided by the City to Customers as required hereunder. d. Data Base. Collector shall maintain Solid Waste
Collection Service billing accounts and records in accordance with Article 7.
e. Dispute Resolution. Collector acknowledges that
City shall not be responsible for taking Customers’ calls or responding to Customers’ correspondence with respect to Solid Waste Collection Service billing inquiries or disputes, and that it is Collector’s obligation to do so.
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
50 10.08 Disputes.
a. Customer Notice of Dispute. If a Customer disputes
any amount calculated in good faith by Collector, the Customer shall pay the undisputed amount and give Collector Notice of such dispute within fifteen (15) days of receipt thereof, together with any request for additional information, identified with reasonable specificity, with respect thereto.
b. Collector’s Response. Within seven (7) days of
receiving the Customer’s Notice, the Collector shall respond to the Customer’s dispute and supply any requested information. If the Collector does not respond within such time, Collector will be deemed to concur with the Customer. If Collector concurs or is deemed to concur, it shall promptly amend the disputed invoice. c. Dispute Resolution. If the Customer disagrees with
Collector’s response and the Customer and Collector cannot reach agreement during an ensuing fifteen (15) day period following the Collector’s response, the Collector shall submit the matter for determination to the City Manager or his/her designee.
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
51 ARTICLE 11 BREACHES, DEFAULTS AND REMEDIES
11.01 Minor Breaches and Liquidated Damages. In its
quarterly report submitted to the City, Collector shall certify to City that it has met its Service obligations during such quarter.
If Collector cannot so certify, if its complaint log evidences, or if the City Notifies Collector that it has failed to meet any of its Service obligations and the service failures were not remedied in a satisfactory or reasonable manner and time frame, or are repetitive occurrences, then Collector shall pay liquidated damages in the amount of two hundred-fifty dollars ($250.00) for each of the following breaches:
a. Failure to Correct Missed Service. failure to
correct a missed collection or other Service within twenty-four (24) hours (Sundays and holidays excepted) of telephone or other notice thereof to Collector;
b. Discourtesy. discourteous behavior by Collector’s
employees reported by or complained of by Customers to Collector or City and demonstrated to the satisfaction of the City; c. Damage to Customer’s Property. demonstrated damage
reported by or complained of by Customers to Collector or City with respect to Customer’s landscaping or other property, caused by inattention, carelessness,• or negligence of Collector’s employees in the course of providing Service;
d. Excessive Noise. complaints to Collector or City of
noise in excess of that reasonable and necessary for providing Service, demonstrated to the satisfaction of the City;
e. Collection Outside Permitted Hours. providing
Service outside authorized hours;
f. Failure to Respond to Complaint. failure to respond
to any complaint and correct related breach in Services within twenty-four (24) hours (Sundays and holidays excepted) of telephonic or other notice thereof to Collector;
g. Failure to Log Complaint. failure to log a
complaint in accordance with Article 4;
h. Failure to Submit Complaint Log to City. failure to
submit or make available complaint log to City upon request in accordance with Article 4;
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
52 i. Failure to Submit Reports to City. failure to
timely submit complete reports to the City in accordance with Article 7.
The City shall itemize and submit such liquidated damages to the Collector for the inclusion into the next payment by Collector to the City, whether or not Collector has itemized such complaints on its reports submitted. Within ten (10) days of receiving notice of such breaches and damages from City, Collector may contest imposition of such damages by notice to the City, indicating the basis for disagreement. IF COLLECTOR OWES CITY ANY DAMAGES UPON TERMINATION OF THE AGREEMENT BY THE CITY, COLLECTOR’S LIABILITY SHALL SURVIVE THE TERMINATION HEREOF. REPEATED VIOLATIONS MAY CONSTITUTE GROUNDS FOR TERMINATION OF THE AGREEMENT.
j. Failure to Respond to Emergency Services During
Work Hours. failure to respond within the time frame set forth in Section 4.08.f.
k. Failure to Respond to Emergency Services After
Hours. failure to respond within the time frame set forth in Section 4.08.g.
l. Spillage of Litter. failure of Collector to clean
up litter or spillage (including water leakage from vehicles) due to negligence of the Collector within 90 minutes of report of such spillage.
m. Failure to Provide Containers for SB 1383
Collection Service. failure to provide Containers for SB 1383 Collection service, including Organic Materials Collection by July 1, 2022 to all customers, unless customer has already received their container or has been granted a waiver, as set forth in Exhibit D.
n. Failure to conduct annual outreach and education.
failure to complete annual outreach and education requirements as described in Exhibit D by June 30 of any Agreement Year to City’s satisfaction.
o. Failure to complete annual SB 1383 monitoring
requirements. failure to complete annual SB 1383 monitoring requirements as described in Exhibit D by June 30 of any Agreement Year to City’s satisfaction.
p. Failure to timely complete annual SB 1383 reporting
requirements. failure to complete annual reporting requirements as
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
53 described in Article 7 by June 30 of any Agreement Year to City’s satisfaction.
q. Commingled Waste. Commingling Solid Waste with
Recyclable Materials and/or Organic Waste in Collection Vehicles that was properly sorted by Customer.
r. Improper Disposal. Disposal of Recyclable Materials
or Organic Materials in the Disposal Facility except as provided in this Agreement.
s. Failure to Label Containers. Failure to label
containers in accordance with SB 1383 Regulations.
t. Failure to perform waste studies. failure to
perform route reviews or waste studies/audits.
u. Failure to investigate complaints.
v. Failure to fulfill any other obligation in this
Agreement.
11.02 Defaults.
Each of the following shall constitute an event of default (“Event of Default”) hereunder:
a. Service Defaults:
(1) Missed Collections. Collector fails to make at
least ninety-nine percent (99.0%) of the gross number of scheduled Solid Waste collections or at least ninety-nine percent (99.0%) of Street Sweeping Services in any Contract Year (calculated by lane miles swept divided by total lane miles to be swept pursuant to Exhibit O) or at least ninety-nine percent (99.0%) of Street Sweeping Services required pursuant to Exhibit P or section 4.08.b hereof, subject to exceptions in Article 4.
(2) Breach of Agreement. Collector fails to
perform any of its obligations hereunder (that is not a violation of Applicable Law), the City Notifies Collector that a specific failure or refusal has occurred which will, unless corrected, in its opinion, give the City a right to terminate this Agreement in accordance with this Article, and the Collector does not or correct such breach within twenty (20) days of receiving the City’s Notice thereof. If such breach is not capable of cure within the twenty (20) days, Collector shall promptly provide City Notice explaining why Collector believes it needs additional time to effectuate a
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
54 cure together with a schedule therefor, and shall diligently proceed to cure the breach within such schedule, whereupon City, in its sole discretion, may accept Collector’s schedule of cure, make a written demand that Collector cure the default within an alternative time period set by City, or terminate this Agreement at the end of the twenty (20) day period.
(3) Full Service Not Timely Implemented. Collector
fails to implement full Service by the scheduled date in the Transition Plan;
(4) Failure to Comply With Law. Collector fails to
comply with Applicable Law within five (5) days’ notice of violation thereof;
(5) Failure to Deliver Materials to Designated
Facility. Collector fails to deliver Street Sweeping waste to the Upland Public Works Yard, Solid Waste to a Disposal Facility, Green Waste to a Composing Facility, Organic Waste to an Organic Waste Processing Facility, or Recyclables to a Processing Facility, selected in accordance with Article 4.
(6) Criminal Activity. The occurrence of any
conduct prohibited under Article 9;
(7) Failure to Meet Diversion Requirements.
Collector fails to meet the diversion provisions of AB 939, AB 341, AB 1826, SB 1383, and their implementing regulations.
Provided Collector has received approval to implement new diversion programs and/or rates.
b. Performance Assurance Defaults:
(1) Failure to Maintain Performance Bond, etc.
Collector fails to maintain insurance, performance bond or guaranty in accordance with Section 8.03;
(2) Failure to Provide Assurances of Performance.
Collector fails to timely provide assurance of performances in accordance with Article 11;
(3) Failure to Pay Damages. Collector fails to pay
City damages suffered by the City within thirty (30) days following City’s request therefore;
(4) Sale, Transfer, Assignment. Collector sells,
transfer or assigns its stock, assets and/or this Agreement without City approval required by Article 15;
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
55 (5) Seizure, Attachment. Any Service Asset is
seized, attached, or levied upon (other than a pre-judgment attachment) so as to substantially impair Collector’s ability to timely and fully perform Services, and which cannot be released, bonded, or otherwise lifted within forty-eight (48) hours, not counting weekends and holidays;
(6) Insolvency, Bankruptcy, Liquidation.
Collector files a voluntary claim for debt relief under any applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, or shall consent to the appointment of or taking of possession by a receiver, liquidation, assignee (other than as a part of a transfer of Service Assets no longer used to provide Services or backup Services), trustee (other than as security of an obligation under a deed of trust), custodian, sequestrator, or administrator (or similar official) of Collector for any part of Collector’s operating assets or any substantial part of Collector’s property, or shall make any general assignment for the benefit of Collector’s creditors, or shall fail generally to pay Collector’s debts as they become due or shall take any action in furtherance of any of the foregoing.
A court having jurisdiction enters a decree or order for relief in respect of the Agreement, in any involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or hereafter in effect, or Collector consents to or fails to oppose any such proceeding, or any such court enters a decree or order appointing a receiver, liquidation, assignee, custodian, trustee, sequestrator, or administrator (or similar official) of the Collector or for any part of the Collector’s operating equipment or assets, or orders the conclusion or liquidation of the affairs of the Collector.
c. False Representations; Breach of Representations or
Warranties. Collector makes a representation or warranty herein, including Exhibit B, which is untrue as of the date thereof.
Collector makes a representation or fails to make a disclosure, whether within this Agreement or otherwise, to the City in connection with or as a material inducement to entering into this Agreement or any future amendment hereto, which representation or failed disclosure is false or misleading in any material respect when made.
11.03 Breaches and Defaults Excused
a. Performance Excused. Neither Party shall be deemed
in breach or default of its duties, obligations (other than a payment obligation at the time due and owing), responsibilities or
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
56 commitments hereunder to the extent that such breach or default is due to an Uncontrollable Circumstance, provided such Party exerted Reasonable Business Efforts to prevent the occurrence and mitigate the effects of such Uncontrollable Circumstance.
b. Notice. The Party experiencing an Uncontrollable
Circumstance and relying thereon shall give immediate Notice thereof to the other Party, including describing performance hereunder for which it seeks to be excused; the expected duration of the Uncontrollable Circumstance; the extent Services may be curtailed; any requests or suggestions to mitigate the adverse effects of such Uncontrollable Circumstance; or any consequent adjustment of the Service Fee in accordance with Article 10. If the Parties cannot agree upon such matters, either Party may seek determination by Arbitration.
c. City’s Rights. Notwithstanding that Collector’s
failure to timely and fully provide Services due to Uncontrollable Circumstances does not constitute an Event of Default, City shall nevertheless retain the right to perform such Services itself in accordance with Article 4, and following the continuance of such failure for thirty (30) days, shall have the option, in its sole discretion, to terminate the Agreement as provided in this Article.
11.04 Remedies Upon Default.
Upon occurrence of an Event of Default, City shall have the following rights:
a. Termination. to terminate this Agreement or any
portion of the Collector’s Service obligations;
b. Suspension. to suspend the Agreement for a period
not to exceed thirty (30) days;
c. City Right to Perform Services. to perform
Collector’s Services using Collector’s equipment;
d. All Other Available Remedies. to exercise its
remedies of damages and any other available remedies at law and in equity (including specific performance); provided, that prior to instituting any court proceeding, the City may request dispute resolution.
Collector acknowledges that City’s remedy of damages for a breach hereof by Collector may be inadequate for reasons including:
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
57 (1) the urgency of timely, continuous, and high-quality Solid Waste management service hereunder, including collection, transportation, and/or transfer for disposal of putrescible wastes which constitute a threat to public health;
(2) the lengthy time period and significant investment of money and personnel (both City staff and private consultants, including engineers, procurement counsel, City peers, and elected City officials) required to request and evaluate qualifications and proposals for alternative service comparable to Service provided hereunder for the price provided hereunder, and to negotiate new agreements therefore;
(3) the City’s reliance on Collector’s technical Solid Waste management expertise;
(4) the City’s reliance on Collector’s established
relationships with owners and/or operators of Processing Facilities, Composting Facilities, Disposal Facilities, and Recyclables brokers and purchasers; and
(5) City’s obligation to repay municipal obligations,
regardless whether it secures Collector’s performance hereunder.
Consequently, City shall be entitled to all available equitable remedies, including injunctive relief.
11.05 Remedies Not Exclusive. Each Party’s rights and
remedies in event of the other Party’s breach and default hereunder are not exclusive. A Party’s exercise of one such remedy, is not an election of remedies but shall be cumulative with any other remedies hereunder.
11.06 Waivers.
a. City Waiver of Breach. City’s waiver of any breach
or Event of Default shall not be deemed to be a waiver of any other breach or Event of Default, including ones with respect to the same obligations hereunder. The City’s decision not to demand liquidated damages shall not be deemed a waiver of any Collector breach hereunder. City’s subsequent acceptance of any damages or other money paid by Collector, including liquidated damages, shall not be deemed to be a waiver by City of any pre-existing or concurrent breach or Event of Default.
b. Collector Waiver of Defenses. Collector
acknowledges that it is solely responsible for providing Services and hereby irrevocably and unconditionally waives defenses to the
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58 payment and performance of its obligations hereunder based upon failure of consideration; contract of adhesion; impossibility or impracticability of performance; commercial frustration of purpose; or the existence, non-existence, occurrence, or non- occurrence of any foreseen or unforeseen fact, event or contingency that may be a basic assumption of Collector with regard to any provision hereof.
11.07 Jurisdiction; Venue. The Parties shall bring any
lawsuits arising out of this Agreement in State of California courts, which shall have exclusive jurisdiction over such lawsuits. The Parties agree that venue is made in and will be performed in courts sitting in the San Bernardino County. Parties further agree that the site of any other hearing or action, whether arbitration or non-judicial, of whatever nature or kind regarding this Agreement, shall be conducted in San Bernardino County.
11.08 Costs. Collector agrees to pay to the City all fees and expenses reasonably incurred by or on behalf of the City while enforcing payment or performance of Collector’s obligations hereunder if such non-payment or non-performance results in an Event of Default by Collector.
11.09 Assurance of Performance. If Collector is the
subject of any labor unrest and appears in the reasonable judgment of City to be unable to regularly pay its bills as they become due; or is the subject of a civil or criminal judgment or order entered by a federal, state, regional, or local agency for violation of an environmental or tax law, and the City Manager believes in good faith that Collector’s ability to timely and fully perform Services has thereby been placed in substantial jeopardy, the City may, at its option and in addition to all other remedies it may have, demand from Collector reasonable assurances of timely and full performance hereunder. If Collector fails to provide such reasonable assurances by the date required by the City, such failure or refusal shall constitute an Event of Default.
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
59 ARTICLE 12 SUSPENSION OR TERMINATION.
12.01 City Right to Suspend or Terminate.
a. Termination Events. City shall have the right to
terminate this Agreement in whole, or by directing Collector to cease performing any portion or item of its Services listed in Exhibit D, in part, in the following events:
(1) Collector Default. the occurrence of an Event
or Default;
(2) Uncontrollable Circumstances. the occurrence-
and continuance of an Uncontrollable Circumstance;
(3) Non-Severable Provisions. any clause,
sentence, provision, subsection, Section, or Article hereof or Exhibit hereto ruled invalid by any court of competent jurisdiction but is not severable here from;
b. Suspension Events. City shall have the right to
suspend this Agreement, in whole or in part, upon the occurrence of an Event of Default; provided such suspension is for no longer than thirty (30) days, during which period the Collector shall have the opportunity to demonstrate to the satisfaction of the City that Collector can once again fully perform Services, in which event City’s right to suspend or terminate the Agreement shall cease and Collector may resume its Performance Obligations. c. Notice. City shall give Collector Notice of
termination, which shall be effective one-hundred twenty (120) days thereafter; provided that such termination shall be effective immediately in an Event of Default which endangers public health, welfare, or safety. City shall give Collector Notice of suspension, which shall be effective immediately.
d. Suspension, Termination of a Portion of Performance
Obligations: Reduction in Service Fee. In the event the City suspends a portion of this Agreement or terminates a portion of Collector’s Performance Obligations, Collector shall continue to fully perform its obligations under the remaining portions hereof which are not suspended or terminated, and the Service Fee shall be adjusted to reflect actual reductions in Services rendered to Customers by Collector at rates set forth in Exhibit M.
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
60 12.02 Collector’s Obligations Upon Termination
a. Use of Service Assets. Upon effectiveness of Notice
of the City’s Notice of termination, City shall have the right to possess and use Service Assets, which RIGHT SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
b. Pay Outstanding Damages. Collector shall pay City
any damages accrued and payable during the then current Agreement Year or portion thereof which would have otherwise become payable.
COLLECTOR’S LIABILITY FOR SUCH PAYMENTS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
c. Cooperation During Transition. In the event
Collector is not awarded an agreement to continue to provide services following the expiration or earlier termination of this Agreement, Collector shall cooperate fully with City and any subsequent Collector(s) to assure a smooth transition of services described in this Agreement, including transfer of Records (including computer data, files and tapes), complete routing information, route maps, vehicle fleet information, and Customer billing lists; provision of other reports and data required by this Agreement; and coordination with City and any subsequent Collector(s). SUCH OBLIGATIONS OF COLLECTOR SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
61 ARTICLE 13 DISPUTE RESOLUTION
13.01 Alternative Dispute Resolution. Prior to resorting to arbitration, litigation, or some other dispute resolution procedure, either Party may choose a non-binding determination de novo by a retired judge, including Alternative Resolutions Centers (A.R.C.) and JAMS/End dispute, pursuant to standard alternative dispute resolution procedures. Each Party shall be responsible for their own attorneys’ fees and costs related to the Alternative Dispute Process.
13.02 Parties’ Obligations During Pendency of Dispute.
During the pendency of any dispute hereunder, the Parties shall perform their respective obligations hereunder.
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
62 ARTICLE 14 THE PARTIES.
14.01 Collector Is Independent Contractor. Collector
shall perform Services as an independent contractor engaged by City and not as officer, agent, servant, employee, or partner of City, nor as a joint venture with City. No employee or agent of Collector shall be deemed to be an employee or agent of City.
Collector shall have the exclusive control over the manner and means of performing Services and over all persons performing Services, except for City’s right to change the scope of Services in accordance with Article 6. Collector shall be solely responsible for the acts and omissions of its officers, employees, collectors, subcontractor, and agents, none of whom shall be deemed to be an officer, agent, servant, or employee of the City. Neither Collector nor its officers, employees, Collectors, subcontractors, and agents shall obtain any rights to retirement benefits, workers compensation benefits, or any other benefits which accrue to City employees, and Collector expressly waives any claim it may have or acquire to such benefits.
14.02 Parties in Interest. Nothing in this Agreement,
whether express or implied, is intended to confer any rights on any Persons other than the Parties and their representatives, successors, and permitted assigns.
14.03 Binding on Successors. The provisions of this
Agreement shall inure to the benefit of and be binding on the successors and permitted assigns of the Parties.
14.04 Further Assurances. Each Party agrees to execute and deliver any instruments and to perform any acts as may be necessary or reasonably requested by the other in order to give full effect to this Agreement.
14.05 Actions of the City in Its Governmental Capacity.
Nothing herein shall be interpreted as limiting the rights and obligations of the City in its governmental or regulatory capacity.
14.06 Collector’s Obligations Performed at Its Sole
Expense. Collector shall perform Services solely for the compensation expressly provided for herein.
14.07 Parties’ Representatives. Except as otherwise
expressly provided in this Agreement, the City Representative shall be authorized to act on behalf of City in the administration of this Agreement.
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
63 14.08 Gifts Prohibited. Collector shall not offer any City officer or designated employee any gift.
14.09 Due Diligence. Collector acknowledges that the City may be subject to statutory fines for failure to achieve mandated diversion levels and that waste management is a public health and safety concern. It agrees that it shall exercise due diligence in performing Services hereunder.
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
64 ARTICLE 15 ASSIGNMENT AND AMENDMENTS
15.01 Assignment.
a. City Assignment. The City reserves the right to
assign this Agreement to a sanitation district or other public entity succeeding to the major portion of the City’s Solid Waste management rights and obligations.
b. Collector Assignment. Collector acknowledges that
the experience and expertise of Collector are material
considerations of City in entering into this Agreement with Collector. Collector shall not assign any of Collector’s rights nor delegate any of Collector’s duties under this Agreement without the express prior written consent of City. Any such assignment made without the consent of City shall be void. Collector shall submit its request for City consent to the City together with the following documentation and any other documentation the City may request:
(1) assignee’s audited financial statement for the
immediately preceding three (3) operating years; indicating that in the opinion of the Collector the proposed assignee’s financial status is equal to or greater than Collector’s;
(2) satisfactory proof that the proposed assignee
has at least ten (10) years of Solid Waste management experience on a scale equal to or exceeding the scale of operations conducted by Collector;
(3) satisfactory proof that in the last five (5)
years, the proposed assignee has not suffered any citations or other censure from any federal, state, or local agency having jurisdiction over its waste management operations due to any significant failure to comply with federal, state, or local waste management law and that the assignee has provided City with a complete list of such citations and censures;
(4) satisfactory proof that the proposed assignee
has at all times conducted its operations in an environmentally safe and conscientious fashion;
(5) satisfactory proof that the proposed assignee
conducts its Solid Waste management practices in accordance with sound waste management practices in full compliance with all federal, state, and local laws regulating the collection and disposal of waste, including hazardous waste as identified in Title 22 of the California Code of Regulations;
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
65 (6) of any other information required by City to
ensure the proposed assignee can fulfill the terms hereof, including the payment of indemnities and damages and provision of bonds and/or performance guaranties, in a timely, safe, and effective manner.
Collector shall undertake to pay City its reasonable expenses for attorneys’ fees and investigation costs necessary to investigate the suitability of any proposed assignee, and to review and finalize any documentation required as a condition for approving any such assignment.
c. Assign. For the purpose of this Section, “assign”
includes:
(1) to sell, exchange, or otherwise transfer to a third party any of Collector’s assets dedicated to Solid Waste management services;
(2) issuing new stock or selling, exchanging, or
otherwise transferring thirty percent (30%) or more of the then outstanding common stock of Collector to a Person other than the shareholders owning the stock as of the date hereof.
d. Subcontractor. The use of a subcontractor to
perform services under this Agreement shall not constitute delegation of Collector’s duties provided that Collector has received prior City approval to subcontract such services and the City has approved the subcontractor who will perform such services. Collector shall be responsible for directing the work of Collector’s subcontractor and any compensation due or payable to Collector’s subcontractor shall be the sole responsibility of Collector. City shall have the right to require the removal of any approved subcontractor for reasonable cause.
15.02 Amendments
a. By Agreement. The Parties may change, modify,
supplement or amend this Agreement only upon mutual written agreement duly authorized and executed by both Parties. b. City Manager May Act as Authorized Representative.
Authority to act on behalf of the City is hereby delegated to the City Manager or his or her designee.
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
66 ARTICLE 16 NOTICES, CONSENTS, APPROVALS, ETC.
16.01 Notices, etc. All reports, demands, requests,
directions, selections, option exercises, orders, requests, proposals, reviews, comments, acknowledgments, approvals, consents, waivers, certifications and other communications made hereunder shall be in writing, other than computerized reports in accordance with Article 7, and shall either be sent by email or be personally delivered to a representative of the Parties at the address below or deposited in the United States mail, first class postage prepaid (certified mail, return receipt requested) or by commercial delivery service providing delivery verification, addressed as follows:
If to City:
City Manager
City of Upland
1370 North Benson Avenue
Upland, CA 91786
Fax: (909) 931-9923
Ph: (909) 931-4100
Email:
If to Collector:
Mr. Cole Burr, President
Burrtec Waste Industries, Inc.
9890 Cherry Avenue
Fontana, CA 92335
Fax: (909) 429-4290
Ph: (909) 429-4200
Email:
Notices may be delivered via email provided that any such email shall be promptly followed by personal or mailed delivery.
Notice by City to Collector of a missed pick-up or a Customer problem or complaint may be given to Collector orally by telephone at Collector’s local office with written confirmation sent to Collector within twenty-four (24) hours of the oral notification.
Parties may change their address or contact information upon Notice to the other Party as provided above.
16.02 Exercise of Options. Except as otherwise provided, the Parties’ exercise of any approval, disapproval, option, discretion, satisfaction, determination, election, or choice hereunder shall be reasonable; unless this Agreement specifically provides otherwise.
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
67 ARTICLE 17 EXECUTION OF AGREEMENT
17.01 Execution in Counterparts. This Agreement may be
executed in any number of original counterparts. All such counterparts shall constitute but one and the same Agreement.
17.02 Authority to Execute. The Parties warrant that the undersigned has been duly authorized to execute this Agreement.
IN WITNESS WHEREOF, the PARTIES hereto have executed this Agreement as of the date first above stated.
BURRTEC WASTE INDUSTRIES,
INC.,
a California corporation
By________________________
Cole Burr, President
CITY OF UPLAND,
a California Municipal
Corporation
By:_____________________________
Bill Velto, Mayor
ATTEST:
By:_______________________________
Keri Johnson, City Clerk
APPROVED AS TO FORM:
By:_______________________________
Stephen P. Deitsch, City
Attorney
EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services
EXHIBIT A-1
A
A
EXHIBIT A
DEFINITIONS
“Agreement” means this Agreement, including all exhibits (Exhibits A - M) and attachments, which are incorporated herein by reference, as this Agreement may be amended and supplemented pursuant to Section 15.02.
“Applicable Law” means all law, statutes, rules, regulations, guidelines, Permits, actions, determinations, orders, or requirements of the United States, State, County of San Bernardino, City, 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 hereunder, including any of the foregoing which concern health, safety, fire, environmental protection, labor relations, mitigation monitoring plans, building codes, zoning, non- discrimination, the payment of minimum wages and the San Bernardino County Integrated Waste Management Plan. All references herein to Applicable Law include subsequent amendment or modifications thereof, unless otherwise specifically limited.
“Backyard Collection” means the collection of Solid Waste, Recyclables, and Organic Waste from Customers’ backyards where necessary for safety, convenience, access, or where requested by Customer.
“Bin” shall mean a detachable container used in connection with Commercial/Industrial Premises with a capacity equal to or less than six (6) cubic yards that is serviced using a front end loading vehicle.
“Box”, sometimes known as a “roll-off,” “drop” box or “debris” box, means a wheeled or sledded container or compactor, generally 10 to 40 cubic yards in size, that is picked up in its entirety by a dedicated truck.
“Cart” shall mean an industry-standard receptacle for, Solid Waste, Recyclables, or Organic Waste, made of metal, hard rubber or plastic, in a range of sizes of approximately 35, 65 or 95 gallons, with wheels, a handle for ease of movement and a tight-
EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
EXHIBIT A-2
fitting, attached lid, designed to be dumped mechanically into a Collection vehicle.
“Bulky Waste” or “Bulky Goods” means discarded furniture (including chairs, sofas, mattresses, and rugs); appliances (including refrigerators, ranges, washers, dryers, water heaters, dishwashers, plumbing, small household appliances, and other similar items, commonly known as “white goods”); electronic equipment (including stereos, televisions, computers, VCRs, and other similar items commonly known as “brown goods”); residential wastes (including wood waste, tree branches, scrap wood, debris from building construction, sod, and earth, in the aggregate not exceeding one cubic yard per collection); clothing; and tires. “Change in Law” means the occurrence of any event or change in Applicable Law as follows:
(1) the adoption, promulgation, modification, or change in judicial or administrative interpretation occurring after the date hereof which adoption, promulgation, codification, or change in judicial or administrative interpretation relates to any Applicable Law, other than laws with respect to taxes based on or measured by net income, or any unincorporated business, payroll, or employment taxes; or
(2) any order or judgment of any federal, state or local court, administrative agency or governmental body issued after the date hereof if:
(i) such order or judgment is not also the result of the willful misconduct or negligent action or inaction of the Party relying thereon or of any third party for whom the Party relying thereon is directly responsible; and
(ii) the Party relying thereon, unless excused in writing from so doing by the other Party, shall make or have made, or shall cause or have caused to be made, Reasonable Business Efforts in good faith to contest such order or judgment (it being understood that the contesting in good faith of such an order or judgment shall not constitute or be construed as a willful misconduct or negligent action of such Party); or
(3) the imposition by a governmental authority or agency of:
(i) any new or different material conditions in connection with the issuance, renewal, or modification of any Permit after the date hereof; or
EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
EXHIBIT A-3
(ii) any Franchise Fee, tax, or assessment with respect to the transfer, processing, or disposal of Solid Waste, Recyclables, or Organic Waste; or
(4) the failure of a governmental authority or agency to issue or renew, or delay in the issuance or renewal of, or the suspension, interruption or termination of, any Permit after the date hereof; provided such failure to issue or the suspension or termination of any Permit is not the result of the willful misconduct or negligent action or inaction of the Party relying thereon or any third party for whom the Party relying thereon is directly responsible.
“City” means the City of Upland, California.
“City Representative” means the City Manager or his/her designee.
“City Waste” means Solid Waste Collected from City-designated facilities.
“Collect, Collection” or other form thereof means Solid Waste, Recyclables, and Organic Waste pickups made by Collector as required by and in accordance with the provisions of this Agreement.
“Commercial” refers to premises or Customers within the City other than Residential premises or Customers.
“Commercial Service” means Bin or Cart service normally provided under this Agreement to industrial, manufacturing, warehouse, wholesale and retail stores, service establishments, professional offices, other business establishments, government facilities, and schools, and Bin service provided to Multiple- Family Dwellings and Mobile Home Parks.
“Compactor” means a compacting unit that loads a detachable roll-off box. The detachable roll-off box serves as a receptacle for Solid Waste, Recyclables, or Organic Waste having a capacity of greater than eight (8) cubic yards and is picked up in its entirety by a dedicated truck for emptying at a separate location. “Composting Facility” means the Facility for processing Green Waste selected by Collector. The Facility can process the Green Waste as alternative daily cover provided it receives AB 939 diversion credit.
EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
EXHIBIT A-4
“Construction and Demolition Waste” or “C&D” means any non- putrescible Solid Waste generated as the result of construction or demolition, including without limitation, discarded packaging or containers and waste construction materials, whether brought on site for fabrication or used in construction or resulting from demolition, excluding liquid waste, Hazardous Waste, and Medical and Infectious Waste.
“Containers” means the carts, cans, bins, roll-offs, plastic bags, or custom containers Collector uses in providing Services hereunder.
“Contract Year” means each fiscal year of the City commencing July 1 and ending June 30.
“Collector” means Burrtec Waste Industries, Inc.
“Collector Representative” means an authorized employee or designated representative of Burrtec Waste Industries, Inc. “Curbside Collection” means the collection of Solid Waste from Customers who place containers within four (4) feet from a road or in an alleyway.
“Customers” means the generators (including owners, tenants, occupants and/or persons having the care or control of any premises within the City) of Solid Waste to which Collector is required to provide Services.
“Debris Box” means a receptacle for Solid Waste, Recyclables, or Organic Waste having a capacity of greater than 10 cubic yards that is picked up in its entirety by a dedicated truck for emptying at a separate location.
“Direct Cost” means costs directly related to the
implementation of this Agreement that include any or all of following:
(1) payroll costs directly related to the performance, or management or supervision of any obligation pursuant to the provisions hereof, comprised of compensation and fringe benefits, including vacation, sick leave, holidays, retirement, Workers’ Compensation Insurance, federal and state unemployment taxes and all medical and health insurance benefits;
(2) the costs of materials, services, direct rental costs and supplies;
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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
EXHIBIT A-5
(3) travel and subsistence costs;
(4) the reasonable costs of any payments to subcontractors necessary to and in connection with the performance hereunder; and (5) any other cost or expense which is directly or normally associated with the task performed.
“Disposal Facility” means the Facility or Facilities for disposing of Solid Waste and/or residue from a Processing Facility or Composting Facility, including transfer stations, selected by Collector.
“Disposal Fees” means all tipping fees and transportation costs related to the disposal of solid waste.
“Event of Default” means a service default, performance assurance default, false representations, or breach of
representations or warranties as defined in Article 11. “Food Waste” means food scraps separated from Solid Waste and offered for Collection by the Collector, that will decompose and/or putrefy including (i) all kitchen and table food waste, and animal or vegetable waste that attends or results from the storage, preparation, cooking or handling of food stuffs, and (ii) paper waste contaminated with food waste.
“Green Waste” means organic waste generated from any
landscape, including grass clippings, leaves, prunings, tree trimmings, weeds, branches and brush.
“Gross Receipts” means any and all revenues, receipts, or compensation in any form received by the Collector for the services provided under this Agreement. Sales revenue from the sale of Recyclable Material is excluded from Gross Receipts for purposes of calculating Franchise Fees.
“Hazardous Waste” is a material which by reason of its
quality, concentration, composition or physical, chemical or infectious characteristics may cause or significantly contribute to an increase in mortality or an increase in serious illness or pose a substantial threat or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of or otherwise mismanaged; or any waste which is defined or regulated as a hazardous waste, toxic waste, hazardous chemical substance or mixture, or asbestos under Applicable Law, excluding HHW but including:
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(1) “Hazardous Waste” pursuant to Section 40141 of the
California Public Resources Code; all substances defined as hazardous waste, acutely hazardous waste, or extremely hazardous waste by Sections 25110.02, 25115, and 25117 of the California Health and Safety Code (the California Hazardous Waste Control Act), California Health and Safety Code Section 25100 et seq., and future amendments to or recodification of such statutes or regulations promulgated thereunder, including California Code of Regulations, title 23, Section 2521;
(2) materials regulated under the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., as amended (including, but not limited to, amendments thereto made by the Solid Waste Disposal Act Amendments of 1980), and related federal, State and local laws and regulations;
(3) materials regulated under the Toxic Substance Control Act, 15 U.S.C. Section 2601 et seq., as amended, and related federal, State of California, and local laws and regulations, including the California Toxic Substances Account Act, California Health and Safety Code Section 25300 et seq.;
(4) materials regulated under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601, et seq., as amended, and regulations promulgated thereunder; and
(5) materials regulated under any future additional or
substitute federal, State or local laws and regulations pertaining to the identification, transportation, treatment, storage or disposal of toxic substances or hazardous waste.
If two or more governmental agencies having concurrent or overlapping jurisdiction over hazardous waste adopt conflicting definitions of “hazardous waste,” for purposes of collection, transportation, processing and/or disposal, the broader, more restrictive definition shall be employed for purposes of this Agreement.
“Household Hazardous Waste” or “HHW” means Hazardous Waste generated in small quantities at Residential premises.
“Holiday” means the following City-designated Holidays:
Christmas Day, New Year’s Day, Memorial Day, Labor Day, Thanksgiving Day, and Independence Day.
“Indirect Costs” means costs related to the implementation of this Agreement that are not Direct Costs.
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“Mobilehome” shall have the meaning set forth in California Health and Safety Code Section 18211.
“Mobilehome Park” means a site at which Mobilehome spaces are rented for residential use.
“Multi-Family Residence” shall mean any building or
structure, including but not limited to Mobilehome Parks used for residential purposes having four (4) or more dwelling units. “Non-Collection Notice” means a notice left by Collector for Customers at the times, in the events and in the manner described herein, including Waste Not Properly Placed in Containers, Container Not Placed in Proper or Safe Collection Location, and Hazardous Waste or Unsafe Materials, as described in Article 4, which shall contain, at a minimum the date and time it is given, the complete address of the premises, the reason for the non- collection, and the manner in which materials should be prepared for collection, and which shall be printed at Collector’s expense. “Notice” or “Notify” or other variation thereof means notice given in accordance with Article 16.
“Office Hours” are defined in Article 4.
“Organic Waste” means Solid Waste containing material
originated from living organisms and their metabolic waste products, including, but not limited to, Food Waste, Green Waste, landscape and pruning waste, nonhazardous wood waste, and food- soiled paper waste that is mixed in with Food Waste or as otherwise defined in 14 CCR Section 18982(a)(46).
“Party” and “Parties” refers to the City and the Collector, individually and together.
“Permits” means all federal, State, City, other local and any other governmental unit permits, orders, licenses, approvals, authorizations, consents and entitlements of whatever kind and however described which 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.
“Person” includes any individual, firm, association,
organization, partnership, corporation, trust, joint venture, the United States, the State, a county, a municipality or special purpose district or any other entity whatsoever.
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“Phone Hours” are the Collector’s open Office Hours as defined in Article 4.
“Processing Facility” means the facility or facilities for sorting and/or processing commingled or source separated Recyclables, Organic Waste and/or Solid Waste selected by Collector.
“Reasonable Business Efforts” means those efforts a
reasonably prudent business Person would expend under the same or similar circumstances in the exercise of such Person’s business judgment, intending in good faith to take steps calculated to satisfy the obligation which such Person has undertaken to satisfy; provided that such Person and/or any enterprise by which such Person is employed would not incur a financial loss (other than time expended or unless otherwise compensated for such efforts herein) by reason of having expended or expending such efforts. “Records” are ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for Services, the Service Fee, or performance hereunder, including routing, level of each Customer’s services, inventory, maintenance logs, etc.
“Recyclables” means material that can be separated from waste for the purpose of reusing or returning these materials in the form of raw materials for new, used or reconstituted products that meet the quality standard necessary to be used in the marketplace, or for composting. “Recyclables” includes, but is not limited to the following: newspaper including inserts, coupons, and store advertisements; corrugated cardboard; mixed waste paper, including office paper, computer paper, magazines, junk mail, catalogs, kraft bags paper, paperboard, egg cartons, phone books, brown paper, grocery bags, colored paper, construction paper, envelopes, legal pad backings, shoe boxes, cereal and other similar food boxes, tissue boxes, paper tubes, and wrapping paper; glass containers including brown, clear, and green glass bottles and jars; aluminum including beverage containers, foil, food containers, small scrap metal; milk and juice cartons and jugs; steel or tin cans; small scrap metal including metal coat hangers; plastic jugs, bottles, and containers including resins #1 through #7; used motor oil and oil filters; and any other materials mutually agreed to by the Collector and the City.
“Recycling” means the process of collecting, sorting,
cleansing, treating, and reconstituting materials, and returning them to the economic mainstream in the form of raw material for
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new, reused, or reconstituted products which meet the quality standards necessary to be used in the marketplace. Recycling includes processes deemed to constitute a reduction of Landfill Disposal pursuant to 14 CCR, Division 7, Chapter 12, Article 2. “Recycling” does not include transformation as defined in Public Resources Code Section 40201.
“Resident-Requested Collection” means the collection of Bulky Waste at the curbside or alleyway on request from residential Customers.
“Residential” refers to: (i) any building or structure, or portion thereof, that is used for residential housing purposes and has four (4) or fewer distinct living units; and (ii) any multiple unit residential complex which, with the prior written approval of the City Manager, receives Solid Waste, Organic Waste, and Recyclables Collection services using Standard Residential Solid Waste, Organic Waste, and Recycling Containers.
“Roll-Off Container” means a metal container with a capacity of twenty (20) or more cubic yards that is normally loaded onto a motor vehicle and transported to an appropriate facility. “Service Assets” means all property of Collector used
directly or indirectly in performing Services, including Vehicles, Containers, maintenance equipment and facilities, administrative equipment and offices and related supplies.
“Service Fee” is defined in Section 10.01, as adjusted, escalated or offset.
“Services” means all obligations of Collector hereunder to City and Customers.
“Solid Waste” has the same meaning as defined in Public Resources Code section 40191, which defines Solid Waste as all putrescible and non-putrescible solid, semisolid, and liquid wastes, including garbage, trash, refuse, paper, rubbish, ashes, industrial wastes, C&D, abandoned vehicles and parts thereof, discarded home and industrial appliances, dewatered, treated, or chemically fixed sewage sludge which is not hazardous waste, manure, vegetable or animal solid and semisolid wastes, and other discarded solid and semisolid wastes, with the exception that Solid Waste does not include any of the following wastes:
(1) Hazardous waste, as defined in PRC Section 40141.
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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
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(2) Radioactive waste regulated pursuant to the Radiation Control Law (Chapter 8 (commencing with Section 114960) of Part 9 of Division 104 of the Health and Safety Code).
(3) Medical waste regulated pursuant to the Medical Waste Management Act (Part 14, commencing with Section 117600, of Division 104 of the Health and Safety Code). Untreated medical waste shall not be disposed of in a Solid Waste Landfill, as defined in PRC Section 40195.1. Medical waste that has been treated and deemed to be Solid Waste shall be regulated pursuant to PRC, Division 30.
“Special Wastes” include flammable waste; waste transported in a bulk tanker; liquid waste; sewage sludge; pollution control process waste; residue and debris from the cleanup of a spill or release of chemical substances or any other Special Wastes; contaminated soil, waste, residue, debris and articles from the cleanup of a site or facility formerly used for the generation, storage, treatment, Recycling, reclamation, or Disposal of any other Special Wastes; dead animals; wastewater; explosive substances; radioactive substances; industrial appliances; and abandoned vehicles and parts thereof.
“State” means the State of California.
“Substantial Evidence” means such evidence as would convince a reasonable person and on which reasonable persons may not reasonably differ as to the conclusion to be drawn from such evidence.
“Term” of this Agreement is defined in Article 3.
“Tipping Fee” means the fee charged by a Disposal, Composting, or Processing Facility to dispose or process of municipal Solid Waste, Organic Waste, or Recyclables, not including any charges for Special Wastes or Bulky Waste.
“Ton (or Tonnage)” means a short ton of 2,000 pounds.
“Uncontrollable Circumstance(s)” means any act, event or condition, whether affecting Services or either Party beyond the reasonable control of such Party and not the result of willful or negligent action or inaction of such Party, which materially and adversely affects the ability of either Party to perform any obligation hereunder, including:
(1) an act of God, landslide, lightning, earthquake, fire, flood (other than reasonably anticipated weather conditions for
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the geographic area of the City), explosion, sabotage, acts of a public enemy, war, blockade or insurrection, riot or civil disturbance, epidemic, pandemic or quarantine;
(2) the failure of any appropriate federal, State, City, or local public agency or private utility having operational jurisdiction in the area, to provide and maintain utilities, services, water, sewer or power transmission lines thereto; and (3) strikes, work stoppages or other labor disputes or
disturbances of any Person performing Services;
“Used Oil” means any oil that has been refined from crude oil, or has been synthetically produced, and
(1) is no longer useful to the Customer because of extended storage, spillage or contamination with non-hazardous impurities such as dirt or water; or
(2) has been synthetically produced, and has been used and as a result of such use has been contaminated with physical or chemical impurities.
“Used Oil Container” means a container provided by Collector for the accumulation of Used Oil that is at least four (4) quarts in capacity, leak-proof, has a screw-on lid, and has a label designating it for use as a Used Oil Container.
“Used Oil Filter” means any oil filter that is no longer useful to the Customer because of extended storage, spillage, or contamination with non-hazardous impurities such as dirt or water; or has been used and as a result of such use has been contaminated with physical or chemical impurities. Used Oil Filters must be generated by and at the Customer location wherein the Used Oil Filter is collected.
“Used Oil Filter Container” means a six (6) mil poly bag with a double track seal with dimensions of at least 14.5 inches by 8 inches with a 1 1/4 inch diameter hold above the seal provided by the Collector for accumulation of Used Oil Filters that has a label designating it for use as a Used Oil Filter Container.
“Vehicles” means all trucks (including trucks providing Residential Collection Service of Solid Waste, Recyclables, Organic Waste, Bulky Waste and litter pickup; field supervisors’ and administrator’s vehicles), rolling stock and other vehicles used to provide Services (including Collection as well as repair and maintenance), whether owned or leased by Collector.
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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services
EXHIBIT B-1
B
EXHIBIT B
COLLECTOR’S REPRESENTATIONS AND WARRANTIES
a. Status. Collector is a corporation duly organized,
validly existing and in good standing under the laws of the State of California and is qualified to do business in the State of California.
b. Authority and Authorization. The Collector has full
legal right, power and authority to execute and deliver this Agreement and perform its obligations hereunder. This Agreement has been duly executed and delivered by the Collector and constitutes a legal, valid and binding obligation of the Collector enforceable against the Collector in accordance with its terms. c. Statements and Information in Proposal. Collector’s
Response to the City’s Negotiation Packet for Solid Waste, Recycling and Organic Waste Collection, Disposal and Recycling Services; Proposal in response to the City’s Negotiation Packet, on which City has relied upon in entering into this Agreement, are correct and complete in all material respects at the time originally submitted to the City.
d. No conflicts. Neither the execution or delivery by the Collector of this Agreement, the performance by the Collector of its Performance Obligations, nor the fulfillment by the Collector of the terms and conditions hereof: (1) conflicts with, violates or results in a breach of any Applicable Law; (2) 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 the Collector is a party or by which the Collector or any of its properties or assets are bound, or constitutes a default thereunder; or (3) will result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Collector.
e. No approvals required. No approval, authorization,
license, permit, order or consent of, or declaration, registration or filing with any governmental or administrative authority, commission, board, agency or instrumentality is required for the valid execution and delivery of this Agreement by the Collector, except such as have been duly obtained from its Board.
f. No litigation. There is no action, suit, proceeding or investigation, at law or in equity, before or by any court or
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governmental authority, commission, board, agency or
instrumentality pending or, to the best of the Collector’s knowledge, threatened, against the Collector wherein an unfavorable decision, ruling or finding, in any single case or in the aggregate, would materially adversely affect the performance by the Collector of its obligations hereunder or in connection with the transactions contemplated hereby, or which, in any way, would adversely affect the validity or enforceability of this Agreement or any other agreement or instrument entered into by the Collector in connection with the transactions contemplated hereby. g. Due Diligence. Collector has made an independent
investigation satisfactory to it of the conditions and
circumstances surrounding the Agreement and Services it is required to perform.
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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services
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C
EXHIBIT C
CITY’S REPRESENTATIONS AND WARRANTIES
a. Status. The City is a municipal corporation of the State of California, duly organized and validly existing under the Constitution and laws of the State of California.
b. Authority and Authorization. The City has full legal right, power and authority to execute, deliver, and perform its obligations hereunder. This Agreement has been duly executed and delivered by the City and constitutes a legal, valid and binding obligation of the City enforceable against the City in accordance with its terms.
c. No conflicts. Neither the execution nor delivery by the City of this Agreement, the performance by the City of its obligations hereunder, nor the fulfillment by the City of the terms and conditions hereof: (1) conflicts with, violates or results in a breach of Applicable Law; or (2) 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 the City is a party or by which the City or any of its properties or assets are bound, or constitutes a default thereunder.
d. No approvals. No approval, authorization, license,
permit, order or consent of, or declaration, registration or filing with any governmental or administrative authority, commission, board, agency or instrumentality is required for the valid execution and delivery of this Agreement by the City, except such as have been duly obtained from the City Council.
e. No Litigation. 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 pending or, to the best of the City’s knowledge, threatened, against the City wherein an unfavorable decision, ruling or finding, in any single case or in the aggregate, would materially adversely affect the performance by the City of its obligations hereunder or in connection with the transactions contemplated hereby, or which, in any way, would adversely affect the validity or enforceability of this Agreement or any other agreement or instrument entered into by the City in connection with the transactions contemplated hereby.
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f. No Warranty Regarding Waste Characterization. City makes no warranties with respect to the waste characterization data or any waste disposal characterization study or projections by material type distributed to Collector together therewith. The City expressly disclaims any warranties, either express or implied, as to the merchantability or fitness for any particular purpose of Solid Waste, Organic Waste, or Recyclables collected by Collector.
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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services
EXHIBIT D-1
D
EXHIBIT D
SCOPE OF REGULAR COLLECTION SERVICES
Residential Collection Service
Collector shall provide for collection of Solid Waste,
Recyclables, and Organic Waste from residential customers.
Collector shall provide collection services using not more than three vehicle passes. Collector may provide collection services five (5) days per week, Monday through Friday. Charges for collection services shall be in accordance with Exhibit M.
1. Residential Solid Waste Collection. Collector shall
Collect Residential Solid Waste once per week, in accordance with the provisions of this Agreement unless excepted as provided in Article 4, and transport Residential Solid Waste to the Disposal Facility or Facilities in accordance with Article 4. Cart service shall be provided to all single-family residences and to multiple- family dwellings and mobilehome parks at the property Owner’s request. Collector shall collect Residential Solid Waste in Containers provided by the Collector. The City requires provision of industry-standard wheeled Carts for Solid Waste with securable, attached lids. The standard service will include Collection at the curb, and should be provided using automated collection vehicles.
The Collector will provide backyard service in accordance with Article 4.
2. Residential Recyclables Collection. Collector shall
Collect Residential Recyclables once per week comprised at a minimum of those listed in the definition “Recyclables” in accordance with the provisions of this Agreement unless excepted as provided in Article 4, and transport Residential Recyclables to the Processing Facility or Facilities in accordance with Article
4. Collector shall collect Residential Recyclables in Containers provided by the Collector. Default container capacity for Residential Recyclables service shall be 60-70 gallons.
3. Curbside Pick-Up of Used Oil and Used Oil Filters.
Collector shall include curbside pick-up of Used Oil and Used Oil Filters as part of its Recyclables Collection Service. For each Residential Customer, this Service shall be provided on a scheduled route basis on the same day and during the same hours as the Customer’s scheduled Solid Waste, Organic Waste, and Recycling Collection Service. Collector shall provide Backyard Collection Service for Used Oil and Used Oil Filters in accordance with the provisions of Article 4.
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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
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Upon Customer request, Collector shall provide the Customer with Used Oil Containers and Used Oil Filter Containers in the number requested by the Customer sufficient to hold sixteen (16) quarts of Used Oil and two (2) Used Oil Filters. Collector shall keep the outside of all Used Oil and Used Oil Filter Containers clean and may re-use the Containers until the condition of the Container makes it inappropriate for re-use.
Collector shall at all times keep all Used Oil and Used Oil Filters Collected pursuant to this Agreement segregated from other materials. Collector shall recycle all Used Oil Collected pursuant to this Agreement to the extent feasible and shall properly dispose of all Used Oil and Used Oil Filters that are contaminated or otherwise cannot be recycled.
Collector shall provide Used Oil and Used Oil Filter
Collection Service to all Residential Customers utilizing Used Oil Containers for the accumulation and set out of their Used Oil, and Used Oil Filter Containers for the accumulation and set out of their Used Oil Filters where the Used Oil Containers and Used Oil Filter Containers have been placed within three (3) feet of the curb, swale, paved surface of the roadway, closest accessible roadway, or other such location agreed to by the Collector and Residential Customer, that will provide safe and efficient accessibility to the Collector’s Collection crew and vehicle.
4. Residential Organic Waste Collection. Collector shall Collect Residential Organic Waste once per week in accordance with the provisions of this Agreement unless excepted as provided in Article 4, and transport Residential Organic Waste to the Composting Facility or Organic Waste Facility in accordance with Article 4. Collector shall collect Organic Waste in the Containers provided by Collector. Default container capacity for Organic Waste Service shall be 90-100 gallons. Additional Organic Waste collection set out for collection will be collected at no charge to the Residential Customers at the same time as the regularly scheduled collection for Organic Waste Collection.
Commercial Service
Collector shall provide for collection of Solid Waste,
Recyclables and Organic Waste from Commercial Customers. Collector may provide collection services six (6) days per week, Monday through Saturday. Charges for collection services shall be in accordance with Exhibit M.
1. Commercial Solid Waste Collection. The Collector will provide collection of Commercial Solid Waste on a regularly
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scheduled basis at a frequency specified by the Customer in accordance with the provisions of this Agreement unless excepted as provided in Article 4, and transport Commercial Solid Waste to the Processing Facility or Facilities in accordance with Article
4. The Collector will offer the following types of collection containers as options to its Customers: industry-standard wheeled Carts (up to 100-gallon capacity) and industry-standard Bins of various sizes. . The Collector may offer wheeled Carts providing 32 to 100 gallons of capacity. The Collector may offer bins ranging from 1 to 6 cubic yards of capacity.
2. Commercial Recyclables Collection. Collector shall
Collect Commercial Recyclables once per week comprised at a minimum of those listed in the definition “Recyclables” in accordance with the provisions of this Agreement unless excepted as provided in Article 4, and transport Commercial Recyclables to the Processing Facility or Facilities in accordance with Article 4. Collector shall collect Commercial Recyclables in containers provided by the Collector.
3. Commercial Organic Waste Collection. Collector shall Collect Commercial Organic Waste once per week comprised at a minimum of those listed in the definition “Organic Waste” in accordance with the provisions of this Agreement unless excepted as provided in Article 4, and transport Commercial Organic Waste to the Composting Facility or Organic Waste Facility in accordance with Article 4. Collector shall collect Commercial Recyclables in containers provided by the Collector. Collector shall commence such Services no later than the date or dates provided in its Transition Plan attached as Exhibit E.
Commingling Solid Waste
In the event a Customer commingles Refuse, Organic Waste, or Green Waste with Recyclables for Recyclable collection or commingles Refuse or Recyclables with Green Waste or Organic Waste for Green Waste or Organic Waste collection, Collector may treat such collection as a Refuse collection subject to the applicable Refuse Collection Rates.
Collector shall not commingle, in the vehicles or otherwise, any Refuse with any Recyclable Materials, Organic Waste or Green Waste, or any Refuse, Recyclable Materials, Organic Waste or Green Waste with each other when collected by Collector, unless otherwise specifically authorized in writing by CITY. Collector shall not be deemed to have violated this Section where such materials were commingled prior to collection by Collector.
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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
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Waivers
Collector shall assist the CITY in the initial review of waiver applications under 14 CCR Section 18984.11. Collector shall be responsible for the distribution, collection and evaluation of waiver applications as appropriate and provide the City a recommendation to accept or reject waiver requests. Collector shall provide Collection services for customers not subject to waiver.
City Facilities
Collector shall provide for collection of Solid Waste,
Organic Waste, and Recyclables from selected City facilities and properties according to a mutually agreed upon schedule. Charges for collection services shall be in accordance with Exhibit M.
1. City Solid Waste, Organic Waste and Recycling
Collection. The Collector will provide collection of Solid Waste, Organic Waste and Recycling Collection to the following City facilities and properties: Police Station, Fire Station, City Hall, Library, Public Works Yard, Carnegie Building, all parks and ball fields, City-owned receptacles at bus stops, trash Containers in Euclid median. Collector will also collect City street sweepings from City-designated collection points. Collector shall replace all City-owned downtown trash and recycling receptacles within ninety (90) days of the Effective Date. Collector shall construct one (1) new trash enclosure and retrofit two (2) trash enclosures at Memorial Park, and construct three (3) new trash enclosures in the Downtown Parking Lots. The trash enclosures shall be constructed in accordance with specifications provided by, and in the locations designated by, the City.
2. City Roll-Off Service. The Collector shall provide a minimum of six (6) forty (40) cubic yard Roll-Off bins to the City upon City Manager’s request, per Agreement year. The City shall notify Collector in writing not less than thirty (30) calendar days prior to the date of the service. The notice to the Collector shall specify the date of delivery and collection of the Roll-Off Containers, the locations(s) for delivery, and the number of the Roll-Off Containers to be delivered.
Special Services
Collector shall supply the special Collection Services as provided in Article 4, including Bulky Waste Collection, On- Premise Collection Service, Christmas Tree Collection, Alley Service, collection at Community Events, collection for clean-up
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programs, free Commercial Waste Audits, and free mulch to City upon City request.
SB 1383 Monitoring and Inspections
Collector shall perform route reviews, compliance reviews, and inspections and reviews in accordance with 14 CCR Section 18995.1.
When compliance reviews are performed by Collector, Collector shall provide City-approved educational materials, in response to violations. Collector shall provide these educational materials to the non-compliant Customers within two (2) working days of determination of non-compliance or immediately upon determination of non-compliance if such non-compliance is determined during an inspection or route review. Collector shall document the non- compliant Customers and the date and type of education materials provided and report such information to the City. The City shall be responsible for subsequent enforcement action against the Customer.
Collector shall maintain a computer database of all oral and written SB 1383-related non-compliance incidents reported to Collector from Customers or other persons, and documentation related to route reviews, compliance reviews, inspections, and enforcement.
Edible Food Recovery
Collector will provide information or documentation requested by the City in support of Organic Waste or Edible Food Recovery Capacity Planning studies. Contractor shall report to the City Commercial Edible Food Generators that fail to comply with 14 CCR § 18991.1 - 18991.5.
Personnel for HHW Program
Collector shall provide one program coordinator and one employee to assist the City in running the City’s HHW Program, once a week on a day designated by the City, from 8 a.m. to 12 noon.
Recordkeeping and Reporting
Collector shall prepare and maintain the records identified in 14 CCR Section 18995.2(f) and assist CITY in reporting information about implementation and compliance with SB 1383
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Regulations and in accordance with Article 13 of Chapter 12 of Title 14 of the CCR.
Billing
Collector shall supply billing services in accordance with Article 10.
Customer Service and Public Relations
Collector shall supply phone access and handle complaints and inquiries in accordance with Article 4.
Public Education and Outreach
Collector shall supply these services in accordance with Article 4 and its plan attached as Exhibit H.
Emergency Services
Collector shall provide emergency services in accordance with Article 4.
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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services
EXHIBIT E-1
E
EXHIBIT E
RESERVED
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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services
EXHIBIT F-1
F
EXHIBIT F
MAINTENANCE PROTOCOL
Vehicle Maintenance
Burrtec’s vehicle maintenance facilities will provide
complete maintenance and repair for all collection and service equipment. Preventative service schedules will include the following: (1) daily inspection by drivers and vehicle maintenance personnel for the purposes of checking fluid levels, lights, brake adjustments and general repair; (2) every 100 hours of operations lube chassis and visual body and chassis inspection; (3) every 300 hours of operation lube chassis, visual body and chassis inspection, change engine oil and filter; (4) every day inspection, lubrication and adjustment (if needed) of mechanical arms on all automated vehicles; (5) every week brake inspection and adjustment; and (6) every 365 days service rear differential.
A Vehicle Maintenance Report will be generated upon request from the City. This report shows the maintenance activity for each vehicle operating in the City of Upland.
Our attention to preventative maintenance and attention to timely, quality repairs allows us to extend the useful life of our vehicles to over ten years.
Burrtec will use a mobile repair vehicle for basic repairs in the field. In the event of a vehicle breakdown while on route, the mobile repair unit is dispatched. A diagnosis will be made by the mechanic whether a repair can be addressed immediately, or if the truck should return to the base. In either case, the other collection vehicles will be made aware of the situation and notified whether a replacement truck will be sent to finish the route or if other trucks will be needed to work together to finish the uncompleted route. The decision will be made by the operations supervisor and is based on the time of day and the general workload for that day’s routes.
Container Maintenance Program
All automated containers will be repaired and/or replaced on request. The request may be generated from the route driver, the customer or City staff. Once the repair or replacement order is received, all containers will be delivered within 24 hours. The defective or missing container will be exchanged for a new or
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reconditioned container. Containers are repaired and replaced whenever necessary.
Bins will be exchanged on an as-needed basis or once every 12 months, whichever comes first. An exchange request may be generated from the route driver or the customer. Bins will be exchanged within 24 hours of the received request. Bins and containers are exchanged or replaced for a variety of reasons, including:
defective or damaged components, graffiti, odor or the unit is missing all together.
All automated containers and bins will be maintained at the local facilities yard. Maintenance procedures include: (1) steam cleaning; (2) welding; (3) painting; (4) component replacement; (5) lubrication; and, (6) signage.
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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services
EXHIBIT G-1
G
EXHIBIT G
COLLECTOR BILLING PROCEDURE AND POLICY
Residential customers will receive bi-monthly billing in arrears for the previous two-month period of service. Commercial customers will receive monthly billing in arrears for the previous month. The invoices will include the local telephone number of the Burrtec office for any questions. Any informational notices, fliers or inserts are submitted to the mailing house by 10:00AM on the day billing is requested to process. This procedure enables Burrtec and/or the City to include up to date information in the billing packet.
Examples of the residential and commercial past due programs are attached. City of Upland programs are subject to revision by the City and may change during the course of the Agreement and may vary based upon type of services. Burrtec will maintain an approved Past Due and Stop Service Program for reference by both parties.
EXAMPLE
RESIDENTIAL ACCOUNT PAST DUE PROGRAM
CURRENT BILL (trash service Aug-Sep)
A message will appear on the customer’s bill.
Payment is due upon receipt. Service is subject to
interruption if payment is not received by the 1st of (the second month of the billing cycle).
If the past due amount is less than or equal to $20 and payment/arrangements have not been received by the lst of the month, the Customer Service Department is to STOP SERVICE the account.
On approximately the llth of the second month in the billing cycle a postcard is sent stating service has been interrupted.
CURRENT + PAST DUE BILL
The following message will appear on the customer’s bill if the 30 day past due amount is > $20.
Your account is past due and service has been stopped. If payment in full is not received immediately your account will be turned over to our collection department.
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Prior to the next billing:
1. Audit Customers on HOLD. If payment arrangements have not been made, place the account on a HOLD/CANCEL status.
2. Remove any company-supplied barrel/container.
FINAL BILL
This is a final bill. A message will appear on the customer’s bill.
Payment must be made immediately! Protect your credit rating! A past due notice will be inserted with this bill.
Since you have not paid your past due account after receiving repeated notices, we will be forced to submit your account to our collection agency unless the account is paid in full within 5 days from the date of this billing. Please remit the amount due immediately in order to protect your credit rating.
By the 25th of the month, if no payment arrangements have been made the account must now be assigned to an outside collection agency.
EXAMPLE
COMMERCIAL ACCOUNT PAST DUE PROGRAM
CURRENT BILL
A message will appear on the customer’s bill.
Payment is due upon receipt. Payment considered past due by the 5th.
30 DAY BILL
The following message will appear on the customer’s bill if the 30 day past due amount is > $30.
In order to avoid an interruption in service, payment must be received on or before the 10th of this month.
On the 11th of the month, if a payment has not been received, a post card is mailed out-automatically by ACS.
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Please be advised that your Solid Waste service bill is past due and your service will be subject to interruption. In order to avoid an interruption in your service, the past due balance of (TOTAL AMOUNT OWING) must be received on or before the 20th of this month. If payment arrangements need to be made, please contact our customer service department at (XXX) XXX-XXXX.
If payment/arrangements have not been received by the 20th of the month, the Customer Service Department is to STOP SERVICE the account. Repetitive billing will continue.
60 DAY BILL
A past due message will appear on the customer’s bill.
Your account is past due and service has been stopped. If payment in full is not received immediately, the bin will be removed as of the 25th of this month and your account will be turned over to our collection department.
On the 10th of the month, if a payment has not ‘been received, a dunning letter is mailed out automatically by ACS.
Your service has been stopped due to the PAST DUE status of your account in the amount of $_______. Prompt full payment will clear your account and allow us to resume your Solid Waste service.
Prior to the 25th of the month, if the account is still 60 days past due, a customer service representative will call the customer to negotiate one last time in order to save the account.
If not payment arrangements have been made with the customer, the bin will be removed, the account status will remain on HOLD, a cancellation date will be entered using TWO WEEKS after the hold date as a guideline and the billing will automatically stop. 90 DAY BILL
This is a final bill. A message will appear on the customer’s bill.
Payment must be made immediately!
A 90 day notice will be inserted with this bill.
Since you have not paid your past due account after receiving repeated notices, we will be forced to take legal action against you unless the account is paid in full within 5 days from the date
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of this billing. Please remit the amount due immediately in order to protect your credit rating.
The account will be assigned for legal collection to small claims court if the amount exceeds $500.00 or to an outside collection agency if the amount is under $500.00.
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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services
EXHIBIT H-1
H
EXHIBIT H
COMMUNITY RELATIONS ACTIVITIES
Public Education Plan Objectives
The objectives of the public education program are the
following:
• To maximize diversion and recycling and organic waste tonnage by making the recycling and organic waste diversion program easily understood by residents.
• To educate the community via community meetings, Home Owners Associations (HOAs), and other civic organizations on the details of the program and services offered as well as source reduction and buying recycled content products.
• To convey strong anti-scavenging messages to protect the value of the resources to be collected at the curb.
• To encourage maximum citizen participation and assure that City residents are notified as to their day(s) of collection and type of services offered.
Collector shall use Reasonable Business Efforts to outreach and educate the public on the importance of recycling and separating Solid Waste in order to achieve maximum waste diversion in accordance with 14 CCR Sections 18985.1-18985.2. Collector shall develop and implement a program of educational presentations and materials concerning the importance of recycling and diversion, proper techniques for Solid Waste disposal and recycling, and options for the disposal of Hazardous Waste. The educational program shall include a well-defined component aimed at capturing Organic Waste, and Green Waste generated by landscaping services and contractors, including information for Customers on how and why Organic Waste and Green Waste should be collected and diverted. A new educational program shall be prepared for each fiscal year, and submitted to the City Manager, for approval by the City Council, no later than April 1st.
Collector shall perform the recordkeeping requirements related to compliance with education and outreach requirements under 14 CCR Section 18985.3.
Required Plan Components
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The Collector shall coordinate with City Staff for a refined, well-thought out public education plan that must do the following:
• Concentrate on how the new expanded recycling program complements the existing program.
• Compliment residents on a fine job so far on reaching the goals of AB 939, but to reach higher diversion goals, we must implement this new program.
• Communicate that the new expanded program is the next step for residents.
• Utilize City’s existing program recognition techniques in all new correspondence.
• Coordinate the education programs with all local service clubs, neighborhood watch groups, HOAs, City Commissions, and City Committees.
• Maintain communication in English, Spanish, and such
other languages as the city may direct.
Public Education Materials
Collector must distribute the following to all Residential Customers:
(1) Quarterly Billing Information: two (2) of the four (4) billing cycles for Residential Customers will include bill inserts prepared and provided by the City and two (2) billing cycles will include educational information prepared and provided by the City to appear on the bill itself.
(2) Quarterly newsletter prepared and provided by the
Collector summarizing the past and upcoming year’s program, events, and successes.
(3) Brochure prepared by the Collector and reviewed by the City describing the new SB 1383 organic waste diversion program, including service frequency and program changes. The brochure shall also include information about the edible food recovery program.
(4) Fliers prepared and provided by the City will be used on an “as needed basis” if Collector’s Diversion Estimates are not met or to further educate residents, reinforce recycling program, or to communicate minor changes or modifications in the program.
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Collector must provide the following to Commercial Customers:
(1) Advertisements publicizing Collector’s provision of free waste audits for Customers’ serviced facilities.
Participation in City, School, or Community Events
Collector must participate in City, School, or Community Events as follows:
(1) Provide display materials for use at City-sponsored events and school presentations.
(2) Provide promotional items for distribution at community events.
(3) Annual participation in an educational capacity at
school assemblies, HOAs, and other civic organizations. (4) Participation in an educational capacity at minimum of two (2) community events annually.
Organic Waste Collection Start Up Campaign
To support the Recycling and Organic Waste Collection
programs that Collector is offering, Collector shall organize an official kick-off for the Organic Waste programs and provide residents and businesses with a brochure describing the new programs. Collector will work with City staff to develop the information to be provided and will distribute the materials three (3) to four (4) weeks prior to the start-up of services.
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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services
EXHIBIT I-1
I
EXHIBIT I
HAZARDOUS WASTE SCREENING PROTOCOL
Hazardous materials inadvertently collected along with Solid Waste is a persistent problem facing our industry. Drivers are trained to avoid accidental collection of hazardous materials; and, whenever possible, front or side loading vehicles are used to allow drivers to easily spot hazardous materials. If hazardous waste is found in the container; or if recyclables or organic waste are contaminated with Solid Waste, the customer is notified in writing with a, tag attached to the Container. Burrtec drivers and Route Supervisors conduct routine waste audits and carefully inspect containers before they are serviced. If contamination is found, written notification is attached to the container.
Burrtec’s written notification system has been in place for many years and it is viewed as an education process for the customer and a safety measure for the both driver and the City.
Burrtec has successfully implemented the following system to address this problem:
1. Continual education and identification to the customers regarding the dangers of improperly disposed of hazardous materials and locations where this material can be taken for proper management.
2. Tags to be filled out and attached to a customer’s container indicating what hazardous materials have been identified in the container and proper disposal methods.
3. Driver training on the identification of hazardous materials that have been combined with Solid Waste.
In the even hazardous materials do appear in the waste stream, Burrtec has established the following procedures:
1. Collectors receive safety training regarding hazardous waste identification, inadvertent contact and notification procedures.
2. Once a suspected hazardous waste situation is identified by the Collector, the local supervisor is contacted to isolate the area or load.
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3. The local Department of Environmental Health is contacted and steps are taken to properly clean-up and dispose of the material.
4. Investigative efforts are made to establish the source of the material and the individual(s) involved.
Additionally, all Solid Waste, recyclables, and organic waste collected in the City of Upland will be delivered to the West Valley Materials Recovery Facility (MRF). The West Valley MRF has a hazardous waste inspection and load-checking program to eliminate accidental disposal of hazardous waste from the City of Upland in the landfill. Commercial waste will be processed for recyclables and organic waste recovery, a process that includes another inspection level for unacceptable waste. The West Valley MRF will work closely with the hauling operation to identify loads and specific accounts that might become problem generators. This identification will lead to monitoring and inspection at the source.
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J
EXHIBIT J
MONTHLY AND QUARTERLY REPORTS
Collector shall work in cooperation with the City to develop a report acceptable to both parties. Collector shall include, at a minimum, the following information in the monthly and quarterly report, which shall clearly indicate the report period:
1. Collection, Disposal, and Processing. Number of tons of residential Solid Waste, Recyclables and Organic Waste
collected and delivered to the Disposal Facility and or Processing Facility.
2. Recyclables Tonnages and Revenue. The report shall specify the number of tons of Recyclables and Organic Waste collected for each type of material and the revenue received by the Collector.
3. Bulky Waste Collection. The report shall specify the number of Bulky Waste collections and the type and tonnage of
material collected.
4. Complaint Log. A copy of Collector’s complaint log, including missed pickups and a description of how each complaint was resolved.
5. Problems Encountered. A narrative account of problems encountered during the reporting period. This should include a brief discussion of the Recyclables and Organic Waste Collection programs’ impact on and interaction with Solid Waste Collection Services.
6. Disposal Costs. Disposal costs in dollars per ton and total dollars.
7. Public Education. Public Education report that summaries the diversion programs, any changes, upcoming events, or program changes.
8. Customer Account Information. The report shall specify the number and type of Customer Accounts, the number of pre-paid Customers, the number of active and non-active Customers, and the type and number of delinquent Customer Accounts.
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K
EXHIBIT K
ANNUAL REPORTS
Collector shall work in cooperation with the City to develop a report acceptable to both parties. Collector shall include, at a minimum, the following information:
1. A collated summary of the information contained in the quarterly reports, including reconciliation of any adjustments from prior quarterly reports.
2. A discussion of public awareness activities and their impact on recycling participation and recovered amounts. The discussion shall include the type of emphasis given to areas with a high concentration of non-English speaking Customers.
3. A discussion of highlights and other noteworthy
experiences, including summary of Commercial Customer waste audit requests and results, along with measures taken to resolve problems, increase efficiency, and increase participation.
4. A complete inventory of collection and other major
equipment, in accordance with Article 4.
5. No later than ninety (90) days following the end of
Collector’s fiscal year of each Agreement year, Collector shall cause to be prepared a statement of Collector’s Parent Company’s income and expenses in connection with this Agreement for the immediately preceding fiscal year. Such statement shall be prepared by a Certified Public Accountant (CPA) and shall be accompanied by a certification from the CPA that the calculation of the income and expenses is fairly presented in accordance with Generally Accepted Accounting Principles and in accordance with the terms of this Agreement.
6. Collector’s obligation to submit an annual report shall survive the termination or expiration of this Agreement and Agreement shall submit an annual report for the final Contract Year of this Agreement on or before the May 1 immediately following such Agreement Year.
EXHIBIT L-1
L
EXHIBIT L
FORM OF PARENT GUARANTY
This Guaranty, made as of the date of the Agreement (as defined below) Burrtec Waste Group, Inc., a corporation duly organized and existing in good standing under the laws of the State of California and having their principal place of business in California, respectively (“Guarantor”), to and for the benefit of the City of Upland (“City”), a municipal corporation of the State of California (“State”).
WITNESSETH
WHEREAS, Burrtec Waste Industries, Inc. (“Collector”), a subsidiary of the Guarantor, and the City have negotiated an Agreement for Solid Waste, Recyclables and Green Waste Collection and Transportation to Disposal, Composting and Processing Facilities, dated as of the later of the date of execution thereof by the City or the Collector, as may be supplemented and amended from time to time in accordance with the terms thereof (“Agreement”), which Agreement is incorporated herein by reference and hereby made part hereof;
WHEREAS, it is in the interest of Guarantor that the Collector enter into the Agreement with the City;
WHEREAS, the City is willing to enter into the Agreement only upon the condition that the Guarantor execute this Guaranty;
WHEREAS, in the event Collector fails to timely and fully perform its obligations, including the payment of moneys, pursuant to the Agreement, Guarantor is willing to Guaranty, Collector’s timely and full performance thereof;
WHEREAS, it is a condition precedent to the City’s obligations under the Agreement that the Guarantor provide this Guaranty.
NOW, THEREFORE, as an inducement to the City to enter into the Agreement, the Guarantor agrees as follows:
Capitalized terms used herein and not otherwise defined herein, shall have the meaning assigned to them in the Agreement.
(1) Guaranty of Collector’s Performance Under Agreement. Guarantor hereby directly, unconditionally, irrevocably, and absolutely guaranties the timely and full performance of Collector’s obligations under the Agreement in accordance with the terms and conditions contained therein. Within thirty days’ written request therefor by the City, Guarantor shall honor such Guaranty. Notwithstanding the unconditional nature of the Guarantor’s payment obligations set forth herein, the Guarantor shall have the right to
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assert the defenses provided in the paragraph entitled “Defenses” under Section 8 hereof, against claims made hereunder.
(2) Governing law; consent to jurisdiction; service of process. This Guaranty shall be governed by the laws of the State of California. The Guarantor hereby agrees to the service of process in the State of California for any claim or controversy arising out of this Guaranty or relating to any breach. The Guarantor hereby agrees that the courts of the State of California, County of San Bernardino and to the extent permitted by law, the United States District Court for the Central District of California, shall have the exclusive jurisdiction of all suits, actions, and other proceedings involving itself and to which the City may be party for the adjudication of any claim or controversy arising out of this Guaranty or relating to any breach hereof, waives any objections that it might otherwise have to the venue of any such Court for the trial of any such suit, action, or proceeding, and consents to the service of process in any such suit, action, or proceeding by prepaid registered mail, return receipt requested.
(3) Enforceability; no assignment. This Guaranty shall be binding upon and enforceable against Guarantor, its successors, assigns, and legal representatives. It is for the benefit of the City, its successors and assigns.
(4) Guaranty absolute and unconditional. The undertakings of Guarantor set forth herein are absolute and unconditional, and the City shall be entitled to enforce any or all of the undertakings against Guarantor without being first required to enforce any remedies or to seek to compel the Collector to perform its obligations under the agreement or to seek, or obtain recourse against any other party or parties, including but not limited to the Collector or any assignee of the Collector, who are, or may be, liable therefor in whole or in part, irrespective of any cause or state of facts whatever. Without limiting the generality of the foregoing, the Guarantor expressly agrees that its obligations hereunder shall not be affected, limited, modified or impaired by any state of facts or the happening from time to time of an event, other that the payment of monetary obligations by the Collector to City under the Agreement in accordance with the terms of the Agreement, including, without limitation, any of the following, each of which is hereby expressly waived as a defense to its liability hereunder, except to the extent such defenses would be available to the Collector and release, discharge or otherwise offset Collector’s obligations under the Agreement:
(a) the invalidity, irregularity, illegality, or unenforceability, of or any defect in or objections to the Agreement;
(b) any modification, amendment, or compromise of or waiver of compliance with or consent to variation from any of the provisions of the Agreement by the Collector;
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(c) any release of any collateral or lien thereof, including, without limitation, any performance bond;
(d) any defense based upon the election of any remedies against the Guarantor of the Collector, or both, including without limitation, any consequential loss by the Guarantor of its right to recover any deficiency, by way of subrogation or otherwise, from the Collector or any other person or entity;
(e) the recovery of any judgment against the Collector to enforce any such collateral or performance bond;
(f) the City or its assigns taking or omitting to take any of the actions which it or any such assign is required to take under the Agreement; any failure, omission or delay on the part of the City or its assignees to enforce, assert or exercise any right, power or remedy conferred on it or its assigns by the Agreement, except to the extent such failure, omission or delay gives rise to an applicable statute of limitations defense by the Collector with respect to a specific obligation;
(g) the default or failure of the Guarantor to fully perform any of its obligations set forth in this Guaranty;
(h) the bankruptcy, insolvency, or similar proceeding involving or pertaining to the Collector or the City, or any order or decree of a court, trustee or receiver in any such proceeding;
(i) in addition to those circumstances described in item (h), any other circumstance which might otherwise constitute a legal or equitable discharge of a guarantor or limit the recourse of the City to the Guarantor; (j) the existence or absence of any action to enforce the Agreement; (k) subject to the provisions of the Agreement relating to Uncontrollable Circumstances, any present or future law or order of any government or of any agency thereof, purporting to reduce, amend or otherwise affect the Agreement or to vary any terms of payment or performance under the Agreement;
provided that, notwithstanding the foregoing, Guarantor shall not be required to pay any monetary obligation of Collector to City from which Collector would be discharged, released or otherwise excused under the provisions of the Agreement.
(5) Waivers. Guarantor hereby waives:
(a) notice of acceptance of this Guaranty and of the creation, renewal, extension, and accrual of the limited financial obligations Guarantied hereunder;
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(b) notice that any person has relied on this Guaranty; (c) diligence, demand of payment and notice of default or nonpayment under this Guaranty or the Agreement, and any and all other notices required under the Agreement;
(d) filing of claims with a court in the event of reorganization, insolvency, or bankruptcy of the Collector;
(e) any right to require a proceeding first against the Collector or with respect to any collateral or lien, including, without limitation, any performance bond, or any other requirement that the City exercise any remedy or take any other action against the Collector or any other person, or in respect of any collateral or lien, before proceeding hereunder; (f) (i) any demand for performance or observance of, (ii) any enforcement of any provision of, or (iii) any pursuit or exhaustion of remedies with respect to, any security (including, with limitation, any performance bond) for the obligations of the Collector under the Agreement; any pursuit of exhaustion of remedies against the Collector or any other obligor or guarantor of the obligations; and any requirement of promptness or diligence on the part of any person in connection therewith; (g) to the extent that it lawfully may do so, any and all demands or notices of every kind and description with respect to the foregoing or which may be required to be given by any statute or rule of law, and any defense of any kind which it may now or hereafter have with respect to this Guaranty or the obligations of the Collector under the Agreement, except any Notice to the Collector required pursuant to the Agreement or Applicable Law which Notice preconditions the Collector’s obligation or the defenses listed in Section (8) below.
To the extent that it may lawfully do so, the Guarantor hereby further agrees to waive, and does hereby absolutely and irrevocably waive and relinquish, the benefit and advantage of, and does hereby covenant not to assert, any appraisement, valuation, stay, extension, redemption or similar laws, now or at any time hereafter in force, which might delay, prevent or otherwise impede the due performance or proper enforcement of this Guaranty, the Agreement, or the obligations of the Collector under the Agreement, and hereby expressly agrees that the right of the City hereunder may be enforced notwithstanding any partial performance by the Collector or the Guarantor, or the foreclosure upon any security (including, with limitation, any performance bond) given by the Collector for its performance of any of its obligations under the Agreement.
(6) Agreements between City and Collector; Waivers by City. The Guarantor agrees that, without the necessity for any additional endorsement or Guaranty by or any reservation of rights against Guarantor and without
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any further assent by Guarantor, by mutual agreement between the City and Collector, the City and Collector may, from time to time (a) renew, modify or compromise the liability of the Collector for or upon any of the obligations hereby Guarantied; or
(b) consent to any amendment or change of any terms of the Agreement; or
(c) accept, release, or surrender any security (including, without limitation, any performance bond), or
(d) grant any extensions or renewals of the obligations of the Collector under the Agreement, and any other indulgence with respect thereto, and to effect any release, compromise or settlement with respect thereto, all without releasing or discharging the liability of Guarantor hereunder.
The Guarantor further agrees that the City or any of its assigns shall have and may exercise full power in its uncontrolled discretion, without in any way affecting the liability of the Guarantor under this Guaranty, to waive compliance with and any default of the Collector under, the Agreement. (7) Continuing Guaranty. This Guaranty is a continuing Guaranty and shall continue to be effective or be reinstated, as applicable, if at any time any payment of any of the obligations hereby Guarantied is rescinded or is otherwise required to be returned upon reorganization, insolvency or bankruptcy of the Collector or Guarantor or otherwise, all as though such payment had not been made.
(8) Defenses. Notwithstanding any provision in this Guaranty to the contrary, the Guarantor may exercise or assert any and all legal or equitable rights, defenses, counter claims or affirmative defenses under the Agreement or Applicable Law which the Collector could assert against any party seeking to enforce the Agreement against the Collector, and nothing in this Guaranty shall constitute a waiver thereof by the Guarantor.
(9) Payment of costs of enforcing Guaranty. Guarantor agrees to pay all costs, expenses and fees, including all reasonable attorney’s fees, which may be incurred by the City in enforcing this Guaranty following the default on the part of the Guarantor hereunder whether the same shall be enforced by suit or otherwise.
(10) Enforcement. The terms of this Guaranty may be enforced as to any one or more breaches either separately or cumulatively. (11) Remedies cumulative. No remedy herein conferred upon or reserved to the City hereunder is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and
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shall be in addition to every other remedy given under the Guaranty and the Agreement or hereinafter existing at law or in equity or by statute. (12) Severability. The invalidity or unenforceability of any one or more phrases, sentences or clauses in this Guaranty contained shall not affect the validity or enforceability of the remaining portions of this Guaranty, or any part thereof.
(13) Amendments. No amendment, change, modification or termination of this Guaranty shall be made except upon the written consent of Guarantor and the City.
(14) Term. The obligations of the Guarantor under this Guaranty shall remain in full force and effect until (i) all — monetary obligations of the Collector under the Agreement shall have been fully performed or provided for in accordance with the Agreement, or (ii) the discharge, release or other excuse of the obligations in accordance with the terms of the Agreement. (15) No set-offs, etc.
(a) By Guarantor. The obligation of Guarantor under this Guaranty shall not be affected by any set-off, counterclaim, recoupment, defense or other right that Guarantor may have against the City on account of any claim of the Guarantor against the City; provided that Guarantor reserves the right to bring independent claims not arising from the Agreement against the City so long as any such claims shall not be used to set-off or deduct from any claims which the City may have against the Guarantor arising from this Guaranty.
(b) By Collector. The obligation of Guarantor under this Guaranty shall be subject to any set-off, counterclaim, recoupment, defense or other right that the Collector may assert pursuant to the Agreement, if any, but the obligation of Guarantor under this Guaranty shall not be subject to any set- off, counterclaim, recoupment, defense or other right that the Collector may assert independently of and outside the Agreement.
(16) Warranties and representations. The Guarantor warrants and represents that as of date of execution of this Guaranty:
(a) The Guarantor has the power, authority and legal right to enter into this Guaranty and to perform its obligations and undertakings hereunder, and the execution, delivery and performance of this Guaranty by the Guarantor (i) have been duly authorized by all necessary corporate and shareholder action on the part of the Guarantor, (ii) have the requisite approval of all federal, State and local governing bodies having jurisdiction or authority with respect thereto, (iii) do not violate any judgment, order, law or regulation applicable to the Guarantor; (iv) do not conflict with or constitute a default under any agreement or instrument to which the Guarantor
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is a party or by which the Guarantor or its assets may be bound or affected; and (v) do not violate any provision of the Guarantor’s articles or certificate of incorporation or by-laws.
(b) This Guaranty has been duly executed and delivered by the Guarantor and constitutes the legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms; and (c) There are no pending or, to the knowledge of the Guarantor, threatened actions or proceedings before any court or administrative agency which would have a material adverse effect on the financial condition of the Guarantor, ,or the ability of the Guarantor to perform its obligations or undertakings under this Guaranty except as publicly disclosed in Securities and Exchange Commission filings.
(17) Counterparts. This Guaranty may be executed in any number of counterparts, some of which may not bear the signatures of all parties hereto. Each such counterpart, when so executed and delivered, shall be deemed to be an original and all of such counterparts, taken together, shall constitute one and the same instrument; provided, however, that in pleading or proving this Guaranty, it shall not be necessary to produce more than one copy (or sets of copies) bearing the signature of the Guarantor. (18) Notices. All notices, instructions and other communications required or permitted to be given to or made upon any party hereto shall be in writing, and shall be given in the manner and to the addresses provided in the Agreement.
(19) Separate suits. Each and every payment default by Collector under the Agreement shall give rise to a separate cause of action under this Guaranty, and separate suits may be brought hereunder by the City or its assigns as each cause of action arises.
(20) Headings. The Section headings appearing herein are for convenience only and shall not govern, limit, modify or in any manner affect the scope, meaning or intent of the provisions of this Guaranty. (21) Entire Agreement. This Guaranty constitutes the entire agreement between the parties hereto with respect to the transactions contemplated by this Guaranty. Nothing in this Guaranty is intended to confer on any person other .than the Guarantor, the City and their permitted successors and assigns hereunder any rights or remedies under or by reason of this Guaranty. (22) Personal Liability. It is understood and agreed to by the City that nothing contained herein shall create any obligation or right to look to any director, officer, employee or stockholder of the Guarantor (or any affiliate thereof) for the satisfaction of any obligations hereunder, and no
EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
EXHIBIT L-8
judgment, order or execution with respect to or in connection against any such director, officer, employee or stockholder.
IN WITNESS WHEREOF, Guarantor has executed this instrument the day and year first above written.
By:
Burrtec Waste Group, Inc. Cole Burr, President
EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
EXHIBIT M-1
M
EXHIBIT M
RATES
[Insert updated Exhibit M on rates]
EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
EXHIBIT N-1
N
EXHIBIT N
RATE ADJUSTMENT METHODOLOGY
[Insert updated Exhibit N on rate adjustment methodology]
EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
EXHIBIT O-1
O
EXHIBIT O
STREET SWEEPING SCHEDULE AND LOCATIONS
EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
EXHIBIT O-2
EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service
EXHIBIT P-1
P
EXHIBIT P
STREET SWEEPING FREQUENCY
i. All streets shall be swept weekly unless otherwise indicated (522 curb miles x 2 = 1,044 curb miles/month or 12,528 curb miles/year). ii. Foothill Boulevard (S.R. 66) and Euclid Avenue (S.R. 83) will be swept weekly (17.5 curb miles x 2 = 35 curb miles/month or 420 curb miles/year).
iii. All alleys shall be swept weekly between the months of February through October of each year (68 curb miles x 2 = 136 curb miles/month or 1,224 curb miles/year).
NOTE: New additional streets will be performed without additional compensation because enhanced prevailing solid waste collector rates will be effect and these services are included in the cost of service.
EXHIBIT N
Rate Adjustment Methodology
General
Subject to the terms herein, the Contractor shall be entitled to an annual adjustment of all Rates. Each Rate, excluding special charges, includes a "Service Component", "Disposal Component", "Processing Component", "Franchise Fee Component" and “Compliance Component” which are annually adjusted.
Notwithstanding the 2022 Rate Adjustments adopted by the City, Contractor shall submit its application for a Rate adjustment to the City Manager on or before April 1st preceding the start of each Rate Period that begins July 1 where Rates will be adjusted. Contractor's Rate application shall document all calculations and include all supporting schedules, documentation of Disposal or Processing tipping fee changes (including supporting calculations where applicable), documentation of tonnage calculations and/or assumptions, and any other documentation or evidence determined by the City Manager to be necessary to ensure that the calculation of Rate adjustments has been performed in strict conformance with the requirements of this Exhibit N.
The City Council shall make a good faith effort to approve Rates by June 1, and such Rates shall be effective on each subsequent July 1. If Rates are not effective by July 1 due to a delay caused solely by City, City shall allow Contractor to retroactively bill Customers for the amount of the Rate increase for any period of delay that is solely caused by City.
In no event may the adjustment of the Service Component or Franchise Fee Component pursuant to this Exhibit be an increase in an amount greater than 5% of either Component, compared to the previous Service and/or Franchise Fee Component. In the event that calculations in accordance with this Exhibit result in an increase above five percent (5%) of either Component, any amount above five percent (5%) shall be carried forward and applied to the Service and/or Franchise Fee Component in subsequent Rate Adjustments until such time as the carried over amount has been applied in full.
Definitions
Certain terms which are specific to this Exhibit N are defined below:
1. Annual Percentage Change means the average value of an index for the twelve (12) month period ending December of most recently completed calendar year, minus the average index value for the twelve (12) month period ending December of the calendar year one year prior (year before last), divided by the average index value for the twelve (12) month period ending December of the calendar year one year prior.
The Annual Percentage Change shall be rounded to the nearest thousandth (l,OOOth).
For example, if the Contractor is preparing its Rate application for Rates to be effective for July 1, 2022, the Annual Percentage Change in CPI shall be calculated as follows: [(Average CPI for January 2021 through December 2021) - (Average CPI for January 2020 through December 2020)] I (Average CPI for January 2020 through December 2020)].
2. Bureau of Labor Statistics (BLS) shall mean the U.S. Department of Labor, Bureau of Labor Statistics or its successor agency.
3. City Fees shall mean the Franchise Fee specified in the Agreement.
4. Consumer Price Index (CPI) shall mean the All Urban Consumers Index (CPI-U) compiled and published by the BLS, using the following parameters:
Area – Riverside-San Bernardino-Ontario, CA
Item - All Items
Base Period - December 2017 = 100
Not seasonally adjusted
Series Identification Number – CUURS49C SAO
5. Disposal/Processing Fee shall mean the actual pass-through fee charged per ton or unit of material delivered to an approved facility. The "Current Approved" Disposal/Processing Fee for any Approved Facility shall be the Disposal/Processing Fee in place immediately preceding the submission of the Rate Application.
6. Rate means the maximum amount, expressed as a dollar unit, approved by City that the Contractor may bill for providing services under this Agreement.
7. Rate Adjustment Factor shall mean the amount, expressed as a percentage, by which the Service Component of each Rate is adjusted.
8. Service Component shall mean portion of Rate set by Contractor for costs related to service of Solid Waste as described in this Agreement, including, but not limited to fuel, personnel costs, and vehicle maintenance. The Service Component shall not include costs related to providing Disposal and Processing Fees, Tipping Fees, Compliance Component, or City Fees.
9. Tipping Fee shall mean the Rate or tipping fee charged for each ton or unit of material delivered to an approved facility. The "Current Approved" Tipping Fee for any Approved Facility shall be the Tipping Fee in place immediately preceding the submission of the Rate Application.
10. Compliance Component shall mean portion of the Rate charged to customers for program elements related to legislative requirements such as AB 939, AB 341, AB 1826, and SB 1383 as described in this agreement including but not limited to edible food recovery programs, procurement activities, equipment, contamination minimization requirements, education and outreach activities, container contamination minimization efforts, record keeping, and future compliance cost elements resulting from new legislation as mutually agreed upon by the Parties. The Compliance Component shall not include costs related to providing Disposal and Processing Fees, or Tipping Fees.
11. Disposal Component shall mean portion of the Rate set by Contractor for pass-through costs related to disposal of Solid Waste materials as described in this agreement including but not limited to Tipping Fees, Solid Waste Tons, and Customer counts. The Disposal Component shall not include costs related to providing collection services, Compliance Component, or City Fees.
12. Processing Component shall mean portion of the Rate set by Contractor for pass-through costs related to processing of Solid Waste materials such as commingled recyclables, organic waste, and other materials as described in this agreement including but not limited to Tipping Fees, Solid Waste Tons, and Customer counts. The Processing Component shall not include costs related to providing collection services, Compliance Component, or City Fees.
13. Franchise Fee Component shall mean portion of the Rate set by City for costs related to fees as described in this agreement and other fees authorized by the City. The contractor shall collect, at the City's request, pass-through fees as funding for the City's programs
General
The Rate adjustment methodology involves modifying: (A) the Service and Franchise Fee Component for the current Rate Period by CPI; (B) the Disposal, and/or Processing Component(s) by the actual pass- through costs of those components; and (C) the Compliance Component to determine the Rates for the coming Rate Period.
If the CPI is discontinued or revised during the Term by the BLS, such other government index or computation with which it is replaced shall be used in order to obtain substantially the same result as would be obtained if the CPI had not been discontinued or revised.
A. Service Component
Contractor shall calculate the adjustment to Residential, Multi-Family, Commercial, and Roll-off Box Service Components using the following methodology:
Step 1: Calculate the "Service Component Factor" or "SCF".
Calculate the twelve (12) month average Change in the CPI for the previous calendar year. The factor shall be rounded to the nearest hundredth (lOOth) percent.
Step 2: Calculate the adjusted Service Component, rounded to the nearest cent, for each Rate as follows:
Adjusted Service Component = Then-current Service Component / (1 - SCF) For example, assuming:
1. Then-current Service Component= $18.31
2. SCF = 3.83%
3. Adjusted Service Component= $18.31 * (I + 0.0383) = $19.01
Step 3: Verify the Adjusted Service Component does not exceed the maximum percentage increase as follows:
Adjusted Service Component = (Previous Service Component / 0.95) > Adjusted Service Component
For example, assuming:
1. Adjusted Service Component = $19.01
2. Previous Service Component = $18.31
3. Adjusted Service Component = ( $19.01 – $18.31) /($18.31) = 3.82% < 5.00% = OK
Step 4: Apply eligible carried over Adjusted Service Component costs as follows:
Eligible carry over Adjusted Service Component = ((Previous Adjusted Service Component * 1.05) – (Adjusted Service Component))
1. Adjusted Service Component = $19.01
2. Previous Service Component = $18.31
3. Eligible carry over amount = (($18.31 * 1.05) – ($19.01) = $0.22
B. Disposal and/or Processing Component(s)
Contractor shall calculate the adjustment to Residential Disposal and Processing Components using the following methodology:
Residential Disposal and Processing Component Calculation
Step 1: Calculate the adjusted Residential Disposal Component, rounded to the nearest cent, for each Rate to reflect any change in the Tipping Fee charge at the approved Disposal Site, and the calculated average Tons of Refuse Collected per household per year, based on the actual tonnage of Residential Refuse Collected in the prior calendar year and the average number of Residential units served, rounded to the nearest ten thousandth (10,000th). The adjustment shall be calculated as follows:
Adjusted Disposal Component = Disposal Site Tipping Fee x Average Refuse Tons per Household Per Year I 12 months
For example, assuming:
1. Current Approved Disposal Site Tipping Fee = $50.88 per Ton
2. Average Refuse Tons per Household Per Year = 1.5860 Tons
3. Adjusted Disposal Component= $50.88 x 1.5860 I 12 = $6.72
Step 2: Calculate the adjusted Residential Recyclable Materials Processing Component, rounded to the nearest cent, for each Rate to reflect any change in the Tipping Fee charge at the approved MRF and the calculated average Tons of Recyclable Materials Collected per household per year, based on the actual tonnage of Residential Recyclable Materials Collected in the prior calendar year and the average number of Residential units served, rounded to the nearest ten thousandth (10,000th). The adjustment shall be calculated as follows:
Adjusted Recyclable Materials Processing Component = Approved MRF Tipping Fee x Average Recyclable Materials Tons per Household Per Year I 12 months
For example, assuming:
1. Current Approved MRF Tipping Fee= $53.00 per Ton
2. Average Recyclable Materials Tons per Household Per Year= 0.3900 Tons
3. Adjusted Recyclable Materials Processing Component = $53.00 x 0.3900 I 12 = $1.72
Step 3: Calculate the adjusted Residential Organic Waste Processing Component, rounded to the nearest cent, for each Rate to reflect any change in the Tipping Fee charge at the approved Organic Materials Processing Facility and the calculated average Tons of Organic Waste Collected per household per year, based on the actual tonnage of Residential Organic Waste Collected in the prior calendar year and the average number of Residential units served, rounded to the nearest ten thousandth (10,000th). The adjustment shall be calculated as follows:
Adjusted Organic Waste Processing Component = Approved Organic Waste Processing Facility Tipping Fee x Average Organic Waste Tons per Household Per Year I 12 months
For example, assuming:
1. Current Approved Organic Waste Processing Facility Tipping Fee= $80.00 per Ton
2. Average Organic Waste Tons per Household per Year= 0.7800 Tons
3. Adjusted Organic Waste Processing Component= $80.00 x 0.7800 I 12 = $5.20
Commercial Refuse and Recyclable Materials Disposal and Processing Component Calculation
Contractor shall calculate the adjustment to Commercial Refuse and Recyclable Materials Rate Disposal and Processing Components, using the following methodology:
Step 1: Calculate the adjusted Commercial Disposal Component, rounded to the nearest cent, for each Commercial Rate to reflect any change in the Tipping Fee charge at the approved Disposal Site, or a change in the estimated weight per cubic yard of Refuse Collected (which is initially established at one hundred five (105) pounds), and the appropriate weekly service level in cubic yards. The adjustment shall be calculated as follows:
Adjusted Disposal Component= 130 lbs* Weekly Service Level in Cubic Yards* 52 Weeks per Year I 2,000 pounds per Ton* Approved Disposal Site Tipping Fee I 12 months
For example, assuming:
1. Current Approved Disposal Site Tipping Fee= $50.88 per Ton
2. Service Level (size of container * frequency of service) = 3 cubic yards, 1 x per week
3. Adjusted Disposal Component= 130 * 3 * l * 52 I 2,000 * $50.88 I 12 = $42.99
Step 2: Calculate the adjusted Commercial Recyclable Materials Processing Component, rounded to the nearest cent, for each Commercial Rate to reflect any change in the Tipping Fee char ge at the approved MRF, and the appropriate weekly service level in cubic yards. The adjustment shall be calculated as follows:
Adjusted Recyclable Materials Processing Component = Approved MRF Tipping Fee* Weekly Service Level in Cubic Yards* 4.33 Average Weeks per Month
For example, assuming:
1. Current Approved MRF Tipping Fee= $2.58 per Cubic Yard
2. Service Level (size of container* frequency of service) = 3 cubic yards, Ix per week
3. Adjusted Disposal Component= $2.58 * 3 * 1 * 52/12 = $33.54
Commercial Green Waste and Food Waste Processing Component Calculation Contractor shall calculate the adjustment to Commercial Green Waste and Food Waste Rates Disposal and Processing Components, using the following methodology:
Step 1: Calculate the adjusted Commercial Green Waste Processing Component, rounded to the nearest cent, for each Commercial Green Waste Rate to reflect any change in the Tipping Fee charge at the Approved Organic Materials Processing Facility, the estimated weight per cubic yard of Organic Material Collected (which shall be two hundred (200) pounds for Green Waste initially) and the appropriate weekly service level in cubic yards. The adjustment shall be calculated as follows:
Adjusted Green Waste Processing Component = 200 lbs * Weekly Service Level in Cubic Yards * 52 Weeks per Year I 2,000 pounds per Ton* Approved Green Waste Tipping Fee I 12 months
For example, assuming:
I. Current Approved Green Waste Tipping Fee= $53.76 per Ton
2. Service Level (size of container* frequency of service) = 3 cubic yards, Ix per week
3. Adjusted Green Waste Processing Component= 200 * 3 * I * 52 I 2,000 * $53.76 I 12 = $69.89
Step 2: Calculate the adjusted Commercial Food Waste Processing Component, rounded to the nearest cent, for each Commercial Food Waste Rate to reflect any change in the Tipping Fee charge at the Approved Organic Materials Processing Facility, the estimated weight per cubic yard of Organic Material Collected (which shall be three hundred twenty (320) pounds for Food Waste initially) and the appropriate weekly service level in cubic yards. The adjustment shall be calculated as follows:
Adjusted Food Waste Processing Component= 320 lbs * Weekly Service Level in Cubic Yards * 52 Weeks per Year I 2,000 pounds per Ton* Approved Food Waste Tipping Fee I 12 months
For example, assuming:
1. Current Approved Food Waste Tipping Fee= $92.82 per Ton
2. Service Level (size of container* frequency of service) = 2 cubic yards, Ix per week
3. Adjusted Food Waste Processing Component= 320 * 2 * 1 * 52 I 2,000 * $92.82 I 12 = $128.71
Roll-Off Box Disposal and Processing Component Calculation
Contractor shall calculate the adjustment to Roll-off Box Rates using the following methodology:
Step 1: Calculate the adjusted Roll-off Box Disposal Component, rounded to the nearest cent, for each Roll-off Box Rate to reflect any change in the Tipping Fee charge at the approved Disposal Site, and the weight per pull (which shall be six (6) Tons for standard Roll-off Boxes, and eight (8) Tons for compactors. The adjustment shall be calculated as follows:
Adjusted Disposal Component =Approved Disposal Site Tipping Fee * 6 Tons
For example, assuming:
1. Current Approved Disposal Site Tipping Fee= $50.88 per Ton
2. Adjusted Disposal Component = $50.88 * 6 = $305.28
Step 2: Calculate the adjusted Roll-off Box Processing Component, rounded to the nearest cent, for each Roll-off Box Rate to reflect any change in the Tipping Fee charge at the Approved Processing Facility, and the actual weight per pull. The adjustment shall be calculated as follows:
Adjusted Disposal Component = Approved Processing Facility Tipping Fee * Actual Tons
For example, assuming:
1. Current Approved Processing Facility Tipping Fee= $11.93 per Ton
2. Adjusted Processing Component = $11.93 * Actual tons = Adjusted Disposal Component
C. Compliance Components
Contractor shall calculate the adjustment to Single Family Dwelling, Multi-Family Dwelling, Commercial, and Roll-off Box Compliance Components using the following methodology:
Step 1: Determine annual program costs by calculating the sum of estimated program variable costs for the upcoming year, including the previous year’s actual surplus or shortfall.
For example, assuming:
1. Equipment Fee = $231,822 (food waste pails purchased for resident giveaways. SB 1383 barrel, bin, and roll off decal requirements)
2. Education & Outreach Fee = $56,067 (information packet sent to each resident and business, community meetings, videos, and presentations informing customers of their obligations under SB 1383)
3. Procurement Fee = $28,745 (Compost procurement and delivery to achieve 30% of City requirement)
4. Compliance Monitoring Fee = $33,649 (Cost to audit residential and 10% of Commercial customers)
5. Record Keeping Fee = $29,817 (Cost to manage, create, and record data and reports)
6. Edible Food Program Fee = $27,000 (Cost to manage 3rd party contractor)
7. Other Fees / Funding = N/A (Miscellaneous Fees and/or Credits)
8. Previous Year Funding Surplus or Shortfall = N/A (Enter excess costs or balance remaining of monies from previous year’s estimate)
Total Compliance Component costs = $231,822+$56,067+$28,745+$33,649+$29,817+$27,000 = $407,100
Step 2: Determine adjusted Compliance Component Rate Impact for the upcoming year using one of two methods; fixed rate or average rate.
Method 1 – Average Rate. Divide total Compliance Component costs by total number of customers by twelve (12) months.
For Example, assuming:
Average Rate = $407,100 Compliance Component costs ÷ 20,717 total customers ÷ 12 months = $1.64 per customer, per month
OR
Method 2 – Fixed Rate. Set a fixed rate per month for Residential and determine a per yard rate for commercial customers using the remaining balance of the Compliance Component costs.
For Example, assuming:
Step 1: City determines monthly fixed rate for Residential. $0.90
Step 2: Calculate cost of Single Family Dwellings by multiplying fixed monthly SFD rate by number of SFDs
Single Family Dwelling fixed rate $0.90 * 17,955 Residential * 12 Months = $193,914 Residential Cost
Step 3: Subtract Residential cost from Compliance Component costs to determine commercial customer Compliance Component costs.
Compliance Component costs $407,100 - $193,914 Residential cost = $213,186 commercial customer Compliance Component cost.
Step 4: Divide commercial customer Compliance Component costs by total refuse yards per month
Commercial customer Compliance Component cost $213,186 ÷ 12 months ÷ 46,614 Trash Yards per month = $0.38 Per Yard Per Month
Step 5: Determine commercial Compliance Component per service level per month
For example, Calculate for 3 cubic yards, 1x per week:
Compliance Fee $0.38 * 3 yards * 1 one service * 4.33 weeks per month = $4.94 per month
D. Franchise Fee Components
Contractor shall calculate the adjustment to Residential, Multi-Family, Commercial, and Roll-off Box Franchise Fee Components using the following methodology:
Step 1: Calculate the " Franchise Fee Component Factor" or "FFCF".
Calculate the twelve (12) month average Change in the CPI for the previous calendar year. The factor shall be rounded to the nearest hundredth (lOOth) percent.
Step 2: Calculate the adjusted Franchise Fee Component, rounded to the nearest cent, for each Rate as follows:
Adjusted Franchise Fee Component = Then-current Franchise Fee Component / (1 - FFCF) For example, assuming:
1. Then-current Franchise Fee Component= $1.23
2. FFCF = 3.83%
3. Adjusted Franchise Fee Component= $1.23 * (1 + 0.0383) = $1.28
Step 3: Verify the Adjusted Franchise Fee Component does not exceed the maximum percentage increase as follows:
Adjusted Franchise Fee Component = (Previous Franchise Fee Component / 0.95) > Adjusted Franchise Fee Component
For example, assuming:
4. Adjusted Franchise Fee Component = $1.28
5. Previous Franchise Fee Component = $1.23
6. Adjusted Franchise Fee Component = ( $1.28 – $1.23) /($1.28) = 3.91% < 5.00% = OK
Step 4: Apply eligible carried over Adjusted Franchise Fee Component costs as follows:
Eligible carry over Adjusted Franchise Fee Component = ((Previous Adjusted Franchise Fee Component * 1.05) – (Adjusted Franchise Fee Component))
4. Adjusted Franchise Fee Component = $1.28
5. Previous Franchise Fee Component = $1.23
6. Eligible carry over amount = (($1.23 * 1.05) – ($1.28) = $0.01
E. Total Adjusted Rates
Contractor shall calculate the total adjusted Residential, Commercial, and Roll-off Box City Rates using the following methodology:
Step 1: Calculate the adjusted value for each Rate charged under this Agreement. Adjusted Rates shall be calculated as follows:
Adjusted Rate = Adjusted Service Component + Adjusted Disposal Component + Adjusted Processing Component + Adjusted Franchise Fee Component + Adjusted Compliance Component
For example, assuming:
1. Adjusted Service Component= $19.01
2. Adjusted Disposal Component= $6.72
3. Adjusted Recyclable Materials Processing Component= $1.72
4. Adjusted Organic Waste Processing Component= $5.20
5. Adjusted Compliance Component (Method 2) = $0.90
6. Franchise Fee Component = $1.28
7. Adjusted Rate= $19.01 + $6.72 + $1.72 + $5.20 + $0.90 + $1.28 = $34.83
CITY OF UPLAND
NOTICE OF PUBLIC HEARING
REGARDING PROPOSED INCREASES TO
SOLID WASTE AND SEWER SERVICE CHARGES
NOTICE IS HEREBY GIVEN that the City Council of the City of Upland will hold a Public Hearing on June 27, 2022, at 7:00 p.m., or as soon as possible thereafter, at the Upland City Hall, located at 460 N. Euclid Avenue, Upland, CA 91786 to consider adopting increases to the rates for the collection and handling of trash, recycling, and organic waste services (collectively, “Solid Waste Services”) and sewer services within the City. Said Public Hearing will be held to consider all oral testimony and written protests to, and the adoption of, the proposed rate increases. If the Upland City Council decides to conduct the hearing remotely in the interest of public health and safety pursuant to Assembly Bill (AB) 361 (Chapter 165, Statutes of 2021), information will be posted on the City’s website as soon as possible, and will also be included in the published agenda for the June 27, 2022 Upland City Council meeting.
SOLID WASTE AND SEWER SERVICE CHARGES
The City has determined that rate increases are necessary for the City’s solid waste service and sewer charges to allow the City to comply with state organic waste collection and recycling mandates and to ensure that the City pass through sewer treatment costs to avoid operational deficits and depletion of reserves to its sewer fund.
PROPOSED SOLID WASTE RATE INCREASES
Proposed Increases
Burrtec Waste Industries (“Burrtec”) provides Solid Waste Services within the City pursuant to an exclusive franchise agreement. The rate structure for monthly Solid Waste Services is based on a service component fee, disposal component fee (material tipping fee), and recyclables processing fees (mixed recyclables and organics). The rates for Solid Waste Services for each customer class is determined based on: (i) the size of the container serving the property; (ii) the materials accepted in the container (e.g., trash, recyclables, or organic waste) serving the property; and (iii) the frequency of pickups per week.
The proposed rate increases for Solid Waste Services are necessary for Burrtec to provide mandatory organic waste collection services pursuant to regulations implementing Senate Bill (SB) 1383 (Chapter 395. Statutes of 2016). Residents and businesses must separate organic waste (such as yard waste and food waste) from other trash to be managed at a facility other than the landfill. To accomplish this, all property owners, residents, and businesses, will be required to subscribe to collection services for trash, recyclables, and organic waste.
To cover the costs needed to provide Solid Waste Services, Burrtec will implement the rate increases in Exhibit A effective July 1, 2022, for Solid Waste Services.
Annual Rate Adjustments
The maximum rates provided in Exhibit A shall be automatically adjusted based upon the annual percentage change in the Consumer Price Index (CPI), All Urban Consumers for the Riverside-San Bernardino-Ontario, CA Metropolitan Area, as determined by the United States Department of Labor Statistics. However, the service component and disposal fee component are capped by a 4% maximum rate adjustment each year.
FOR CITY OF UPLAND SEWER CUSTOMERS
Proposed Rate Adjustments
The City of Upland provides sewer services to customers within the city limits and charges customers a Sewer Service Charge. The rate of the Sewer Service Charges has two customer classes: (1) residential (which includes single-family and multi-family customers); and (2) non-residential (which includes commercial, industrial, and institutional customers). The rates consist of two components: (1) a charge for capital replacement, operations and maintenance, billing, customer service, and other related costs for sewer collection (the “City Local Service Charge”); and (2) a charge for sewage treatment and disposal to recover wholesale charges imposed on the City of Upland by the Inland Empire Utilities Agency (IEUA), the agency that treats and disposes of sewage collected by the City (the “IEUA Charge”).
The rate for the City Local Service Charge is determined on an equivalent dwelling unit (EDU) basis.
For residential and multi-family properties, one EDU is the equivalent to approximately 270 gallons of discharge per day; therefore, these customers are assigned one EDU. Non-residential properties are assigned one or more EDU’s, depending on the projected quantity of wastewater a customer contributes (flow) to the wastewater system (determined on the basis of the number of fixture units) and the loads that a customer’s wastewater discharges put on the system (strength as determined on the basis of its discharge permit). The rates are calculated to proportionately allocate the costs of providing sewer services among the customer classes.
The current Sewer Service Charge is $29.69 per EDU. The City is proposing to increase the Local Service Charge to 10.85 per EDU, as previously approved by the Upland City Council. The City is also proposing to fully pass through the IEUA Charges. In 2018, IEUA began increasing their sewer treatment rates nearly annually, but the City did not increase the overall Sewer Service Charge.
This has reduced the City’s Local Service Charge component in order to cover the cost of IEUA’s sewer treatment charge component. IEUA is currently preparing to increase their monthly charge per EDU from the current FY 2021-22 rate of $21.22 to $21.86 for FY 2022-23, an approximate three percent increase. If the City does not increase the overall Sewer Service Charge to fully cover IEUA costs, it will result in an anticipated annual operating revenue/expenditure deficit to $1.8 Million for Fiscal Year 2022/23. The City anticipates that there will be future increases in the rates that IEUA imposes on the City for sewage treatment and disposal., the City is also proposing to pass-through any future increases in the wholesale charges imposed by IEUA on to the City. If approved, the annual pass-through adjustments to the IEUA Charges may be implemented each fiscal year beginning July 1, 2022, and each July 1 thereafter, through and including July 1, 2026.
If implemented, any annual IEUA Charge cannot exceed 7%, and shall not cause the sewer service charges to exceed the cost of providing sewer service.
If the rates are approved at the June 27, 2022 Public Hearing, those rates will take effect as follows:
Fiscal Year IEUA Sewer
Treatment
Component (Pass-
Through Rate)
($/EDU)
City Local Sewer
Service Component
($/EDU)
Total Monthly
Sewer Service Fee
($/EDU)
Change from Prior
Year
FY 2021-22 $21.22 $8.47 $29.69 Current
FY 2022-23 $21.86 $10.85 $32.71 10.2%
How to Protest
The record owner of any parcel upon which the proposed fees or charges are proposed to be imposed or any tenant directly responsible for the payment of solid waste or sewer charges (i.e., customer of record) may submit a written protest to the proposed rate increase; however, only one protest will be counted per identified parcel. Any written protest must: (1) state the protest is being submitted in opposition to the proposed rate increase; (2) provide the location of the identified parcel (by assessor’s parcel or street address); and (3) include the name and signature of the property owner or tenant directly responsible for the payment of the solid waste or sewer charges submitting the protest. Written protests may be submitted by mail or in person to the City Clerk at City of Upland, 460 N. Euclid Ave., Upland, CA 91786, by the close of the public comment portion of the Public Hearing on June 27, 202 2. Oral, telephonic, facsimile, and e-mail protests will not be accepted. Please identify on the front of the envelope for any protest, “2022 Public Hearing on Solid Waste and Sewer Rate Increases.”
The City Council will consider all written protests and hear and consider all oral comments to the proposed rate increases and annual adjustments for Solid Waste Services and Sewer Services at the Public Hearing. Oral comments at the Public Hearing will not qualify as formal protests unless accompanied by a written protest. Upon the conclusion of the Public Hearing, the City Council will consider adoption of the rate increases and annual adjustments to the Solid Waste Services and Sewer Services as described herein. If written protests against the proposed rates for Solid Waste Services and Sewer Services are not presented by a majority of the property owners of the identified parcels upon which the rates are proposed to be imposed and tenants directly responsible for the payment of the Solid Waste Services and Sewer Services, the City Council will be authorized to impose the Solid Waste Services and Sewer Services rates and annual rate adjustments as outlined above. If adopted, the proposed rate increases will take effect beginning July 1, 2022.
The City is conducting this Proposition 218 majority protest proceeding out of an abundance of caution and without conceding the applicability of Proposition 218 to Solid Waste Services.
Questions
If you have questions regarding how your rates will be affected or this notice, please contact Michelle Madriz, Management Analyst (909) 291-2935.
Current
Rate
Proposed
Rate
Current
Rate
Proposed
Rate
Residential Service Commercial Bin Trash Service
35-gallon trash barrel 22.07$ 24.67$ Size Freq 65-gallon trash barrel 27.40$ 29.64$ 1 1 94.22$ 95.90$ 95-gallon trash barrel 32.72$ 34.83$ 1.5 1 113.12$ 115.36$ Extra 35-gallon trash 10.83$ 10.75$ 2 1 132.19$ 135.04$ Extra 65-gallon trash 12.99$ 12.54$ 2 2 250.97$ 256.56$ Extra 95-gallon trash 15.10$ 14.47$ 2 3 369.71$ 378.04$ Extra pick-up - barrel 19.49$ 20.20$ 2 4 483.71$ 494.71$ Temporary Bins (7 day usage)147.82$ 153.23$ 2 5 601.30$ 615.02$ Temporary Bin - Extra Empty 147.82$ 153.23$ 2 6 689.79$ 705.97$ 3 1 179.25$ 183.37$
Commercial Recycling Bin Service (Extras)3 2 345.04$ 353.15$ Size Freq 3 3 510.85$ 522.96$
2 1 90.92$ 87.75$ 3 4 676.65$ 692.76$ 2 2 168.82$ 161.97$ 3 5 842.46$ 862.59$
2 3 246.67$ 236.15$ 3 6 1,008.21$ 1,032.33$
2 4 319.90$ 305.53$ 4 1 226.23$ 231.60$
2 5 396.63$ 378.54$ 4 2 439.08$ 449.72$
2 6 445.09$ 422.20$ 4 3 651.93$ 667.82$
3 1 117.90$ 112.43$ 4 4 864.70$ 885.88$
3 2 222.70$ 211.26$ 4 5 1,077.50$ 1,103.93$
3 3 327.54$ 310.13$ 4 6 1,290.30$ 1,321.99$
3 4 432.37$ 408.99$ 5 1 273.28$ 279.93$
3 5 537.21$ 507.87$ 5 2 533.13$ 546.29$
3 6 641.98$ 606.67$ 5 3 792.96$ 812.66$
4 1 144.78$ 137.01$ 5 4 1,052.80$ 1,079.01$
4 2 276.57$ 260.54$ 5 5 1,312.64$ 1,345.37$
4 3 408.35$ 384.05$ 5 6 1,572.48$ 1,611.73$
4 4 540.07$ 507.51$ 6 1 320.31$ 328.20$
4 5 671.81$ 630.98$ 6 2 627.15$ 642.83$
4 6 803.54$ 754.44$ 6 3 933.94$ 957.41$
6 4 1,240.79$ 1,272.04$
6 5 1,547.63$ 1,586.66$
Commercial/Multi-Family Green Waste Bin Service 6 6 1,854.51$ 1,901.32$ Size Freq
35-gallon Barrel 1 n/a 20.33$ Commercial Barrel Trash Service 35-gallon Barrel 2 n/a 37.39$ 65-gallon trash barrel 27.40$ 29.64$ 35-gallon Barrel 3 n/a 54.46$ 95-gallon trash barrel 32.72$ 34.83$ 35-gallon Barrel 4 n/a 71.53$ Exchange bbl (first free)19.66$ 20.41$ 35-gallon Barrel 5 n/a 88.60$ Extra pick-up - barrel 19.49$ 20.20$ 35-gallon Barrel 6 n/a 105.67$
65-gallon Barrel 1 n/a 23.90$
65-gallon Barrel 2 n/a 44.46$ Commercial Compactor Trash Service 65-gallon Barrel 3 n/a 65.02$ 3 1 339.64$ 339.64$ 65-gallon Barrel 4 n/a 85.58$ 3 2 666.02$ 666.02$ 65-gallon Barrel 5 n/a 106.16$ 3 3 992.37$ 992.37$ 65-gallon Barrel 6 n/a 126.72$ 3 4 1,318.77$ 1,318.77$ 2 1 102.79$ 103.70$ 3 5 1,645.15$ 1,645.15$
2 2 192.12$ 193.83$ 3 6 1,971.52$ 1,971.52$
2 3 281.47$ 283.97$ 4 1 444.71$ 444.71$
2 4 370.81$ 374.11$ 4 2 875.95$ 875.95$
2 5 460.12$ 464.21$ 4 3 1,307.25$ 1,307.25$
2 6 549.48$ 554.35$ 4 4 1,721.33$ 1,721.33$
3 1 135.14$ 136.34$ 4 5 2,148.33$ 2,148.33$
3 2 256.80$ 259.08$ 4 6 2,575.35$ 2,575.35$
3 3 378.46$ 381.83$
3 4 500.12$ 504.57$
3 5 621.83$ 627.36$ Miscellaneous Charges - Commercial 3 6 743.49$ 750.11$
4 1 167.42$ 168.91$ - Barrel Replacement 82.06$ 85.20$ 4 2 321.40$ 324.27$ comml-lost or stolen
4 3 475.39$ 479.62$
4 4 629.38$ 634.99$ - Bin Exchange (first Exchange free)95.24$ 98.90$ 4 5 783.38$ 790.36$ charge does not apply to graffiti or 4 6 937.33$ 945.68$ damaged bins
Exhibit A - Maximum Solid Waste Rates
Effective July 1, 2022
Service Type Service Type
Exhibit A - Maximum Solid Waste Rates
Effective July 1, 2022
Service Type Service TypeCommercial Food Waste Service - Stand Alone Roll-Off Refuse Size Freq 40 yd compactor - trash 1,009.50$ 1,036.90$
2 1 257.23$ 261.93$ 40 yd roll-off box - trash 815.06$ 836.73$ 2 2 472.97$ 482.01$ 19 yd roll-off box - trash 815.06$ 836.73$ 2 3 675.36$ 688.62$
2 4 877.98$ 895.42$ Roll-Off Recyling Materials Service + Actual Disposal 2 5 1,106.91$ 1,128.80$ Demo box - Inerts Clean 373.51$ 373.51$ 2 6 1,282.75$ 1,308.63$ C&D box 535.53$ 535.53$ 35-gallon Barrel 1 n/a 48.55$ Rolloff 40-Y Recyc. (6 tons max)237.55$ 239.64$ 35-gallon Barrel 2 n/a 85.54$ Rolloff 40-Y Comp Recyc. (8 tons max)240.33$ 242.44$ 35-gallon Barrel 3 n/a 118.65$ Rolloff 40-Y Greenwaste (6 tons max)247.85$ 247.85$ 35-gallon Barrel 4 n/a 151.69$ 40 yd roll-off box - clean wood/green 447.75$ 448.50$ 35-gallon Barrel 5 n/a 192.35$ Dry run charge 69.34$ 69.95$ 35-gallon Barrel 6 n/a 217.76$ Daily roll-off rental 33.95$ 34.24$ 65-gallon Barrel 1 60.43$ 61.59$ End Dump - Hourly Rate 169.40$ 170.89$ 65-gallon Barrel 2 109.92$ 112.12$
65-gallon Barrel 3 155.84$ 159.08$ Miscellaneous Charges 65-gallon Barrel 4 201.64$ 205.88$ Pull-out (0-25 ft) - All services N/C N/C 65-gallon Barrel 5 254.53$ 259.86$ Pull-out (26-50 ft) - 1 x Week 18.11$ 18.80$ 65-gallon Barrel 6 293.42$ 299.70$ Pull-out (26-50 ft) - 2 x Week 23.28$ 24.17$ Pull-out (26-50 ft) - 3 x Week 28.11$ 29.19$
Multi-Family Bin Trash Service w/Bulky Item Program Pull-out (26-50 ft) - 4 x Week 33.63$ 34.92$ Size Freq Pull-out (26-50 ft) - 5 x Week 38.80$ 40.29$ 1 1 101.85$ 103.79$ Pull-out (26-50 ft) - 6 x Week 43.97$ 45.66$
1.5 1 124.56$ 127.19$ Pull-out (51-75 ft) - 1 x Week 20.69$ 21.48$ 2 1 147.44$ 150.81$ Pull-out (51-75 ft) - 2 x Week 28.45$ 29.54$ 2 2 281.48$ 288.11$ Pull-out (51-75 ft) - 3 x Week 36.21$ 37.60$ 2 3 415.47$ 425.36$ Pull-out (51-75 ft) - 4 x Week 43.97$ 45.66$ 2 4 544.72$ 557.80$ Pull-out (51-75 ft) - 5 x Week 51.73$ 53.71$ 2 5 677.57$ 693.89$ Pull-out (51-75 ft) - 6 x Week 59.49$ 61.77$ 2 6 781.31$ 800.61$ Pull-out (76-100 ft) - 1 x Week 23.28$ 24.17$ 3 1 202.13$ 207.03$ Pull-out (76-100 ft) - 2 x Week 33.63$ 34.92$ 3 2 390.80$ 400.47$ Pull-out (76-100 ft) - 3 x Week 43.97$ 45.66$ 3 3 579.49$ 593.94$ Pull-out (76-100 ft) - 4 x Week 54.31$ 56.39$ 3 4 768.17$ 787.40$ Pull-out (76-100 ft) - 5 x Week 64.68$ 67.16$ 3 5 956.86$ 980.89$ Pull-out (76-100 ft) - 6 x Week 73.12$ 75.92$ 3 6 1,145.49$ 1,174.29$ Pull-out (101-125 ft) - 1 x Week 25.86$ 26.85$ 4 1 256.74$ 263.15$ Pull-out (101-125 ft) - 2 x Week 38.80$ 40.29$ 4 2 500.09$ 512.81$ Pull-out (101-125 ft) - 3 x Week 51.73$ 53.71$ 4 3 743.45$ 762.46$ Pull-out (101-125 ft) - 4 x Week 64.68$ 67.16$ 4 4 986.73$ 1,012.07$ Pull-out (101-125 ft) - 5 x Week 77.60$ 80.57$ 4 5 1,230.03$ 1,261.66$ Pull-out (101-125 ft) - 6 x Week 90.53$ 94.00$ 4 6 1,473.34$ 1,511.27$ Pull-out (126-150 ft) - 1 x Week 28.45$ 29.54$ 5 1 311.41$ 319.36$ Pull-out (126-150 ft) - 2 x Week 43.97$ 45.66$ 5 2 609.40$ 625.16$ Pull-out (126-150 ft) - 3 x Week 59.49$ 61.77$ 5 3 907.36$ 930.96$ Pull-out (126-150 ft) - 4 x Week 75.02$ 77.90$ 5 4 1,205.33$ 1,236.74$ Pull-out (126-150 ft) - 5 x Week 90.53$ 94.00$ 5 5 1,503.31$ 1,542.54$ Pull-out (126-150 ft) - 6 x Week 106.05$ 110.11$ 5 6 1,801.28$ 1,848.33$ Pull-out (over 150 ft) - 1 x Week 31.04$ 32.23$ 6 1 366.07$ 375.52$ Pull-out (over 150 ft) - 2 x Week 49.13$ 51.01$ 6 2 718.67$ 737.47$ Pull-out (over 150 ft) - 3 x Week 67.25$ 69.83$ 6 3 1,071.22$ 1,099.37$ Pull-out (over 150 ft) - 4 x Week 85.37$ 88.64$ 6 4 1,423.83$ 1,461.32$ Pull-out (over 150 ft) - 5 x Week 103.47$ 107.44$ 6 5 1,776.43$ 1,823.26$ Pull-out (over 150 ft) - 6 x Week 121.57$ 126.23$ 6 6 2,129.07$ 2,185.24$
Miscellaneous Charges Miscellaneous Charges
Extra pick-up - bin 71.02$ 73.62$ Steam Cleaning 55.12$ 57.13$ Extra pick-up - compactor bin 130.74$ 135.54$ Bulky Charge per Item 16.79$ 16.94$ Extra pick-up - G/W bin 42.10$ 42.47$ Bulky Item Trip Charge 44.75$ 45.15$ Extra pick-up - F/W bin 94.52$ 95.62$ Steam Cleaning - Compactor 190.53$ 197.48$ Extra pick-up - F/W barrel 30.09$ 30.37$ Dump and Destroy Fee 113.19$ 117.40$ Tilt-Hopper 45.56$ 47.26$
Temporary bin (7 day usage)147.82$ 153.23$ Contamination Fee:
Temporary bin - extra empty 147.82$ 153.23$ - Commercial Barrels 30.09$ 30.37$ Locking bin 15.74$ 16.31$ - All Bins 71.02$ 73.62$
Item No. 12A
PUBLIC SAFETY COMMITTEE MEETING
JUNE 20, 2022
**********
CONCLUSION/ACTION SUMMARY
In attendance: Committee Chairperson Garcia, Committee Member Elliott, and Acting Police Chief Blanco.
1) ORAL COMMUNICATIONS None
2) PRESENTATION ON THE DIRECTION FOR THE UPLAND POLICE
DEPARTMENT, Acting Police Chief Blanco gave a presentation on the direction for the Police Department under his leadership, including goals for staff, Corporal and Special Assignments, recruitment and retention of police officers, and community goals.
Public Safety Committee
June 20, 2022
5:00 P M
Carnegie Building, 123 East D Street
***************
1.C A L L TO O R D E R A ND R O L L C A L L
2.O R A L C O MMUNI C AT I O NS
3.P R E S E NTAT I O N O N T HE D I R E C T I O N F O R T HE UP L A ND P O L I C E
D E PA RT ME NT
NOT E: A ll Agenda items and back-up materials are available for public review at the U pland P ublic Library, downstairs reference desk at 450 N orth E uclid Avenue, the C ity C lerk's O ffice at 460 N orth E uclid Avenue and the C ity website at www.uplandca.gov .
I n compliance with the A mericans with D isabilities Act, if you need special assistance to participate in this meeting, please contact the C ity C lerk's Office at 909.931.4120. N otification 48 hours prior to the meeting will enable the C ity to make reasonable arrangements to ensure accessibility to this meeting. [28 C F R
35.102-35.104 A DA Title I I ]
P O S T I N G S T A T E M E N T : O n J une 16, 2022, a t ru e a n d co rre ct co p y o f t hi s a g e nd a w a s p o s t e d a t 123 E . D S t re e t (C a rne g i e B u i l d i ng ), o n t he b ul l e t i n b o a rd s a t 450 N . E ucl i d A ve nue (U p l a n d P ub l i c L i b ra ry), 4 6 0 N . E u cl i d Ave n u e (U p l a nd C i t y H a l l ), a n d o n t he C i t y's w e b s i t e a t w w w.u p l a nd ca .g o v
You may view the video of the meeting at:
https://uplandca.gov/council-meeting-
broadcasts
(choose the tab for “other archived meetings”
to locate the meeting video)
S T A F F R E P O R T
I T E M N O . 13.A .
D A T E :J u ne 2 7, 2 02 2
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : K E R I J O H N S O N , C I T Y C L E R K
A L I S O N W A L K E R , D E P U T Y C I T Y C L E R K S U B J E C T :D I S C U S S I O N O F Q U A R T E R LY R E P O R T O N S A N A N TO N I O W A T E R
C O M PA N Y A N D W E S T E N D C O N S O L I D A T E D W A T E R C O M PA N Y
R E C O M M E N D E D A C T I O N
I t is recom m en d ed that th e C it y C oun cil d is cu ss wh eth er an oral rep ort shou ld b e p rovid ed to C ou ncil, b y a m em b er of the S an A nt oni o W ater C om p an y (S A W C o) B oard an d Wes t E n d C on solid ated Water C om p any (West E nd ) B oard , on a q u arterly b asis.
G O A L S T A T E M E N T
Th e p rop os ed act ion sup p orts th e C it y's g oal t o b e tran sp aren t i n th e ad m inistration of al l C ity affairs.
B A C K G R O U N D
At t he req u est of M ayor Velto an d C oun cil M em b er M au s t th is it em has b een p laced on the ag en d a for d iscussion b y th e C ou ncil.
I S S U E S /A N A L Y S I S
Th e C it y of U p lan d own s con troll in g i n t eres ts of th e S an A n t on i o Wat er C om p any (7 0.6 6% in terest) an d th e W est E nd C onsolid at ed Wat er C om p an y (91 % int erest). A s t h e m ajority sh areh old er of b oth S A W C o an d West E nd th e C ity h as a vested in terest in b oth com p anies.
F I S C A L I M P A C T S
Th ere is n o fiscal im p act associated with th is action .
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
No Attachments Available
S T A F F R E P O R T
I T E M N O . 13.B .
D A T E :J u ne 2 7, 2 02 2
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : S T E P H E N P. D E I T S C H , C I T Y A TTO R N E Y S U B J E C T :A N O R D I N A N C E R E Q U I R I N G A S U P E R M A J O R I T Y V OT E O F T H E
C I T Y C O U N C I L TO H I R E O R F I R E A C I T Y M A N A G E R O R C I T Y
A TTO R N E Y D U R I N G A L A M E D U C K P E R I O D
R E C O M M E N D E D A C T I O N
I t is rec om m en d ed that t he C i ty C oun cil hol d first read in g b y ti tl e only, waive fu rt h er read in g and i n t rod u c e an O rd inan ce ad d in g U p land M u nicip al C od e S ect ion 2 .02 .16 0 req u irin g a su p erm ajority vot e of t h e C it y C ou ncil t o hire or fi re a C i ty M anag er or C it y At torn ey d urin g a lam e d u ck p eriod .
G O A L S T A T E M E N T
Th e p rop os ed action su p p ort s th e C i ty’s overall g oal of assurin g a sou nd C i ty C ou ncil d ecision- m aking p rocess d urin g the p eriod of tran sition after the election of new C oun cil M em b ers.
B A C K G R O U N D
At its Reg u lar M eetin g on M ay 2 3, 2 02 2, the C ity C ou ncil d iscussed and d irected th e C ity Attorn ey to p rep are an ord in ance for c on s id erat ion b y t h e C it y C ou n c il req u i ri n g a su p erm ajority vote to h ire or fire a C it y M anag er or C ity Attorn ey d urin g th e p eriod follow in g th e el ect ion of one or m ore n ew C ou n ci l M em b ers and b efore t he d ate th e newly con stituted C ity C ou ncil is seat ed . I n p arti cu lar, t h e C ity C oun cil exp ressed a g oal of as su ri n g t h at a lam e d u ck C ity C ou n c il d oes n ot easi ly or frivol ous ly m ake d ecisions concern in g su ch sig n ifican t m atters, an d instead of facilitatin g the p ossib ility th at a n ew ly constitu ted C ity C oun cil h as the op p ortun ity to m ake su ch im p ortan t d ecisions.
I S S U E S /A N A L Y S I S
Th e C i ty C ou n ci l has th e au th ority t o m ake vari ous em p loyee and /or i n d ep en d en t con tractor d ecision s in cl u d in g , b ut not lim ited t o, th e hiring and fi ri n g of th e C ity M an ag er and th e C ity Attorn ey. D urin g a lam e d uck or an y oth er p eriod , the C ity cou ncil b y law m ay n ot d ivest itself or fu tu re C ity C ou ncils of th e exercise of p owers p rovi d ed b y S tate con st it u t ion al and g eneral law. T h i s p rin ci p l e h as b een es tab li sh ed , an d reaffirm ed , b y t he C alifornia S up rem e C ourt.
S ee T hom p son v. B oard of Trus tees of C it y of A lam ed a (1 90 4) 1 44 C al. 2 81 ; see als o C it y an d C ou nty of S an F rancisco v. C oop er (1 97 5) 1 3 C al.3 d 8 98 .
Th e C i ty C ou n c il i s th u s p reem p t ed b y S t ate law from ad op t in g an ord in ance p roh ib itin g itself, or future C ity C oun cils, from taking actions reg ard ing such m atters as th e h irin g and firing of th e C it y M anag er or C ity At torney. A g en eral law c it y s u c h as U p land h as onl y t h os e p owers exp ressly conferred u p on it b y t h e C alifornia C on st it ut ion an d C aliforn ia stat ut es, an d th ose p owers i n c id en t al to th e ob jec t an d p urp oses of th e C it y’s p owers. S ee I rwin v. C i ty of M an hattan B each (1 9 6 6 ) 6 5 C 2d 1 3, 20 . Th e C it y C oun ci l’s p ow er to con d u ct g overn m en t b u siness b y a vote, at a m in im um , of th e m ajorit y of th e C ity C ou ncil si tt in g i n q u oru m (e.g ., to h ire/fire a C ity M an ag er or C ity At torn ey) d erives from s tat e l aw. S ee e.g . G ov. C od e § 36 81 0. T h e C i ty d i d n ot g ran t it sel f t h i s p ower. S in ce it d oes not h ave t he aut horit y to g ran t itself th is p ower, it can not p rohib it the exercise of this p ow er.
O p tion To I m p ose P roced u ral Restriction O n E xercise O f Power N otwith stand in g t he foreg oi n g , th ere are op p ortu ni ti es t o p l ace p roced ural safeg u ard s on the exercise of t he C it y C ou n ci l’s p owers. For exam p le, th ere are no p rovis ion s i n S tat e law restricting a ci ty cou n c il ’s au th ority to im p ose s tric ter vot in g req u irem en ts u p on i ts elf or fu tu re city c ou n ci ls . F urth erm ore, G overn m en t C od e S ec ti on 36 81 3 st ates that a c it y coun cil “m ay estab lish ru les for th e con d u ct of it s p roceed ing s.” T h is st atu te can reasonab ly b e interp reted to au th ori ze th e C i ty C ou nc il to im p os e h eig ht ened voti n g req u irem en ts to take act ion , eith er b y a sup erm ajority vote (e.g , 4 /5 or a m inim u m of 4 affirm ative votes) or a un anim ou s vote.
Th e p rop osed O rd in anc e w ould req u ire t h at d u ri n g th e p eriod b etw een th e elec ti on of on e or m ore n ew C oun ci l M em b ers an d th e d ate the newly c on s ti tu ted C it y C ou ncil i s seat ed , a m inim u m of fou r affirm ative votes w ou l d b e req u i red for th e C ou ncil to h ire or fi re t h e C ity M an ag er or the C ity A tt orn ey. Th us , t h es e t w o s ig n i fic an t d eci si on s an d act ion s w ou l d m ore easily b e d eferred to th e n ew l y constitu ted C i ty C ou n ci l, w hich is th e C ity C ou ncil th at w ould have to w ork with b oth the C ity M an ag er and C ity Attorney g oin g forw ard .
F I S C A L I M P A C T S
Th e fis cal im p act is l im it ed to th e cos ts of p u b li cat ion of th e O rd in an c e sum m aries an d cod ification of the O rd i n an ce in to t h e U p lan d M u nicip al C od e. T h es e cost s h ave b een in clud ed in th e C ity C lerk b u d g et, an d n o ad d ition al ap p rop riation is necessary.
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
Ordinance
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
UPLAND, ADDING UPLAND MUNICIPAL CODE SECTION
2.02.160 REQUIRING A SUPERMAJORITY VOTE 0F THE
CITY COUNCIL TO HIRE OR FIRE A CITY MANAGER OR CITY
ATTORNEY DURING A LAME DUCK PERIOD
WHEREAS, California Constitution, article XI, section 7, authorizes the City of Upland (“City”) to adopt and enforce local police, sanitary, and other ordinances and regulations that are not in conflict with the general laws; and
WHEREAS, Government Code Section 36813 states that a city council “may establish rules for the conduct of its proceedings;” and
WHEREAS, a lame duck period is the period of time following a municipal election until the time of organization and seating of the newly constituted City Council, if there are one or more new members elected to the City Council; and
WHEREAS, the City desires to impose a supermajority (4/5ths) vote requirement upon the City Council to hire or fire a City Manager or City Attorney during a lame duck period; and
WHEREAS, the City desires to impose such a heightened voting requirement so that key public officials such as the City Manager and the City Attorney are not hired or fired by a lame duck City Council given that some or a majority of a lame duck City Council may be making decisions for a newly constituted City Council that may disagree with the decision of a lame duck City Council; and
WHEREAS, the City desires to have the decision to hire or fire the City Manager or City Attorney made by a City Council that will remain in office for a sustained period of time, not merely a short time in the case of lame duck City Councilmembers.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF UPLAND DOES ORDAIN AS FOLLOWS:
Section 1. The above recitals are true and correct and are hereby incorporated herein by this reference.
Section 2. Section 2.02.0160 (Supermajority Voting Requirement For Lame Duck City Council) is hereby added to the Upland Municipal Code to read in its entirety as follows:
“2.02.160 Supermajority Voting Requirement For Lame Duck City Council During the period between the election of one or more new Council Members and the date they officially assume office, the City Council shall not take action to hire or fire
Ordinance No.
the City Manager or City Attorney other than by a minimum of four (4) affirmative votes.”
Section 3. Compliance with California Environmental Quality Act. The City Council finds that this Ordinance is not subject to the California Environmental Quality Act (“CEQA”) pursuant to California Code of Regulations, title 14, chapter 3 (“CEQA Guidelines”), sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potential for resulting in physical change to the environment, directly or indirectly. Further, if the activity is deemed a project, the City Council finds that this Ordinance is exempt pursuant to CEQA Guidelines section 15061(b)(3).
Section 4. Severability. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The City Council hereby declares that it would have adopted this Ordinance irrespective of the invalidity of any particular portion thereof.
Section 5. Effective Date. This Ordinance shall become effective 30 days from its adoption.
Section 6. Publication. The City Clerk shall certify to the adoption of this Ordinance and cause it, or a summary of it, to be published in a newspaper of general circulation printed and published within the City, pursuant to all legal requirements.
PASSED, APPROVED, and ADOPTED this __th day of _________ , 2022.
Bill Velto, Mayor
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I, Keri Johnson, City Clerk of the City of Upland, California, do hereby certify that the foregoing Ordinance was introduced at a regular meeting of the City Council of the City of Upland held on the __th day of , 2022, and was adopted at a regular meeting of the City Council of the City of Upland on the __th day of , 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAINED:
ATTEST:
Keri Johnson, City Clerk