HomeMy WebLinkAboutStaff Report 4.A 1/28/2013DATE: January 28, 2013
TO: Honorable Mayor and Members of the City Council through City Manager
FROM: DanJ CE —Director, Public Works &Utilities
Rein c erzinger, P.E. — Utilities Engineering Manager
SUBJECT: Resolution Approving Non-exclusive Franchise Agreement Required for Drop
Box Collection and Disposal of Construction Debris and Commercial Recyclable
Materials
RECOMMENDATION
It is recommended that the City Council adopt:the attached Resolution approving the Non-
exclusive Franchise Agreement required for drop box collection and disposal of construction
debris and commercial recyclable anaterials.
BACKGROUND
In January, 2006,_the City Council. approved Resolution N.C.S. 2006-018 authorizing the use of
Non-exclusive Franchise Agreements for drop box collection. The original form agreements
required._a.franchise fee and administrative fee and had a term of five years with a one year
extension. Although the 2006 form agreement"included a paragraph describing a Vehicle Impact
Fee (VIF), the VIF was not separately itemized! A fee"component for wear and tear on city
streets is part of the existing, and recently approved new exclusive franchise agreement with
Petaluma Refuse and Recycling for garbage collection. The proposed agreement for drop box
collection now includes a Right of Way Franchise Fee„Pavement Condition Franchise Fee, and
Contract Administration Fee.
DISCUSSION
There are currently three Construction and Demolition (C&D).haulers operating in the City .
under the terms of the prior form contract. Those agreements have technically expired. Gross
annual revenues ofthe 'C&D'.Haulers are approximately $200,000. The existing service
providers have indicated that they would like a longer term agreement. Based on the City's
needs, staff has identified necessary modifications to the franchise fee and other provisions.
These include an increase in the percentage of gross revenue from 13.22% -to 14.4% paid as a
franchise fee to the City. The new form agreement proposes'a two part franchise fee. A flat ten
percent (10%) component of the fee; referred to as Right of Way Franchise Fee, represents the
Agenda Review: ^ do
Cit Attorne_yl/„v/I"'./,o l\JJi Finance Dir or City Mana er
existing. general franchise fee. The 4A% component, referred to as Pavement Condition
Fianchise'Fee, is intended to defray wear and tear costs on city streets from operation of the
collection vehicles. Combined, this fee structure represents a 1.18% increase from the former
agreement. The fee increases are based on an updated analysis of pavement impacts caused by
the C&D haulers equipment which was completed in 2012. The administrative fee remains in
the new agreement and has been increased from $120 to $150 monthly. This adjustment is based
on the current work order rates (FYI 3) and represents an average of the amount of time needed
to process the quarterly reports and billings for each individual, hauler.
Some of the haulers have indicated a longer term for the agreement will allow them to qualify for
financing to improve necessary facilities. Staff recommends that each agreement using the
proposed form run from the date of its execution to December 31, 2020, absent early termination
for cause by the City. This approximates a 7 -year term for the existing haulers, and will
accommodate the city's needs to perform periodic review of the non-exclusive franchise. It will
also enable haulers to achieve economies of scale, allowing them to invest in their current
operations.
Staff recommends approving the attached standard agreement by resolution such that future form
contractssubstantially in conformance with itsiterms can be executed by the City Manager, as
authorized by Petaluma Municipal Code section 8.16.115.13. This, will allow the City Manager to
enter into agreements with the existing C&D haulers and new haulers on an as needed basis.
The proposed action meets Council Goal: "Improve and enhance fiscal stability and
sustainability."
FINANCIAL IMPACTS
Collected fees will be distributed 10% to the General fund and 4.4% to the Street fund. The
current three C&D service providers represent annual combined revenue of approximately _
$30,000.
ATTACHMENTS
1. Resolution
2. Franchise Agreement
RESOLUTION APPROVING.NON
REQUIRED FOR DROP BOX COLLET
DEBRIS AND COMMERC
Attachment 1
AGREEMENT
INANDDISPOSAL,OF CONSTRUCTION
RECYCLABLE` NIATERIA LS
WHEREAS, by adopting Ordinance.2284 N.C.S., on;September 10, 2007, the City Council
amended its program to license haulers on a no, basis to collect and dispose of
construction and demolition materials ("C&D") and commercial recyclable materials; and
WHEREAS,. Ordinance 2284, as codified at Petaluma Municipal Code section 8.16.115,
permits the approval by City Council resolution of a form non-exclusive franchise agreement for
C&D and commercial recyclable materials and subsequent execution of form agreements by the
City Manager; and
WHEREAS, the City has determined that the prior form agreement approved by City Council
Resolution No. 2006-018 N.C.S., which resolution was ratified by Ordinance 2284 N.C.S., is in
need of modification to, among other things, adjust the franchise fee amount, include an annual
cost escalator, adjust the administrative fee and lengthen the initial term of the agreement from
five years to ten years; and
WHEREAS, the City desires.to continue to allow non-exclusive collection and disposal of drop
box containers for construction debris and commercial recyclable materials under strict
collection, diversion, reporting and disposal requirements by means of a modified form non-
exclusive franchise agreement.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Petaluma
hereby:
1. Approves the form Non -Exclusive Franchise Agreement attached to this resolution as
Exhibit A.
2. Authorizes the City Manager or his designee to execute form Non -Exclusive Franchise
Agreements which are substantially in conformance with the form agreement attached as
Exhibit A on behalf of the City of Petaluma.
CITY OF PETALUMA
Application Instructions for a
Non -Exclusive Franchise Agreement
for Drop Box Collection
of Construction and Demolition Debris
and/or Commercial Recyclable Materials
IMI *K"11Z6lf10r
Attachment 2
The City of Petaluma,(City), in accordance with the California Integrated Waste Management
Act (Act) of 1989, is required to divert 50% of discarded materials from landfills. The City finds
that reusing and recycling construction and demolition debris (C&D) and recyclable materials
generated by commercial premises is essential to further the City's efforts to reduce waste and
comply with the Act, and that regulating and monitoring the activities of the drop box collection
companies that handle C&D and commercial recyclable materials will assist the City in
accomplishing its diversion goals.
This City is exercising its right under Chapter9. 16.115 of the City's Municipal Code to provide
for the collection, transportation, processing, recycling and disposal ofC&D and commercial
recyclable materials placed in -drop boxes through non-exclusive agreements granted to one or
more collection providers. The City requires all companies providing drop box collection
services for C&D and commercial recyclable materials in the City to enter into a non-exclusive
franchise with the City in order to regulate this1collection and recycling business, to ensure its
orderly operation, and to minimize the potential for adverse effects it,may have on the local
environment. The non-exclusive franchise agreement for drop box collection and recycling
services for C&D and commercial recyclable materials (Attachment 1 hereto), describes the
terms and conditions that collection company must comply with including, but not limited to,
diversion of at least 60% of all C&D collected, diversion of at least 90% of the commercial
recyclable materials collected, payment of franchise fees and other fees to the City, and reporting
of customer and collection data to the City.
Companies can apply for a non-exclusive franchise agreement for collection of only C&D, only
commercial recyclable materials, or both C&D`and commercial recyclable materials.
APPLICATION PREPARATION AND SUBMITTAL INSTRUCTIONS
Companies interested in entering a non-exclusive franchise agreement with the City granting
them right to provide drop box collection and recycling services for C&D and/or commercial
recyclable materials in the City shall prepare and submit an application to the City in accordance
with the instructions provided herein. An application fee of $500, in the form of a check payable
to the City of Petaluma, shall be submitted with the application.
The applicant: shall submit six copies of its completed application and, its application fee by mail
or in person to:
0
City Manager
City of Petaluma
I 1 English Street
Petaluma, CA 94952
(707)778-4345
APPLICATION CONTENT
The application shall contain the information requested in items I through 5 of this section.
Aoalicant Information. Provide a cover letter that includes, at.a minimum, the
following applicant information. The cover letter shall be signed by an officer or agent of
the company submitting the application, who is duly authorized to bind the company to
the application.
A. Company Name:
B. Company Type:
❑ Sole Proprietorship
1
❑ Partnerships (includes limited, general, and limited liability partnerships)
I
❑ Corporation (includes limited liability coftipanies)
C. Contact Name/Title:
D. Mailing Address:
City
Zip- Phone:
E. Fax: Email:
F. Services to be Provided (check all that apply): ❑ C&D ❑ Commercial Recyclables
2. Oualification Information:
A. Experience - Describe the applicant's experience in providing drop box
collection, transportation, processing, and/or disposal services for C&D and/or
commercial recyclable materials in the City, in Sonoma County, or in similar
jurisdictions in California in which the applicant is:
Required to operate under a non-exclusive franchise or permit system
Not required to operate under a non-exclusive franchise or permit system:
B. Municipal References - Provide the name, title, address, and telephone number of
at least ;one jurisdiction representative're§p6nsible for administering the non-
exclusive franchise or permit system, where applicant provides services, which
the City may contact to conduct a reference check.
C. Customer References -. Provide the name, title, address, and telephone number of
at least three customers that recently received or currently receive drop box
collection services provided by the applicant, which the City may contact to
conduct a reference check.
D. Proof of Insurance - Provide proof of insurance in the amounts specified in
Section 10.2 of the attached non-exclusive franchise agreement.
E. Litisation, Regulatory Actions, and Liquidated DamaReS - Describe all past and
pending civil, legal, regulatory, and criminal actions now pending or for which
judgments were made in the past five years against the applicant, applicant's key
personnel, and all subsidiaries owned by applicant that are affiliated with solid
waste,recyclable. materials, yard trimmings, and C&D businesses. List the
amount of liquidated damages, fines, and/or penalties the applicant has paid, the
name of the jurisdiction to which such payments where paid, and the event(s)
which triggered the damages, fines, or penalties.
3. Overations Information
A. Diversion Plan - Describe applicant's plan to.divert at least 60% of the C&D
collected and/or 90% of all commercial recyclable materials collected, as
applicable. Provide, at a minimum, a list of materials to be accepted, a list of
facilities to be used to process C&D and/or commercial recyclable materials
collected, and the markets for such C&D and/or commercial recyclable materials.
Identify the disposal site to be used for disposal of processing residue, and C&D
and/or commercial recyclable materials, which is not otherwise diverted from
disposal.
B. Vehicles - Provide a description of the vehicles reasonably expected to be used to
provide service through the term of the non-exclusive franchise agreement. At a
minimum, include the vehicle make, model, year, and weight.
C. Drop boxes - Provide a description of the containers reasonably expected to be
used to provide service through the term of the non-exclusive franchise
agreement. At a minimum, include the number, type, and size of containers.
D. Hazardous Substance Procedures - Describe procedures for identifying and
handling hazardous waste disposed in the C&D and commercial recyclable
materials collected by the applicant. The plan shall describe: identification and
screening procedures; notification plan; disposal plan; and, employee training
program.
E. Customer Service Plans - Identify the location and hours of the applicant's
customer service center, which shall be available to all C&D and commercial
recyclable materials customers in accordance with Section 5.5 of the non-
exclusive franchise agreement.
F. Billing Services - Describe applicant's procedures for billing C&D and
commercial• recyclable materials customers and recording customer payments.
4. Sinned Non -Exclusive Franchise Agreement
Attach to the application a signed copy of the non-exclusive franchise agreement (which
is Attachment I hereto) including the Secretary's Certificate (Exhibit C of the non-
exclusive franchise agreement), if appropriate.
Statement of Understanding and Representations
Attach a signed copy of the statement of applicant's understanding and representations
(which is Attachment 2 hereto). ,
QUESTIONS
An applicant or'prospective applicant may submit written questions to the City regarding the
non-exclusive franchise agreement or the application instructions. All questions shall be
submitted to:
City Manager
City of Petaluma
11 English Street
Petaluma, CA 94952
(707) 778-4345
CITY REVIEW
The City shall review the application. During the City's review, the information submitted in the
application may be subject to verification. The applicant shall cooperate with the City's review
ofits application and any City request for clarification or additional information. Failure to
pmvide,all required application information, false, inaccurate or misleading information, may be
grounds for rejection of your application.
Within 60 days of receipt of the application, the City shall provide a written response to the
applicant notifying the applicant of the City's intent to seek City Council approval of the non-
exclusive'franchise agreement and the date such approval will be requested, or the City's
rejection of the application.
NON-EXCLUSIVE FRANCHISE AGREEMENT
BETWEEN
THE CITY OF PETALUMA
AND
FOR
DROP BOX COLLECTION AND RECYCLING
OF CONSTRUCTION AND DEMOLITION DEBRIS AND COMMERCIAL
RECYCLABLE MATERIALS
Scope of Agreement: (check all that apply)
❑ Construction and Demolition Debris (C&D)
❑ Commercial.Recyclable Materials
Table'(if Contents
CITYOF PETALUMA..:....................:.....................::.....................:.......................................4
1 Operations Information................:.......:....................................................................6
RECITALS..............................................................................................................................1
ARTICLE 1 DEFINITIONS• .....................................;.......
3
ARTICLE 2 REPRESENTATIONS AND WARRANTIES'OF THE CONTRACTOR ....... 9
ARTICLE 3 TERM OF AGREEMENT................................................................................10
ARTICLE 4 SCOPE OF AGREEMENT..............................................................................11
ARTICLE�5 COLLECTION, RECYCLING, AND DISPOSAL SERVICES ...................... 15
r
ARTICLE 6 STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT,
ANDPERSONNEL................................................................:...............................................18
ARTICLE 7 RECORD KEEPING AND REPORTING.......................................................25
ARTICLE 8 FRANCHISE FEES AND OTHER FEES........................................................29
ARTICLE 9 CONTRACTOR'S COMPENSATION AND RATES.....................................31
ARTICLE 10 INDEMNITY AND INSURANCE ..................................................................32
ARTICLE 11 DEFAULT AND'-REMEDIES!........................................................................37
l
ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES...............................................42
ARTICLE 13 MISCELLANEOUS AGREEMENTS............................................................46
List of Exhibits
A Contractor's Application,
B Schedule for Liquidated Damages
C Secretary's Certification
Page i
NON-EXCLUSIVE. FRANCHISE AGREEMENT
BETWEEN
THE CITY OF PETALUMA
AND
FOR DROP BOX COLLECTION AND RECYCLING OF
CONSTRUCTION AND DEMOLITION DEBRIS AND COMMERCIAL
RECYCLABLE MATERIALS
This non-exclusive franchise agreement (Agreement) is made and entered into this day
of , 20 , by and between the City of Petaluma, a charter city, (City) and
(Contractor.)
This Agreement grants Contractor the rights to'Collect,the following types of materials pursuant
to the terms and conditions of this Agreement: (check ail that apply)
❑ Construction and Demolition Debris (C&D) ❑ Commercial Recyclable Materials
If Contractor's rights are limited to C&D Collection, any and all rights and terms and conditions
related to Commercial Recyclable Materials referenced in this Agreement shall not pertain to the
Contractor. If Contractor's rights are limited to Commercial Recyclable Materials Collection,
any and all rights and terms and conditions related to C&D referenced in this Agreement shall
not pertain to the contractor.
Contractor's Initials City Manager's Initials
RECITALS
This Agreement is entered into with reference to the following facts and circumstances:
WHEREAS, the Legislature of the State of Califorma,:by enactment of the California Integrated
Waste Management Act of 1989 ("Act" or "AB939") and subsequent additions and amendments
(codified at California Public Resources Code Section 40000 et seq.), has declared that it is in the
public interest to authorize and require local agencies to make adequate provisions for Solid
Waste Collection within their jurisdiction; and,
WHEREAS, the State of California ("State") has found and declared that the amount of Solid
Waste generated in California, coupled with diminishing landfill space'and potential adverse
environmental impacts from land filling and the need to conserve natural resources, have created
an urgent need for State and.local agencies to enact and implement an aggressive integrated
waste management program. The State has, through enactment of the Act, directed the
responsible State agency, and all local agencies, to promote Disposal Site Diversion and to
maximize the use of feasible Solid Waste reduction, rc=use, Recycling, and Composting options
iworder'�to,reduce the amount of.Solid Waste that.mustbe'Disposed of in Disposal Sites; and,
WHEREAS, the Act requires local agencies to Divert 50% of discarded materials from landfills;
and,
WHEREAS, landfill Disposal capacity in Sonoma County is in,short supply, and the City is
currently directing its Solid Waste to landfill located outside of the County; and,
WHEREAS, the City finds that reusing and Recycling Construction and Demolition Debris
(C&D) and Commercial Recyclable Materials is essential to further the City's efforts to reduce
Solid Waste Disposal and comply with the Act; and
WHEREAS, under Chapter 8.16:115 ofthe City's Municipal Code, the City.has the authority to
provide for the Collection, Recycling, and Disposal of C&D and Commercial Recyclable
Materials in Drop Boxes through a license granted to a Solid Waste Collection provider; and
WHEREAS, the City requires all haulers providing, Drop Box Collection services for C&D and
CommercialRecyclableMaterials in the City to obtain a non-exclusive franchise in order to
regulate this business,, ensure its orderly operation, and to, minimize the potential foradverse
effects it may have on the local environment; and
WHEREAS, the City Council has determined through.an application process, that -the
Contractor, by demonstrated experience, reputation, and capacity, is qualified to provide for the
Drop Bm
ox Collection of C&D and/or Commercial Recyclable Materials within the corporate
limits of the City and the Transportation of such material to appropriate places of Recycling,
Processing, and/or Disposal, and can provide insurance consistent with the City's requirements.
The City Council desires that Contractor -be engaged to perform -such services on the basis set
forth in this Agreement; and
WHEREAS, Contractor intends to use.the City's streets; alleys, other public rights -of way, and
infrastructure to provide C&D and/or Commercial Recyclable Materials, Collection'services,to
the City's residents and businesses; and
WHEREAS, the City intends to receive•just and reasonable fees from the Contractor'for,City's
administration of the Agreement and for Contractor's use of the City streets, alleys, other public,
rights-of-way, and infrastructure which the City may lawfully impose and the companies are
obligated to pay; and,
WHEREAS, this Agreement is satisfactory to the Parties,
NOW, THEREFORE, in consideratiomof the mutual promises, covenants, and conditions
contained in this Agreement and for`other.good and valuable cohsideration,'the Parties agree as
follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, unless a different meaning.is,clearly required, the following
words and phrases shall have the following meanings respectively ascribed to them by this
Article -and shall be capitalized throughout this. Agreement:
"Abandon" means the following:
a. Contractor's failure to remove a Contractor -owned Drop Box within 5 calendar
days of receiving a written request from a Customer or the City, or
b. Contractor's failure to remove a Contractor -owned Drop Box within 30 calendar
days upon terminatiotrofthis Agreement.
"Act" means the California integrated Waste Management Act, of 1989 (Division 30 of the
California Public Resources Code), as amended, supplemented, superseded, and replaced from
time to time.
"Agreement" means this Agreement between the City, and`Contractor for the Drop Box
Collection, Transportation, Recycling, Processing, and .Disposal of C&D and Commercial
Recyclable Materials including all exhibits, and any future amendments hereto.
"Applicable Law" means all Federal, State, and local laws, regulations, rules, orders,
judgments, degrees, permits, approvals, or other requirement of,any governmental agency having
jurisdiction over the Drop Box Collection, Transportation, Recycling, Processing, and Disposal
of C&D and Commercial Recyclable Materialsithat are in force on the Effective Date and as they
may be enacted, issued, or amended during the Term of this Agreement.
"Approved C&D Processing, Site"' means the processing site on Road in
, California,(name and address of Contractor's processing site), which was
selected by Contractor and approved by the City.
"Approved Commercial Recyclable Materials Processing Site" -means the
processing site on Road in , California (name and address of
Contractor's processing site), which was selected by Contractor and approved by the City:
"Approved Disposal Site" means the Disposal Site on Road iir
California (name and address of disposal site where C&D'and Commercial Recyclable Materials
residue will be disposed), which was selected by Contractor and approved by the City.
"Approved Processor" means the operator of the Approved C&D Processing Site, an_d/or.the
operator of the Approved Commercial Recyclable Materials Processing Site.
"Bin" means a container with capacity of approximately oneJo eight cubic yards, with a hinged
lid, and with wheels, that.is serviced by°a front end -loading Collection vehicle.
,3
"Business Days,"'mean,days during which City offices;are,open to do business with the public,
"Cart" means a plastic container with a hingedlidand wheels.that is:serviced'by,an automated
or semi automated Collection vehicle. A Cart has capacity of 20, 35, 64, or 96 gallons (or
similar volutnes).
"C&D" means Construction and Demolition Debris.
"Change in Law" means any of the following events onconditions which has a material and
adverse effect on the performance by the Parties of their respective obligations under this
Agreement (except for payment obligations):
a. The enactment, adoption, promulgation, issuance, modification, or written change in
administrative or judicial interpretation on or after. the Effective Date of any
Applicable Law; or
b. The order or judgment of any governmental body; on or after the Effective Date, to
the extent such order or judgment is not the result of willful or negligent action, error
or omission or lack of reasonable diligence of the City or of the Contractor,
whichever is asserting the occurrence of a Change in Law; provided, however, that
the contesting in good. faith or theZailure in good faith to contest any such order or
judgment shall not -constitute or be construed as such a willful or negligent action,
error or omission or lack of reasonable diligence.
"City" means the City of Petaluma, California,•,charter,city and -,a, municipal corporation, and all
the territory lying within the:municipal boundaries of the City as•presently existing or as such,
boundaries may be modified during the Term. Unless otherwise specified in this Agreement any
action authorized or required by the City may be taken by the City Council or by an agent
designated by the City Council.
"City's Municipal Code" means the City of Petaluma Municipal Code and the City of Petaluma
Charter.
"Collect" or "Collection" mean the act of collecting C&D, Commercial Recyclable Materials,
and other material at the,place of generation in the City.
"Commercial" shall mean of, from or pertaining to non -Residential Premises where business
activity is conducted, including, but not limited to, retail sales, services, wholesale operations,
manufacturing and industrial operations, but excluding'businesses conducted upon Residential
property which are permitted under applicable zoning regulations and are not the primary use of
the property.
"Composting (or Compost)"'includes a controlled biological decomposition of organic
materials yielding a safe and nuisance fee Compost Product.
EI
"Compost Product" means the;.product resulting from the controlled biological decomposition
of organic materials,that are Source'.Separated'from'the municipal Solid Waste; stream, or --which
are separated at a Is
facility.
"Construction and -Demolition Debris (C&D)" includes. rubble or debris generated by cleanup,
clearing, landscaping, yard renovation, pruning, gardening and other activities related to the care
and maintenance of property; and discarded building materials, packaging, debris, and rubble
that (1) results from construction, alteration, remodeling, repair or demolition operations on any
pavements, excavation projects, houses, Commercial buildings, or, other- structures, and (2) is
generated at a Premises pursuantto.a: construction or demo litionpermit issued by the City..
Construction and Demolition Debris shall expressly exclude putrescible wastes.
"Contractor" means (contractor's name), a (corporation,
sole proprietorship, partnership - select one term) organized and operating under the laws of the
State of California and its officers, directors, employees, agents, companies, and Subcontractors.
"Contractor's Application" means the application to provide Drop Box Collection services for
C&D and Commercial Recyclable Materials submitted by Contractor and received by the City
and approved by the City on ,;20 which'is included as Exhibit A to this
Agreement and is incorporated by reference.
"Contractor Party(ies)" shall mean Contractoi, officers, directors, or management or fiscal
employees (where "management employee" means any employee, with direct or indirect
responsibility for direction and control over the Contractor's, activities under this Agreement and
"fiscal" employee means an employee with direct or indirect responsibility and control duties
relating to financial matters und'erthis Agreement).
"Criminal Activity" means those activities described in Section 12.13.1
"Customer" means the Person whom Contractor submits billing invoice to and collects payment
from for Collection services provided.
"Drop Box" means an open -top container withsa capacity of six or more cubic yards that is used
for Collection of C&D and Commercial Recyclable Materials and is serviced by a roll -off
Collection vehicle.
.Designated Waste" means non -Hazardous Substances which. may'pose'special Disposal
problems because of its potential to contaminate the environment and which maybe Disposed of
only in Class II Disposal Sites or Class III Disposal Sites pursuant to a variance issued by the
California Department of Health Services. Designated Waste consists of those substances
classified as Designated Waste by the State of California, in California Code of Regulations Title
23, Section 2522 as may be amended from time'to time.
"Disposal or Dispose (or variation thereof)" means the final disposition of Solid Waste at a
Disposal Site.
;5
"Disposal Site" means' a, facility for ultimate Disposal of Solid. Waste
"Diversion" means, activities that.reduce or eliminate the amount of Solid Waste -from'Solid
Waste Disposal including, but not limited to, Recycling and Composting.
"-Effective Date" means the date on which the latter of the two Parties signs the Agreement and
the date on which Contractor may begin to provide Drop Box Collection, Transportation,
Recycling, Processing, and Disposal services for C&D and Commercial Recyclable Materials in
accordance with this Agreement.
"Federal" means belonging to or pertaining to:,the, national general government of the United
States; or founded on or organized under the constitution of the United States.
"Franchise Fee" means the fee,paid by Contractor to City for.the privilege to hold the non-
exclusive rights granted by this,Agreement.
"Generator" means any Personas defined by the Public Resources Code, whose act or process
produces C&D and Commercial Recyclable Materials as defined in_the Public Resources Code,
or whose act first causes C&D and Commercial Recyclable Materials to become subject to
regulation.
"Hazardous,Substance" means, any of the following: (a) any substances defined, regulated or
listed (directly or by reference) as"Hazardous Substances", "hazardous materials", "hazardous
wastes", "toxic waste", "pollutant"' or "toxic sulistances" or similarly identified as hazardous to
human health or the environment,,in or pursuant to (i) the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) of 1980,42 USC §9601 et seq.
(CERCLA); (ii) the Hazardous Materials Transportation Act, 49'USC §1802, etseg.; (iii) the
Resource Conservation and Recovery Act, 42 USC §6901 et sea•; (iv) the Clean Water Act, 33
USC §1'251 et seq.; (v) California Health and Safety Code §§251.15-25117, 25249.8, 25281, and
25316; (vi) the Clean Air Act, 42 USC §7901 et seq.; and (vii) California Water Code §13050;
(b) any amendments, rules or regulations promulgated there under to such enumerated statutes or
acts currently existing or hereafter enacted; an&(c) any other hazardous or toxic substance,
material, chemical, waste or pollutant, identified as hazardous or toxic or regulated under any
other Applicable Law currently existing,or hereinafter enacted, including, without limitation,
friable asbestos, polychlorinated biphenyls ('PCBs"), petroleum, natural gas and synthetic fuel
products, and by-products.
"Holidays" are defined as New Year's Day, Labor Day, Fourth of July, Thanksgiving Day, and
Christmas -Day.
"Infectious Waste" means biomedical waste generated at hospitals, public or private medical
clinics, dental offices, research laboratories, pharmaceutical industries, blood banks, mortuaries,
veterinary facilities,and other similar establishments that are identified in Health and Safety
Code Section 25117.5 as may be amended from time to time.
i
"L'egislatiou" means any code; :ordinance„resolution;, or -any other. -formal enactment of the
goyertiing body of the City, which now exists or wliich;may hereafter be; adopted, which
constitutes law,or regulation governing the operation of the Contractor.
"Liquidated Damages” means the'amounts due by Contractor for failure to meet specific
quantifiable standards of performance as described in Section 11.4 and Exhibit B.
"Organic Materials" means those discarded materials that will decompose and/or.putrefy
including Yard Trimmings.andfood scraps,such as, but are notlimited to; green trimmings,
grass, weeds, leaves, prunings, branches, dead plants, brush, tree trimmings, dead trees, small
wood pieces, other types of.organic yard waste, vegetable waste, fruit waste, grain waste, dairy
waste, meat waste, fish waste, paper contaminated with Food Scrap, pieces of unpainted and
untreated wood, and pieces of unpainted and untreated wallboard. No discarded material shall be
considered to be Organic Materials, however, unless such material is separated from Solid Waste
and Recyclable Material.
"Parent Company" refers,to a company owning more'that fifty percent (50%) of the shares of
another company (subsidiary) or a company that has management control over such subsidiary.
"Party or Parties" refers to the City and Contractor, individually or together.
"Person(s)" means any individual, firm, association, organization, partnership, corporation,
business trust, joint venture, the United States, the State of California, the County of Sonoma,
and special purpose districts.
"Premises" means any land or building•in the City where C&D or Commercial Recyclable
Materials are generated or accumulated.
"Processing" means to prepare, treat, or convert through some special method
"Processing Site" means any plant or site used`.for sorting, cleansing, treating, or reconstituting
C&D or Commercial Recyclable. Materials for the purpose of making such material available for
reuse.
"Putrescible Waste" means Solid Wastes originated from living organisms and their metabolic
waste products and from petroleum, which contains naturally produced organic compounds and
which are biologically decomposable by microbial and fungal action into the constituent
compounds of water, carbon dioxide and other simpler organic compounds.
"Rates" means thefeesContractor bills and collects from each Customer receiving Drop Box
Collection service under this Agreement.
"Recyclable Materials" means those non -hazardous materials or by-products which are set
aside, handled, packaged, or,o%red"-for Collection in a container different from Solid Waste
container or which are Source -Separated from Solid Waste or C&D,.fonthe purpose of being
reused or Processed' and then returned to the economic mainstream in the form of commodities.
.7
"Recycle;or Recycling means;the,-process of§orting, cleansing, treating.a_nd reconstituting:at a
Recyclable Materials'Processing Site materials:,that would 6th6rwisesbe Disposed of at a landfill
for the,purpose of returning suchmaterialsto the economy in the form of raw"materials for new,
reused or reconstituted products.
"Regional Agency" means the Sonoma County Waste Management Agency.
"Residential" shall mean of, from, or pertaining to a single-family Premises, multi-plex, or
multi -family Premises including single-family homes, apartments, condominiums, townhouse
complexes, mobile home parks, cooperative apartments, and'yacht harbors and marinas where
residents live aboard boats.
"Solid Waste" means solid waste as,defined in California Public Resources Code, Division 30,
Part 1, Chapter 2, §40191 and regulations prornulgated`thereunder that the City Code requires
Generators within the City to set out for Collection. Excluded from the definition of Solid Waste
are C&D, Hazardous. Substance, Infectious Waste, Designated Waste, Source Separated
Recyclable Materials, Source Separated. Organic Materials, and'radioactive waste.
Notwithstanding any provision to the contrary, "Solid Waste" may include de minimis volumes
or concentrations of waste of a type and amount normally found in Residential, Solid Waste after
implementation of programs for the safe collection, recycling, treatment and disposal of
household hazardous waste incompliance with Section 41500 and 41802 of the California Public
Resources Code as may be amended from time to time.
"Source Separated" means the segregation, by the waste Generator, of materials designated for
separate Collection for some''form of Recycling, recovery, or reuse.
"State" means the State of California. !
I
"Subcontractor" means a party who has entered into a contract, express or implied, with the
Contractor for the performance of an.act that is necessary for the Contractor's fulfillment of its
obligations under this Agreement.
"Term" means the Term of this Agreement, including extension -periods "if granted, as provided
for in Article 3.
"Ton (or Tonnage)" means a unit of measure for weight equivalent to 2,000 standard pounds
where each pound contains 16 ounces.
"Transportation" means the act of transporting or state of being transported
"Yard_ Trimmings" means those discarded materials placed by Generator in a receptacle
and/or at a locatim:iO,at is designated for Collection that will decompose'and/or putrefy,
including but not limited, to, green trimmings, grass, weeds, leaves, prunings, branches, dead
plants, brush, tree trimmings, dead trees, small pieces of unpainted and untreated wood, and
other types of organic waste. Yard Trimmings are a subset of Orgariic'Materials.
I
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR
The Contractor, by, execution of this, Agreement, represents and warrants the conditions
presented in this Article.
2.1 CORPORATE STATUS
Contractor is duly organized, validly existing and in good standing under the laws of the State. It
is qualified to transact business in the City and State and has the power to own its properties and
to carry on its business as now owned and operated and as required by this Agreement.
2.2 AUTHORIZATION
Contractor has the authority to enter this Agreement and perform its obligations under this
Agreement. The Board of Directors of Contractor (or the shareholders, if necessary), sole
proprietor, or partners have taken all.actions required by law,'its.articles of incorporation, its
bylaws, or otherwise, to authorize the execution, of this Agreement. The Person signing this
Agreement on behalf of Contractor represents and warrants that they have authority to do, so and
the corporate secretary's certificate in Exhibit C confirms this. This Agreementconstitutes the
legal, valid, and binding obligation of the Contractor.
2.3 AGREEMENT WILL NOT CAUSE BREACH
I
To the best of Contractor's knowledge after reasonable investigation, the execution or delivery of
this Agreement or the performance by Contractor of its obligations, hereunder does not conflict
with, violate, or result in a.breach: (i) of any law or governmental, regulation applicable to
Contractor; (ii) any term or condition of any judgment, order, or decree of any court,
administrative agency or other"governmental authority; or, (iii) any Agreement or instrument to
which Contractor is a party or by which Contractor or any of its properties or assets are bound, or
constitute a default thereunder.
iA NO LITIGATION
To the best of Contractor's knowledge after reasonable investigation, there is no action, suit,
proceeding or investigation, at law or in equity, before or by any court or governmental
authority; commission, board, agency or instrumentality decided, pending or threatened against
Contractor wherein an unfavorable decision, ruling or finding, in any single case or in the
aggregate, would:
A. Materially adversely affect the performance 'by Contractor of its obligations hereunder;
B. Adversely: affect the validity or enforceability. of this Agreement; or
N
C: Have a material adverse effect on the financial conditionofContractor, or any surety or
entity guaranteeing Contractor's performance under'this Agreement.
'2.5 NO ADVERSE JUDICIAL DECISIONS
To the best of Contractor's knowledge after reasonable investigation, there is no judicial decision
that would prohibit this Agreement or subject this Agreement to legal challenge.
2.6 NO LEGAL PROHIBITION
To the best of Contractor's knowledge after reasonable investigation, there is -no Applicable Law
in effect on the date Contractor signed this Agreement that would prohibit the Contractor's
performance of its obligations under this Agreement and the transactions contemplated hereby.
2.7 CONTRACTOR'S STATEMENTS
The Contactor's Application and any other supplementary informationsubmitted to the City,
which the City has relied on in entering this Agreement, do not: (i) contain any untrue statement
of a material fact, or (ii) omit to state a _material{fact that is necessary in order to make the
statements made, in light of the circumstances in which they were made, not misleading.
2.8 CONTRACTOR'S INVESTIGATION
Contractor has made an independent investigation (satisfactory to it) of the conditionsand
circumstances surrounding, the Agreement and the work to be performed hereunder. Contractor
has considered such matters in entering this Agreemencto provide services in exchange for the
compensation provided' for under the terms of this Agreement.
2.9 ABILITY TO PERFORM
Contractor possesses the business, professional, and technical expertise, to Collect, Transport,
Recycle, Process, and Dispose C&D and Commercial Recyclable Materials generated in the
City. Contractor possesses the equipment, facility(ies),:and employee resources required to
perform its obligations under this Agreement.
ARTICLE 3
TERM OF AGREEMENT
3.1 EFFECTIVE DATE
The Effective Date of this Agreement shall be the date the latter of the two Parties signs the
Agreement, and all conditions described in Section 3.2 are'satisfied. The Effective Date shall be
the date on -which Contractor may provide Drop -Box Collection, Transportation, Recycling,
Processing; and Disposal services authorized by this Agreement.
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3.2 CONDITIONS TO EFFECTIVENESS OF AGREEMENT
The. obligation, o f.City to, permit_ this Agreement to -become effective,and'to perform'its
undertakings' provided for in this Agreement is subject to the satisfaction of all the conditions
below, each of which may be waived, in written form, in whole or in part by City.
A. Accuracy of Representations. The re_ presentations,and warranties made in Article 2 of
this Agreement are true and correct on and as of the Effective Date,
B. Absence of Litigation. There is no litigation pending on the Effective Date in'any court
challenging the:award or execution of this Agreement or seeking to restrain or enjoin its
performance.
C. Furnishings of Insurance. Contractor has furnished evidence of the insurance and
performance bond required by Article 10 that is satisfactory to the City.
D. Effectiveness of City Council Action. The City' Council action approving this
Agreement shall have become effective and all Parties shall have signed the Agreement
pursuant to Applicable, Law. prior to or on the Effective Date, provided that no restraining
order of any kind has been issued.
3.3 TERM
The Term of this Agreement shall begin on the Effective Date and end on December 31, 2020,
unless the City terminates the Agreement sooner in accordance with Section 11.2.
ARTICLE 4
SCOPE OF AGREEMENT
4.1 SCOPE OF AGREEMENT
This non-exclusive franchise, granted to Contractor with regard to C&D and Corrimercial
Recyclable Materials, authorizes Contractor to Collect, Transport, Recycle, Process, and Dispose
of (1) C&D placed by a Residential or Commercial Generator in a.Drop Box for Collection
provided that'the Drop Box is located at the construction site or demolition site where the C&D
is generated, and.the Customer has voluntarily arranged for Contractor to provide Collection
services, and (2) Commercial Recyclable Materials placed by.a Commercial Generator in a Drop
Box for Collection provided that the Drop Box is located where the Commercial Recyclable
Materials are generated, and the Customer has voluntarily arranged for Contractor to provide
Collection services. The scope of the Agreement shall be non-exclusive except where otherwise
precluded by.Applicable Law.
This,non-exclusive•franchise does notgrant the Contractor, any. rights fo.Collection ofC&D or
Commercial Recyclable'Material's tbat.includes PutrescibleVastes weighing in excess,of 1'01/o of
the total weight,of'materials placed by Generator in a Drop Box for Collection.
The Contractor shall be responsible for the following services:
A. Collecting C&D placed by Customer in a Drop Box for Collection as requested by
Customer.
B. Collecting Commercial Recyclable Materials placed by Customer in a Drop Box for
Collection as requested by Customer.
C. Providing each Customer, upon delivery of Drop Box, a printed list. that specifies the
materials that cannot be placed in the Drop Box (i.e., Putrescible Waste and Hazardous
Substances).
D. Transporting Collected materials to an Approved C&D .Processing Site, Approved
Commercial Recyclable Materials Processing Site, or Approved Disposal Site.
E. Furnishing all labor, supervision, vehicles, Drop Boxes, other_ equipment, materials,
supplies, and. all other items and services necessary to perform its obligations under this
Agreement.
F. Paying all expenses related to provision of services required by. this Agreement including,
but not limited to, Franchise Fees;,taxes; regulatory fees, Collection costs, Transportation
costs, Processing costs, Disposal costs, utilities,.etc.
G. Providing all services required by this Agreement in a thorough and professional manner
so that residents, businesses, and the City are provided timely, reliable; courteous and
high-quality service at all times.
H. Performing all services'in,substantial accordance with this Agreement at all times using
best industry practice for comparable operations.
I. Complying"with Applicable Law.
J. Performing or providing all other services necessary to fulfill its obligations_ under this
Agreement.
K. Diverting a minimum of 60% of the C&D Collected from Disposal. 'The Diversion rate
shall be calculated each month based upon the,weights of C&D Collected and Diverted.
L. Diverting 90% of.the Commercial Recyclable Materials Collected from Disposal. The
Diversion "rate shall be calculated each month based upon the weights of Commercial
Recyclabie'Materials Collected and Diverted.
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'The enumeration.and specificationof particular aspects.ofservice, labor, or equipment
requirements shall not relieve Contractor of the duty;of accomplishing all other aspects neces'sa'ry
to:fulfill its obligations under this Agreement whether such, requirements are enumerated
elsewhere in the'Agreement or not.
4.2 LIMITATIONS TO SCOPE
The C&D and Commercial Recyclable Materials listed below in this Section may be Collected
and Transported by other Persons provided that such Persons shall "do so in accordance with the
City's Municipal Code.
A. C&D or Commercial Recyclable Materials Mixed with Putrescible Waste. C&D or
Commercial Recyclable Materials in Drop Boxes, that include Putrescible Wastes
weighing in excess of 10% of the total weight of materials in the Drop Box.
B. C&D and Commercial Recyclable Materials Collected by Other Non -Exclusive
Franchise Haulers. C&D and Commercial Recyclable Materials Collected by a party
that has executed a Non -Exclusive Franchise Agreement with the City for Drop -Box
Collection and Recycling of C&D and Commercial Recyclable Materials.
C. Commercial Recyclable Materials ;Collected in Carts or Bins. Commercial
Recyclable Materials placed in Carts or Bins'and Collected by (1) the party that has
executed an Exclusive Franchise Agreement with the City for Solid Waste, Recyclable
Materials, and Organic Materials Services, or (2) by a Person (or company) through a
private arrangement with the Generator, and the Generator is compensated for the
materials Collected.
D. Donated Materials. C&D and Recyclable Materials Generated in the City that Source
Separated are donated by the Generator to youth, civic, charitable, or other nonprofit
organizations.
E. Materials Hauled by Owner or Occupant, or its Contractor. C&D or Commercial
Recyclable Materials that is removed from any Premises by the Owner or Occupant and
are Transported to a Disposal Site or'Processing Site by (i) the Owner or Occupant of
such Premises, by full-time employee of Owner or Occupant that uses the Owner's or
Occupant's equipment to transport materials; or (ii) by a contractor whose removal of the
C&D or Commercial Recyclable:Materials is incidental to the service being performed
and such contractor removes materials at no additional or separate fee.
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4.3 CIT1"S RIGHT TO GRANT MULTIPLE NON-EXCLUSIVE.AGREEMENTS'
The City may grant an unlimited number of Persons similar non-exclusive franchise agreements
for Drop Box Collection, Transportation, Recycling, Processing, and Disposal of C&D and
Commercial Recyclable Materials.
4.4 AGREEMENT CONSISTENT WITH APPLICABLE LAW
This Agreement and scope of this franchise shall be interpreted to be consistent with Applicable
Law, now and during the Term. If future judicial interpretations of current law or new laws,
regulations, or judicial interpretations limit the ability o.fthe City to lawfully provide for the
scope of services as specifically set forth herein, Contractor agrees that the scope of the
Agreement will be limited to those services and materials which.may be lawfully provided and
that the City shall not be responsible for any lost profits or losses claimed by Contractor to arise
out of limitations of the scope of the Agreement set forth herein. In•such an event, it shall be the
responsibility of Contractor to minimize the financial impact of such future judicial
interpretations or new laws.
4.5 OWNERSHIP OF MATERIALS
Once C&D and Commercial Recyclable Materil is are placed'inYa Drop Box for Collection by
Contractor, ownership and the right to possession of such materials shall transfer directly from
the Customer to.Contractor. '
City may obtain ownership or,.possession of C&D and Commercial Recyclable Materials placed
in the Drop Box for Collection upon written notice to Contractor of its intent to do so. 'However,
nothing in this Agreement shall be construed as giving rise to, any inference that City has such
ownership or possession unless such written notice has been given to Contractor.
4.6 NOTIFICATION TO CITY OF. NON_FRANCHISED HAULERS
If Contractor can.produce evidence'that.other Persons are Collecting C&D and Commercial
Recyclable Materials and do not have rights to do so as granted by non-exclusive franchise
agreement with the City or in a manner that is not consistent with the City's Municipal Code,
Contractor shall. notify the""City in writing, within 10 calendar days of Contractor witnessing such
circumstances. The Contractor's notice shall include the name and telephone number of the
Person or company Collecting C&D and Commercial Recyclable Materials, the date the
Contractor witnessed the event, the location of the Drop Box along with'.Contractor.'s evidence of
the violation of the rights granted by this non-exclusive franchise.
i
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ARTICLE 5
COLLECTION, RECYCLING, AND DISPOSAL SERVICES
5.1 COLLECTION
Contractor shall Collect C&D and Commercial'.Recyclable Materials from Customers that
voluntarily subscribe to or request C&D and Commercial Recyclable Materials Collection
services' from Contractor. Contractor shall provide its Customers with a Drop Box for C&D and
Commercial Recyclable Materials Collection or shall allow its Customers to provide a Drop Box.
Contractor shall Collect C&D and Commercial Recyclable Materials placed in Drop Boxes,
owned by Contractor or Customer, as'scheduled by Customer.
In accordance with Section 4.2, Contractor shall only. provide C&D Collection services for C&D
that is generated at a construction or demolition job site by activities conducted pursuant to a
construction or demolition permit issued by thelCity.
In accordance with Section 4.2, Contractor shall only provide Commercial Recyclable Materials
Collection services for Recyclable Materials that contain no more than 10% Putrescible Wastes
by weight, and are Generated at commercial premises.
Contractor shall Transport materials Collected pursuant,,to this Agreement to an Approved
Processing Site that has been approved in advance by the City. The Approved Processing Site
must be able to demonstrate Diversion rates in accordance with Section 4.1.
Contractor may enter into contracts with Customers for Collection services provided that in no
case shall the tern of such contracts extend beyond the;Term of this Agreement, and provided
that in the event the City terminates,this,Agreement the contracts with any and all Customers
shall be null and void on the termination date of this Agreement.
5.2 RECYCLING
A. Processing. Contractor agrees to Transport and deliver all C&D it Collects in the City to
the Approved C&D Processing Site and to Transport and Deliver all Commercial
Recyclable Materials it Collects in the City to the Approved Commercial Recyclable
Materials Processing Site. Residue from the C&D and Commerciaf,Recyclable Materials
shall be Disposed of by Contractor orits Approved Processor at an Approved Disposal
Site selected by Contractor in accordance with Section 5.3. Contractor shall select the
Approved C&D Processing Site(s), Approved Commercial Recyclable Materials
Processing Site(s) and Approved Disposal Site(s) and obtain the City's written approval
to use such sites prior, to Effective Date of this Agreement. Contractor shall permit or
arrange for the City to inspect the Approved Processing Site(s) and observe operations at
any time during the Term.
15
Contractor,or itsApproved',„Pro cessor(§) shall possess all existing permits: and approvals
necessary for use;of the C&D and Commercial .'Recyclable Materials, Processing Site(s) in'
full regulatory compliance: Contractor shall;:upon City request,, provide or request from
'its Approved Processor(s) and provide copies ,of, notices of violation or permits to the
City. Upon request of thel City, Contractor shall provide a certified statement from its
Approved Processor(s) documenting its0iversion rate.
If Contractor elects to use a C&D or Commercial Recyclable Materials Processing Site(s)
that is different than the Approved C&D Processing Site or Approved Commercial
Recyclable Materials Processing Site, it shall request written approval from the City 60
calendar days prior to use of the site and obtain the City's written approval no later than
10 calendar days prior to use of the site.
If Contractor is unable to use the Approved C&D Processing Site or Approved
Commercial Recyclable Materials Processing Site due to an emergency or sudden
unforeseen closure of the Approved C&D Processing Site or Approved Commercial
Recyclable Materials Processing Site, Contractor may use an alternative Processing Site
provided that the Contractor provides, .verbal and written notice to the City within 24
hours of use of an alternative Processing Site. The written notice shall include a
description of the reasons the Approved C&D Processing Site or Approved Commercial
Recyclable Materials Processing Site is not feasible and the period of time Contractor
proposes to use the alternative Processing Site. Contractor shall receive the City's
written approval to use the alternative Processing Site within 24 hours of the City's
receipt of the Contractor's written notice.
B. Marketing. The Contractor,or its Approved Processor shall be responsible for marketing
C&D and Commercial 'Recyclable Materials Collected in the City and Diverted.
Contractor and/or its Approved Processor shall retain all revenues generated from the sale
of Recyclable Materials Diverted.
Upon request, Contractor or its Approved Processor shall provide proof (in the form of
sales receipts showing` end-user) to the City that all C&D and Commercial Recyclable
Materials Diverted are marketed for Recycling or reuse in such a' manner that materials
shall be considered as Diverted in accordance With the State regulations established by
the Act. All residual material from the; Processing, activities that is not marketed for use
shall be accounted for as Disposal Tonnage at a permitted Disposal Site. No Recyclable
Material shall be transported to a domestic or foreign location if Solid Waste Disposal of
such material is its intended use.
City may audit brokers or buyers to confirm that materials are being Recycled and
Diverted from Disposal and Contractor, shall provide all information deemed necessary
by City to permit City to conduct such audit. If Contractor becomes aware that a broker
or buyer has illegally handled or Disposed of material generated by the City or elsewhere,
Contractor shall immediately inform the City and terminate its contract or working
relationship with such party immediately.
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C: Diversion Requirement. Contractor shall Divertiat least 60% by weight of al] C&D it
Collects within the'City and 90% by weight of all Commercial Recyclable. Materials it
Collects within"the City during each calendar month by Processing and Recycling some
or all of -the C&D and Commercial Recyclable Materials Collected.
If Contractorfails to Divert" at least 60% by weight of all C&D it Collects within the City
during a calendar month and at least 90% by weight of all Commercial Recyclable
Materials it Collects within the City;.the City may terminate the Agreement in accordance
with Section 11.2.
5.3 DISPOSAL
Contractor shall, or shall require its Approved Processor to, Dispose'of C&D and Commercial
Recyclable Materials Collected -within "the City, which are.not Diverted.through Processing
activities, by Transporting D C&and Commercial Recyclable Materials to an Approved Disposal
Site, which is lawfully authorized to,:accept such material. Contractor, or its Approved
Processor, shall not Dispose of such C&D or Commercial Recyclable Materials by depositing it
on any public or private land, in any "river, stream, or other waterway, or in any sanitary sewer or
storm drainage system or in any other manner which violates Applicable Laws. Contractor, or
its Approved Processor, shall select the Approved Disposal Site(s) and obtain the City's written
approval to use such sites prior to Effective Date of this Agreement. Contractor shall arrange for
the City to inspect the Approved Disposal Site(s) and observe operations at any time during the
Term.
Contractor or its Approved Processor shall only Dispose of materials at a,permitted Disposal Site
that is in full regulatory compliance. Contractor, or its Approved Processor, shall keep or
confirm all existing permits and approvals necessary for use of the Disposal Site(s) in full
regulatory compliance. Contractor shall, upon request, provide copies of notices of violation or
permits to the City.
If Contractor, or its Approved Processor, •elects to use a Disposal Site(s) that is different than the
Approved Disposal Site, it shall request written -approval from the City 60 calendar days prior to
use of the site and obtain the City's written approval no later than 10 calendar days prior to use
of the site.
If Contractor,or its Approved Processor, is unable to use,the Approved Disposal Site due to an
emergency or"sudden unforeseen closure of the Approved Disposal Site, Contractor, or its
Approved Processor, may use an alternative Disposal Site provided.that the Contractor provides
verbal and written notice to the City within 24 $ours ofuse •of an alternative Disposal ' Site. The
written notice shall include a description of the reasons the Approved Disposal Site is not
feasible and the period of time Contractor, or its Approved Processor, proposes to use the
alternative Disposal Site. Contractor shall receive the City's written approval to use the
alternative Disposal Site within 24 hours of the City's receipt of the Contractor's written notice.
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5:14 BILLING'
,Contractor shall bill' all Customers and°collect billings in aceordance with,Contractor-established.
Rates,.wbich are set 'in a manner consistent with provisions of Section 9._3. The Contractor shall
prepare, mail, and collect bills (or shall.issue written receipts for cash' payments) for Collection
services provided by Contractor. Contractor shall be responsible for collection of payment from
Customers with past due accounts ("bad debt").
.Contractor shall maintain copies of all',billings and receipts, each in chronological order, for five
years for inspection and verification by City avany reasonable time upon request. The
Contractor may, at its option, maintain those records, in computer form; on microfiche, or in any
other manner, provided that the records can be preserved and retrieved for inspection and
verification in a timely manner.-
5.5
anner.
5.5 CUSTOMER SERVICE
Contractor shall maintain a business office within the City orrwithin a reasonable distance of the
City limits approved by the City.Manager. The business office�shall staff at least one customer
service representative capable of accepting payments from Customers, answering service
questions, and resolving Customer service issues. Contractor shall have a toll-free Customer
service telephone number and, shall have staff available,to answer•calls from at least'8:00 a.m. to
6:00 p.m., Monday through Friday. An answering machine shall record Customer calls and
voice messages between 6:00 p.m.. and 8:00 a.m.
ARTICLE 6
STANDARDS AND REQUIREMENTS FOR'SERVICES; EQUIPMENT,
AND PERSONNEL
6.1 OPERATING HOURS AND SCHEDULES
A. Hours of Collection
Residential Premises. Delivery or Collection of a Drop Box to or from Residential
Premises shall only occur between, the hours of 6:00 a.m. and 6:00p.m., Monday
through Friday.
2. Commercial Premises. -Delivery or Collection of a Drop Box to or from
Commercial Premises that are 200 feet or less from Residential Premises shall only
occur between the hours of 6:00 a.m. and 6:00 p.m., Monday through Friday and
between the hours of 10:00 a.m. and 3:00 p.m. on Saturdays. Delivery or Collection
of a Drop Box to or from Co'mmercial Premises that are more than 200 feet from
Residential Premises shall only occur.between the hours of 5:00 a.m. and 7:00 p.m.
The City Manager may require modifications to hours for delivery and Collection
IN
from -Commercial Premises to` resolve noise complaints, and, in such case, the City
Manager may'change-the^allowable operating hours.
Exceptions. In the event of an unforeseen circumstance, the Contractormaydeliver
or Collect a Drop Box from Residential or'Commercial Premises that are 200 feet or
less from Residential Premises between the hours of 5:00 a.m. and 10:00 p.m., upon
prior written approval from the City Manager.
4. Failure to Comply. If the Contractor fails to comply with the Collection hours
described in this Section, the Contractor shall pay the City Liquidated Damages as
described in Section 11.4 and Exhibit B.
6.2 COLLECTION STANDARDS
6.2.1 Instructions to Customer
Contractor shall instruct Customers as to any preparation of C&Dor Commercial Recyclable
Materials necessary prior to placing in the Drop Box. Contractor shall, in written form, inform
all Customers as to the acceptable materials that can be included in the Drop Box and any
unacceptable materials to be excluded from Collection. Contractor shall, in written form, inform
all Customers that Putrescible and liquid wastes in excess of 1'0% by weight of each load in total
are prohibited.
6.2.2 Care of Private Property
Contractor shall not -damage private.property. Contractor shall ensure that its employees: (i)
close all gates opened in making Collections, unless otherwise directed by the Customer; (ii) do
not cross landscaped areas; and,(iii) do not climb or jump over hedges and fences.
City shall refer complaints about damage to private.property to Contractor. Contractor shall
repair all damage to private and public,property causedby its employees to its previous
condition.
6.2.3 Litter Abatement
A. Minimization of Spills. Contractor shall' use due care to prevent vehicle oil and vehicle
fuel from being spilled or scattered during Collection and Transportation operations. If
any C&D or Recyclable Materials are spilled or scattered during Collection or
Transportation operations, the Contractor shall promptly clean up all spilled and scattered
materials.
Contractor shall not transfer loads from one vehicle to another on any public street,
unless it is necessary to do so because of mechanical failure, hot load (combustion of
material in the truck), accidental damage to a vehicle, or unless approved by the City.
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If Contractor fails to perform some or all of the requirements described in this Section,
the Contractor shall pay the City Liquidated Damages as described in Section 11.4 and
Exhibit" B.
B. Clean -Up. Each Collection vehicle shall carry protective gloves, a broom, and shovel at
all times for cleaning up litter and absorbent material for cleaning up liquidspills. The
Contractor shall discuss instances of repeated spillage not caused by it with the Customer
of the Premises where spillage occurs, and Contractor shall report such instances,.to City.
If the Contractor` has attempted to have a Customer stop creating spillage but is
unsuccessful, the City will attempt, upon notice by the Contractor, to rectify such
situation with the Customer.
C. Covering of Loads. Contractor shall cover all Drop Boxes.at the pickup location before
Transporting materials to, prevent C&D or Commercial .Recyclable Materials from
escaping during Transportation.
6.2.4 Noise
All Collection operations shall be conducted as quietly as possible and shall conform to
Applicable Law. Contractor will promptly resolve any Complaints of noise during the morning
or evening hours of the day to the satisfaction of the City. In the event of repeat occurrences of
noise levels in excess of.75 db(A), the Contractor shall pay Liquidated Damages in accordance
with Section 11.4 and Exhibit B.
6.3 VEHICLE REQUIREMENTS
A. General. Vehicles used to provide services under this Agreement shall be kept in a safe,
neat, clean, and operable condition at all times. If Contractor fails to keep Collection
vehicles in a safe and sanitary condition, the Contractor shall pay the City Liquidated
Damages as described in Section 11.4 and Exhibit B.
B. Specifications. Contractor shall register all vehicles with the California Department of
Motor Vehicles. All such vehicles; shall comply with California Environmental
Protection Agency (EPA) noise emission and air quality regulations and other applicable
noise control regulations.
C. Vehicle Identification. Contractor's name, ,local telephone number, and a unique
identification number for each vehicle used to provide services under this Agreement,
shall be prominently'displayed on all vehicles, in letters and numbers that are a minimum
of 4 inches high. Contractor shall not place the City's logo on its vehicles.
D., Cleaning and Maintenance
1. Cleaning. Collection vehicles shall be thoroughly washed and thoroughly steam cleaned
as frequently as necessary to present a clean' appearance of the exterior and interior
compartment of the vehicle.
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2. Maintenance. Contractor shall inspect each vehicle -daily to ensure that all equiprnentJs
operating properly. Vehicles that are not operating properly shall be taken out of service
until they are. repaired and operating properly. Contractor shall perform all scheduled
maintenance functions in accordance with the manufacturer's specifications and schedule
or in accordance..with California Highway Patrol standards whichever are more stringent.
Contractor shall keep accurate records,of all vehicle maintenance, recorded according to
date and mileage, and shall make such,records available to the City upon request to the
extent necessary to perform the inspections described in Sections 6.31 and 6.8.
3. Repairs. Contractor shall repair, or arrange for the repair of, all of its vehicles and
equipment for which repairs are needed because of accident, breakdown, or any other
cause, so as to maintain all equipment in a safe and operable condition. Contractor shall
maintain accurate records of repair, which shall include the date/mileage, nature of repair
and the signature of a maintenance supervisor that the repair has been properly
performed.
4. Storage. Contractor shall arrange to store all vehicles and other equipment in safe and
secure location(s) in accordance with City's applicable zoning regulations.
E. Operation. Vehicles shall be operated'.in compliance .with the California Vehicle Code,
and all applicable, safety and local ordinances. Contractor shall not load vehicles in
excess of the manufacturer's recommendations or limitations imposed by State or local
weight restrictions for vehicles and roads. Contractor shall have each Collection vehicle
weighed at the Approved- C&D Processing Sites, Approved Commercial Recyclable
Materials Processing Site, or Approved; Disposal Sites to determine the unloaded weight
("tare weight") of the vehicle,and the total loaded` weight of -each load delivered to the
Approved C&D Processing Sites, Approved Commercial Recyclable Materials
Processing Site, or Approved Disposal Sites.
F. Vehicle Inspection. City may inspect vehicles at any time, to determine compliance with
the requirements of this Agreement. Contractor shall make vehicles available to the City
and/or Sonoma County Health Department for inspection, at any frequency City
reasonably requests.
6.4 DROP BOX REQUIREMENTS
A. General. All Drop Boxes shall meet applicable federal, State, and local regulations for
safety.
B. Specifications. Contractor -provided Drop Boxes shall be designed and constructed to be
watertight and prevent the leakage of liquids.
C. Drop Box Identification. All Contractor -provided Drop Boxes shall prominently
display the Contractor's name, localtelephone number, a unique Drop Box identification
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number, the words "Construction and Demolition' Debris or: Recyclable Materials Only,"
and a list of acceptable materials.
If Contractor fails to comply with the provisions of this Section 6.4, the Contractor shall
pay the City Liquidated Damages as described in Section 11.4 and Exhibit B.
D. Cleaning; Painting, and Maintenance. All Drop Boxes shall be maintained in a safe,
serviceable, and functional condition. Contractor shall steam clean and repaint all Drop
Boxes at least, every two years, or more. frequently, to present a clean appearance. If any
Drop Box is impacted by graffiti, Contractor shall remedy the situation within 48 hours.
E. Drop Box Inspections. City may inspect Drop Boxes at any time to determine
compliance with sanitation requirements. Contractor shall make' Containers available to
the City at any frequency it requests. The Cityashall' have the right to prohibit the use of
any Drop Box that fails to comply with the provisions in this Section 6.4.
F. Abandoned Drop Boxes. Contractor shall not Abandon any Drop Box used to provide
C&D or Commercial Recyclable Materials Collection services under this Agreement. If
the Contractor Abandons a Contractor -owned Drop Box, City may remove the Drop Box
and Process and Dispose of the contents. If the City removes a Drop Box Abandoned by
Contractor, the City may charge Contractor for the City's costs incurred removing such
Drop Box, Transporting, Processing, and Disposing of its. contents, and/or the cost of
storing such Drop Box. Contractor shall reimburse the City for such costs within 10
calendar days of the date of the City's ni'voice to the Contractor for such costs.
6:5 PERSONNEL — LIVING WAGE ORDINANCE
Contractor shall comply fully with all applicable requirements of Petaluma Municipal Code,
Chapter 8.36, Living Wage (the "Living Wage Ordinance"), as the same may be amended from
time to time. Upon the City's request Contractor shall promptly provide to the City documents
and information verifying Contractor's compliance, with the requirements of the Living Wage
Ordinance, and shall within fifteen ('15) calendar days of the Effective Date of this Agreement,
notify each of its affected employees as to the amount of wages and time off that are required to
be provided to them pursuant to the Living Wage Ordinance. The Acknowledgement and
Certification Pursuant to:CityofPetaluma Living Wage Ordinance, attached to this Agreement
as Exhibit E shall be a part of this Agreement for all purposes, and Contractors that are subject to
Living Wage Ordinance requirements, as determined by the City, must provide a properly
completed Exhibit E in accordance with the requirements of the Living Wage. Ordinance.
Contractor's noncompliance with the applicablerequirements of the Living Wage Ordinance
shall constitute cause for City's termination of this Agreement pursuant to Section 11.2 of this
Agreement.
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6:6 PERSONNEL — QUALIFICATIONS'.AND CONDUCT
A. General. Contractor shall furnish such qualified .drivers, maintenance, supervisory,
Customer service, clerical and other personnel as may be necessary to provide the
services required by this Agreement in a safe and efficient manner.
B. Driver Qualifications. All drivers shall be, trained and qualified in the operation of
Collection vehicles, and must have in effect a validlicense, of the appropriate class,
issued by the California Department of Motor Vehicles. Contractor shall use the Class lI
California Department of Motor Vehicles employer "Pull Notice Program" to monitor its
drivers for safety.
C. Safety Training. Contractor shall provide suitable operational and safety training for all
of its employees who operate Collection vehicles or equipment or who are otherwise
directly involved in such Collection, Disposal, or Processing. Contractor shall train its
employees involved in Collection to identify, and not to collect, Hazardous Substance or
Infectious Waste. Upon the City's request, Contractor shall provide a copy of its safety
policy and safety training program, the name of its safety officer, and the frequency of its
trainings.
D. Employee Conduct and Courtesy. Contractor shall use its best efforts to ensure that all
employees present a neat appearance and conduct themselves in a courteous manner.
Contractor shall regularly train its employees in Customer courtesy, shall prohibit the use
of loud or profane language, and shall instruct Collection employees to perform the work
as quietly as possible. If any employee is found .not to be courteous or not to be
performing services in the manner required by this Agreement, Contractor shall take all
appropriate corrective measures and shall pay the City Liquidated Damages as described
in Section 11.4 and Exhibit B.
E. Employee Identification. While performing services under this Agreement, all of the
Contractor's employees performing field service shall be dressed in clean clothes and
shall wear badges that include the employee's name and/or employee number, and
Contractor's name, as approved by the City.
&7 HAZARDOUS SUBSTANCE INSPECTION AND HANDLING
A. Response to Hazardous Substance Identified during Collection., If Contractor
determines that material placed in any Drop Box for Collection is a Hazardous Substance
that may not legally be Disposed of at a Disposal Site or'handled at the Processing Site,
or presents a hazard to Contractor's employees, the Contractor shall refuse to accept such
material. The Contractor shall contact the Customer and request the Customer to arrange
proper Disposal. If the Generator cannot be reached immediately, the Contractor shall,
before leaving the Premises, leave a tag at least two inches by six inches (2" x 6") in size,
which indicates the reason for refusing to Collect the material and lists the phone number
for the Sonoma County Household Toxic Waste Facility. Under no circumstances shall
Contractor's employees knowingly Collect Hazardous Substance.
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If HazardousSubstance 'is found in a Drop Box that could. possibly, result in imminent
danger to people or property, the .Contractor shall immediately notify the City's Fire
Department using the 911 emergency number.
The Contractor shall notify the City of any Hazardous Substance identified in Drop
Boxes or left at any Premises within 24 hours of identification of such material.
B. Response to Hazardous: Substances Identified at Disposal Site or Processing Site.
The Contractor, or its Approved Processor, shall provide, load checkers and equipment
operators at the Processing or Disposal Site(s) to identify Hazardous Substances for
storage in approved, 'on-site, hazardous, materials storage container(s). Contractor shall
make reasonable efforts to identify and notify the Customer. Contractor shall arrange for
removal of the Hazard'ousSubstances by permitted haulers in accordance with -Applicable
Laws and regulatory requirements.
If the Hazardous Substances delivered to a Disposal Site or Processing Site by Contractor
before its presence is detected, and the Generator cannot be identified or fails to remove
the material after being requested to do so, the Contractor shall arrange for its proper
Disposal. The Contractor may make a good faith effort to recover the cost of Disposal
from the Generator; and the cost of this effort, as well as the cost of Disposal shall be
chargeable to the Generator.
C. Regulations and Record Keeping.] Contractor shall comply with emergency
notification procedures required by Applicable Laws and regulatory, requirements. All
records required by regulations shall be maintained at the Contractor's facility. These
records shall include: waste manifests, waste inventories; waste characterization records,
inspection records; incident reports, and`;training records.
6.8 NON-DISCRIMINATION
Contractor shall not discriminate' in the provision of service or the employment of Persons
engaged in performance of this Agreement on account of race, color, natural origin, ancestry,
o
religion, gender, marital status, sexual orientation, age, physical or mental disability in violation
of any Applicable Law.
6.9 COMMUNICATION AND COOPERATION'WITH CITY
A. Communications. If requested, the Contractor shall meet with the City or its agent to
discuss service issues.
B. Inspection by City. The City, or its designated representatives; shall have the right to
observe and review Contractor'operations, Processing Sites and Disposal Sites used by
Contractor, and enter Contractor's Premises for the purposes of such observation and
review during reasonable hours without advance notice.
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I
C. Cooperate with City -Initiated Studies. Contractor shall cooperate with and assist the•
City or its ;agent with the performanceuof"City, initiated studies of C&D or.Commercial
Recyclable Materials such as, but not limited to; waste characterization and composition
studies.
ARTICLE 7
RECORD KEEPING AND REPORTING
7.1 GENERAL
7.1.1 Maintenance of Records
Contractor agrees to conduct data collection, information and record keeping, and reporting
activities needed to comply with and to meet the reporting and'C&D and Commercial Recyclable
Materials program management needs of City and the Regional Agency, the Act, and other
Applicable Laws, and the requirements of this Agreement.
This Article is intended to highlight -the general nature.of'records and reports to be maintained by
Contractor, and their minimum content. This Article isnot meant to comprehensively define
what the records and reports are to be and their content: With the written direction by or
approval of City, the records and reports to be maintained, and provided by Contractor in
accordance with this and other Articles of the Agreement shall'be adjusted in number, format, or
frequency. Records and reporting may be revised to reflect current record keeping and reporting
requirements.
To the extent such requirements are set out in this and other Articles of this Agreement, they
shall not be considered limiting or necessarily complete.
7.1.2 Retention of Records
Unless otherwise required in thisi Article, Contractor shall retain all records and data required to
be maintained by this Agreement for the Term of this Agreement plus five years after its
expiration or earlier termination: Records and data shall be in chronological order and readily
and easily interpreted. At the City's request, records and data required to he maintained.that are,
specifically directed in this Agreement to be retained, shall be retrieved in a timely manner by
Contractor and made available to the City.
7.1.3 Inspection of Records
The City, its auditors and other agents, shall have the right, during regular business hours, to
inspect -specific documents or records required by this Agreement or any other similar records or
reports of the Contractor that the City shall deem, at, its sole discretion, necessary to evaluate the
Contractor''s performance provided for in this Agreement. The City may make copies of any
documents it deems relevant to this Agreement. The City shall provide Contractor written notice
of least three Business Days prior to any inspection of these records.
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The City reserves the right to inspect records for the purposes of_:auditing the Contractor's
reports, 1.reported Diversion level, and fee payments to the City. If an audit conducted by the
City, or:its representatives, finds: (i) that the.Contractor has made any intentional
misrepresentation with respect to the fees dues to the City(e.g., Franchise Fees or other fees due
to the City as per Article 8) in an amount greater than $1,000 or 10% of the fees due to the City
during,the period covered by the audit, whichever is greater, or (ii) that the Diversion level is 5%
different than the Diversion level reported by the Contractor, then in addition to any other
remedies available to the City, Contractor shall reimburse the City for. the City's costs incurred in
the performance of the audit. Such reimbursement shall be paid by Contractor, along with any
underpaid fees and Liquidated Damages. required by Section 11.4 and Exhibit B, within 30
calendar days of the date the City notifies the Contractor of the,arrtount of the City's costs.
7.1.4 Record Security
Contractor shall maintain adequate record security to preserve records from events that can be
reasonably anticipated such as fire, theft, and earthquake. Electronically maintained data and
records shall be protected and backed -up.
7.2 RECORDS
7.2.1 Financial and Operational Records
Contractor shall maintain accurate and complete accounting records containing. the underlying
financial and operating data relating to, and showing the basis for computation of all revenues
associated with providing C&D and Commercial Recyclable Materials Collection,
Transportation, Processing, Recycling, and Disposal services. The accounting records shall be
prepared in accordance with Generally Accepted Accounting Principles (GAAP) consistently
applied.
At a minimum, operational records shall include:
Records shall be maintained by Contractor for City relating to:
A., Customer account information and billing records;
B. Tonnage of material Collected by type (e.g., C&D, Commercial Recyclable Materials)
listed by Processing Site or Disposal Site where such materials were delivered'. Where
possible, information is to be separated by Residential and Commercial Customers;
C. Tonnage of C&D, Recyclable Materials, and Organic Materials Diverted.from Disposal
by Contractor and supporting documentation;
D. Diversion level;
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'E. Weight tickets from P,rocessiiig Sites documenting; the Tonnage;of C&D and Commercial
Recyclable Materials Collected within the City anddelivered to the Processing Sites by
vehicle, date, and time;
F. End use and markets for recovered materials.
Contractor shall make records available to the City upon request.
7.2.2 Customer Records
Contractor shall maintain accurate and complete records containing the number and types of
accounts served by the'Contractor. The records shall contain, at a minimum, the Customers
name, type of business, phone number,.address of Drop Box delivery and Collection location,
date of delivery and Collection, 'itemized. listing, of services, performed, tonnage Collected, and
the amount charged to provide services. The information shall.be provided to the City upon
request.
7.2.3 CERCLA Defense Records
City views its ability to defend itself against Comprehensive. Environmental Response,
Compensation and Liability Act (CERCLA), and related litigation as a matter ofgreat
importance. For this reason, the °City 'regards its ability to prove where C&D and Commercial
Recyclable Materials Collected by the Contractor are taken for Processing, Recycling, Transfer
or Disposal, as well as where they are not taken,! to be matters of concern. Contractor shall
maintain, retain and preserve, records which canjestablish where C&D and Commercial
Recyclable Materials Collected were Processed'and Disposed (and therefore establish where they
were not). This provision shallsurvivethe expiration or earlier, termination of this Agreement.
Contractor shall maintain these records for a minimum of 10 years beyond expiration or earlier
termination of the Agreement. Contractor shall.provide these records to City (upon request or at
the end of the record retention period)' in an organized and indexed manner rather than
destroying or disposing of them.
7.3 GENERAL REPORTING REQUIREMENTS
The format of each report shall be approved by City. Contractor may propose report formats that
are responsive,to.the objectives. Contractor agrees to mail a copy of all reports and submit, all
reports on computer discs, by e-mail, or by modem in a.,format compatible with'City's software, .
and computers at no additional charge. Contractor will provide,a certifieation,statement, under
penalty or perjury, by the respon'sible'Contractor official, that the report being submitted is true
and correct to the best knowledge of such official after their reasonable inquiry.
Contractor shall submit quarterly reports on or before following dates each year:
First Quarter
April 30
Second Quarter
July 30
Third Quarter
October 30
Fourth Quarter
January 30
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If.Contractor does not'submit the quarterly reports:by,iheAates,required in this. Article,
Contractor shall pay theCity Liquidated Damages as describW"in Section 11.4 and Exhibit B.
Contractor shall submit (via mail and e-mail) all reports to:
City Manager
City of Petaluma
P.O. Box 61
Petaluma, CA 94953
and
Director of Public' Works & Utilities
City of Petaluma
P.O. Box 61
Petaluma, CA 94953
7.4 QUARTERLY REPORT
Contractor shall provided information_requested in this Section separately for: (i) Tonnage
Collected in Drop Boxes in accordance with this Agreement, and, (ii) for Tonnage Collected, if
any, from Cartsor Bins Collected by Contractonthrough a private arrangement with the
Generator, in which the Generator. is compensated for the materials Collected. The quarterly
report shall present the following information. _Fourth quarter report will summarize tonnage and
diversion for the year.
A. Total Tonnage. Total C&D and Commercial Recyclable Materials Tonnage Collected
by Contractor within the City during the previous three months, listed separately by
month.
B. Diverted Tonnage. C&D and, Commercial Recyclable Materials Tonnage Collected by
Contractor within the City that was Diverted during the previous three months, listed
separately by month.
C. Disposed Tonnage. C&D and Commercial Recyclable Materials Tonnage Collected by
Contractor .within the City that was Disposed during the previous three months, listed
separately by month.
D. Diversion Level. Tonnage Diverted by Contractor divided by the Tonnage Collected by
Contractor multiplied by 100, listed separately by month for the previous three months.
E. Disposal and Processing Locations. Contractor shall provide a list of the names and
addresses of where;C&D and Commercial Recyclable Materials Collected within the City
during- the previous quarter was Diverted ,and Disposed. Such list shall include the
W
amount of CAD and Commercial Recyclable Materials Tonnage Diverted and/or
Disposed', at each locatiornduring the previous calendar year, listed separately bymonth.
F. Revenues. Gross revenues (e.g. cash receipts) earned on all C&D and Commercial
Recyclable Materials Drop Box Collection, Transportation, Processing,, Recycling and/or
Disposal services provided to Customers within the City during the previous quarter,
listed separately by month.
G. Insurance. Updated insurance certificates
H. Account Information. In table format; the number of Customers served and number of
Drop Boxes serviced per month listed by Drop Box size, and listed separately for C&D
and Commercial Recyclable Materials.
Contractor Officers and Board Members. Provide a list of Contractor's officers and
members of its board of directors (only required with the fourth quarterly report each
year, or in the event of a change in the officers or board members).
The City reserves the right to request reports from Contractor more frequently than once per
year, and upon City's request, Contractor shall provide information required above for the time
period requested by the City.
ARTICLE 8
FRANCHISE FEES AND OTHER FEES
8.1 GENERAL
Contractor shall collect the;fees described in this Section from Customers through Contractor's
regular billings and remit collected amounts to City on a monthly basis as described in Section
8.6.
8.2 FRANCHISE FEE
8.2.1. In consideration of the non-exclusive rights provided Contractor herein, Contractor shall
pay Franchise Fees to the City each month equal to 10% of actual gross revenues (e.g., cash
receipts remitted by customers for Collection services provided in City and revenues generated
by the sale of Collected materials Diverted from Disposal, pursuant to Section 9.1.) This fee
shall be known as the Right -of -Way Franchise Fee.
8.2.2. In addition, in consideration of.the non-exclusive rights provided Contractor herein,
Contractor shall pay Franchise Fees to the City each month equal to 4.4% of actual gross
revenues (e.g. cash receipts remitted by customers for Collection services provided in City and
revenues generatedby the sale of Collected materials Diverted from Disposal, pursuant to
Section 9. 1.) This fee shall be known as the Pavement Condition Franchise Fee.
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8.4 CONTRACT ADMINISTRATION FEE
Contractor shall.pay a contract administration fee to the City each montEequal to $150:00 per,
month.
8.5 OTHER FEES
The City may set 'other" additional fees, as it deems necessary. The amount, time, and method
of payment and adjustment process will be set in a manner similar to that for other fees described
in this Article.
8.6 ADJUSTMENT TO FEES
City may adjust the fees established in this Article annually at any time during the Term of this
Agreement. The Pavement Condition Franchise Fee will increase or decrease annually by the
percentage change in the "Engineering News Record Construction Cost Index -20 City
Average" ("Index"). The first annual adjustment will be based on a comparison of the most
recent Index to the Index in the month of June for the year in which this Agreement is executed,
and will take effect on, July I't Ofthe'first full year of this Agreement. Subsequent indexed
adjustments will be based on a comparison of the most.recent Index to the last Index used for the
prior adjustment of the Pavement Condition Franchise Fee and will take effect on each July 1'`
subsequent to the first adjustment -year: The Finance Director shall compute the increase or
decrease in the Pavement Condition Franchise Fee.
8.7 PAYMENT SCHEDULE AND LATE FEES
On or before the 20th day of each month during'the Term of this Agreement, Contractor shall
remit to City Franchise Fees^and other fees as described in this Article. If such remittance is not
paid to the City on or before the_20th.day of any month, Contractor shall pay, in addition to the
amount owed to City, Liquidated Damages in accordance with Section 11.4 and Exhibit B of this
Agreement.
Each monthly remittance to City shall be accompanied by a statement itemizing each fee paid;
detailing calculation of all fees; stating actual gross revenues (e.g. cash receipts) for the monthly
period collected from all operations conducted or permitted by this Agreement; stating the total
tonnage of C&D, Commercial Recyclables and other material collected during the monthly
period, and stating the number and size of Containers serviced by Contractor for the monthly
period.
8:8 OVERPAYMENT OF FEES
If Contractor believes it has paid Franchise Fees or other fees as described in this Article, in
excess of the fees due to the City, Contractor may submit•a request for refund to the City
Manager or his/her designee. If proof of overpayment is satisfactory to the City Manager or
his/her designee, the City Manager or his/her designee shall authorize the City to refund the
overpayment to the Contractor. 'Contractor shall nofapplyany overpayment as a credit against
30
any Franchise Fee or other amounts payable to the. City,, unless specifically authorized to do so
by the City Manager or his/her designee in writing.
ARTICLE 9
CONTRACTOR'S COMPENSATION AND RATES
9.1 CONTRACTOR'S COMPENSATION
Contractor's compensation for performance of all its obligations under this Agreement shall be:
(i) actual Rate revenues paid to Contractor (e.g. cash receipts) by Customers that contract for
Contractor's Collection services less „fees dues to the City in accordance with Article 8, and (ii)
revenues generated by the sale of Collected materials Diverted from Disposal.
Contractor's compensation provided for in this Article shall be the full, entire, and complete
compensation due to Contractor pursuant to this AgreemenPfor all labor, equipment, materials
and supplies, Processing and Disposal fees, regulatory fees, City fees, taxes, insurance, bonds,
overhead, operations, profit and.all other things� necessary to -perform all the services in the
manner required by this Agreement.
If Contractor's costs are more than Contractor's compensation, Contractor shall not be
compensated for the difference in costs and revenues. If Contractor's costs are less than
Contractor's compensation, Contractor shall retain the difference.
9.2 CITY'S RIGHT TO SET MAXIMUM RATES
The City reserves the right to establish maximum Rates'for C&D and Commercial Recyclable
Materials Collection services provided under this Agreement in the event that: (a) there are three
or fewer companies holding non-exclusive franchise agreements for Collection of C&D or
Commercial Recyclable Materials, or (b) the Rates charged by the"companies holding non-
exclusive franchise "agreenents for Collection of C&D or Commercial Recyclable Materials are
no longer comparable to those of other jurisdictions. Ifthe,Citychooses to exercise its right to
set maximum Rates, City shall notify Contractor at least 180 calendar days prior to the date that
maximum Rates become effective. The City -established -maximum Rates shall be adjusted
annually, as determined by the City, at its sole discretion.
9.3 CONTRACTOR'SRATES
Contractor shall set the Rates it charges its Customers for C&D and Commercial Recyclable
Materials Collection services. The Contractor's Rates shall not exceed City -established
maximum Rates, if the City exercised its rights under Section 9.2.
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ARTIC LE',10
INDEMNITY AND INSURANCE,
10.1 INDEMNIFICATION
To the maximum extent permitted by law, Contractor shall, at its own expense, indemnify,
defend with counsel acceptable to the City; (which acceptance will not be unreasonably
withheld), and hold harmless "City and its officers, officials, employees, agents and volunteers
("Indemnitees") from and against, any and all liability, loss, damage, claims, suits, actions,
arbitration proceedings, administrative proceedings, regulatory proceedings, civil penalties and
fines, expenses and costs (including, without limitation, claims expenses, attorney's fees and
costs and fees of litigation) (collectively, "Liability") of every nature, whether actual, alleged or
threatened, arising out of or in, connection with the Services or Contractor's failure to comply
with any of the terms of this Agreement, regardless of any 'fault or alleged fault of the
Indemnitees.
The Contractor's obligation to indemnify, defend and'hold harmless under this provision shall
not be excused because of the Contractor'sinability to evaluate Liability, or because the
Contractor evaluates Liability and Aetermines that the Contractor is not or may not be liable.
The Contractor must respond within 30 calendar days to any tender for defense and indemnity by
the City, unless the time for responding has been extended by;an authorized,. representative of the
City in writing. If the Contractor fails to accept tender of defense and indemnity within 30
calendar days, in addition -to any other remedies authorized.by law, so much of the money due or
that may become due the Contractor under this Agreement as shall reasonably be considered
necessary by the City, may be retained by the City until disposition has been made of the matter
subject to tender, or until the Contractor accepts the tender, whichever occurs first. In the event
that the City must file responsive documents in a matter tendered to Contractor prior to
Contractor's acceptance of tender, Contractor agrees to fully reimburse all costs, including but
not limited to attorney's fees and costs and fees of litigation, incurred by the City in filing such
responsive documents.
The Contractor waives any and all rights to express or implied indemnity against the Indemnitees
concerning any Liability of the Contractor arising out of or in connection with the Services or
Contractor's failure to comply with any of the terms of this Agreement.
The Contractor's duty to defend and indemnify�herein shall include Damages arising from or
attributable to any operations, repairs, clean-up!or detoxification, or other plan (regardless of
whether undertaken due to governmental action) concerning any Hazardous Substance Collected
in the City. Contractor shall be required to indemnify the City for the costs for ' any claiins
arising from the Disposal of C&D and/or Commercial Recyclable Materials, including, but not
limited•to, claims arising -under the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA). The foregoing.is intended to. operate to defend and indemnify and
hold harmless indemnities to the full extent permitted for liability pursuant to Section 107(e) of
CERCLA, 42 U.S.C. Section 9607(e) and California Health.and Safety Code Section 25364.
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In addition, Contractor's -duty to defend and indemnify" herein includes all fines aria/or "penalties
imposed'by the:California Integrated Waste Management Board, subject to the restrictions set
forth in Public Resources Code Section 40059.1„if the requirements of the Act are not met by
the Contractor with respect to the waste stream Collected under this..Agreement, and such failure
is due to Contractor delays in providing information that prevents Contractor, Regional Agency,
orCity from submitting reports required by the Actin a timely manner.
This.provision will,survive'the expiration or earlier termination of this Agreement and shall not
be construed as a waiver, of rights by City to contribution or indemnity from third parties.
10.2 INSURANCE
10.2.1 Minimum Scope Of Insurance
Coverage shall be at least as broad as:
A. Insurance Services Office form number GL 0002 covering Comprehensive General
Liability and Insurance Services Office form number, GL 0404 covering Broad Form
Comprehensive General Liability; or Insurance Services Office Commercial General
Liability coverage ("occurrence" form CG 0001).
B. Insurance Services Office form number CA 0001 covering Automobile Liability, code 1
"any auto", and endorsement CA 0025.
C. Workers' Compensation insurance as required by the Labor Code of the State of
California and Employers Liability insurance.
10.2.2 Minimum Limits Of Insurance
Contractor shall maintain limits no less than:
A. Comprehensive General Liability: $10,000,000 combined single limit per occurrence for
bodily injury, personal injury, and property damage.
B. Automobile Liability:. $10,000,000 combined single limit per accident for bodily injury
and property damage.
C. Workers' Compensation and Employers Liability: Workers' compensation limits as
required by the Labor Code of the State of'California and Employers Liability limits of
$1,000;000 per accident.
D. Employee Blanket Fidelity Bond in the amount of $500,000 per employee, covering
dishonesty, forgery, alteration; theft, disappearance, destruction (inside or outside).
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F. Pollution Legal Liability or Hazardous Waste and Environmental Impairment Liability:.
$10,000;000'for bodily injury, property damage, and remediation of contaminated site.
10.23 Deductibles And Self -Insured Retentions
Any deductibles or self-insured retentions must'be declared to and approved by the City. At the
option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects the City, its officials and employees; or the Contractor shall procure a bond
guaranteeing payment of losses and related investigations, claim administration and defense
expenses.
10.2.4 Other Insurance Provisions
The policies are to contain, or be endorsed to contain, the following provisions:
A. General Liability and Automobile Liability Coverages
1. The City, its officials, ,employees and volunteers are to be covered as additional
insureds as respects: liability arising out of activities performed by or on behalf of
the Contractor; products and completed operations of the Contractor; Premises
owned, leased or used by the Contractor; or automobiles owned, leased, hired or
borrowed by the Contractor. The coverage shall contain no special limitations on the
scope of protection afforded to the"City, its officials, employees, or volunteers. The
automobile liability is endorsed to contain MCA -90 coverage.
2. The Contractor's insurance coverage shall be primary insurance as respects the City,
its officials, employees, and volunteers. Any insurance or self-insurance maintained
by the City, its officials, employees, or volunteers shall be excess of the Contractor's
insurance and shall not contribute with it.
3. Any failure to comply with reporting provisions of the policies shall not affect
coverage provided to the City, its officials, employees, or volunteers.
4. Coverage shall state that the Contractor's insurance shall apply separately to each
insured •against whom claim is made or suit is brought, except with respect to the
limits of the insurer's liability.
B. Workers' Compensation and Employers Liability Coverage. The insurer shall agree to
waive all rights of subrogation against'the City, its officers, employees, and volunteers
for losses arising from work performed by the Contractor for the City.
C. All Coverages. Each insurance policy required by this clause shall be endorsed to state
that coverage shall not be, suspended, voided, canceled by either party, reduced in
coverage or in limits except after 30 calendar days' prior written notice by certified mail,
return receipt requested, has been given to the City.
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10.2:5 Acceptability Of Insurers
The insurance policiesrequired by this Section shall be issued.byan: insurance company or
companies authorized to do business in the State of California and with a rating in the most
recent.edition of Best's Insurance Reports of size category VII or larger and a rating
classification of A or better.
10.2.6 Verification Of Coverage
Contractor shall furnish Contractor's insurance -agent a'copyofthese specifications, and direct
the agent to provide the City,wiih certificates of insurance and with original endorsements
affecting coverage required by this',clause. Issuance of documentation indicates the Contractor's
insurance' complies with these provisions. The certificates and endorsements for each insurance
policy are to be signed by a Person authorized by that insurer to bind coverage on its behalf. The
certificates and endorsementsare to be received and approvedby the City before work
commences. The City may require complete, certified copies of all required insurance policies,
at any time.
10.2.7 Required Endorsements
A. The Workers' Compensation policy shall contain an endorsement in substantially the
following form:
"Thirty calendar days' prior written notice shall be given to the City of Petaluma in the
event of cancellation, reduction in coverage, or non -renewal of this policy. Such notice
shall be sent to: City Clerk
City of Petaluma
P.O. Box -61
Petaluma, CA 94953"
B. The Commercial General Liability Business and Automobile Liability policies shall
contain endorsements in substantially the following form:
"Thirty calendar days' prior written notice shall be given to the City of Petaluma in
the event of cancellation, reduction in coverage, or non -renewal of this policy. Such
notice shall be sent to: City Clerk
City of Petaluma
P.O. Box 61
Petaluma, CA 94953"
"The City of Petaluma, its officers, employees, and agents are additional insureds on
this policy." The City requires forms CG2010 0704 and CG 2037.
"This policy shall be considered primary insurance as respects any other valid and
collectible insurance maintained by the City of Petaluma, including any self-insured
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retention or program of self --insurance, and any other such .insuranceshall_ be
considered excess insurance only."
4. "Inclusion of the City of Petaluma as, an insured shall not affect the City's rights as
respects any claim, demand, suit; or judgment brought or recovered against the
Contractor. This policy shall protect Contractor and the City in the same manner as
though a separate policy had been issued to each, but this shall not operate to
increase the Contractor's liability as set forth in the policy beyond the amount shown
or to which She"Contractor would have been liable if only one party had been named
as an insured."
10.2.8 Delivery Of Proof Of Coverage
Simultaneously with the execution of this Agreement, Contractor shall furnish the City
certificates of each policy of 'insurance required! hereunder, in.form and substance satisfactory to
City. Such certificates shall "show the type and amount'of coverage, effective dates and dates of
expiration of policies and'shall have+all required endorsements. If the City requests, copies of
each policy, together with all endorsements, shall also be promptly delivered to City.
Renewal certificates will be furnished annually to City to demonstrate maintenance of the
required coverages throughout the Term.
10.2.9 Other Insurance Requirements
A. If any services are delegated to a Subcontractor, the. Contractor shall require such
Subcontractor to provide statutory workers' compensation insurance and employer's
liability insurance for all of the Subcontractor's employees engaged in the, work in
accordance with Sections 10.2.2.0 and 10.2.4.13. The liability insurance required by
Section 10.2.2.A shall cover all Subcontractors .or the Subcontractor must furnish
evidence of insurance provided by it meeting all of the requirements of this Section 10.2.
B. The Contractor shall comply with all requirements of the insurers issuing policies. The.
carrying of insurance shall not 'relieve Contractor from any obligation under this
Agreement. .If' any claim exceeding the amount of any deductibles or self-insured
reserves is, made by any third person against the.Contractor or any Subcontractor, because
of any occurrence related to this Agreement, the Contractor shall promptly report the
facts in writing to the insurance carrier -and to the City.
The Comprehensive General and Automobile Liability insurance required by Sections 10.2.2 and
10.2.4.A shall be written on an "occurrence," rather than a "claims made" basis, if such coverage
is obtainable. If it is not obtainable, Contractor must arrange for, a 36 month "tail coverage" to
protect the City from claims filed after the expiration or termination of this Agreement relating to
incidents which occurred prior to such expiration or termination.
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1
ARTICLE 11
DEFAULT AND, REMEDIES
11.1 EVENTS OF DEFAULT
Each of the following shall constitute an event of default ("EvenfofDefault") hereunder
A. Contractor fails to perform its.obligations under this Agreement, or future amendment to
this Agreement, including, but not limited to, Contractor's failure to pay Franchise Fees
and other City 'fees in accordance with Article 8 of this Agreement, and the breach
continues for more than 10 Business __Days after written notice from the City for the
correction thereof,
B. Contractor's failure to Divert 60% of the C&D and 00Oo. of the Commercial Recyclable
Materials Collected in the City as required by Section 5.2.0 of this Agreement after
Contractor is given an opportunity to remedy the nonperformance as described in Section
11.5
C. Any representation,, warranty, or disclosure made to City by Contractor in connection
with or as an inducement to entering into.this Agreement or any future amendment to this
Agreement, which proves to be false or misleading in any material respect as of the time
such representation or 'disclosure is made, whether or not any such representation,
warranty, or disclosure appears as, part of this Agreement;
D. There is a seizure or attachment (other than a pre judgment attachment) of, or levy
affecting possession on, the operating equipment of Contractor, including without limit
its vehicles, maintenance or office facilities, onany part thereof of such proportion as to
substantially impair Contractor's ability to perform under this Agreement and which
cannot be released, bonded; or otherwise lifted within 48 hours excluding weekends and
Holidays;
E. Contractor files a voluntary petition for debt :relief under any applicable bankruptcy,
insolvency, debtor relief, or other similar law now or hereafter in effect, or shall consent
to the appointment of or taking of possession by a receiver, liquidator, assignee (other
than as a part of a transfer of equipment no longer useful to Contractor or necessary for
this Agreement), trustee (other than as "security for an obligation under a deed of trust),
,custodian, sequestrator (or similar official) of the Contractor for any part of Contractor's
operating ,assets or any substantial part of Contractor's property, or shall make any
general assignment for the benefit of Contractor's, creditors, or shall fail generally to pay
Contractor's debts as they become due or shall take any action in furtherance of any of
the foregoing;
F. A ,court having jurisdiction ,shall enter a decree or order for relief in respect of the
Contractor, in any involuntary case brought under'any bankruptcy, insolvency, debtor
relief. or similar law now or hereafter in effect, or Contractor shall consent to or shall fail
to oppose any such. proceeding, or any such court shall enter a decree or order appointing
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a receiver, liquidator, 'assignee; custodian,.trustee, sequestrator (or similar official) of the
Contractor or, for„any part,of the Contractor's operating equipment or assets,,or orders the
Winding up or liquidation of the affairs -.of Contractor;
11.2 RIGHT TO TERMINATE"UPON DEFAULT
Upon a,default by Contractor, the City may terminate this Agreement within 10 calendar days of
the default but no later than 180 calendardays after the default. Such termination shall be
effective 10 calendar days following.the City's written notice to Contractor, and such termination
shall be effective without the need for any hearing, suit, or legal action.
11.3 CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE
The City's right to terminate the Agreement undF r Section 11.2 is not exclusive, and the City's
termination of the Agreement and/or the imposition of Liquidated Damages shall not constitute
an�election of remedies. Instead,, these rights shall be in addition to any and all other legal and
equitable rights and remedies which the City may have.
By virtue of the nature of this Agreement, the urgency of timely, continuous and high quality
seryice, the lead time required to effect alternative service, and the rights granted by City to the
Contractor, the remedy of damages for a breach;hereofby'Contractor is inadequate and City shall
be entitled to injunctive relief.
11.4 LIQUIDATED DAMAGES
A. General. The Parties find that as of the time of the execution of this Agreement, it is
impractical, if not impossible, to reasonably ascertain the extent of damages which shall
be incurred by City as a result of a breach by Contractor of its obligations under this
Agreement. The factors relating to the impracticability of ascertaining damages include,
but are not limited to, the fact that: (i) substantial damage results to members of the
public who are denied services or denied quality or reliable service; (ii) such breaches
cause inconvenience, . anxiety, frustration, and. deprivation of the benefits of the
Agreement to individual members of the general public for whose benefit this Agreement
exists, in subjective ways and in varying degrees of intensity which are incapable of
measurement in precise monetary terms; (iii) that services might be available, at
substantially lower costs than alternative services and the monetary`loss resulting from
denial of services or denial of quality or reliable services is impossible to calculate in
precise monetary terms; and (iv) the termination of this Agreement for such breaches, and
other remedies are, at best, a means of future correction and not remedies, which make the
public whole for past breaches.
B. Service Performance Standards; Liquidated Damages for Failure to Meet
Standards. The Parties further acknowledge that consistent, ,reliable C&D and
Commercial Recyclable Materials service is of utmost importance to City and that City
has considered and relied on Contractor's representations as to its quality of service
commitment in executing this Agreement. The Parties recognize that some quantified
In
standards of performance are necessaryand appropriate to ensure consistent°andreliable
service and performance. The Parties further, recognize that if Contractor fails to achieve
the performance standards, or fails to ,submit required documents in a timely manner,
City and its residents and businesses will suffer damages, and that it is,, and will be,
impractical and extremely difficult to ascertain and determine the exact amount of
damages which City will suffer. Therefore, without prejudice to City's right to treat such
non-performance as an event of default under this Article, the Parties agree that the
Liquidated Damages amounts ,established in Exhibit B of this Agreement and the
following liquidated damage amounts represent a reasonable estimate of the amount of
such damages considering all of the circumstances existing on the Effective Date of this
Agreement, including the relationship of the sums to the range of harm to City that
reasonably could_ be anticipated and the anticipation that proof of actual damages would
be costly or impractical.
Contractor agrees to pay (as Liquidated Damages and not as a penalty) the amounts set
forth in the Schedule of Liquidated Damages, Exhibit B.
City may determine the occurrence of events giving rise to Liquidated Damages through
the observation of its own employees or representative or investigation of complaints by
Customers, occupants, and Generators.
Other than Liquidated Damages payable under Section 8.6 of this Agreement, Liquidated
Damages will only be assessed after Contractor has been given the opportunity but failed
to rectify the damages as described in this Agreement. Before assessing Liquidated
Damages other than pursuant to Section '8.6 of this Agreement, City shall give Contractor
notice of its intention to do so. The notice will include a brief description of the
incident(s) and/or non-performance. The City may review (and make copies at its own
expense) all information in the possession of Contractor relating to incident(s) and non-
performance. City may, within 10 calendar days after issuing the notice, request a
meeting with Contractor. City may present evidence of non-performance in writing and
through testimony of its employees and others relevant to the incident(s) and non-
performance. City will provide Contractor with•a written explanation of its detennination
on each incident(s) and non-performance prior to authorizing the assessment of
Liquidated Damages under this Section 11.4. The decision of City shall be final and City
shall not be subject to, or required to exhaust, any further administrative remedies.
C. Amount. City may assess Liquidated Damages for each calendar day or event, as
appropriate, that Contractor is determined to be liable in accordance with this Agreement
in the amounts specified in Exhibit B subject to annual adjustment described below.
The amount of Liquidated Damages specified in Exhibit B shall be adjusted annually on
the anniversary of the Effective Date. The adjustment shall be rounded to the nearest
cent. Liquidated Damage amounts shall be adjusted to, reflect changes in the All Urban
Consumers Index (CPI -U),. all items, for the San Francisco -Oakland -San Jose, CA, Base
Period 1982 — 1984 = 100, not seasonally adjusted, compiled and published by the U. S.
39
Department of Labor, Bureau of 7 Labor. Statistics or its successor agency, using, the
method "following:
Adjusted Liquidated _ Then -current Liquidated Damage Amount
Damage Amount most current CPT-U/previous 12 -month CPI -U
For example:
Current Liquidated Damage Amount = $150.00
Most recently published index (May 2004) — 193.5
Index published twelve months prior to most recently published index (May 2003) — 191.0
Adjusted Liquidated Damage Amount -`S150.00 x (193.5/191.0) = $151.96
If the CPI -U is discontinued or revised during the Term by the United States Department
of Labor, 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.
D. Timing of Payment. Contractor shall pay any Liquidated Damages assessed by City
within 10 calendar days of the date the Liquidated Damages are assessed. If they are not
paid within the 10 -day period, City may order the termination of the rights or "franchise"
granted by this Agreement.
11.5 DIVERSION NON-PERFORMANCE
If the Contractor's Diversion level is1ess than 60%.for C&D and/or 90% for Commercial
Recyclable Materials Collected mi the City for a:monthly reporting period, the following steps
shall be followed by the City and Contractor.
A. Warning. The City shall issue a written warning to the Contractor within 30 calendar
days of receipt of the Contractor's quarterly report documenting the Diversion level for
the monthly reporting period.- The warning notice shall.specify the amount of time (i.e.
"correction period") the City grants the'Contractor to improve its performance and meet
the Diversion requirements defined in Section 5'2.C.
B. Opportunity to Improve Performance. The Contractor shall modify its Collection,
Processing, Diversion, and public education and outreach programs (subject to the City's
approval) to improve the Diversion level. At the end ofthe correction period, Contractor
shall submit a written report to the City Jdentifying the Diversion level and providing the
supporting documentation. If the City determines that the Diversion level equals or
exceeds Diversion requirements defined'in Section 5.2.C, the Contractor shall continue to
perform services in such a manner as to maintain or improve the Diversion level and the
City shall waive its rights to proceed with steps outlined in subsections C and D of this
Section 11.5 during the remainder of then-currentreportmg period.
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C. Liquidated Damages.. If the Contractor fails to improve the.Diversion level so that it is
equal to or,greater than Diversion requirements: defined in Section 5.2.0 by the, end of the
correction period granted in subsection A of. this Section, the City may levy; and
Contractor shall pay, Liquidated Damages'described in Section 11:4.
D. Termination of the Agreement. If Contractor's fails to achieve a Diversion level that
equals or exceeds Diversion requirements defined in Section 5.2.0 within six months of
the date the City levied Liquidated Damages in accordance with subsection C of the
Section, the failure to meet, the Diversion requirements defined in Section 5.2.0 shall be
considered an event of default and the City may terminate the Agreement in accordance
with Section 11:2.
11.6 CONDITIONS UPON TERMINATION
In the event this Agreement is terminated under the provisions of this Article, the following
conditions shall be effective:
A. Prohibit C&D and Commercial 'Recyclable Materials Collection Services.
Contractor shall have no right or authority to engage in C&D Collection services in the
City for a period of five years from the date of termination. After five years, should the
Contractor provide proof that the event causing the Contractor to default under this
Agreement has been corrected, the Contractor may reapply for a non-exclusive C&D and
Commercial Recyclable, Materials Collection Drop Box franchise, and the City, at the
sole and complete discretion of the City, may reinstate the Contractor based on review of
its reapplication.
B. Continuing Liabilities. Contractor shall remain liable to the City for:
1. Fees due in accordance with Article 8 that would otherwise be payable by the
Contractor
2. Liquidated Damages assessed pursuant to Section 11.4
3. Reports required by Article 7 for C&D and Commercial Recyclable Materials
activities performed by Contractor up to and including the date of termination
4. Indemnity obligations under Section 10.1
5. Record keeping and retention obligations under Sections 7.1 and 7.2
C. Release Customers and Generators from Obligations. Contractor shall allow C&D
and Commercial Recyclable Materials 'Generators served by Contractor to arrange for
C&D and Commercial Recyclable Materials Collection services with a hauler authorized
to perform such services, without penalty or liability for breach of any contract between
Contractor and its Customers or Generators.
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D. Remove Drop Boxes. Contractor shalhreniovecall ofCoritractor's`Drop'Boxes.from all
of Contractor's,Collecfion locations and shall properly Recycle or Dispose; of C&D,.and
Commercial Recyclable Materials in such Drop, Boxes.
ARTICLE 12
OTHER AGREEMENTS'OF: THE" PARTIES
12.1 RELATIONSHIP'OF PARTIES
The Parties intend that Contractor:shall,performithe services required by this Agreement as an
independent Contractor engaged by'City and not as an officer nor employee of the City, nor as a
partner of, or joint venturer with, the City. No employee or agent of Contractor shall -be, or shall
be deemed to be; an employee or agent of the City. Except;as expressly provided herein,
Contractor shall have control over the.manner and means of conducting the,C&D and
Commercial Recyclable Materials Collection, Transporting, Processing, Recycling, and Disposal
services performed under this Agreement, and all Persons performing such services. Contractor
shall be solely responsible for the acts and, omissions of its officers; employees, Subcontractors,
and agents. Neither Contractor -nor its officers, employees, Subcontractors and -agents shall
obtain any rights to retirement benefits, workers' compensation be or any other benefits
which accrue to City employees, by virtue of their employment with the City.
12.2 PERMITS AND LICENSES
Contractor shall obtain and:maintain, at Contractor's sole cost and expense, all permits and
licenses applicable to Contractor's operations under this Agreement which are required by any
governmental agency.
12.3 COMPLIANCE WITH LAW
Contractor shall, at all times„at its sole cost, comply with all Applicable Laws now in force and
as'they may be enacted,. issued, or amended during' the Term.
12A. GOVERNING LAW
This Agreement, shall be governed by, and construed and enforced in accordance with, the laws
of the State'of California.
12.5 JURISDICTION
Any lawsuits between the Parties arising out of this Agreemeashall be brought andconcluded
in the courts of Sonoma County in the State of California,, which shall have exclusive,: jurisdiction
over such lawsuits.
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With respect to venue, the. Parties agree that this Agreement.is,made in and will be performed in
Sonoma County.
12.6 BINDING ON SUCCESSORS
The provisions of this Agreement shall inure to the benefit to, and be binding on, the successors
and permitted assigns of the Parties.
12.7 ASSIGNMENT
Neither Party shall assign its rights nor delegate or otherwise transfer its: obligations under this
Agreement to any other Person without the prior written consent of the other Party. Any such
assignment made without the consent of the other Party shall be void and the attempted
assignment shall constitute a material breach of this Agreement. Under no circumstances shall
any assignment be considered,by City if Contractor is in default of any time during the period of
consideration.
12.8 PARTIES IN INTEREST
Nothing in this Agreement, whether express or implied, is intended to confer any rights on any
Persons other than the Parties to it and their representatives, successors and permitted assigns.
12.9 WAIVER
The waiver by either Party of any breach or violation of any provisions of this Agreement shall
not be deemed: to be a waiver ofany breach or violation of any other provision nor of any
subsequent breach of violation of the same or any other provision. The subsequent acceptance
by either Party'of any monies which become due hereunder, shall not be deemed to be a waiver
of any pre-existing or concurrent breach or violation by the other Party of any provision of this
Agreement.
12.10 NOTICE PROCEDURES
All notices, demands, requests, proposals, approvals, consents, and other communications which
this Agreement,requires, authorizes or contemplates all, shall,he in writing and shall either be
personally delivered to a representative of the Parties at the address below or deposited in the
United States mail, first class postage prepaid, addressed as follows:
A. If to City:
City Manager
City of Petaluma
P.O. Box 61
Petaluma, CA 94953
'B'. ti If to Contractor:
The address, to which communications may be delivered may be changed from time'to time by a
notice given in accordance with this Section.
Notice shall be deemed given on the day it is personally delivered, or, if mailed, three calendar
days from the date it is deposited in the mail.
12.11 REPRESENTATIVES OF THE'PARTIES
References in this Agreement,to the "City" shall; mean the City Manager and. all actions to be
taken by the City shall be taken by the City Manager except. as provided below. The City may
delegate the authority to the Director of Public Works,and.Utilities, and/or to other City officials
and may permit such officials; in turn, to delegate in writing some or all of such authority to
subordinate, officers. The Contractor may rely upon actions taken by such delegates if they are
within the scope. of the authority properly delegated to them.
The Contractor shall, by the,Eff_ective Date, designate, in writing a': responsible officer who shall
serve as the representative ofthe Contractor in all matters related to the Agreement and shall
inform the City in writing of such designation and of any limitations upon his or her authority to
bind the Contractor. The City may rely upon action taken by such designated representative as
actions of the Contractor unless.they<are outside the scope of the authority delegated to him/her
by the Contractor as communicated to City.
12.12 NOTICE OF CITY'S RIGHT TO GRANT EXCLUSIVE FRANCHISE
The Parties agree that in the event;the City determines to provide or authorize an exclusive
system of solid waste handling services that would include the>services permitted under this_non-
exclusive'Agreement during the Term of this Agreement, the City shall notify Contractor in
writing of such determination. Provided that as of the d'ate'of mailing of said written
notification, Contractor has provided services pursuanfto this Agreement for more thanthree
previous years, Contractor may continue to provide services for up to five years after mailed
notification, notwithstanding any such exclusive system.of solid waste handling services. The
Parties acknowledge that this provision fulfills the City'.s obligations, if any, under Sections
49520 through 49524 of the Public Resources Code as they applied on the date of this
Agreement.
12.13 CRIMINAL ACTIVITY OF CONTRACTOR'
12:13.1 Criminal Activity
Foi puipose.ofthis Section, Criminal Activity shaltmean any oftfie following events'or
circumstances:
A. ConviWons. The entry against any Contractor Party or its officers, of -a- criminal
conviction 'or a permanent mandatory or prohibitory injunction from a court,
municipality, or regulatoryagency of competent jurisdiction, based on acts taken in his or
her official capacity on behalf of Contractor with respect to:
1. Fraud or criminal offense in connection with obtaining, attempting to obtain,
procuring or performing a public or private agreement related to municipal Solid
Waste services of any kind (including Collectioii, Transportation, transfer,
Processing, Recycling. Composting or Disposal), including this Agreement or any
amendment thereto;
2. Bribery or attempting to bribe a public officer or employee of a local, State, or
Federal agency;
1
3. Embezzlement, extortion, racketeering, false claims, false statements, forgery,
falsification or destruction of records, obstruction of justice, knowingly receiving
stolen property, theft, or misprision, (faiiure to disclose) of felony;
4. Unlawl'ul disposal of Hazardous 'Substances; the occurrence of which any of
Contractor Party kriew or should have known;
5. Violation of antitrust laws; including laws relating to: price?fixing, bid -rigging, and
sales and market allocation, and of unfair and anti-competitive trade practices laws;
r
6. Violation of securities laws; and
7. Felonies.
B. Pleas. Entry ofa plea of "guilty," "nolo contendere," or "no. contest" by a Contracting
Party based. on acts taken in his, her, or. its official capacity on, behalf of Contractor with
respect to the conduct described in preceding Section'12.1'3.LA.
12:13.2 Notice
Contactor shall notify City in writing within five calendar days of occurrence of any Criminal
Activity by any Contractor Party.
12.13.3 Contractor's Cure
Upon,occurrence of`anyCriminal Activity, Contractor shall immediately do orcause to be done
all of the following:
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A. Terminate from employment or;remove from office any, offending'Jndividual Contractor
Party; unless otherwise direct ed`.or, ordered by a,court,or regulatoryagency^of competent
jurisdiction or authority, ,and unless that termination would constitute a breach of any
labor agreement entered into by Contractor; and
B. Eliminate participation by any individual offending individual Contractor Party in any
management, supervision, or decision activity that affects or could affect, directly or
indirectly, the performance of the Contractor under this Agreement.
12.13.4 Transfer And Hiring
Contractor shall notallow or cause to be -allowed to hire or transfer any individual from any
Parent Company'or subsidiarycompany or business entity of Contractor who has committed
Criminal Activity as a Contractor representative, field supervisor, officer,, or director who is
directly or indirectly responsible.for performance of this Agreement without obtaining prior
writtenconsent of City, following full, disclosure to City of the facts and circumstances
surrounding such Criminal 'Activity.
12.13.5 City's Remedy
In the event of any occurrence of Criminal Activity, the'City„ in its sole discretion, may
terminate the Agreement within 30 calendar days written notice to Contractor, or may impose
other sanctions (which may include financial sanctions, temporary suspensions, or any other
condition deemed appropriate short oftennination) as ifwill deem proper, in the following
events:
A. Contractor fails to comply with the foregoing obligation of this Section, or
B. The Criminal Activityconcerns or relates directly or indirectly to this Agreement.
Contractor shall be given,the opportunity to present evidence in mitigation during the 30-
calendar day notice period.
ARTICLE 13
MISCELLANEOUS AGREEMENTS
13.1 ENTIRE AGREEMENT
This Agreement', including the Exhibits, represents the full and entire Agreement between the
Parties with respect to the, matters covered herein.
13.2 SECTION HEADINGS
The article headings and section headings in this Agreement are for convenience of reference
only andare not intended to be used in the construction of this Agreement nor to alter or affect
any of its'provisions.
46
13.3 REFERENCES TO LAWS
All references in this Agreement to laws.shalf be understood to include such laws amhey may be
subsequently amended or recodified, unless otherwise specifically provided.
13.4 INTERPRETATION
This Agreement shall be interpreted and construed reasonably and neither for nor against either
Party, regardless of the degree to which either Party participated in its drafting.
13.5 AMENDMENT
This Agreement may not be modified or amended in any respect except in writing signed by the
Parties.
13.6 SEVERABILITY
If any non -material provisiomofthis Agreement,is for.anyreason deemed to be invalid and
unenforceable, the invalidity or unenforceability of such provision shall not affect any of the
remaining provisions of this Agreement, which shall be enforced as if such invalid or
unenforceable provision had not -been contained herein.
13.7 COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be considered an original.
13.8 EXHIBITS
Each of the Exhibits identified as Exhibit "A" through "C is attached hereto and incorporated
herein and made a part hereof by this reference.
IN WITNESS WHEREOF, the Parties have caused the Agreement to be executed on the day
and year,first above written.
CITY OF PETALUMA CONTRACTOR
A Municipal Corporation
City Manager
47
Name, Title
APPROVED AS'TO FOR,IM:
City Attorney
Risk Manager
Administrative Services Director
ATTEST:
Citv Clerk
HI
EXHIBIT A
CONTRACTOR?S APPLICATION
(To Be Prepared and Submitted By Applicant)
EXHIBIT B
SCHEDULE FOR LIQUIDATED DAMAGES
EXHIBIT B
SCHEDULE FOR LIQUIDATED DAMAGES
Contractor may beassessed Liquidated Damages if Contractor fails to fulfill its obligations
With regards to -the events listed inahis Exhibitin,accordance with'tlie ferms and conditions
of the Agreement with regards to the time frame for accomplishing -each event and nature
of the responsibility associated with4he event unless.otherwise stated in this Exhibit.
1.
Diversion. failure to achieve and maintain a,minimum of 60%
The greater of $5,000
Diversion per month of all C&D Collected within the City and
or 10% of the gross
90% Diversion per month of all Commercial Recyclable
Rate revenues
Materials Collected within'the City.
received for providing
C&D and Commercial
Recyclable Materials
services in the City,
for the most recent
12 -month period
2.
Leaks, Litter or Spills. For each occurrence over five during a
i $300/ event
calendar year of unreasonable leak& litter, or spills of C&D or
Commercial Recyclable Materials near or on public streets and
failure to pick up or, clean up:such material immediately
3.
Unauthorized Collection Hours. For each occurrence over five
$300/ event
during a calendar year of Collecting C&D and Commercial
j .
Recyclable Materials during unauthorized hours
4.
Excessive :Noise. For each occurrence oVcr 10 during a calendar
$300/ event
year. of excessive noise
5.,
Cleaning Collection Vehicles. For each occurrence over -five
$150/ event
during a calendar year for failure to keep Collection vehicles in a
safe and sanitary condition
6.
Labeling of Drop Boxes. For each occurrence of Contractor's
$500/ event
failure to correctly label Contractor -owned Drop Boxes (in
accordance with Section 16.4.C).
7.
Discourteous Behavior: For each occurrence of discourteous
$500/ event
behavior by Collection vehicle personnel, customer service
personnel, or other employees of Contractor
8.
Injuries to Others. For cach'incident of personal injury to a
$5;000/ incident
Person requiring- medical treatment or hospitalization, where the
negligence of the Contractor or its personnel was a contributing
factor to the injury
9.
Quarterly Reports. Failure to submit quarterly reports in the
$300/ day report is
timeframe specified in this Agreement.
I overdue
10.
Rep'orf Hazardous Substance. For each failure to notify the
$500/ event
appropriate authorities of reportable quantities:of Hazardous
Substance
1,1. Late Remiftanceiof Fees'tokity. Failure of Contractor to remit
2.0 of.the amount
fees,due'to the City (as described in Article 8) on'or before the
owing for that month;
20th day of any month
plus an additional 2%
owing on any unpaid
balance for each
following 30 calendar
day period the .fee
remains unpaid
12. Failure of Other Oti6gatioim Failure to perform any of the
$.150/ for each
obligations set forth in.this.Agreement not specifically,stated
obligation per day
above and not corrected or proceeding in,good faith to correct
until obligation is
within 24 hours upon 24 hour notification by City
performed
EXHIBITC
SECRETARY'S` CERTIFICATION
EXHIBIT C
SECRETARY'SCERTIFICATION
The undersigned, being the Secretary of
Company Name.
California corporation ("the Company"), do,hereby certify that the following resolution was
adopted by the Board of Directors of the Company and that such resolution has not been
amended, modified or rescinded and is.in full force and effect as of the date hereof:
RESOLVED, that -
be,, and hereby is, authorized to
- Name of Designated Represenlatrve
execute by and on behalf of the Company any and all agreements, instruments, documents or
papers, as he/she may deem appropriate or necessary, pertaining to or.relating to the Non -
Exclusive Franchise Agreement between the City of Petaluma and Company for Drop Box
Collection and Recycling of Construction and Demolition Debris and Commercial Recyclable
Materials and that any such action taken to date :is hereby ratified and approved.
Dated:
Signature
Title
EXHIBIT D
STATEMENT OF APPLICANT'S
UNDERSTANDING AND REPRESENTATIONS
The undersigned (who is duly authorized to bind the company submitting this application) has
reviewed the requirements ofthe non-exclusive franchise agreement for drop box collection and
recycling services for construction. and demolition debris,;and commercial recyclable materials,
its exhibits, and reference'documents.. In addition, the undersigned attests that this application
and any other supplementary information submitted with this application do not: (i) contain any
untrue statement of a material'fact, (ii) contain inaccurate or. misleading information, or (iii) omit
to, state a material fact that is, necessary to make -the statements made,.in light of the
circumstances in which they were,made, not misleading.
Print Name
Title
Company Name
Signature
Date
EXHIBIT E
A_C_KNOWLEDGMENT AND CERTIFICATION PURSUANT TO
CITY OF PETALUMA LIVING WAGE ORDINANCE
PETALUMA MUNICIPAL CODE CHAPTER 8.36
The City of Petaluma Living Wage Ordinance ("Ordinance"), Petaluma Municipal Code Chapter
8.36, applies to certain service contracts, leases„ franchises and,other agreements or funding
mechanisms providing financial assistance (referred to hereafter as an "Agreement") between
the City of Petaluma ("City") and/or the Petaluma Community Development Commission
("PCDC") and contractors, lessees; franchisees,,, and/or recipients of City and/or PCDC funding
or financial benefits'("covered entities"). The ordinance can be viewed as part of the Municipal
Code at http://www.codepublishing:com/ca/petaluma.html'or at the City Clerk's office. The
current amount of the living wage is,set by periodic City Council resolution and can be obtained
from the City Clerk.
Pursuant to Petaluma Municipal Code Section 8:'36.120, as part of any bid, application or
proposal for any Agreement subject to the Ordinance, the covered entity shall:
• Acknowledge that the covered entity is aware of the Ordinance and intends to comply
with its provisions.
Complete the Report of Charges, Complaints,.Citations and/or Findings contained in this
Acknowledgement and Certification by providing information, including the date, subject
matter and manner of resolution, if any, of all wage, hour, collective bargaining,
workplace safety„ environmental or consumer protection charges, complaints, citations,
and/or findings of violation of law or regulation by any regulatory agency or court
including but not limited.to the California Department -of Fair Employment and Housing,
Division of Occupational Safety and Health (OSHA), California Department of Industrial
Relations (Labor Commissioner), Environmental Protection Agency and/or National
Labor Relations Board, which have been filed or presented to the covered entity within
the ten years immediately prior to the bid, proposal, submission or request.
Pursuant to Petaluma Municipal Code Section 8':36.120, before the beginning of the term of any
covered'Agreement,;or prior to the execution of said Agreement
,by the City or the PCD.C,.each
covered entity shall certify that itsemployees are paid a -living wage that is consistent with,
Petaluma Municipal Code Chapter 8:36.
By'executing this Acknowledgment�and Certification, the covered entity (i) acknowledges that it
is aware of the Ordinance'and intends to comply with its provisions, (ii) attests to the accuracy
and completeness of information,provided in,the Report of Charges, Complaints, Citations
and/or Findings contained herein, (iii) certifies that it pays its covered employees a Living Wage
as defined in Petaluma Municipal'Code Chapter 8.36 and (iv) attests that the person
executing this Acknowledgment and Certification is authorized to, bindjhe, covered entity as to
the matters covered in this, Acknowledgment and Certification.
SO ACKNOWLEDGED and CERTIFIED:
Project or Contract LD:
Date:
(Print Name of Covered Entity/Business Capacity)
By
(Print Name)
/s/
(Signature)
Its
(Title /Capacity of Authorized Signer)
REPORT OF CHARGES, COMPLAINTS, CITATIONS AND/OR FINDINGS
PURSUANT TO'PETALUMA.MUNICIPAL CODE SECTION.8.36.120
FOR EACH WAGE, HOUR, COLLECTIVE BARGAINING, WORKPLACE SAFETY, ENVIRONMENTAL OR
CONSUMER PROTECTION CHARGE, COMPLAINT, CITATION, AND/OR FINDING OF VIOLATION OF LAW
OR REGULATION BY ANY REGULATORY AGENCY OR COURT, INCLUDING BUT NOT LIMITED TO THE
CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, DIVISION OF OCCUPATIONAL
SAFETY AND HEALTH (OSHA),.CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS (LABOR
COMMISSIONER), ENVIRONMENTAL PROTECTION AGENCY AND/OR NATIONAL LABOR RELATIONS
BOARD, WHICH:
• AFFECTS YOU AS A PROSPECTIVE CONTRACTOR, SUBCONTRACTOR, LESSEE, FRANCHISEE
AND/OR PARTY TO ANY CITY OF PETALUMA AND/OR PETALUMA COMMUNITY
DEVELOPMENT COMMISSION -FUNDED AGREEMENT OR BENEFIT SUBJECT TO PETALUMA
MUNICIPAL CODE CHAPTER 8.36 (LIVING WAGE ORDINANCE), AND
• HAS BEEN FILED OR PRESENTED TO YOU WITHIN�THE TEN YEARS IMMEDIATELY PRIOR TO
THE BID, PROPOSAL, SUBMISSION OR REQUEST FOR`WHICFI THIS ACKNOWLEDGMENT AND
CERTIFICATION ISMADE.
PLEASE PROVIDE THE DATE, THE REGULATORY AGENCY OR COURT MAKING THE CHARGE
COMPLAINT, CITATION OR FINDING, THE SUBJECT MATTER AND THE MANNER OF RESOLUTION, IF
ANY, FOR EACH SUCH CHARGE COMPLAINT, CITATION OR FINDING.
IF NONE, PLEASE STATE "NONE"
ATTACH ADDITIONAL PAGES IF NEEDED.
Date:
Regulatory Agency or Court:
Subject Matter:
Resolution, if any:
Expected resolution, if known:
1983370.7