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HomeMy WebLinkAboutStaff Report 4.C 03/18/2013 • Item#4. C ALU' • kt 185$ DATE: March 18, 2013 T.O'. Honorable Ma orand 1'bers;ofthe City Council through City Manager FROM Dan St. Jo , F e D" fir,Public-Works&Utilities SUBJECT: Resolution Approving a Model Non-exclusive.Franchise Agreement Required for • Drop Box Collection and.Disposal of Construction Debris and Commercial Recyclable Materials. I. RECOMMENDATION It is recommended that the City Council adopt the attached,Resolution-approving;Non-exclusive Franchise Agreement required for drop-box collection and disposal of construction debris and commercialrecyclable materials. 11 • BACKGROUND In January 2006, the City Council approved Resolution N C.S2006-018.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 itemizedl A fee component for wear and tear on city streets is part-of the existing, and recently new exclusive franchise agreement with Petaluma Refuse and •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 currentlythree Construction and=D'eniolition (C&p) haulers operating in the"City under the terms of the prior formicontract: Those agreements have technically, expired. Gross annual revenues;of the`C&D Haulers are:approximately $200;000. The:existing,service providers have''indicated"thatEthey would like a longer term agreement. The proposed form agreement providesan-:option for a 5-year term or"a 10-year term which could be exercised at the hauler's option. There'isnotautomatic one-year.extension: Based on`the City's needs, staff has identified necessarymodiftcations to the franchise fee and;other provisions: These-include an increase in the percentage of gross revenue'from 13:22% to.'14:4% paidas a franchise fee to the City for the;5-year term The 10-year term option requires an additional 5% franchise fee. The Agenda Review: ' City Attorney Finance Din,tor 'a, . 'City Manager 1 new form agreement proposes a4wo pact franchiser-fee The Right-of Way Franchise Fee component represents existing general franchise,fee,of 10% fo"r:the 5-year term option and 15% for the 10-year term option. The 4.4% component, referred to as Pavement'Condition Franchise:Fee,/is intended to defray wear and tear'costs oncity streets from operation of the collection Vehicles. 'Combined 'this fee structure represents a 1.18% and,6i 18% increase from the former agreement for the 5-year and 10-year;options, respectively. The Pavement Condition Franchise,Fee increase is basedon an updated analysis of pavement impacts caused by the C&D haulers equipment which was completed in 2012: The Rightof Way Franchise Fee maintains consistency'with the City's:solid waste franchise: a 10 % fee;for the standard term agreement and a-15 %fee for one that extends the franchise period by additional five years. The administrative.fee+reinainsan>the new agreement and has been'increased,from$120 to $150 monthly but now requires an,annual adjustment',based on CPI.,:This increase is based on the current City labor rates (FY13) and represents an average of the amount of time needed to process'the quarterly reports andbillings for each individual=hauler. Some, but not all, of the haulersshavesindicated-'that a longer term.agreement will allow them to qualify for financing to improve necessary facilities. For this reason,"staff recommends that the haulers can choose either a 5-year or a 10-year term'option. The 10-year.option requires a higher franchise fee to cover the City's!`increased risk associated with a longer term agreement and to reflect the higher value to the hauler associated with a longer term contract. The 10-year term for the existing haulers will enable haulers to achieve economies of scale and allow long term investment in their current operations. Hours of operation and fundamental service requirement remain substantially the same as former C&D agreements. Insurance and indemnification language has been'updated to reflect current City standards. Staff recommends approving the attached standard'agreement by resolution such that future form contracts substantially in conformance,with its terms can be executed by the City Manager, as authorized by Petaluma Municipal Code section 8.16.115.B. This will allow the City Manager to enter into agreements with•the existing C&D haulers arid hew haulers on an as needed basis. The proposed action meets Council Goat "Improve and!:enhance fiscal stability and sustainability." FINANCIAL IMPACTS Right-of--way franchise fees of_10% or 15% will be distributed,to the General fund and the Pavement Condition Franchise°fee of 4.4% to the Street fund. The:monthly administrative fees would go to a new Solid Waste fund and offset staff and consultant costs to perform the annual due diligence activities. The current three C&D service'providers represent;,annual`combined. revenue-of approximately$30,000. ATTACHMENTS 1. Resolution 2: Franchise Agreement 2 Attachment 1 • RESOLUTION APPROVING NON-EXCLUSIVE_ ;FRANCHISE AGREEMENT REQUIRED FOR DROP BOX COLLECTION.AND,DISPOSAL OF CONSTRUCTION DEBRIS AND COMMERCIAL RECYCLABLE MATERIALS WHEREAS, by adopting,Ordinance 2284 N.C.S.,,on.September;10,.2007, the City Council amended its program to license haulers:`on>anon-exclusive basis to'collectand: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=otherithings,adjust the franchise°fee amount, include an annual cost escalator, adjust the administrative fee and lengthen theiinitial term of the agreement from five years to ten years; and WHEREAS, the City desires-to continues to allow non-exclusive collection and disposal of drop box containers for construction debrisand-commercial recyclable materials under strict collection, diversion,-reportingand disposal requirements bymeans of a modified form non- . exclusive franchise;agreeinent. NOW, THEREFORE, BE IT RESOLVED that the City,Council.of the City of Petaluma hereby: 1: Approves the forfNon=ExelUSive 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:substantiallyin conformancewiththe form agreement attached as Exhibit A on behalf of the CityofP.etaluma. 3 Attachment 2 CITY OF PETALUMA Application Instructions for a Non-Exclusive Franchise Agreement far Drop Box Collection of Construction and Demolitions Debris and/or Commercial Recyclable Materials BACKGROUND 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 Chapter 8L16.115 of the City's Municipal Code to provide for the collection, transportation, processing, recycling and disposal of C&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,this collection and recycling business, to ensure its orderly Operation, and to minimize:thepotential 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 anon-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,Cityof'Petaluma, shall be submitted with the application. The applicant shall submitsix copies of its completed application and its application fee by mail or in person to: Public Works and Utilities Director City.of Petaluma 202 NOrth'McDowell Blvd Petaluma, CA 94954 (707) 778-4546 APPLICATION CONTENT 1 The application shall contain the:information requested in items 1,through 5 of this section. 1. Applicant: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,1who is duly authorized to bind the company to the application. A. Company Name: B. Company Type: ❑ Sole Proprietorship ❑ Partnerships (includes limited, general, and limited liability partnerships) ❑ Corporation.(includes limited liability companies) C. Contact Nanie/Title: D. Mailing Address: City Zip Phone: E. Fax: Email: F. Services to be Provided (check ali hat apply): ❑ C&D ❑ Commercial Recyclables 2. ;Qualification 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: 1. Required to operate under a non-exclusive franchise or permit system 2. `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 responsible for.administepng the non- exclusive franchise or permit system, where applicant provides services, which the City may contact:to,00nduct 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 xclusive franchise agreement. E. Litigation, Regulatory'Actions, and Liquidated Damages - Describe all past and pending civil, legal, regulatory, and criminal_actions now pending or for which judgments were made in the past4five years against the applicant, applicant's key personnel, and all subsidiaries owned bysapplicant 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. Operations Information A. Diversion Plan -,Describe applicant's plan to divert,,at-least'60% of the C&D collected and/or90%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 vehiclesheasonably 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 - Providea,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 loeation:and hours of the:applicant's customerservicescenter, which shall be available to all;C&D and commercial recyclable,materials customers in accordance with Section,5.5 of the non- exclusive fran cli se agreem ent. F. Billing Services -Describe applicant's procedures for billing C&D and commercial recyclable materials,customers and recording customer payments. 4. Signed Non-Exclusive Franchise Agreement Attach to the application a signed copy Of the non-exclusive franchise agreement (which is Attachment 1' hereto) including the Secretary's Certificate:(Exhibit C of the non- exclusivefranchise agreement), if appropriate. 5. 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: Public Works and U_tilities Director City of Petaluma 202 North McDowell Blvd Petaluma, CA.94954 (707) 778-4546 CITY REVIEW The City shall review the application. During,the'City's,review; the information submitted in the •application may be subject__to verification: Thetapplicant shall cooperate with the.City's review of its application and any City request:for clarification Or additional:information. Failure to provide all required`application information, of 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'sintent to approve the non_exclusive"franchise agreement, or the City's rejection of the application. NON-EXCLUSIVE FRANCHISE.AGREEMENT BETWEEN I THE CITY OF PETALUMA 11 . AND I , I 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 OF CONTENTS 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 I 11 ARTICLE 5 COLLECTION, RECYCLING',4AND DISPOSAL,SERVICES 14 ARTICLE 6 STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT, AND PERSONNEL I 18 ARTICLE 7 RECORD KEEPING AND REPORTING 24 ARTICLE 8 FRANCHISE FEES AND OTHER FEES 29 ARTICLE 9 CONTRACTOR'S COMPENSATION AND RATES 30 ARTICLE 10 INDEMNITY AND INSURANCE 31 ARTICLE 11 DEFAULT AND REMEDIES' 36 ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES 41 ARTICLE 13 MISCELLANEOUS AGREEMENTS 46 LIST OF"EXHIBITS A Contractor's Application B Schedule-for Liquidated Damages C Secretary's Certification D Statement of Applicant's Understanding and Representations E Acknowledgment and Certification Pursuant to City of Petaluma Living Wage Ordinance Page i st • NON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF PETALUMA AND FOR DROP BOX COLLECTION SAND RECYCLING OF CONSTRUCTION AND DEMOLITION DEBRIS AND COMMERCIAL RECYCLABLE MATERIALS -1 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.follewing types of materials pursuant to the terms and conditions,ofthis Agreement: (check all 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 California,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 Ideal 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 environnientaLimpaets: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; andall local agencies; to promote Disposal Site Diversion and to '�I maximize the use of feasible Solid Waste reduction, reuse Recycling, and Composting options in.order to redneethe amount of Solid Waste that must be Disposed of in 'Disposal Sites; and, 1 WHEREAS; the Act requires local agencies to`Divert 50% of discarded materials from landfills; and, WHEREAS, landfill Disposal capacity in Sonoma County is inushort supply, and the City is currently directing its Solid Waste:to landfill located outside of the'County; and, WHEREAS, the City finds thatsreusing 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;lland , WHEREAS, under Chapter &.16.115 of the City's Municipal Code, the City has the authority to provide for the Collection; Recycling, and,Disposal of C&Dwand'Commercial Recyclable Materials in Drop Boxes through:a,license granted to a Solid'Waste Collection provider; and WHEREAS, the City requiresiall;haulers providing Drop Box Collection services for C&D and Commercial Recyclable Materials in the City to obtain a non-exclusive franchise in order to regulate this business, ensure its orderly operation, and to the potential for adverse 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 Box 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 insuranceconsistent.withthe City's requirements. The City Council desires that be engaged to perform such services on the,basis set forth in this Agreement;_and WHEREAS, Contractor intendsto use'the City's street's, alleys, Other public rights-of way, and infrastructure to provide C&D and/orCominerdial Recyclable Materials Collection services to the City's residents and"businesses;a`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,th'is,Agreement issatisfactory to the Parties, . NOW, THEREFORE, in consideration of themutual promises, covenants, and conditions contained in this Agreement and for other goodand valuable consideration, the,Parties agree as follows: ARTICLE 1 DEFINITIONS For purposes of this Agreement,,unless a different meaningris:clearly=required; the following words and phrases.shall have the!followingmeanings 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 all Contractor-owned Drop Box within 30 calendar days upon termination of this Agreement. ti "Act" means the California Integrated'Waste Management Act of 1989 (Division 30 of,the California,Public=Resourdes:.Code), as amended; suppleinented,.'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, grid 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 Materials that 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 (nanie-and address of Contracto`r'spptoeessing site), which was selected by Contractor and appreVed`bythe City. "Approved'Commercial Recyclable Materials Processing Site" means the processing,site,on Road in, , California(name and address of Contractor's processingsite),which wasselected by Contractor and approved by the City. "Approved.Disposal Site".means,the' Disposal Site;on; Road in California (name and,address of disposal site where C&D and Commercial Recyclable Materials residue will be disposed), which was selected by Contractor-and apprroved.bythe'City. "Approved'Proce`ssor" means'the operator of the C&D Processing Site, and/or the operator.of the Approved Commercial Recyclable Materials Processing Site. "Bin" means a container with:capacity of approximately one to reight cubic yards, with a hinged lid, and with wheels„that is serviced by a front end-loading Collection vehicle. 13 1 "Business Days" mean Monday through Fridays excepting City, State,-or federal Holidays. "Cart" means a plastic.container with a hingedilid and wheels that serviced by an automated or semi-automated Collection;vehicle. A Cart has capacity of 20, 35, 64, or 96 gallons (or similar volumes). "C&D" means Construction;and Demolition Debris. "Change in Law" means any of thefollowing events or conditions 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 the failure 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 th e 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"means 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. I , 4 "Compost Prodiict"means the product resulting from:the;controlled'biological decomposition of organic mat tialsthat.afe Source Separated from'the niunicipal Solid Waste stream, or which are separated'at,a:centralized;facility. "Construction and.Demolition;Debris;(C&D)" includes rubble'or debris generated by cleanup, clearing, landscaping, g'ing, yard renovation, prunin 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 pursuant to a construction or demolition permit-issued by the City.. Construction and Demolition Debris shall expressly excludeputrescible wastes. "Contractor"means I (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 Contractor, officers,,directors, or management or fiscal employees (where "management employee" means any employee with direct or indirect responsibility for direction andcontrol 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 under this Agreement). "Criminal Activity" means tl ose,activities described in Section 12.13.1 "Customer" means the Person whom Contractor submits billing•invoice to collects payment from for Collection services provided. "Drop Box" means an open-top container with a capacity of sixbtthore 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 itspotential to contaminate the environment and which may be Disposed of only in Class II,Disposal Sites or Class III Disposal Sites pursuant to.avariance issued by the California DepaitrnentofHealth Services. Designated Waste consists of those substances classified as Designated Waste lby-the State of California, in California Code of Regulations Title 23, Section 2522 as:maybe 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 ofthe two Parties:signs the Agreement and it 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 Vie 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 thisAgreement. "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 byreference),as "Hazardous Substances "hazardous materials", "hazardous wastes", "toxic°waste', "pollutant" or "toxic substances" orsimilarly'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 §960.1 et seq. (CERCLA); (ii) the Hazardous Materials Transportation Act,,49"USC §1802, et seq.; (iii) the Resource Conservation and Recovery Act, 42 USC §6901 ettseq.; (iv) the Clean Water Act, 33 USC §1251 et seq.; (v) California Health and Safety Code'§§251 1 5-25 1 1 7, 25249.8, 25281, and 25316; (vi) the Clean Air Act, 42 USC §7901 et,seq.; and(vi) California Water Code §13050; (b) any;amendments, roles%or regulations promulgated there under to such enumerated statutes or acts currently existing or hereafter enacted; and;;(c) any 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'("P(Bs"), petroleum,natural gas and synthetic fuel products, and by-products. "Holidays" are defined as`New Year's.Day, Labor Day, Fourth ofJuly, 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 2511-7.5 as may,be amended froni-time to.time. 6 ] "Legislation"means any code,ordinance, resolution, oranyother formal enactment of the governing body of the-City, which now exists or which may hereafter be-adopted, which constitutes lawor regulation governing the.operatio-n of theContractor_ "Liquidated Damages"means the amounts due by Contractor for,failure to meet specific quantifiable standards of perforniance:as described in Section 11.4 arid Exhibit B. "Organic Materials" means those discarded materials that:will decompose and/or putrefy including Yard Trimmings and food scraps such as, butjare,not'limited to;;green trimmings, grass, weeds, leaves, prunings ;,branches, dead plants, brush, tree trimmings, dead trees, small wood pieces, other types:of organicyard waste,(vegetable waste, fruit waste, grain waste, dairy waste, meat waste, fish waste;:papercontaminated 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 froth Solid Waste and Recyclable Material. "Parent Company"refers;to:a company owning more that;fiftypercent (50%u)'of the shares of another company (subsidiary)oraicompany 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 UnitedStates,the State of California, the County of Sonoma, and special purpose districts. "Premises" means any landpr building in the City where C_&D'or'Commercial Recyclable Materials are generated or accumulated. "Processing" means to prepare, treat, or convert through sortie 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 conipoundscof water, carbon dioxide and other simpler organic compounds. "Rates"'means the fees Confraotor..bills and collects=-fro`m'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 offered-for Collection'in a container different from Solid Waste container or which,are,Source Separated from Solid Waste or"C&D,,for the purpose of reused or Processed and then-returned to the economic mainstream.in'the form of commodities. ,i ;7 11 "Recycle or Recycling" means the•process of sorting, cleansing; treating and reconstituting at a Recyclable Materials Processing Site materials that<would`otherwise'be Disposed;of at a landfill for the purpose of returning such materials-to the economy in theform of raw materials for new, reused or reconstituted'products. "Regional Agency ' mean§=the=Sonoma.County Waste Management.Agency. "Residential" shall mean of, from, or pertaini g 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 promulgated 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>ofprograms for the safe collection, recycling, treatment and disposal of household hazardous waste in compliance.with Section74l 500 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. "Subcontractor" means a party Who has entered into a contract, express or implied,with the Contractor for the performance of:artacfthat 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,l6`ounces. "Transportation"=means,the°act of transporting or.state,of being transported. "Yard Trimmings" means those discarded materials!placed:by a Generator in a receptacle and/orat a;location that.'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 Organic Materials. s 1 8 ARTICLE2. REPRESENTATIONS'AND WARRANTIES'OF THE CONTRACTOR The Contractor, by execution of this Agreement, representsand warrants the conditions presented in this Article. 2.1 CORPORATE:STATUS i Contractor is duly organized, validly existing arid in good standing under the laws of the State. It is qualified to:tiansact.business'in the.City and'State and has the power to own its properties and to carry-on its business as now wned 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 requiredby 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 confirmsthis, This Agreement constitutes the legal, valid, and binding obligation of the Contractor. 2.3 AGREEMENT WILL NOT CAUSE BREACH 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: (ij`of any law or governmental regulation applicable to Contractor; (ii) any term or conditionvofany judgment, order, or decree of any court, administrative agency or other governmental authority;1or, (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. 2.4 NO LITIGATION' To the best of Contractor's knowledge after:reasonable investigation, there is no action, suit, proceeding orinvestigation, 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 C. Have a material adverse effect on the financialscondition of Contractor, or any surety or entity guaranteeing Contractor's performance under this Agreement. • `9 2.5 'NO.ADVERSE',JUDICIAL.DECISIONS To the besttof 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 4 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 1 The Contactor's Application,and any other supplementary submitted to the City, which the City has relied.ontin entering this Agreement, do net: (i) contain any untrue statement of a material fact, or (ii) omitto statea material.fact.thaf 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.independ'ent'investigation (satisfactory to it) of the conditions and circumstances surrounding the Agreement and the work to be performed hereunder. Contractor has considered such matters in..enteringthis Agreement to 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'einpl'oyee.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 Agreementand 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. to 12 CONDITIONS TO EFFECTIVENESS OF AGREEMENT The obligation of 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 betwaived, in written form, in whole or in part by City. A. Accuracy of Representations. The representations 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'onthe Effective Date in any court challenging.the award or execution_of this Agreement seeking to restrain or enjoin its performance. C. Furnishings of Insurance. Contractor has furnished evidence of the insurance and performance bond required*Article 10 that is satisfactory=to the City. .l D. Effectiveness of City_CouncrAction. The City Council action approving this Agreement shall,have;becomeeffective 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(SELECT:ONE OPTION ,:SEE•SECTI©Nf8 2:1) Optional ftg75)Yyearsi4Opti -Sena(10)xyears:after the Effective Date, unless the City terminates rthe Agreementsooner in accordance with Section 11.2. ARTICLE 4 SCOPE OF AGREEMENT 4.1 SCOPE OF AGREEMENT This.non-exclusive.franchise, granted taContractor:with.regard to°C&D and Commercial 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's located wheretheCommercial 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. 11 • This non-exclusive'franehise-doesnot grant-theContraotor`any rights to Collection of C&D or Commercial Recyclable Materials that includes,Putrescible Wastes weighing in excess of 10% of the total weight of materials placed by Generator in'a Drop.Box for Collection. The Contractor'shall-be responsible for the following services: if A. Collecting C&D placed by Customer in:a Drop Box-fo r'Collection as requested by Customer. {l 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 Boxr(i.e., Putrescible Waste and Hazardous Substances). D. Transporting Collected dmaterials 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,totprovision,of services required by this Agreement including, but not limited to, Franchise?Fees, taxes, regolatory`fees, Collection costs; Transportation costs, Processing,.costs, Disposalcosts', 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:. P.erfor thing orproviding all other services necessary tofulfill its obligations under this Agreement. K. Div,erting;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.Coinmercial Recyclable`Materials Collected from Disposal. The Diversion'rate shall be;calculated each month based upon the weights of Commercial Recyclable Materials Collected and Diverted. 12 The enumeration,and;s ecification of articular) p_ p_ aspects,of service; labor, or equipment requirements shall not relieveContractor of therdutyof accomplishingall other aspects necessary fo fulfill its obligationswnderthis Agreement whetheesuch requirerrierits are enumerated elsewhere in the Agreement or hot. 4.2 LIMITATIONS TO'SCOPE, The C&D and Commercial,Recyclable Materials listed below inIthis^Section.maybe Collected and Transported byother Persons provided that such Persons shall do so in accordance with the City's Municipal Code. A. C&D or Commercial;RecyclableMat Trials Mixed with Putrescible Waste. C&D or Commercial Recyclable Materials in Drop Boxes that include Putrescible Wastes weighing in excess"of-10%0 of the total weightof"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 Recyeling;ofC&D and Commercial Recyclable Materials. C. Commercial Recyclable Materials Collected in Carts;or<Bins. 1Commercial Recyclable Materials placed in Carts or Bins-and Collected by (I)'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 witfrthe Generator„and'the.Generator•is compensated for the materials Collected. D. Donated Materials. ,C&D and,Recyclable Materials`Generated in the;:Citythat 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 Siteby (i)'the Owner or Occupant of such"Premises ,by full-timeemployee of Owner or Occupant that uses the Owner's or Occupant's p l (i ) by contractor whoseremoval of the C&D or Commerc al Recyclable Materials ncidenta o the service being and such-contractor•reniovesmaterials at no additional or",separate';fee. 43 CITY'S RIGHT TO GRANT MULTIPLENON-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. pi '13 c4.4 AGREEMENT CONSISTENT WITH APPLICABLE LAW This Agreement and scope,of this franchise shall be interpreted to'berconsistent with.Applicable Law, now'arid during the Term `If future judicial interpretations of current law or new laws, regulations; or judicial interpretations;limit the ability of the City to lawfully provide for the scope of,services,as specifically setforth,herein; Contractor agrees that:thescope of the Agreement will be limited to those services and-materials which may be lawfully provided and that the,City shall notbe responsiblefof any lost profits or losses claitned.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 Materials are placed.in a Drop Box for Collection by Contractor, ownership and therightfo-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 alongwith Contractor's evidence of the violation of the rights granted by this non-exclusive franchise. 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. ft 4 • 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 the1City. 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 Generatedatcommercial premises. Contractor shall Transport materials Collected pursuant to-this Agreement to an Approved Processing Site that has been approved'in advance by the City. TheApproved Processing Site must be able to demonstrate.Diversion°rates in accordance with:Section 4.1. Contractor shall the may en e tr such contracts extend i h Cust mers for Collection services provided that in no case r beyond thelTerm 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 agreesto Transport and deliver all C&D it Collects'in the City to the-Approved C&D Processing Site;andto 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 Commercial Recyclable Materials shall be Disposed of by Contractor or its ApprovedProcessor at an Approved Disposal Site selected by Contractor in accordance with Section-3.3. 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. Contractor or its Approved Processor(s)shall possess•all:edisting permits and approvals necessary for use of th&C&D and,Cominercial 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 the.City, Contractor shall provide a certified statement from its Approved Processor(s)'documenting its Diversion 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, itshall 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. 15 If Contractor,is,unable,to use the Approved C&D ProcessingSite 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 mayuse 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 writien notice'. B. Marketing. The Contractor orits Approved Processor,shall be responsible for marketing C&D and Commercial.Recyclable Materials Collected m the City and Diverted. Contractor-.and/or its Approved Processor shall retainall revenues generated from the sale of Recyclable Materials.Diverted. Upon request, Contractor or its Approved ProcessorshalLprovide 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 contractor working relationship with such party'immediately. C. Diversion Requirement.. Contractor shall Divert at leastf60%byweight of all C&D it Collects within the Cityand 90%by weight of all Commercial Recyclable Materials it Collects within the City duringeach calendar month'by Processing and Recycling some or all,oftheC&D and.Commercial Recyclable,Materials Collected. If Contractor fails'to Divert:at.least60%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 Materialsrit Collects within the City, thelCity may terminate the Agreement in accordance with Section 11.2. 16 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 C&D 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:anyriver, stream, or other waterway, or in any sanitary sewer or storm drainage system or in any other manner which vielates,Applicable Laws. Contractor, or its Approved Processor, shall select;the Approved Dispbsal Site(s)'aneli 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'anytime 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:apptovalsnece"ssary for use of the Disposal Site(s) in full regulatory compliance. Contractofshall,upon fequest,`provide,copies of notices of violation or permits to the City. If Contractor,or its Approved'Processor elects t ,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, mayuse an,alternative Disposal Site provided that the Contractor provides verbal and written notice to the City within 24'hours of use of an alternative Disposal Site The written notice shall include a description of the ieasonslthe.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:sreceipt oftheContractor's written notice. 5.4 BILLING Contractor shall bill all Customersrand:collectbillings in accordance with Contractor-established Rates, which=are set;intamanner consistent with-provisionsiof 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 sfiall be responsible for collection ofpaymentfrom Customers'with past due accountsi("bad debt"). Contractor shall maintain copies of;_allbillings and receipts, each in chronological order, for five years for'inspection and'verification by City at any reasonable time upon request. The Contractor may, at its option,.maintain.those records inlcomputer form, on microfiche, or in any 17 other manner, provided the records can be preservedund retrieved for inspection and verification in atitnely.inannet. 5.5 CUSTOMER SERVICE Contractor shall maintain a business office within the City or within a reasonable distance of the City limits,approved bythe,City Manager: Thebusiness 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 available1to answer calls from at least 8:00 a.m. to 6:00 p.m., Monday through Friday:. Am answering machine shall:record Customer calls and voice messages between:6:00 p.rii.iand 8:00 a.ni. ARTICLE 6 STANDARDS AND REQUIREMENTS FOR SERVICES, EQUIPMENT, AND PERSONNEL 6.1 OPERATING HOURS AND SCHEDULES A. Hours of Collection 1. Residential'Premises. Delivery or Collection of a Drop Box to-or from Residential Premises shall only°occuribetween the hours of 6:00 a.m. and;6`.00 p.m., Monday through Friday. 2. Commercial Premises. Delivery or Collection,"of a Drop Box to or from Commercial Premisestthat 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. Delivery or Collection of a Drop.Box to or from Commercial Premises that-are more than 200 feet fromiResidential Premises shall onlyy occur between the hours of 5:00 a.m. and 7:00 p.m. The'City Manager maylrequire modifications to hours for delivery and Collection from Commercial Premises to resolve noise complaints, and, in such case, the City Manager may,change the'allowable operating hours. 3'. Exceptions.. hr the event of an unforeseen or extenuating circumstance, the Contractor may deliver or-Collect a Drop:Box-from Residential or Commercial Premises that'are 200;feet or less from Residential Premises between3the,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.Contractors fails'to comply with the Collection hours described in this Section,the Contractor shall pay the City Liquidated Damages as described iri Section 11.4 and Exhibit B. d 18 6.2 COLLECTION'STANDARDS 6.2.1 Instructions to Customer Contractor instruct Customers as to any preparation of C&D or Commercial Recyclable Materials necessary prior to placing'in the Drop Box. Contractor shall, in written form, inform all Customers alto 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 10%by weight of each load in total are prohibited. 6.2.2 Care of Private Property I 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. Contractorr shall repair all damage to private and public property'caused'by 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'cduring 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. If Contractor fails to perform some or all of the requirements described in,thisSection, 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 fors cleaning up litter and absorbent material for cleaning up liquid spills. 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 situatiomwith,the'Customer. 19 C. Covering of Loads. Contractorsliall coverallDrop Boxesatthe pickup location before Transporting materials togprevent C&D or;Comtnercial Recyclable Materials from escaping during Transportation. 6.2.4 Noise All Collection operations shalfbe conducted aslquietly as possible and.shall;conform to Applicable Law. Contractor will promptly resolve any iComplaints 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 payLiquidated Damages in accordance with Section 11.4 and Exhibit B. • 6.3 VEHICLE REQUIREMENTS A. General. Vehiclesused 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 sanitaryconditionl the Contractor shall pay the City Liquidated Damages as described.ih Section'11.4 and Exhibit B. B. Specifications. Contractor shall:registenall vehicles with'.theCalifornia 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 numlierfor each vehicle n"sed to provide:services.under`this Agreement, shall be prominently displayed on all vehicles, in fetters and numbers that area minimum of 4 inches high. Contractor shall not place sthe City's logo on its vehicles. D. Cleaning and Maintenance 1. Cleaning. Collection vehicles shall bethoroughly,washed,arid rthoroughly steam cleaned as frequently as necessary to present a clean appearance of the'exterior and interior compartment of the vehicle. 2. Maintenance. Contractor shall inspecteach vehicle daily to ensure that all equipment is operating properly, Vehicles that.are not operating'properlyrshallbe taken out of service until they ate 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 necessar-yto perfor i the inspections described in Sections 6.3.F and 6.8. 3. Repairs. Contractor shall repair, or arrange for'the repair of, all of its vehicles and equipment for which repairs are neededbecause of accident, breakdown, or any other 120 l cause,,so,as to maintain all equipment in a safe'and operable condition. Contractor shall maintain accurate records of repair, which'shallainclude 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 vehiclestand other equipment in safe and secure location(s)'in accordance with City's applicable zoning regulations. E. Operation. Vehicles.shall.be,operated in compliancewith the California Vehicle Code, and all applicable safety and local ordinances. Contractor shall not load vehicles in excess of the.manufacturer'srecommendations 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, ApprovedsCommercial Recyclable Materials Processing'Site, or Approved.Disposal Sites to determine the unloaded weight ("tare weight") of the vehicle, and the total loaded weightof each load delivered to the Approved C&D Processing:Sites, Approved Commercial Recyclable Materials Processing Site, orApproved.Disposal Sites. F. Vehicle Inspection. City may inspect vehicles at any timeto 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,.local telephone number, a unique Drop Box identification number, and the words 'Construction and Demolition Debris or Recyclable Materials Only" If Contractor fails:topcomply 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 condition. Contractor shall steam clean and repaint all Drop Boxes at least`:everytwo years, or more'frequently, to'present a clean appearance. If any Drop Box is"impaeted bygraffiti, Contractor shall remedy the situation within 48 hours. E. Drop,Box,Inspections. City may inspect Drop Boxesat any time to determine compliance;with sanitation requirements. Contractor shall make Containers available to '21 the City at any frequency it requests. The:.City shall liave 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 ofthe-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 Dispo'sing:ofits contents, and/or the cost of storing such Drop Bog. ;Contractor shall reimburse'the City for such costs within 10 calendar days of thedate of the City's invoice to the-.Contrac"toffor 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"), asthe.same may be amended from time to time Upon the City'ssrequest 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 (I5).calendar days cif 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 City of Petaluma Living Wage Ordinance, attached to this Agreement as Exhibit E shall be apart of this Agreement for all purposes,,and Contractors that are subject to Living Wage Ordinance requirements, as determined by City, must provide a properly completed Exhibit E in accordance With;the requirements of the Living Wage Ordinance. Contractor's noncompliance with,the.applicable!requirements'of the Living Wage Ordinance shall constitute cause for City's termination of this Agreement pursuant to Section 11.2 of this Agreement. 6.6 PERSONNEL—QUALIFICATIONS:AND CONDUCT A. General. Contractor shall-furnish such qualified drivers, maintenance, supervisory, Customer service, clerical::and other personnel a's 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 valid license,;,of the appropriate class, issued by the California Depaitiiient of Motor Vehicles. Contractor shall use the Class II 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 77 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. 1 E. Employee Identification. While.perfoianing 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, ascapproved.by the City. 6.7 HAZARDOUS SUBSTANCE;INSPECTION,AND.HANDLING A. Response to Hazardous Substance Identified.duringCollection. 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 iwo 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. If Hazardous Substance 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 91.1 emergency number. The Contractor shall notify the City of any.Hazardous Substance:identified=in Drop Boxes or left at any Premiseswithin 24 hours of identification of such material. B. Responseao 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 Hazardous Substances by permitted haulers in accordance with Applicable Laws and regulatory requirements. 23 If the Hazardous Substances delivered to a Disposal Site or Processing Site by Contractor before its presence is detected, and the,Generatorcannotbe 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. Contractonshall comply with emergency notification procedures,required by Applicable Laws and regulatory requirements. All records required by regulations shall beinaintained 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 tlie employment of Persons engaged in performance of this Agreement on account of race, color, natural origin, ancestry, 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. C. Cooperate with City-Initiated Studies:. Contractor shall cooperate with and assist the City or its agent with the performance of 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 • 24 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 is not meantto comprehensively define what the records and reports die:to-be and their-Content. With the written direction by or approval of City, the records andsteports to be maintained.and.provided by",Contractor in accordance with this and.other Articles of the A'geement .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 requirementsare.set out jn this and other Articles,of this Agreement, they shall not be considered limiting or necessarily ebmplete: 7.1.2 Retention of Records Unless otherwise required in this.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 be maintained that are specifically directed in this Agreement to be retained, shall be retrieved in a timely manner by Contractor and made availableto 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 relevantte'this Agreement: The City shall provide Contractor written notice at least three Business Days'prior_to any inspection of these records. The City reserves the right.,tolinspect,records for the purposes of auditing the Contractor's reports, reported.Diversion level, and fee payments to the City. If-aniauditconducted 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 (erg., Franchise Fees or other fees due to the City-as perArticle 8) iaan aniount.greaterthan $1,000 or 1i0% 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'forthe City's costs incurred in the performance of the audit. Such reimbursement'shall be-paid by Contractor, along,with any underpaid feesand;Liqurdated Damages required by Section 11.4 and Exhibit B, within 30 calendar days,of thedate thetCity notifies the Contractor of the amount of the City's costs. 25 • 7.1.4 Record Security, reasonably shall maintain a e uaee theft,and ity to preserve:records from events that can be p fire, 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; 1 i C. Tonnage of C&D, Recyclable Materials)and Organic Materials Diverted from Disposal by Contractor and supporting documentation; D. Diversion level; E. Weight tickets from Processing Sites documenting:the Tonnage of C&D and Commercial Recyclable Materials Collected within the City and delivered to the Processing Sites by vehicle, date, and tithe;. 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 bytthe.Contractor. The recordssshall'contain, at a minimum, the Customers name,type of business,,phone number, address of Drop1Box delivery and Collection location, date of delivery and Collection, itemized listing of services performed, tonnage Collected, and 26 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 of great importance. For this reason,the City regards its abilitydoprove 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 taker ! to be matters of concern. Contractor shall maintain, retain and preserve records which can establish where C&D and Commercial Recyclable Materials Collected:were Processedi,and Disposed (and therefore establish where they were not). This provision shall survive the 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 shalliprovide 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-certification statement, under penalty or perjury, by the responsible:Contractot 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 fdllowing dates each year: First Quarter April 30 Second Quarter July 30 Third Quarter October 30 Fourth Quarter January 30 If Contractor does not submit the'quarterly reports by the dates.required-in this Article, Contractor shall pay the City Liquidated Damages as described in Section 11.4 and Exhibit B. Contractor shall submit (via mail or e-mail) all reports to: Director of Public Works & Utilities City of Petaluma 202 North McDowell Blvd. Petaluma, CA 94954 27 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 Carts or Bins Collected by Contractor through 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 level 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 amount of C&D and,Commercial.Recyclable Materials'Tonnage Diverted and/or Disposed at each location during:the previous calendar year, listed separately by month. F. Revenues. Gross revenues (e.g.,eash receipts) earned on all C&D and Commercial Recyclable Materials Drop Boz:Collectten, 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 to be furnished to the City in accordance to requirements of 10.2.7. H. Account.Information: In table format, the number of Customers served and number of Drop Boxes serviced per month, and listed separately for•C&D and Commercial Recyclable Materials. 1. 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). 28 • 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 FEESIAND ;OTHER FEES 8.1 GENERAL Contractor shall collect the in this Section fromgCustoiners 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:Contractorherein, Contractor shall pay Franchise Fees to the City=each month equal to (SELECT°ONE OPTION—,SEE,SECTION 3 3)'Option 1 x;10%o Option`2 z l'5%o;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 generated by the sale of Collected materials Diverted from Disposal, pursuant to Section 9.1.) This fee'shall be known as-the Pavement Condition:Franchise Fee. 8.4 CONTRACT ADMINISTRATION FEE Contractor shall pay a contract administration fee to the/City each-month equal to $150.00 per month. For each year of the,agreement, this fee:shall increase or decrease each January based on the most recent November to November Consumer Price,Index for San Francisco-Oakland-San Jose (CPI-U) published by the US°Bureau of Labor Statistics. 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 _9 ■ 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 Indexto7the Index in the;month'of June for the year which this Agreement is executed, and will take effect on.July 151 of the 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 l subsequent to the first adjustment 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 duringrithe 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.lie(aocompanied.bya,stateinent itemizing each fee paid; detailing calculation of all fees;rstating actual gross`revenuesf(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 otherfeesas 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'satisfactoryto 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 not apply any overpayment as a credit against any Franchise Fee or other amounts payable to the City,unless:specifically authorized to do so by the City Manager or his/herdesignee 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 6ythe sale'of Collected materials Diverted from Disposal. 30 Contractor's compensation provided for in this.Article shall be the full, entire, and complete compensation due to Contractor pursuant to this Agreement.for all labor, equipment,materials and supplies,Processing,and;Disposal fees, regulatory fees, Cityfees, 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: 1 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 agreementsrfor Collection of C&D or Commercial Recyclable Materials, or(b) the Rates charged by the companies holding non- exclusive franchise agreements.for Collection of C&D or Commercial Recyclable Materials are no longer comparable to those,of other-'jurisdictions. If:the City:chooses 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'S RATES 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. ARTICLE. 10 INDEMNITY AND INSURANCE 10.1 INDEMNIFICATION To the maximum extent?permittedby 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 limitationyclaims expenses attorney's fees and costs and fees+of litigation) (collectively, "Liability") ofievery nature; whether actual, alleged or threatened, arising out,of or in connection with the Services or.Contractor's failure to,comply with any Attie terms ofthisl Agreement, regardless of any fault or alleged fault of the Indemnitees. 31 The Contractor's oblgation`to indemnify, defend and hold:harmless under provision shall not be excused.because,of the Contractor's inability to evaluate Liability, or because the Contractor evaluates Liability and determines that the Contractor-istnot or-way-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 acceptitender of defense and-indemnity within 30 calendar days, in addition toanyother 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,maybe•retainedby 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 feesGof litigation, incurred by the City in filing such responsive documents. The Contractor waives any and all rights to exp less or implied indemnity against the Indemnitees concerning any Liabilityofthe Contractor arising out of or in connection with the Services or Contractor's failure to comply with any of the terms of this.Agreemeht. 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 claims 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;fnll extent permitted for liability pursuant'tO Section 107(e) of CERCLA, 42 U.S.C. Section 9-607(e) and California Health and Safety Code(Section 25364. In addition, Contractor's duty to defend and indemnify herein includes,all fines and/or penalties imposed by the California,Integrated Waste Management•Board,-subject to the restrictions set forth in.Public Resources Code*Section40059.1; if the requirements of the Act are not met by the Contractor with respect=tothe-waste stream Collected under this Agreement, and such failure is due to Contractor delays in providing,information that prevents Contractor, Regional Agency, or City fromsubmitting reports required by the Act in a timelymanner. 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'OfInsurance Coverage shall be-at:least:as broad as: 1. lnsuranceServices Office Commercial General Liability coverage: 32 a. Personal;injury; b. Contractual liability. 2. Insurance.Services Office form covering Autoinobile:Liability, code 1 (any auto). 3. Workers' Compensation insurance as requiredliy the State of California and Employer's Liability Insurance. 4. Contractors Pollution Liability. 5. Furnish proof of crime policy 6. Such other insurance coverages and limits as may be required by the City. 10.2.2 Minimum Limits Of Insurance Contractor shall maintain limits no less than: i 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,.MCS-90 endorsed. 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. Contractor's Pollution.Legal Liability or,Hazardous Waste and Environmental Impairment Liability: $3,000,000 each pollution condition and $10,000,000 general aggregate. E. Such other insurance coverages and limits as may be required by the City. 10.2.3 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 officers, officials, employees, and volunteers; or Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. 10.2A Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: A. General Liability andAutomobile Liability Coverages 1. The,City,'its officials, employees and volunteers are to be covered as additional insureds as respects:liability arisingout of activities performedby or on behalf of the Contractor;products and completed operations of the'Contractor; Premises 33 owned, leased or used by the Contractor; orautomobilesowned, leased, hired or borrowed'bythe Contractor. The coverage shall contain,no special limitations on the scope of protection afforded to the City,:its;officers, officials, employees, agents or volunteers. The automobile'liability is endorsed to contain MCS-90 coverage. 2. The Contractor's insurancecoverage shall be primaryinsurance,as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees, agents and 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 officers, officials, employees, agents or volunteers. 4. Coverage shall state'tha..the Contractor's insurance:shall apply separately to each insured against whom claim is made or suitiis brought, except with respect to the limits of the insurer's.liability. 5. Contractor agrees to, rights against-City:regardless of the applicability of any insurance proceeds, and to require all contractors, subcontractors or others involved in any way with the services to do likewise. B. Workers' Compensation and Employers Liability Coverage: The insurer shall agree to waive all rights of subrogation,against the City, its officers,employees, agents or volunteers for losses arising from work performed by the Contractor for the City. C. All Coverages. Each insutance 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. 10.2.5 Acceptability Of Insurers The insurance policies required 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 Contracfor's insurance agent a copy of these specifications, and direct the agent to provide the City with certificates of insurance and with original endorsements affecting coverage required.by this clause. Issuance of documentation indicates the Contractor's insurance<coinplies'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 endorsements,are to be received'and'approved'by the City before work 34 commences. The Citynmay.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: i "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 Clerkl City of Petaluma P.O. Box 6.1 Petaluma, CA 94953" B. The Commercial.General Liability Business and Automobile Liability policies shall contain endorsementsin substantially the following+form: 1. "Thirty calendar days' prior":written notice shall be given to the City of Petaluma in the event of cancellat on;_reduction.in coverage, or:non-renewal of this policy. Such notice shall be sentto: City Clerk City of Petaluma P.O. Box 61 Petaluma, CA 94953" 2.. " City, its officers, officials, employees,"agents or Volunteers are additional insureds on this policy:" 3. "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 retention or program of self-insurance, and any other such insurance shall be considered excess insuranoe•only:" 4. "Inclusion of the City of Petaluma as an insured not affect the City's rights as respects anyclaim, demand, suit or judgment brought orrecovered 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 the Contractor would have been liable.if only one party had been named as an insured:" 35 10./8 Delivery Of;ProofOfCoverage Simultaneously with'the execution of this Agreement,.Contractofshall 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 anntially;to City to demonstrate maintenance of the required coverages throughout the.Term. Upon.any change in coverage or provider,new certificatecshall be furnished to,theCityimmediately. 10.2.9 Other InsuranceRegairements • A. If anyservices are delegated to.a Subcoritractor,ithe 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.B. Thediabilityinsurance required by Section 10.2.2.A shall cover.all Subcontractors or the Subcontractormust`furnish evidence of insuranee provided by it meeting all of the`requirements of this Section 10.2. B. The Contractor shall comply with,all requirements ofthe 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 theContractor or any Subcontractor because of any occurrence related to this Agreement, the Contractor:shall promptly report the facts in writing to the insurance carrier aid 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;fora 36 month "tail coverage" to protect the City from claims filed after the expiration oritermination of this Agreement relating to incidents which occurred prior to,such expiration or termination. ARTICLE 11 DEFAULT AND REMEDIES 11.1 EVENTS OF DEFAULT Each of the following shall constitute an event of default ("Event:of Default") hereunder: A. Contractor fails to.perform its obligations under this Agreement,or future amendment to this Agreement, including, but not limited to, C'ontradtor'sffailure-topay Franchise Fees and other City'fees in accordance with Article 8 of this Agreement,and the breach 36 continues.for more than 19 Business Days after'written notice'from the City for the correction thereof • B. Contractor's failure to Divert 60% of the C&D and`'90%u of the Commercial Recyclable Materials Collected in-the-City-as required bySection 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, or any 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 liours 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 o£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,ror,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 jurisdictiontshall enter a decree or order for;reliefin respect of the Contractor, in•any involuntary case brought under any bankruptcy,_insolvency, debtor relief, or similar law now or hereafter inmeffect, or Contractor shall consent to or shall fail to oppose any such proceeding, or any such court shall enter a decree or order appointing a receiver, liquidator, assignee, custodian, trustee„sequestrator(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 calendar days after the default. Such termination shall be effective 10 calendardays'following the City's written notice to Contractor, and such termination shall be effective without the need for any hearing, suit,or legal action. ' I 37 11.3 CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE The City's right to terminate:the Agreement under.Section I I.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 service, the lead time required to effectaltemative service, and"the tights granted by City to the Contractor, the remedy of damages for a,breach'ihereof by Contractor is inadequate and City shall be entitled to injunctive relief. t I 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,ao-reasonably ascertainthe.extent of damages which shall be incurred'by City as a.resultofa breach by Contractor ofits.obligations under this Agreement. The factors relating to the impracticability,ofascertaining 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 andthe monetary:loss resulting from denial of services or denial Of'quality or.?eliable3services is.impbssible 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 breathes. B. Service PerformanceStandards; Liquidated Damages for Failure to Meet Standards. The Parties further acknowledge thatconsistent, reliable C&D and Commercial RecyclableMaterials service is of utmbst:impertanee to City and that City has considered and relied on•Contractor's representations as to its quality of service commitmentin executing this Agreement. The Parties recognize that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable service and,perforrnance. 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 amountof 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 oftliis;Agreement and the following liquidated damage amounts representa reasonable estimate of the amount of such damages:considering all of the circumstances existing'onthe Effective Date of this Agreement, including the.relationship ofgthe sums to the range of harm to City that )8 reasonably could be anticipated and the,ant eipation.thatproofof 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. I Other than Liquidated Damages payableunder 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'jSection 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: Cityrnay 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 determination on each incident(s) and non-performance prior to authorizing the of Liquidated Damages under this:Section 11.4. The decision of City shall be final and City shall not be subject to, required to exhaust, any further administrative remedies. C. Amount. City may assess-Liquidated Damages Tor 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 sha11 be adjusted,to reflect changes in the All Urban Consumers Index (CPI=U:),all items, for the•Sari Francisco-Oakland-San Jose, CA, Base Period 1982 — 1984 = 100, not seasonally adjusted, compiled and published by the U. S. Department of Labor, Bureau'of Labor Statistics or;its successor agency, using the method^following: Adjusted Liquidated _ Then-current Liquidated,Damage Amount:x Damage Amount most current CPI-U/previous '12-month CPI-U For example: Current'Liquidated Damage Amount= $150.00 Mostrecently published index (May 2004) = 193.5 Index published twelve months prior to most recently published index (May 2003) = 191.0 Adjusted Liquidated Damage Amount= $150.00 x (193.5/191.0) = $151.96 39 If the CPI-U is discontinued,or'revisedd'uring t ee Term by the.United:States Department _ of Labor,r such other government index,orcomputatidn-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.orrevised. D. Timing of.Payment. Contractorshall pay any Liquidated,Damages assessed by City within 10 calendar days:of,thedate the Liquidated Damages are assessed. If they are not paid within the 10-day,period, City maylorder the termination of the rights or "franchise" granted by this Agreement.. 1 _ l 11.5 DIVERSION NON-PERFORMANCE If the Contractor's Diversion level is,less than 60% for C&D,and/or 90% for Commercial Recyclable Materials Collected in the City for aiquarterly reporting period, the following steps shall be followed by the City and Contractor. A. Warning. The Cityshalltissue a written warningto-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 52C. 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.6f-the 'correction period, Contractor shall submit a written`report"to the,�City.identifyingthe 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-current reporting period. C. Liquidated Damages. If She 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:C'within;six months of the date the City levied Liquidated Damages in accordance with:subsection C of Section, the,failu"re to:meet the Diversion requirements defined4in Section 5.2.0 shall be considered an,eventof default and the City may terminate the Agreement in accordance with Section"11.2. • 40 • 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 noxight=or authority to engage in C&D Collection services in the City for a period of five;years froth thefdate 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 i .thezContractor based on review of its reapplication. B. Continuing Liabilities. .Contractor shall remain liable.to;the City for: 1. Fees due in accordance with Article p that would-otherwise be payable by the • Contractor 2. Liquidated Damages assessed pursuant to Section 11.4 3. Reports required:byArticle 7 for C&D and Commercial Recyclable Materials activities performed'byContractor 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 Mat pals 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. i D. Remove Drop Boxes. Contractor shall;removeall of Contractor's Drop Boxes from all of Contractor's Collection•1bcations andashall 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 perform the 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 41 partner of, or joint venturer with, the City. No einployee: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 benefits, or any other benefits which accrue to City employees by virtue of th it empli yment with-the City. 12.2 PERMITS AND LICENSES Contractor shall obtain and maintain, at Contractor's sole cos-Land 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„atits sole=cost, comply with all.Applicable Laws now in force and as they may be enacted, issued,,or amended during the Term. 12.4 GOVERNING LAW This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. 123 JURISDICTION Any lawsuits between the Parties arising out of this Agreement shall be brought and concluded in the courts of Sonoma County in the State of California, which shall have exclusive jurisdiction over such lawsuits. 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 assignatsrights:nor delegate,or otherwise;transfer under this Agreement,to any other-Person without the prior written consent of the other Party. Any such assignment made withoutthe,consent' the other Partyjshall be void and the attempted assignment shall constitute a material breach of this Agreement. Under no circumstances shall 42 any assignment be considered by City if Contractor,is in default at=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 repiesentatives,.successors and permitted assigns. 1 I 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-of any 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 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;be-in writing and shall either be personally delivered to a representative•of the Parties at the address below or deposited in the United States mail, first class postage prepaid, addressed as follows: A. If to City: City Manager City of Petaluma P.O. Box 61 Petaluma, CA 94953 B. 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:dayit is personally delivered or, if mailed, three calendar days from the date it is deposited in the mail. 43 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.bythe 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 wthing 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. I , The Contractor shall, by the Effective Date, designate in writing a responsible officer who shall serve as the representative of the.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 date of mailing of said written notification, Contractor has provided services pursuant to this Agreement for more than three previous years, Contractor may continue to provide services for up to five years after mailed notification, notwithstanding.anysuch 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 For purpose of this Section, Criminal Activity shall mean any of the following events or circumstances: A. Convictions. 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 regulatory agency 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 Collection, Transportation, transfer, Processing, Recycling, Composting or Disposal), including this Agreement or any amendment thereto; 44 2. Bribery or attempting to bribe a public officer or employee of a local, State or Federal agency; 3. Embezzlement,,extortion,.racketeering, false claims, false statements, forgery, falsification or destruction.of records, obstruction of justice; knowingly receiving: stolen property, theft,or,misprision!(failureito disclose) of a felony; 4. Unlawful disposal of Hazardous Substances, the occurrence of which any of Contractor Party knew 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'frade practices laws; 6. Violation of securities laws; and I 7. Felonies. B. Pleas. Entry of a Plea of"guilty:' "nold coritendere'? on"no by a Contracting Party based on acts'taken`in his, her,or its official oapacityon behalf of Contractor with respect to the conduct described in preceding Section 12.13.1.A. 12.13.2 Notice Contactor shall notify.City in writing within five calendar days of occurrence of any Criminal Activityby any Contractor Party. 12.13.3 Contractor's Cure Upon occurrence of any Criminal Activity, Centractorahall:immediately do or cause to be done all of the following: A. Terminate from,employment or remove from office any offending individual Contractor Party, unless,otherwise directed.or ordered by a court-of regulatory agency 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 not:allow orcauseto be allowed to hire or transfer any individual from,any Parent Company or subsidiary company or business entity of Contractor who has committed Criminal Activity as'aContractor representative!field supervisor, officer, ordirector who is 45 directly'or.indirectly,responsible for performance ofthis.Agreement without obtaining prior written consent of City, following full disclosure to City of the facts and c ircumstances surrounding'suchCtiminal 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 wrthrn,30 calendar da`s written notice to Contractor, or may impose other sanctions (which may include,financial sanctions,Itemporary suspensions, or any other condition deemed appropriate short of termination) as it will deem proper, in the following events: A. Contractor fails to comply with the foregoing obligation of this Section, or B. The Criminal Activity concerns 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 1`3 MISCELLANEOUS AGREEMENTS 13.1 ENTIRE AGREEMENT This Agreement, including the Exhibits, represents the full,and entire Agreement between the Parties with respect tithe matterscovered herein. 13.2 SECTION HEADINGS The,article headings.and section headings in this Agreement are for'convenience reference only and are not intended to be used in the construction of this_Agreement nor to alter or affect any of its provisions. + � • 13.3 REFERENCES TO'LAWS All references.imthis.Agreement to laws shall be understood to.include such laws as they may be subsegnently,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. • 46 133 AMENDMENT This Agreement may not be modified or amended in any respect except in writing"signed.bythe Parties. 13.6 SEVERABILITY If any non-material provision.of this Agreement:is for ahy reason 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 II This Agreement may be executed in counterparts, each bf which shall be considered an original. 13.8 EXHIBITS Each of the Exhibits identified as Exhibit "A" through "F' is attached hereto and incorporated herein and made a part hereof by this reference.: IN WITNESS WHEREOF,Athe 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 Name; Title. APPROVED AS TO FORM: � City Attorney Risk Manager Finance Director ATTEST: City Clerk 47 EXHIBIT A 1 CONTRACTOR'S APPLICATION (TO Be Prepared and Submitted By Applicant) • iI 48 EXHIBIT B SCHEDULE FOR LIQUIDATED DAMAGES Contractor may be assessed Liquidated Damages if;Contractor fails to fulfill its obligations with regards to theevents listed in this Exhibit in accordance with the terms and conditions of the Agreement with regards to the:time frame for accomplishing each event and nature of the responsibility associated with the event unlessiotherwise stated in this Exhibit. 1. Diversion. Failure to achieve;and,maintain a mihiinum 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 $300/ event calendar year of unreasonable leaks, litter, or spills of C&D or Commercial Recyclable`,Materials near or on:public streets.and failure to pickup 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 Recyclable Materials;'duringunauthorized hours 4. Excessive Noise. For each'occurrence over 10 duringia 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 6.4.C). 7. Discourteous Behavior.. .For each occurrence of discourteous $500/ event behavior by Collection vehicle personnel, customer service personnel,;or other employees o f Contractor 8. Injuries to Others. For each 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. overdue 10. Report Hazardous Substance. For each failureto notify the $500/ event appropriate authorities;'of reportable quantities offHazardous Substance 149 11. Late Remittance"of Fees to City. Failure of Contractor to remit, 2%of the,amount, fees due td the City (as described in.Article 8);on orbefore 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 Obligations.. Failure to perform any of the $1"50/ for each obligations set forth in this Agreement not specifically stated obligation per day above'and not corrected or proceeding injgood fdith torcorrect until obligation is within 24 hours upon 24 holm notification by City performed • 50 EXHIBIT C SECRETARY'S CERTIFICATION The undersigned, being the:Secretary of , a Company Name California corporation ("the Company"), do hereby certify that the following-resolution was adopted:bythe Board of Directors of the Company and that such resolution has not been amended, modified or rescinded and is in full force andfeffect as of the date hereof: RESOLVED, that d be, and hereby is, authorized to Name of Designated Representative 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 Agreementbetween 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 dateis hereby ratified and approved. Dated: Signature Title 51 EXHIBIT D STATEMENT OF APPLICANT'S UNDERSTANDING AND REPRESENTATIONS The undersigned (who is duly authorized to bind the company submittingthis application) has reviewed the requirements ofthe non-exclusive! ranchise:agreement,for,drop box collection and recycling,services for construction and.denolition 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 makeEthe statements made, in light of the circumstances in which they were made, not misleading. Print Name Date Title Company Name Signature • 52 • EXHIBIT E ACKNOWLEDGMENT AND CERTIFICATION'PURSUANT TO CITY OF PETALUMA LIVING'WAGE ORDINANCE PETALUMA'MUNICIPAL CODE CHAPTER 8.36 The City of Petaluma Living Wage Ordinance ("Ordinance''),.Petalutna 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, Citation and/or Findings contained in this Acknowledgement and 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 FairEmployment and Housing, Division of Occupational Safety and Health (OSHA), California Department of Industrial Relations (Labor Commissioner),-Environmental ProtectionAgency 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 PCDC, each covered entity shall,certify that;its'employees are paid a,living-wage that is consistent with Petaluma Municipal Code'vChapter 8.36. By executing this Acknowledgment and Certification, the covered entity(i) acknowledges that it is aware of the Ordinance and intends to complywith its provisions, (ii) attests to the accuracy and completeness of information provided in the Report of Charges, Complaints,Citations and/or Findings contained.herein, (in) certifies that it pays:its°covered employees a Living Wage as defined in Petaluma Municipal Code Chapter 8.36 and (iv) attestsithat the person 53 executing this Acknowledgment and Certification is authorized to bind the covered entity as to the•matters covered in this Acknowledgment and Certification. SO ACKNOWLEDGED and CERTIFIED: Project or Contract I.D: Date: (Print Name of Covered Entity/Business Capacity) By (Print Name) /s/ (Signature) Its (Title/Capacity of Authorized Signer) 54 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 PROTECTIONAGENCY AND/OR NATIONAL LABOR RELATIONS BOARD,.WHICH: • AFFECTS YOU AS.A'.PROSPECTIVE SCONTRACTOR, 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 CHA'PTER`8.36-(LIVING WAGE ORDINANCE),AND • HAS BEEN FILED:OR PRESENTED TO YOU WITHIN THE TEN YEARS,IMMEDIATELY PRIOR TO THE BID,PROPOSAL, SUBNIISSION OR REQUEST FOR WHICH.THIS ACKNOWLEDGMENT AND CERTIFICATION IS MADE. PLEASE PROVIDE THE DATE,TILE 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