HomeMy WebLinkAboutslogarbageresidentialreycylablesAGREEMENT BETWEE N
THE CITY OF SAN LUIS OBSIP O
AND SAN LUIS GARBAGE COMPAN Y
For Collection and Disposal of Residential Recyclables Materials
Within the City of San Luis Obisp o
This Agreement (Agreement) is made and entered into this 3 rd day of September, 2001, in th e
State of California by and between the City of San Luis Obispo, A Charter Municipal
Corporation of the State of California, (City) and San Luis Garbage, a California corporation ,
(Contractor), for the Collection, processing and marketing of residential Recyclable Material s
and the Performance of other services related to meeting the goals and requirements of th e
California Integrated Waste Management Act of 1989 .
RECITAL S
This Agreement is entered into with reference to the following facts and circumstances :
1.
The Legislature of the State of California, by enactment of the California Integrate d
Waste Management Act of 1989 (AB 939) Division 30 of the California Public Resource s
Code, commencing with § 40000, has declared that it is within the public interest t o
authorize and require local agencies to make adequate provisions for Recyclabl e
Materials handling within their jurisdictions . AB 939 also requires a twenty-five percent
(25%) reduction in the amount of waste which is landfilled by 1995, and a fifty percen t
(50%) reduction by the year 2000 ; and
2.
The separate Collection, processing and marketing of Recyclable Materials for beneficia l
reuse or Recycling was selected in the City's Source Reduction and Recycling Elemen t
adopted June 1994, hereinafter referred to as the SRRE, as a means of meeting the 199 5
and 2000 State mandated diversion goals of AB 939 ; an d
3.
The City has entered into an exclusive franchise with San Luis Obispo Garbage Compan y
of the Collection, transportation, processing, diversion and disposal of refuse fro m
residential properties, Multi-Family Dwelling Units, institutional and commercial an d
industrial properties; and
4.
The City has determined that an Agreement granted to a private company for th e
Collection, processing and marketing of residential Recyclable Materials is the mos t
effective and efficient way to collect and divert residential Recyclable Materials withi n
the City; an d
5.
The City declares its intention of maintaining reasonable rates and high quality service fo r
the Collection, processing, and marketing of residential Recyclable Materials ; and
Residential Recycling Services Agreemen t
6.
The Contractor is responsible for arranging for residential Recyclable Material s
Collection, processing and marketing services ; an d
7.
This Franchise Agreement has been developed by and is satisfactory to the parties .
NOW, THEREFORE, for and in consideration of the mutual promises herein contained ,
it is hereby agreed by and between the City and Contractor as follows :
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Residential Recycling Services Agreement
ARTICLE I
DEFINITIONS
1 .1
"AB 939 means the California Integrated Waste Management Act of 1989, as it may b e
amended from time to time .
1 .2
"Affiliate "means all businesses (including corporations, limited and genera l
partnerships and sole proprietorships) which are directly or indirectly related t o
Contractor by virtue of direct or indirect common ownership interest or commo n
management shall be deemed to be "Affiliated with" Contractor and included within th e
term "Affiliates with" Contractor and included within the "Affiliates" as used herein . An
Affiliate shall include a business in which Contractor owns a direct or indirect ownershi p
interest, a business which has a direct or indirect ownership interest in Contractor and/ o r
a business which is also owned, controlled or managed by any business or individua l
which has a direct or indirect ownership interest exists, the constructive ownershi p
provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on th e
date of this Agreement, shall apply ; provided, however, that (i) "ten percent (10%)"shall
be substituted for "fifty percent (50%)"in Section 318(a)(2)(C) and in Sectio n
318(a)(3)(C) thereof ; and (ii) Section 318(a)(5)(C) shall be disregarded . For purposes o f
determining ownership under this paragraph and constructive or indirect ownership under
Section 318(a), ownership interest of less than ten percent (10%) shall be determined oh
the basis of the 'percentage of voting interest or value which the ownership interest
represents, whichever is greater .
1 .3
"Agreement"means this residential Recycling Agreement (dated , including
all exhibits and attachments, and any amendments thereto) between City and Contracto r
for Collection, processing and marketing of residential Recyclable Materials and othe r
services related to meeting the diversion goals and requirements of AB 939 .
1 .4
"Billings"means any and all statements of charges for services rendered by Contracto r
pursuant to this Agreement.
1 .5
"California Integrated Waste Management Act of 1989"means Public Resource s
Code, § 40,000 tit seq .
1 .6
"City "means the City of San Luis Obispo, a Charter municipal corporation, and all th e
territory lying within the municipal boundaries of the City as presently existing or as suc h
boundaries may be modified during the term, acting through the City Council or the Cit y
Administrative Officer .
Residential Recycling Services Agreemen t
1 .7
"Collect" or "Collection"means to take physical possession, transport, and remov e
Recyclable Materials within and from the City .
1 .8
"Commercially Generated Recyclable Materials"means Recyclable Material s
generated at commercial and/or industrial property and separated by the Waste Generato r
for Collection and which are excluded from the scope of this Agreement as described i n
Article 4, Scope of Agreement .
1 .9
"Container" means any bin, vessel, can or receptacle used for Collection and storin g
Recyclable Materials before removal .
1 .10 "Contractor"means San Luis Garbage, a corporation organized and operating under th e
laws of the State of California, and its officers, directors, employees, agents, companie s
and subcontractors where applicable .
1 .11 "Environmental Laws"means all federal and state statutes, county, local and Cit y
ordinances and regulations concerning public health, safety and the environmen t
including, by way of example and not limitation, the comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 USC §9601 etseq ..;the Resource
Conservation and Recovery Act, 42 USC §6902 0 seq_;the Federal Clean Water Act, 3 3
USC §12510 seq ..;the Toxic Substances Control Act, 15 USC §1601 etseq .;the
Occupational Safety and Health Act, 29 USC §651 0seq .;the California Hazardou s
Waste Control Act, California Health and Safety Code §25100 etseq .;the Californi a
Toxic Substances Account Act, California Health and Safety Code §25300 ntseq .;th e
Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Cod e
§25249 .5 etseq .;as currently in force or as hereafter amended, and all rules an d
regulations promulgated thereunder .
1 .12 "Facility" means any plant or site, owned or leased and maintained and/or operated or
used by Contractor for the purposes of performing the duties to fulfill this Agreement .
1.13 "Fiscal Year" means the period commencing January 1 and concluding December 31 fo r
Contractor . For City it means the period commencing July 1 of one year and concludin g
June 30 of the subsequent year.
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1.14 "Hazardous Waste"means any discarded material or mixture of materials, which i s
toxic, corrosive, flammable, radioactive or which, because of its quantity, concentration ,
physical, chemical or infectious characteristics may do harm to either humans, animals o r
the environment, or as defined in Article 2, Chapter 6 .5 §25117 of the Health and Safet y
Code and Public Resources Code §40141 .
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Residential Recycling Services Agreement
1 .15 "Materials Recovery Facility "means a permitted Facility where Solid Waste o r
Recyclable Materials are sorted or separated for the purposes of Recycling or reuse .
1 .16 "Multifamily Dwelling Unit"means any Premises, other than a Single Family Dwellin g
Unit, used for residential purposes, irrespective of whether residence therein is transient ,
temporary or permanent.
1 .17 "Owner" means the person holding the legal title to the real property constituting th e
Premises to which solid waste collection service is to be provided under this Agreement .
1 .18 "Person "means any individual, firm, association, organization, partnership, corporation ,
business trust, joint venture, the United States, the State of California, the County of San
Luis Obispo, local agencies, cities and special purpose districts .
1 .19 "Premises"means any land or building in the City where Solid Waste is generated o r
accumulated .
1 .20 "Recyclable Materials"means residential by-products or discards of economic value se t
aside, handled, packaged or offered for Collection4n a manner different from Soli d
Waste . Including, but not limited to, aluminum, newspaper, clear and colored glass, ti n
and bi-metal, High density Polyethylene (HDPE), Polyethylene Terephthalate (PET),
cardboard, chipboard, and mixed paper .
1 .21 "Recycling"means the process of separating for Collection, Collecting, treating and/o r
reconstituting Recyclable Materials which would otherwise be discarded withou t
receiving compensation or returning them to the economy in the form of raw materials fo r
new, reused, or reconstituted products . The Collection, transfer, transportation o r
disposal of Recyclable Materials not intended for, or capable of, reuse is not Recycling .
Recycling does not include the use of Recyclable Materials for conversion to energy .
1 .22 "Related Party Entity"means any Affiliate which has financial transactions wit h
Contractor .
1.23 "Single Family Dwelling Unit"means each Premises used for or designated as a singl e
family residential dwelling, including each unit of a duplex or triplex in all cases in whic h
there is separate or individual Solid Waste Collection services .
1 .24 "Solid Waste"means all putrescible and non-putrescible refuse, garbage, yard waste ,
construction and demolition debris, rubbish, and Recyclable Materials, and as otherwis e
defined in Public Resources Code 40191 .
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Residential Recycling Services Agreemen t
1 .26 "Transfer Station"includes those facilities used to receive solid wastes, temporaril y
store, separate, convert, or otherwise process the materials in the solid wastes, or t o
transfer the solid wastes directly from smaller to larger vehicles for transport and_thos e
facilities used for transformations .
1 .27 "Waste Generator"means any Person as defined by the Public Resources Code, whos e
act or process produces Solid Waste as defined in the Public Resources Code, or whos e
act first causes Solid Waste to become subject to regulation .
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Residential Recycling Services Agreemen t
ARTICLE 2
GRANT AND ACCEPTANCE OF AGREEMEN T
2.1
Grant and Acceptancfof Agreemen t
Subject of Section 3 .4 (Conditions to the Effectiveness of Agreement), City hereby grant s
to Contractor an exclusive franchise to collect, process and market Recyclable Material s
accumulating at Single Family and Multi-family dwelling units in the City that are offered
for Collection to Contractor in accordance with this Agreement .
Contractor hereby accepts the Agreement on the terms and conditions set forth in thi s
Agreement .
2.2
Effective Dat e
The effective date of this Agreement shall be September 3, 2001 .
2 .3 Term of Agreemen t
The term of this Agreement shall commence at 12 :01 a .m ., September 3, 2001, an d
expiring at midnight March 3, 2012, subject to extension as provided in Section 2 .4
(Option to Extend).
In the event of a change of law or technology which would render the Collection,
processing and marketing services to be implemented under this Agreement obsolete ,
unnecessary, impractical, undesirable, or illegal, the City reserves the right to terminat e
this Agreement upon the giving of a six (6) month prior written notice of City's electio n
to so terminate this Agreement . It is understood between Contractor and City that thi s
Agreement is motivated by the passage of AB 939, and that subsequent legislation coul d
make this Agreement unnecessary and/or adverse to the best interests of the City . In
particular, City and Contractor acknowledge the possibility of future legislation changin g
the requirements of AB 939, and/or requiring a coordination of the collection of Soli d
Waste and Recyclable Materials .
2 .4
Option to Exten d
The City shall have the sole option to extend this Agreement up to 24 months in period s
of a least twelve (12) months each . If City elect§ to exercise this option, it shall giv e
written notice not later than one hundred eighty (180) days prior to the initial terminatio n
date, or, if one extension has been exercised, one hundred eighty (180) days prior to th e
extended termination date .
2 .5
Conditions to Effectiveness of Agreemen t
The obligation of City to permit this Agreement to become effective and to perform it s
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Residential Recycling Services Agreemen t
undertakings provided for in this Agreement is subject to the satisfaction of each and al l
of the conditions set out below, each of which may be waived in whole or in party b y
City .
A.Accuracy of Representations .The representations and warranties made by
Contractor throughout this Agreement are accurate, true and correct on and as o f
the effective date of this Agreement .
B.Absence of Litigation.There is no litigation pending in any court challengin g
the award of this Agreement to Contractor or the execution of this Agreement o r
seeking to restrain or enjoin its performance .
C.Furnishing of Insurance and Bonds .Contractor has furnished evidence of th e
insurance and bonds required by Article 10, Indemnification, insurance and Bond .
D.Effectiveness of City Council Action .The City's Ordinance No . 1396, approving
this Agreement, shall have become effective pursuant to California law on or prio r
to the effective date of this Agreement .
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Residential Recycling Services Agreement
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ARTICLE 3
TERMS OF AGREEMENT
3 .1
Contractor Statu s
Contractor is duly organized, validly existing and in good standing under the laws of th e
State of California and has the financial ability to perform its obligations set forth in thi s
Agreement . Additionally, the Contractor has no suits or threatened suits which woul d
impair the financial ability of the Contractor to perform its obligations under thi s
Agreement, and that the entering into this Agreement by Contractor will not in any wa y
constitute a breach of any other agreements entered into by Contractor with other parties ,
or constitute a violation of any law .
3 .2
Contractor Authorizatio n
Contractor has the authority to enter into and perform its obligations under thi s
Agreement . The Board of Directors of Contractor (or the shareholders, if necessary) hav e
taken all actions required by law, its articles of incorporation, its bylaws or otherwise t o
authorize the execution of this Agreement . The persons signing this Agreement on behal f
of Contractor have the authority to do so .
3 .3 Compliance with Laws and Regulation s
Contractor shall comply with all existing and future City, county, state, and federal laws ,
including all Environmental Laws, with particular note of Article X of the City Charte r
and Chapter 8 .04 of the Municipal Code .
3 .4
Serve Without Interruptio n
Contractor shall Collect, process and market residential Recyclable Materials throughou t
the term of this Agreement without interruption except as described in Section 12 .4 .
3.5 Permits and License s
Contractor shall procure, and keep in full force and affect, all permits and licenses, pay al l
charges and fees, and give all notices as necessary .
3.6
Preservation of City Property
Contractor shall pay to the City, on demand, the 4 cost of all repairs to public propert y
made necessary by any of the operations of Contractor under this Agreement .
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Residential Recycling Services Agreemen t
ARTICLE 4
SCOPE OF AGREEMEN T
4 .1 Scope of Agreemen t
Subject to Section 4 .2 (Limitations to Scope), the Agreement granted to Contractor shal l
be exclusive for residential Recyclable Materials, except where otherwise precluded b y
law .
4 .2
Limitations to Scop e
The Agreement for the Collection, processing and marketing of Recyclable Material s
granted to Contractor shall be exclusive except as to the following categories o f
Recyclable Materials listed in this Section . The granting of this Agreement shall no t
preclude the categories of Recyclable Materials listed below from being delivered to an d
Collected and transported by others provided that nothing in this Agreement is intende d
to or shall be construed to excuse any person from obtaining any authorization from Cit y
which is otherwise required by law :
A.Recyclable Materials separated from Solid Waste by the Waste Generator and fo r
which Waste Generator sells or is otherwise compensated by a collector in a
manner resulting in a net payment to the Waste Generator for such Recycling o r
related services .
B.Recyclable Materials donated to a charitable, environmental or other non-profi t
organization .
C.Recyclable Materials which are separated at any Premises and which ar e
transported by the owner or occupant of such Premises (or by his/her full-tim e
employee) to a Facility ;
D.Containers delivered for Recycling under the California Beverage Containe r
Recycling Litter Reduction Act, 14500, et seq . California Public Resource s
Code ; and,
E.Recyclable Materials generated at non-residential premises are also excluded fro m
this Agreement .
Contractor acknowledges and agrees that City may permit other Persons besid e
Contractor to Collect any or all types of the Recyclable Materials listed in this Sectio n
4 .2, without seeking or obtaining approval of Contractor under this Agreement .
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Residential Recycling Services Agreemen t
This Agreement to Collect, transport, process, and market Recyclable Materials shall b e
interpreted to be consistent with state and federal laws, now and during the term of th e
Agreement, and the scope of this Agreement shall be limited by current and developing
state and federal laws with regard to Recyclable Materials handling, Recyclable Material s
flow control, and•related doctrines . In the event that future interpretations of current law ,
enactment or developing legal trends limit the ability of the City to lawfully provide fo r
the scope of services as specifically set forth herein, Contractor agrees that the scope o f
the Agreement will be limited to those services and materials which may be lawfull y
provided for under this Agreement, and that the City shall not be responsible for any lost
profits and/or damages claimed by the Contractor as a result of changes in law .
4 .3 Administration of Agreemen t
The City Administrative Officer shall administer this Agreement and the City's Utilitie s
Director shall supervise Contractor compliance with the Agreement terms and conditions .
4 .4
Use of City Streets
Such grant of Agreement shall give Contractor the right and privilege to operat e
Recycling Collection vehicles and equipment on such streets, public ways, rights-of-way ,
or easements of the City.
4 .5 Annexatio n
Contractor shall automatically extend all services herein described to any area annexed to
the City, except that the City may permit a firm franchised by the County of San Lui s
Obispo before the annexation to continue service the area for a period not less than fiv e
(5) years .
4 .6
City Request to Direct Changes
4 .6.1 Genera l
City may request Contractor to perform additional services (including new diversio n
programs, billing services, etc .) or modify the manner in which it performs existin g
services . Pilot programs and innovative services which may entail new Collectio n
methods, different kinds of services and/or new requirements for Waste Generators ar e
included among the kinds of changes which City may request . Contractor shall present ,
within 30 days of a request to do so by City, a proposal to provide additional or expande d
diversion services pursuant to the terms of Section 4 .6 .2 . Contractor shall be entitled to
an adjustment in its compensation in accordance with Section 8 .8 (Extraordinar y
Adjustments), for providing such additional or modified services .
4.6.2 New Diversion Program s
Contractor shall present, within 30 days of a request to do so by City, a proposal t o
provide additional or expanded diversion services . The proposal shall contain a complet e
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Residential Recycling Services Agreement
description of the following :
o Collection methodology to be employed (equipment, manpower, etc .)
o Equipment to be utilized (vehicle number, types, capacity, age, etc .).
o Labor requirements (number of employees by classification).
o Type of Containers to be utilized .
o Provision for program publicity/education/marketing .
o A projection of the financial results of the program's operations for the remaining Ter m
of the Agreement in a balance sheet and operating statement format includin g
documentation of the key assumptions underlying the projections and the support fo r
those assumptions .
o Materials processing facility to be utilized .
4 .6 .3 City's Right to Acquire Service s
Contractor acknowledges and agrees that City may permit other Persons beside s
Contractor to provide additional Recycling services not otherwise contemplated unde r
Section 4 .6 (City's Right to Direct Changes). If pursuant to Section 4 .6 .2 (New Diversio n
Programs), Contractor and City cannot agree on terms and conditions of such services i n
ninety (90) days from the date when City first requests a proposal from Contractor t o
perform such services, Contractor acknowledges and agrees that City may permit Person s
other than Contractor to provide such services .
4.6.4 Implementing new Service s
If 1) Contractor is capable of performing or developing the ability to perform a requeste d
service or modifying an existing service ; 2) City has agreed to have Contractor provide
such additional service in accordance with Contractor's proposal ; and 3) an adjustment i n
Contractor's compensation has been requested but has not been agreed upon o r
implemented within 90 days, City may permit a third party to perform the request o r
modified existing service, and Contractor shall not be obligated, to perform suc h
additional or modified service pursuant to the terms of Section 4 .6.3 .
4 .7
Ownership of Recyclable Material s
Once Recyclable Materials are placed in Containers and properly presented fo r
Collection, ownership and the right-t6 possession shall transfer directly from th e
Generator to Contractor by operation of this Agreement . Contractor is hereby granted the
right to retain, recycle, process, reuse, and otheiise use such Recyclable Materials or an y
part thereof, in any lawful fashion or for any lawful purpose consistent with the hierarchy
and goals of AB 939 . Subject to the provisions of this Agreement, Contractor shall hav e
the right to retain any benefit resulting from its right to retain, recycle, process or reus e
the Recyclable Materials which it Collects . Recyclable Materials or any part thereof ,
which are delivered to a Facility (processing Facility, transformation Facility, transfe r
station, or Material Recovery Facility) shall become the property of the owner or operato r
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Residential Recycling Services Agreemen t
of the Facility(ies) once deposited there by Contractor . The City may obtain ownership o r
possession of Recyclable Materials placed for Collection upon written notice of its inten t
to do so, however, nothing in this Agreement shall be construed as giving rise to an y
inference that City has such ownership or possession unless such written notice has bee n
given to Contractor .
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Residential Recycling Services Agreemen t
ARTICLE 5
DIRECT SERVICES
5 .1
Genera l
The work to be done by Contractor pursuant to this Agreement shall include th e
furnishing of all labor, supervision, equipment, materials, supplies, and all other item s
necessary to perform the services required as presented in the Contractor's proposa l
incorporated in this document as Exhibit A . The enumeration of, and specification o f
requirements for, particular items of labor or equipment shall not relieve Contractor of the
duty to furnish all others, as may be required, whether enumerated or not .
The work to be done by Contractor pursuant to this Agreement shall be accomplished in a
thorough and professional manner so that the residents within the City are provide d
reliable, courteous and high-quality Recycling Collection service at all times . Th e
enumeration of, and specification of requirements for, particular aspects of service qualit y
shall not relieve Contractor of the duty of accomplishing all other aspects in the manne r
provided in this Section, whether such aspects are enumerated elsewhere in the
Agreement or not .
5 .2
Recycling Service s
Contractor shall Collect and remove all Recyclable Materials placed in or adjacent to
Containers at the designated Collection locations for Single Family Dwelling Units an d
Multifamily Dwelling Units .
Recyclable Material Collection shall be a minimum of once each week on the same da y
of the week as Solid Waste Collection service . Contractor will notify Recyclin g
customers of holiday Collection schedules . Should the Solid Waste collection da y
change, Contractor shall re-route Collections within sixty (60) days of the notification by
the change in Solid Waste collection days to provide same day service .
5 .3
Materials To Be Collected
Materials to be collected are to include but not limited to : newspaper, aluminum, tin an d
bi-metal cans, clear and colored glass containers, High Density Polyethylene (HDPE),
Polyethylene Terephthalate (PET), corrugated cardboard, and mixed paper (Includin g
white and colored ledger paper, chipboard, junk mail, magazines and phone books).
5.4
Refusal to Provide Collection Services
Contractor may refuse to Collect Recyclable Materials and shall not be obligated t o
continue to provide Recycling Container(s) to any participant in the Recycling progra m
who, after reasonable warning, fails to properly sort and set out Recyclable Materials .
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Residential Recycling Services Agreement
Contractor shall report monthly to City any warning notices issued .
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Residential Recycling Services Agreemen t
5.5
Marketing and Sale of Recyclable Material s
Contractor shall be responsible of the marketing and sale of all Recyclable Material s
Collected pursuant to this Agreement . Revenues from the sales of these materials shal l
be applied to the cost of service under the Agreement to reduce Contractor's
compensation . Contractor shall sell all Recyclable Materials Collected pursuant to thi s
Agreement at not less than fair market value as described in Article 8, Contractor's
Compensation and Rates .
5.6
Operations
5.6.1 Schedule s
To preserve peace and quiet, no Recyclable Materials shall be Collected from or withi n
two-hundred (200) feet of residential Premises between 6 :30 P .M . and 6 :30 A .M . on an y
day and such Recyclable Materials shall be Collected, Monday through Friday on th e
same day as Solid Waste collection . When the regularly scheduled Collection day fall s
on a holiday, Collection shall take place on the following regularly scheduled collectio n
day . In the event the Contractor misses the collection of set out recyclables, th e
Contractor shall collect the missed pickups with one (1) business day of notification .
5 .6.2 Vehicles
A.General .Contractor shall provide a fleet of Collection vehicles sufficient i n
number and capacity to perform the work required by this Agreement an d
proposed in Exhibit "A" and in strict accordance with its terms . Contractor shal l
have available on Collection days sufficient back-up vehicles in order to respon d
to complaints and emergencies . The fleet shall be maintained according to th e
requirements of Municipal Code 8 .04 .030 .
B.Specifications .All vehicles used by Contractor in providing Recyclabl e
Materials Collection services under this Agreement shall comply with all federal ,
state, and local requirements for such vehicles as they now exist or may b e
amended in the future, and be registered with the California Department of Moto r
Vehicles . All such vehicles shall have water-tight bodies designed to preven t
leakage, spillage or overflow . All such vehicles shall comply with U .S .
Environmental Protection Agency noise emission regulations and other applicabl e
noise control regulations .
C.Condition
1)Contractor shall maintain all of its properties, facilities, and equipment used i n
providing service under this Agreement in a safe, neat, clean and operabl e
condition at all times .
2)Contractor shall inspect each vehicle daily to ensure that all equipment i s
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Residential Recycling Services Agreemen t
operating properly . Vehicles which are not operating properly and represent a
safety hazard shall be taken out of service until they are repaired and do operat e
properly and safely . Contractor shall perform all scheduled maintenanc e
functions in accordance with the manufacturer's specifications and schedule .
Contractor shall keep accurate records of all vehicle maintenance, recorde d
according to date and mileage and shall make such records available to City upo n
request .
3)Contractor shall repair, or arrange for the repair of, all of its vehicles an d
equipment for which repairs are needed because of accident, breakdown or an y
other cause so as to maintain all equipment in a safe and operable condition .
Contractor shall maintain accurate records of repair, which shall include th e
date/mileage, nature of repair and the signature of a maintenance supervisor tha t
the repair has been properly performed .
4)Contractor shall arrange all vehicles and other equipment in safe and secure
location(s) in accordance with all applicable zoning regulations .
D.Vehicle Identification .Each truck shall display in a prominent place a sign a s
required in Municipal Code section 8 .04.090 .
E.Operation.Vehicles shall be operated in compliance with the California Vehicl e
Code, and all applicable safety and local ordinances . Contractor shall not loa d
vehicles in excess of the manufacturer's recommendations or limitations impose d
by state or local weight restrictions on vehicles .
5 .6.3 Recycling Container s
Contractor shall supply each Single Family Dwelling Unit with a container in siz e
consistent with the City approved curbside recycling collection program .
Contractor shall supply each multi-family complex with the appropriate type o f
container to adequately service the needs of the complex per the solid waste
handling location . Containers shall be identified for Recyclable Materials only .
Contractor agrees to-provide additional appropriate Containers, as required .
City and Contractor acknowledge that from time to time, a customer may damag e
or destroy a Container. City and Contractor also acknowledge that from time t o
time Containers may be stolen from the curb or damaged due to normal use .
When notified of such occurrence, Contractor shall replace the Container, at n o
charge to the customer .
5 .6.4 Litter Abatement
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Residential Recycling Services Agreement
Contractor shall use due care to prevent Recyclable Materials from being spille d
or scattered during the Collection or transportation process . If any Recyclable
Materials are spilled during Collection, Contractor shall promptly clean up al l
spilled materials . Each collection vehicle shall carry a broom and shovel at al l
times for this purpose .
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Residential Recycling Services Agreement
5.6.5 Personnel
A.General.Contractor shall furnish as presented in Exhibit "A" such qualifie d
drivers, mechanical, supervisory, clerical, and other personnel as may be .
necessary to provide services required by this Agreement in a safe and efficien t
manner .
B.Identification .Contractor shall ensure that while on duty each Collection
worker wears a clean uniform which displays the Contractor's company name an d
the worker's name or identification number .
C.Fees &Gratuities.Contractor shall not, nor shall it permit any agent ,
employee, or subcontractors employed by it to request, solicit, demand, or accept ,
either directly or indirectly any compensation or gratuity for any service s
performed under this Agreement except as provided in Article 8 of thi s
Agreement.
D.Training.All drivers shall be trained and qualified in the operation o f
vehicles they operate and must possess a valid license, of the appropriate class ,
issued by the California Depaitinent of Motor Vehicles .
Contractor shall provide adequate operations, health and safety training, an d
Hazardous Waste identification and handling training for all of its employees who
use or operate equipment or who are otherwise directly involved in Collection o r
other related operations .
E.Customer Courtesy .Contractor shall train its employees in custome r
courtesy, shall prohibit the use of loud or profane language, and shall instruc t
Collection crews to perform the work quietly . Contractor shall use its best efforts
to ensure that all employees present a neat appearance and conduct themselves i n
a courteous manner . If any employee is found to be discourteous or not to b e
performing services in the manner required by this Agreement, Contractor shal l
take all necessary corrective measures . If City has notified Contractor of a
complaint related to a discourteous or improper behavior, Contractor will reassig n
the employee to duties not entailing contact with the public while Contractor i s
pursuing its investigation and corrective 4action process .
5 .7
Material Processin g
5 .7 .1 Receipt of Solid Wast e
Commencing September 3, 2001, the Contractor shall have in place or have mad e
arrangements for a Materials Recovery Facility to receive and accept all deliveries o f
Recyclable Materials generated in the city . Contractor has designated the Cold Canyo n
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Residential Recycling Services Agreement
Landfill facility to be utilized as of the Effective date .
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Residential Recycling Services Agreemen t
5 .7 .2 Status of Materials Recovery Facility
Any Materials Recovery Facility used by contractor must be designed and constructed i n
accordance with all applicable state and local laws (e .g ., CEQA, California Code o f
Regulations, etc). The Materials Recovery Facility must have all permits from federal ,
state, regional, county and city agencies necessary for it to operate as a Material Recover y
Facility and must be in full regulatory compliance with all such permits .
The selected Materials Recovery Facility must be authorized to accept, under its existin g
permit, and have sufficient uncommitted capacity to accept, all Recyclable Material s
delivered to it by, or on behalf of, the City for the term of this Agreement . Contracto r
shall immediately notify City of any notice of breach or default received from Material s
Recovery Facility.
5.7 .3 Alternative Processing Facility
If Contractor becomes unable to deliver the City's Recyclable Materials to the Material s
Recovery Facility due to causes within its control and which could have been avoided b y
the exercise of due care, the Contractor shall arrange for it to be accepted at anothe r
Materials Recovery Facility, in which case Contractor shall pay for any increase d
transportation costs, any differences in the fees charged at such Materials Recover y
Facility and the fees then in effect under this Agreement . If Contractor's inability t o
deliver the City's Recyclable Materials to the Materials Recovery Facility is not due t o
causes within its control or which could have been avoided by the exercise of due care ,
then Contractor shall propose_ alternative Material Recovery Facilities including al l
related costs and City shall select the alternative to be used .
5 .7 .4 Disposition of Unauthorized Waste .•
.
Contractor shall ensure that procedures to identify and reject materials delivered to th e
Materials Recovery Facility which are Hazardous Waste, or which otherwise may not b e
legally accepted at the Materials Recovery Facility under their permits, are in place .
Contractor may, in the course of implementing such procedures, refuse to accep t
Recyclable Materials deposited from the City if they constitute Hazardous Waste, o r
otherwise may not be legally accepted at the Materials Recovery Facility, and Contracto r
shall be solely responsible of the materials which are accepted . If Contractor discover s
Hazardous Waste, or other material which may not be legally accepted, among material s
which it has accepted, it shall dispose of such waste at its own expense . Contractor may
pursue all legal rights and remedies it may have against the Waste Generator(s) of suc h
Solid Waste, if the Waste Generator(s) can be identified .
5.8
Disposa l
Contractor shall ensure that the residual Solid Waste from the City's Recyclable Material s
delivered to the Materials Recovery Facility by the Contractor are disposed of at a
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Residential Recycling Services Agreemen t
permitted disposal site in full regulatory compliance .
5 .9 implementation Pla n
The parties recognize that substantial planning will be required in order to assure a n
orderly initiation of Residential Curbside Recycling Collection services on September 3 ,
2001, To that end, City has required Contractor to submit, as part of its proposal,a
detailed implementation plan addressing, among other things, the steps Contractor wil l
take and the schedule on which it will take them, to prepare for such an orderly initiatio n
of.service. The implementation plan shall cover Contractor's schedule for acquirin g
necessary equipment, personnel, storage and maintenance facilities, administrativ e
offices, customer relations materials (including Collection schedules, route maps, billing
forms, complaint forms, service request forms, etc .). Contractor agrees to adhere strictl y
to the implementation plan . The implementation shall be subject to the City's review an d
approval .
Failure to adhere to the implementation schedule will constitute a breach of thi s
Agreement, and, if incurred, an event of default, under Article 12, Default, Remedies, an d
Liquidated Damages .
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Residential Recycling Services Agreement
ARTICLE 6
OTHER SERVICES
6.1
Billin g
The City Council shall establish an integrated rate for the Green Waste, Recycling an d
Solid Waste services . Contractor shall bill and collect for its services at no more nor les s
than these rates . Contractor's billing plan, including billing frequency, and format shal l
be subject to approval by City, and City shall have the right to revise the billing format t o
itemize certain charges .
The City may also direct Contractor to insert mailers relating to contractor provide d
services with the billings and shall be responsible for all labor costs with respect to th e
mailing inserts . The mailers must fit in standard envelopes and not increase the require d
postage . The City will provide not less than thirty (30) days notice to Contractor prior t o
the mailing date of any proposed mailers to permit Contractor to make appropriat e
arrangements for inclusion of City materials .
Contractor shall maintain copies of said billings and receipts, each in chronological order ,
for a period of three (3) years after the date of service for inspection by the City .
Contractor may, at its option, maintain those records in computer form, on microfiche, o r
in any other manner, provided that the records cannot be altered, and can be preserve d
and retrieved for inspection and verification in a timely manner .
The owner of occupied Premises shall be responsible and liable for paying the Recyclin g
fees for that property.
6.2
Collection of Bills from Delinquent Customer s
Once each year, prior to a date established by the City, Contractor may take action s
pursuant to Chapter 8 .04 of the Municipal Code to collect delinquent accounts .
6 .3
Periodic Performance or Billing Audi t
The City shall have the right to periodically, not less than annually, request a performanc e
audit or billing audit be completed by the Contractor ; the City or an independent thir d
party. The City shall be entitled to-select the type of consultant that it deems qualified t o
conduct said audits . The cost of such audits will be an allowable cost under the rat e
setting methodology unless there are findings pursuant to Section 12 .5 .
6 .4
Customer Servic e
6 .4 .1 Office
Office hours shall be, at a minimum, from 8 :00 A .M . to 5 :00 P .M ., Monday throug h
Friday, exclusive of holidays . A responsible and qualified representative of Contracto r
shall be available during office hours for communication with the public . Telephone
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Residential Recycling Services Agreemen t
numbers shall either be a local or a toll free call to residents and businesses of the City .
Contractor's telephone system shall be adequate to handle the volume of calls typicall y
experienced on the busiest days . Contractor shall also maintain a local or toll fre e
telephone number for use during other than normal business hours . Contractor shall have
a representative, answering or message providing/receiving (voice-mail) service availabl e
at said after hours telephone number .
6 .4 .2 Complaint documentation
All service complaints related to Recyclable Materials Collection shall be directed t o
Contractor. Daily logs of complaints concerning Collection of Recyclable Materials shal l
be retained for a minimum of twenty-four (24) months and shall be available to City at al l
times during this Agreement upon twenty-four (24) hour notice .
Contractor shall log all complaints received orally or in writing and said log shall includ e
the date and time the complaint was received, name, address and telephone number of
complainant to the extent that such information is provided by complainant, descriptio n
of complaint, employee recording complaint and the action taken by Contractor t o
respond to and remedy complaint . All complaints received shall be responded to withi n
twenty four (24) working hours of receipt .
All customer service records and logs kept by Contractor shall be available at all time s
during this Agreement to City upon twenty four (24) hour notice and at no cost to City .
City shall, at any time during regular Contractor business hours, have access t o
Contractor's customer service department for purposes of monitoring the quality o f
customer service or researching customer complaints assessing liquidated damages o r
other matters related to Contractor's performance under this Agreement .
6 .4 .3 Resolution of Customer Complaint s
Contractor shall notify customers of this complaint procedure at the time customers appl y
for or are provided service, and subsequently, annually .
A customer dissatisfied with Contractor's decision regarding a complaint may ask the Cit y
to review the complaint . The City's Utilities Director shall determine if the customer's
complaint is justified, and if so, what remedy, if any shall be provided . The remedy under
this Section shall be limited to a rebate of customer charges related to the period o f
breach of any of the Terms of this Agreement . Any resolution of these custome r
complaints shall not affect the City's rights to liquidated damages .
6 .4,4 Government Liaiso n
Contractor shall designate in writing a "Government Liaison" who shall be responsibl e
for working with the City Administrative Officer, Utilities Director and/or one of thei r
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Residential Recycling Services Agreemen t
designated representative(s) to resolve customer complaints .
6 .5
Education and Public Awarenes s
Contractor acknowledges and agrees that education and public awareness are critical, ke y
and essential elements of any efforts to achieve AB 939 requirements and has submitted a
plan to this effect in Exhibit "A". Accordingly, Contractor agrees to cooperate with Cit y
in exploring opportunities to expand public and customer knowledge concerning need s
and methods to reduce, reuse and recycle Solid Waste and to cooperate fully with City i n
this regard .
Contractor shall perform all necessary public education activities related to the Recyclin g
services as presented in Exhibit "A". This shall include, but not be limited to, annua l
mailings to all customers explaining the recycling program, mailings prior to the start o f
services, flyers handed out with Container delivery and follow-up mailings or handout s
related to the collection of new materials . All Public education materials shall b e
approved in advance by the City .
At the direction of the City Administrative Officer and/or Utilities Director, Contracto r
shall participate in and promote Recycling and other diversion techniques at communit y
events and local activities . Such participation would normally include providing, without
cost to the City, educational and publicity information promoting the goals of the City's
AB 939 programs .
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Residential Recycling Services Agreement
ARTICLE 7
PAYMENTS TO CIT Y
7 .1
Franchise Fee
In consideration of the exclusive franchise provided for in this Agreement, Contracto r
shall pay the City six percent (6%) of its gross revenues for residential recycling services .
Such franchise fee shall be a "pass-through "expense for purposes of rate review .
7.2 AB 939 Fee
If requested by City, Contractor shall pay an AB 939 fee, to be specified annually by th e
City . All AB 939 fees paid to the City shall be considered a pass through cost fo r
purposes of rate setting .
7.3
Business License Ta x
Contractor shall pay each annual business license tax .
7 .4
Other Fees
The City shall reserve the right to set "Other" Fees, as it deems necessary . Thes e
expenses will be determined and a fee designed to reimburse the City . Such fees shall b e
set annually by City resolution and may be considered a pass through cost for purposes o f
rate setting .
7 .5 Time and Method of Paymen t
If Contractor is directed to pay an AB 939, Franchise Fee or "Other" Fee, it shall do so o n
or before the fifteenth_(15th) day of each month during the Term . Contractor shall remit
to City a sum of money equal to the designated percentage of the gross revenue, includin g
Recyclable Materials revenue, or a flat monthly fee as determined by the City . If any fee s
are not paid on or before the fifteenth (15th) day of any month, Contractor shall pay t o
City a late payment penalty in an amount equal to one percent (1%) of the amount owin g
for that month . Contractor shall pay an additional late payment penalty of one percen t
(1%) owing on any unpaid balance for each following thirty (30) day period the fe e
remains unpaid . Late payment penalty amounts shall not be included in any revenu e
requirement.
7 .6
Adjustment o>' Fee s
The City may adjust the amount of fees annually. Such adjustment shall be reflected in
the rates that the Contractor is allowed to charge and collect from customers .
7.7 Review of Fee Payment s
The City, or its agent, reserves the right to annually perform an independent review of fe e
payments, to verify that fees are being paid in accordance with Agreement . The cost of
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Residential Recycling Services Agreemen t
such reviews will be an allowable cost under the rate setting methodology unless there are
findings pursuant to Section 12 .5 .
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Residential Recycling Services Agreemen t
ARTICLE 8
CONTRACTOR'S COMPENSATION AND RATE S
8 .1
Genera l
Contractor's compensation provided for in this Article shall be the full, entire an d
complete compensation due to Contractor pursuant to this Agreement for all labor ,
equipment, materials and supplies, taxes, insurance, bonds, overhead, profit and all othe r
things necessary to perform all the services required by this Agreement in the manner an d
at the times prescribed .
The Contractor does not look to the City for payment of any sums under this Agreement .
Contractor will perform the responsibilities and duties described in this Agreement i n
consideration of the right to charge and collect from customers for services -rendered at
rates fixed by the City from time-to-time and the right to sell compost generated fro m
Green Waste . The City shall have the right to structure those rates as it deem s
appropriate so ,long as the revenues forecasted to be received by Contractor from charging
such rates can reasonably be expected to generate sufficient revenues to provide fo r
Contractor's compensation .
8 .2
Contractor's Compensation for Subsequent Rate Year s
Contractor's compensation for performance of all its responsibilities and duties i n
subsequent years of this Agreement will be set using the guidelines and approach outline d
in the City's "Rate Setting Process and Methodology Manual for Integrated Solid Wast e
Management Rates".
An operating ratio of 7% will be applied to Contractor's costs to determine the allowabl e
level of profit .
8 .3
Initial Rate s
Contractor will submit required financial documentation-for this service as part of a n
integrated solid waste rate application . The rate application will comply with the
guidelines set forth in the City's "Rate Setting Process and Methodology Manual fo r
Integrated Solid Waste Management Rates". The portion of the rate attributable to thi s
service shall be identified as part of the Council rate-setting process but will not b e
separated from the integrated rate .
4
8 .4 Subsequent Rates
Contractor may request rate revisions in future solid waste rate applications . The rate
application must comply with the City's "Rate Setting Process and Methodology Manua l
for Solid Waste Management".
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Residential Recycling Services Agreemen t
8 .5 Right to Perform Rate Review s
City reserves the right to perform, or have a qualified third party perform, a detailed
review of Contractor's expenses and revenues for the purposes of adjusting rates . The
results of this detailed rate review will be used to adjust rates, and the Contractor's
calculated revenue requirements will be used the following year to adjust rates accordin g
to Section 8 .3 Contractor's Compensation for subsequent Rate Years .
An operating ratio of 7% will be applied to Contractor's costs to determine the allowabl e
level of profit .
8 .6 Extraordinary Adjustme n
Contractor or City may request an adjustment to rates at times other than that required i n
Section 8 .3 for unusual changes in the cost of providing service under this Agreement .
Such changes may include, but are . not limited to, changes in laws, ordinances, o r
regulations, and significant changes in Contractor's workload due to new residential o r
commercial development . However, when an extraordinary adjustment is requested, suc h
adjustment shall consider changes in all costs and revenues from Contractor's proposed
revenue requirement . For each such request, Contractor shall prepare a schedule
comparing the original proposed costs and revenues by line item to the then current cost s
and revenues, including an estimates of the cost impact of the change, using an operatin g
ratio of 8%, applied to Contractor's costs as calculated in Contractor's proposed revenue
requirement . Such request shall be prepared in a form acceptable to City with support fo r
assumptions made by Contractor in preparing the estimate . Contractor and City shal l
negotiate a mutually acceptable adjustment amount .
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Residential Recycling Services Agreemen t
ARTICLE 9
RECORDS, REPORTS AND INFORMATION, STUDIE S
AND HEARING REQUIREMENT S
9 .1
Records
9 .1 .1 Genera l
Contractor shall maintain records required to conduct its operations, to support requests i t
may make to City, and to respond to requests from City in the conduct of City business .
Additionally, the Contractor shall also keep and maintain records reasonably necessar y
for audits, as required by this Agreement, and shall keep and maintain all record s
reasonably necessary to develop reports and financial statements required with respect t o
this Agreement . Adequate record security shall be maintained to preserve records fro m
events that can be reasonably anticipated such as a fire, theft and earthquake .
Electronically maintained data/records shall be protected and backed up .
9.1 .2 Financial Records
Financial records shall separate all records related to the services performed under thi s
Agreement from any and all other types of businesses and operations conducted by th e
Contractor.
9 .1 .3 General Record s
City approved records (format) shall be maintained for the City separate from othe r
jurisdictions relating to :
q Customer services ;
o Weight of Recyclable Materials by type of materials .
o Routes ;
o Facilities, inventory of equipment and personnel used ;
o Facilities and equipment operations, maintenance and repair ;
o Processing, marketing and sale of Recyclable Materials including name of th e
purchaser, the date of sales transaction, processing cost per ton, quantity purchased, valu e
per ton and net sales records ;
o Complaints ; and ,
o Missed pick ups .
Contractor shall maintain records of all Recyclable Materials Collected in the City for th e
period of this Agreement . In the event Contractor discontinues providing Recyclin g
services to City, Contractor shall provide all records of all Recyclable Materials Collecte d
in City to City within thirty (30) days of discontinuing service . Records shall be in
chronological and organized form and readily and easily interpreted .
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Residential Recycling Services Agreemen t
9 .2
Reports
9.2.1 Report Formats and Schedul e
Records shall be maintained in forms and by methods that facilitate flexible use of dat a
contained in them to structure reports, as needed . Contractor may propose report formats
that are responsive to the objectives and audiences for each report . The format of each
report shall be approved by the City .
Monthly reports shall be submitted within twenty (20) calendar days after the end of th e
month being reported . Annual reports shall be submitted before September 30th, for th e
previous reporting year .
9.2.2 Monthly Report s
The information listed shall be the minimum reported :
o Recyclable Materials collected, sorted by type of Generator, in tons, by month, an d
cumulative for report year .
•Complaint summary, for month and cumulative for report year .
o Narrative summary assessment of problems encountered and actions taken wit h
recommendations to City for improvement .
o Number of accounts by category for each month of reporting year .
o Participation rates .
o Recyclable Materials Container distribution .
o Materials Sales . Sales statement showing : kinds of material, quantity sold (in tons),
value per ton, and net sales .
The City may designate any additional information that it wishes provided in the monthl y
reports .
9.2.3 Annual Report
The Annual Report is to be essentially in the form and content of the monthly reports . In
addition, Contractor's annual audited financial reports/statements, with the operation s
related to the City services segregated, shall be included . The annual report shall also
include a complete inventory of equipment used to provide all services .
Financial statements shall include a supplemental schedule combining Contractor's result s
of operations, separating the specific revenues and expenses, including detaile d
information with respect to general overhead claimed by the Contractor, in connectio n
with the operations provided for in this Agreement from others included in such financia l
statements . The financial statements, supplemental schedule, management letter an d
footnotes shall be prepared in accordance with Generally Accepted Accounting Principle s
(GAAP) and audited, in accordance with Generally Accepted Auditing Standard s
(GAAS) by a certified public accountant (CPA) licensed (in good standing) to practice
public accounting in the State of California as determined by the State of Californi a
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Residential Recycling Services Agreemen t
Department of Consumer Affairs Board of Accountancy . The CPA opinion o n
Contractor's annual financial statements and supplemental schedule shall be unqualified ,
except as to uncertainties for which the ultimate outcome cannot be determined by th e
date of the CPA's opinion .
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Residential Recycling Services Agreemen t
9 .3
Right to Inspect Records
City shall have the right to inspect or review the payroll tax reports, specific documents o r
records required expressly or by inference pursuant to this Agreement, or any othe r
similar records or reports of Contractor that City shall deem, in its sole discretion ,
necessary to evaluate annual reports, compensation applications provided for in thi s
Agreement and Contractor's performance provided for in this Agreement .
The City retains the right to have an independent third party or agent of the City's
choosing, such as a CPA, participate in the records inspection. The cost of suc h
inspection or review will be an allowable cost under the rate setting methodology unles s
there are findings pursuant to Section 12 .5 .
9 .3.1 Right to Review Basis for Landfill Tipping Fee Increase s
The Contractor shall provide to the City a copy of Cold Canyon Landfill's request for a n
increase in tipping fees no later than five (5) days following submittal of said request t o
the County of San Luis Obispo . Additionally, the Contractor shall notify the City of th e
action taken by the Board of Supervisors regarding said request within five (5) day s
following said action, including letter to the Board of Supervisors and related execute d
resolution . The City retains the right to have an independent third party or agent of th e
City's choosing, such as a CPA, participate in the review . The cost of such inspection o r
review will be an allowable cost under the rate setting methodology unless there ar e
findings pursuant to Section 12 .5 .
9 .4
Waste Generation/Characterization Studie s
Contractor acknowledges that the city must perform Solid Waste generation and disposal
characterization studies periodically to comply with AB 939 requirements . Contractor
agrees to participate and cooperate with City and its agents to accomplish studies and dat a
collection and prepare reports as needed to determine weights, and volumes of Soli d
Waste generated, diverted, disposed, transformed, or otherwise handled/processed t o
satisfy AB 939 requirements .
9 .5 Performance Hearin g
The City maintains the right to hold a public hearing at any time, not more than once eac h
year, at which the Contractor shall be present and shall participate, to review its service s
and performance . The purpose of the hearing is to provide for a discussion and review of
technological, economic, and regulatory changes in order to achieve a continuing ,
advanced Solid Waste management system ; and to ensure customer service quality an d
any other areas that may be addressed regarding services are being provided wit h
adequate quality, efficiency and economy .
Sixty (60) days after receiving notice from City of a Performance Hearing, Contracto r
shall, at a minimum, submit a report to City indicating (1) changes recommended and/o r
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Residential Recycling Services Agreemen t
new services to improve City's ability to meet the goals of AB 939 and to contain cost s
and minimize impacts on rates ; and (2) any specific plans for provision of changed o r
new services by Contractor .
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Residential Recycling Services Agreemen t
ARTICLE 1 0
INDEMNIFICATION, INSURANCE AND BON D
10 .1 Indemnificatio n
Contractor shall indemnify and hold harmless City, its officers, Directors, employees, an d
agents from and against any and all loss, liability, penalty, forfeiture, claim, demand,
action proceeding or suit of any and every kind and description (including, but not limite d
to, injury to and death of any Person and damage to property, or for contribution o r
indemnity claimed by third parties) arising or resulting from and in any way connecte d
with (1) the negligence or willful misconduct of Contractor, its officers, employees agent s
and/or sub Contractors in performing services under this Agreement ; (2) the failure o f
Contractor, its officers, employees, agents and/or subcontractors to comply in all respect s
with the provisions of this Agreement, applicable laws (including, without limitation, th e
Environmental Laws) and regulations, and/or applicable permits and licenses ; (3) the act s
of Contractor, its officers, employees, agents and/or subcontractors in performing service s
under this Agreement for which strict liability is imposed by law (including, withou t
limitation, the Environmental Laws). Contractor further agrees to and shall, upo n
demand of City, at Contractor 's sole cost and expense, defend (with attorneys acceptabl e
to City) the City, its officers, directors, employees, and agents against any claims, actions ,
suits or other proceedings, whether judicial, quasi-judicial or administrative in nature ,
arising or resulting from any events described in the immediately preceding paragraph .
Contractor's duty to indemnify and defend shall survive the expiration or earlier
termination of this Agreement .
10 .2 Landfill Diversion
The Contractor acknowledges that the City has adopted a SRRE which selects a single
family curbside Recycling program as a means of diverting an estimated 3,643 tons i n
1995 and 3,903 tons per year by the year 2000, and a multi-family curbside Recyclin g
.program as a means of diverting an estimated 308 tons in 1995 and 330 tons per year b y
the year 2000 . It is therefore of foremost importance that the Recyclable Material s
collected under this Agreement be converted into a functional and marketable product i n
order that the materials may be diverted from landfill disposal in compliance with th e
City's SRRE, and AB 939 . The Contractor shall therefore ensure that the processin g
method used shall, at all times, meet the intent df the City 's SRRE and AB 939 . Should
the Contractor find it necessary to utilize another method of processing in order to meet
the intent of the SRRE and AB 939, the City shall be given an opportunity to make it s
own determination as to the suitability and cost-effectiveness of such process and shal l
approve such process in writing . The City shall have the right to terminate this
Agreement upon the giving of a six (6) month prior written notice to Contractor should i t
be determined that the Recycling program being implemented and/or proposed under thi s
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Residential Recycling Services Agreemen t
Agreement is ineffective in meeting the City's diversion goals and objectives . Upon
termination, the Contractor shall be entitled only to revenues less expenses incurred t o
that date . All revenues received thereafter, including from Recyclable Materials sales ,
shall be the property of the City unless otherwise agreed .
10 .3 AB 939 Indemnificatio n
Contractor agrees to indemnify and hold harmless City, its officers, Directors, employees ,
and agents from and against all fines and/or penalties imposed by the Californi a
Integrated Waste Management Board in the event the source reduction and Recyclin g
goals or any other requirement of AB 939 are not met by City with respect to the wast e
stream Collected under this Agreement and such failure is due in substantial part due t o
the failure of Contractor to meet its obligations under this Agreement or for delays i n
providing information that prevents City from submitting reports required by AB 939 in a
timely manner .
10 .4 Insurance
A .Minimum Limits of Insurance.Contractor shall maintain limits no less than :
1.Comprehensive General Liability : One Million Dollars ($1,000,000) combine d
single limit per occurrence for bodily injury, Personal injury and property damage .
2.Automobile Liability : One Million Dollars ($1,000,000) combined single limi t
per accident for bodily injury and property damage .
3.Workers' Compensation and Employers Liability : Workers' compensatio n
limits as required by the Labor Code of the State of California and Employers
Liability limits of $1,000,000 per accident .
B . 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 : th e
insurer shall reduce or eliminate such deductibles or self-insured retentions as respects th e
City, its officials, directors and employees ; or Contractor shall procure a bon d
guaranteeing payment of losses and related investigations, claim administration an d
defense expenses .
C. Other Insurance Provisions .The policies are to contain, or be endorsed to contain ,
the following provisions :
1 . General Liability and Automobile Liability Cbverage s
a) The City, its officials, employees, directors, and volunteers are to be covered as
insured as respects : liability arising out of activities performed by or on behalf o f
Contractor; products and completed operations of Contractor ; Premises owned ,
leased or used by Contractor ; or automobiles owned, leased, hired or borrowed b y
Contractor. The coverage shall contain no special limitations on the scope o f
protection afforded to the City, its officials, employees or volunteers .
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Residential Recycling Services Agreemen t
b)Contractor's insurance coverage shall be primary insurance as respects City, it s
officials, directors, employees and volunteers . Any insurance or self-insuranc e
maintained by City, its officials, employees or volunteers shall be excess o f
Contractor's insurance and shall not contribute with it .
c)Any failure to comply with reporting provisions of the policies shall not affec t
coverage provided to City, its officials, employees or volunteers .
d)Coverage shall state that Contractor's insurance shall apply separately to eac h
insured against whom claim is made or suit is brought, except with respect to th e
limits of the insurer's liability .
2.Workers' Compensation and Employers Liability Coverage - The insurer shal l
agree to waive all rights of subrogation against City, its officials, employees an d
volunteers for losses arising from work performed by Contractor for City .
3.All Coverages - Each insurance policy required by this clause shall be endorse d
to state that coverage shall not be suspended, voided, canceled by either party ,
reduced in coverage or limits except after thirty (30) days prior written notice b y
certified mail, return receipt requested, has been given to City .
D.Acceptability of Insurers .The insurance policies required by this Section shal l
be issued by an insurance contractor or companies admitted to do business in the
State of California subject to the jurisdiction of the California Insuranc e
Commissioner and with a rating in the most recent edition of Best's Insuranc e
Reports of size category VII or larger and a rating classification of A or better .
E.Verification of Coverage .Contractor shall furnish City with certificates o f
insurance and with original endorsements affecting coverage required by thi s
clause . The certificates and endorsements for each insurance policy are to b e
signed by a Person authorized by that insurer to bind coverage on its behalf . The
certificates and endorsements are to be on forms provided by or acceptable to Cit y
and are to be received and approved by City before work commences . City
reserves the right to require complete, certified copies of all required insuranc e
policies, at any time.
10.5 Faithful Performance Bon d
Simultaneously with the execution of this Agreement, Contractor shall file with Cit y
surety bond, payable to City, securing Contractor's faithful performance of its obligation s
under this Agreement. The bond shall be in the amount of 125% of the total annual .
contract price guaranteeing the faithful performance of the contract, including an y
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Residential Recycling Services Agreemen t
attorney's fees or other collection costs .
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Residential Recycling Services Agreemen t
ARTICLE 1 1
CITY'S RIGHT TO PERFORM SERVIC E
11 .1 General
In the event that Contractor, for any reason whatsoever, fails, refuses or is unable t o
Collect, transport, process or market any or all recyclable Materials which it is require d
by this Agreement to Collect, process and market, at the time and in the manner provide d
in this Agreement, for a period of more than seven (7) calendar days, and if, as a resul t
thereof, Recyclable Materials should accumulate in the City to such an extent, in such a
manner, or for such a time that the City Administrative Officer should find that suc h
accumulation endangers or menaces the public health, safety or welfare, then City shal l
have the right, but not the obligation, upon twenty-four (24) hour prior written notice t o
Contractor during the period of such emergency as determined by the City Administrativ e
Officer, (1) to perform, or cause to be performed, such services itself with its own o r
other personnel without liability to Contractor ; and/or (2) to take possession of any or all
of Contractor's land, equipment and other property to Collect, transport, process and/o r
market any Recyclable Materials generated within the City which Contractor woul d
otherwise be obligated to Collect, transport, process or market pursuant to thi s
Agreement . In the event the City takes possession of the Contractor's equipment an d
other property, the City shall be entitled to have another contractor operate suc h
equipment and property under City direction . Additionally, in the event the City take s
possession of the Contractor's equipment and other property, the City does not guarante e
repair of existing problems with equipment and facilities .
Notice . of Contractor's failure, refusal or neglect to Collect, transport, process or marke t
Recyclable Materials may be given orally by telephone to Contractor at its principal offic e
and shall be effective immediately . Written confirmation of such oral notification shal l
be sent to Contractor within twenty-four (24) hours of the oral notification .
Contractor further agrees that in such event :
o It will take direction from City to effect the transfer of possession of property to Cit y
for City's use .
o It will, if City so requests, keep in good repair and condition all of such property,
provide all motor vehicles with fuel, oil and other service, and provide such other servic e
as may be necessary to maintain said property in operational condition .
o City may immediately engage all or any personnel necessary or useful for th e
Collection, transportation, processing and/or marketing of Recyclable Materials,
including, if City so desires, employees previously or then employed by Contractor ,
Contractor further agrees, if City so requests, to furnish City the services of any or al l
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Residential Recycling Services Agreement
management or office personnel employed by Contractor whose services are necessary o r
useful for Recyclable Materials Collection, Transportation, processing and marketin g
operations and for the billing and collection of fees for these services .
City agrees that it assumes complete responsibility for the proper and normal use of suc h
equipment and facilities while in its possession .
If the interruption or discontinuance in service is caused by any of the reasons listed i n
Section 12 .4 (Excuse From Performance), City shall pay to Contractor the reasonabl e
rental value of the equipment and facilities, possession of which is taken by City, for th e
period of City's possession, if any, which extends beyond the period of time for whic h
Contractor has rendered bills in advance of service .
Except as otherwise expressly provided in the previous paragraph, City's exercise of it s
rights under this Article 11 (1) does not constitute a taking of private property for whic h
compensation must be paid ; (2) will not create any liability on the part of City to
Contractor ; and (3) does not exempt Contractor from the indemnity provisions of Articl e
10, Indemnification, Insurance and Bond, which are meant to extend to circumstance s
arising under this Section, provided that Contractor is not required to indemnify City
against claims and damages arising from the sole negligence of City officers, employee s
and agents in the operation of Collection vehicles during the time City has take n
possession of such vehicles .
11 .2 Temporary Possession of Contractor's Propert y
If the City suffers an interruption or discontinuance of service as described in Sectio n
11 .1 (including interruptions and discontinuance due to events described in Section 12 .4 ,
Excuse from Performance), City may take possession of and use all of Contractor's
property described above until other suitable arrangements can be made for the provisio n
of Recycling Services which may include the grant of a Contract to another company .
The same notice requirements of Section 11 .1 are applicable .
113 Billing and Compensation toCityDuring City's Possessio n
During such time that city is providing Recycling services, as above provided, Contracto r
shall continue to bill and collect payment from all users of the above-mentioned services .
- Contractor further agrees that, in such event, it shall reimburse City for any and all cost s
and expenses incurred by City in taking over possession of the above-mentioned property
for Recycling service in such manner and to an extent as would otherwise be required o f
Contractor under the Terms of this Agreement . Such reimbursement shall be made fro m
time to time after submission by City to Contractor of each statement listing such costs
and expenses, but in no event later than five (5) working days from and after each suc h
submission . The City shall have the right, at its sole discretion, to take over billing an d
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Residential Recycling Services Agreemen t
payment collection activities . The City shall then pay any net revenues to the Contractor ,
after deducting all expenses, including City-incurred expenses .
11 .4 City's Right to Relinquish Possessio n
It is further mutually agreed that City may at any time at its discretion relinquis h
possession of any or all of the above-mentioned property to Contractor and thereupo n
demand that Contractor resume the Recycling services as provided in this Agreement ,
whereupon Contractor shall be bound to resume the same .
11 .5 Duration of City's Possessio n
City's right pursuant to this Article to retain temporary possession of Contractor's
facilities and equipment, and to render Collection services, shall terminate when Cit y
determines that such services can be resumed by Contractor, or when City no longe r
reasonably requires such facilities or equipment . In any case, City has no obligation t o
maintain possession of Contractor's property and/or continue its use for any period of
time and may at any time, in its sole discretion, relinquish possession to Contractor .
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Residential Recycling Services Agreemen t
ARTICLE 1 2
DEFAULT, REMEDIES AND LIQUIDATED DAMAGE S
12 .1 Events of Defaul t
All provisions of this Agreement to be performed by Contractor are considered material .
Each of the following shall constitute an event of default .
A.Fraud or Deceit . If Contractor practices, or attempts to practice, any fraud or decei t
upon city.
B.Insolvency or Bankruptcy .If Contractor becomes insolvent, unable, or unwilling t o
pay its debts when due, or upon listing of an order for relief in favor of Contractor in a
bankruptcy proceeding. The Contractor is also in default if there is an assignment for th e
benefit of its creditors .
C.Failure to Maintain Coverage .If Contractor fails to provide or maintain in full forc e
and effect the Workers' Compensation, liability, indemnification coverage or an y
insurance coverage or bond required under this Agreement .
D.Violations of Regulation .If Contractor facilities fall out of full regulator y
compliance or if Contractor violates any orders or filings of any regulatory body havin g
jurisdiction over Contractor relative to this Agreement, provided that Contractor ma y
contest any such orders or filings by appropriate proceedings conducted in good faith, i n
which case no breach of the Agreement shall be deemed to have occurred .
E.Failure to Perform .If Contractor ceases to provide Recycling services as require d
under this Agreement for a period of two (2) days or more, for any reason within th e
control of Contractor .
F.Failure to Pay/Report .If Contractor fails to make any timely payments, includin g
liquidated damages and penalties, required under this Agreement and/or fails to provid e
City with required information, reports, and/or records in a timely manner as provided fo r
in the Agreement .
G.Acts or Omissions .Any other act or omission by Contractor which violates th e
terms, conditions, or requirements of this Agreement, the California Integrated Wast e
Management Act of 1989, as it may be amended from time to time, or any order ,
directive, rule, or regulation issued thereunder and which is not corrected or remedie d
within the time set in the written notice the violation or, if Contractor cannot reasonabl y
correct or remedy the breach within the time set forth in such notice, if Contractor shoul d
fail to commence to correct or remedy such violation within the time set forth in suc h
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Residential Recycling Services Agreement
notice and diligently effect such correction or remedy thereafter .
H.False or Misleading Statements .Any representation or disclosure made to City b y
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 an y
material respect as of the time such representation or disclosure is made, whether or no t
any such representation or disclosure appears as part of this Agreement .
I.Attachment .There is a seizure of attachment of, or levy on, the operating equipmen t
of Contractor, including without limits its equipment, maintenance or office facilities, o r
any part thereof .
J.Suspension or Termination of Service .There is any termination or suspension of th e
transaction of business by Contractor, including without limit, due to labor unres t
including strike, work stoppage or slowdown, sickout, picketing, or other concerted jo b
action lasting more than two (2) days .
Upon default by the Contractor, the City Administrative Officer shall provide writte n
notice to Contractor of the violation . The City Administrative Officer shall include in th e
notice, a demand that the Contractor correct the violation within 10 days following th e
delivery of said notice . For purposes of this Agreement and any notice require d
thereunder, the term "days" shall mean calendar days .
Right to Terminate Upon Defaul t
Upon a default by Contractor, City shall have the right to terminate this Agreement upon
a ten (10) days notice if the public health or safety is threatened, or otherwise a thirty (30 )
days notice, but without the need for any hearing, suit or legal action . This right o f
termination is in addition to any other rights of City upon a failure of Contractor t o
perform its obligations under this Agreement.
City's right to terminate this Agreement and to take possession of Contractor's equipment
and facilities are not exclusive, and City's termination of this Agreement shall no t
constitute an election of remedies . Instead, they shall be in addition to any and all othe r
legal and equitable rights and remedies which City may have .
4
By virtue of the nature of this Agreement, the urgency of timely, continuous and high -
quality service, the lead time required to effect alternative service, and the rights grante d
by City to Contractor, the remedy of damages for a breach hereof by Contractor i s
inadequate and City shall be entitled in injunctive relief .
12.3 Liquidated Damages
12 .2
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Residential Recycling Services Agreemen t
A.General.City finds, and Contractor agrees, that as of the time of the execution of thi s
Agreement, it is impractical, if not impossible, to reasonably ascertain the extent o f
damages which shall be incurred by City as a result of a breach by Contractor of it s
obligations under this Agreement.
B.Service Performance Standards ; Liquidated Damages for Failure to Meet
Standards .The parties acknowledge that consistent, reliable Recycling service is o f
utmost importance to City and that city has considered and relied on Contractor's
representations as to its quality of service commitment in awarding the Agreement to it .
The parties further recognize that some quantified standards of performance are necessar y
and appropriate to ensure consistent and reliable service and performance . The partie s
further recognize that if Contractor fails to achieve the performance standards, compl y
with complaint resolution criteria, or fails to submit required documents in a timel y
manner, City and its residents will suffer damages and that it is and will be impractica l
and extremely difficult to ascertain and determine the exact amount of damages whic h
City will suffer . Therefore, without prejudice to City's right to treat such non -
performance as an event of default under this Article 12, the parties agree that th e
following liquidated damage amounts represent a reasonable estimate of the amount o f
such damages considering all of the circumstances existing on the date of this Agreement ,
including the relationship of the sums to the range of harm to City that reasonably coul d
be anticipated and the anticipation that proof of actual damages would be costly o r
inconvenient . Recognizing the importance of resolving any failure to meet the servic e
performance standard, the City shall contact Contractor within two (2) days of any failin g
reported directly to the City .
Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts se t
forth below :
Collection Reliability and Quality
o For each failure over five (5) annually to commence service t o
a new customer account within seven (7) days after order :
$150 .0 0
o For each failure over ten (10) annually to Collect Recyclabl e
Materials, which as been properly set out for Collection, fro m
an established customer account on the scheduled Collection day : $150 .0 0
o For each failure to Collect Recyclable Materiels which hav e
been properly set out for Collection, from the same customer o n
two (2) consecutive scheduled pickup days :
$150 .0 0
o For each occurrence over five (5) annually of damage to privat e
property :
$250 .00
o For each occurrence of discourteous behavior : $250 .00
q For each failure over ten (10) annually to clean up Recyclabl e
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Residential Recycling Services Agreement
Materials spilled from Bins :
$150 .0 0
o For each occurrence over five (5) annually of Collecting
Recyclable Materials during unauthorized hours :
$250 .0 0
o For each failure to respond to a customer complaint withi n
twenty-four (24) working hours :
$100 .00
Timeliness of Submissions to City
REPORTS
Any report shall be considered late until such time as a correct an d
complete report is received by City . For each ralendar day a report is late ,
the daily assessment shall be :
Monthly Reports :
For each infraction
$100 per da y
Annual Reports :
For each infraction
$500 per da y
Liquidated damages will only be assessed after Contractor has been given the opportunit y
but failed to rectify the damages, as described in this Agreement (e .g ., twenty-four (24 )
working hours to respond to a complaint). City may determine the occurrence of event s
giving rise to liquidated damages through the observation of its own employees o r
representative or investigation of customer complaints .
Prior to assessing liquidated damages, City shall give Contractor notice of its intention t o
do so . The notice will include a brief description of the incident(s)/non-performance .
Contractor may review (and make copies at its own expense) all information in th e
possession of City relating to incident(s)/non-performance . Contractor may, within ten
(10) days after receiving the notice, request a meeting with City . If a meeting i s
requested, it shall be held by the City Administrative Officer or his/her designee .
Contractor may present evidence in writing and through testimony of its employees an d
others relevant to the incident(s)/non performance . The City Administrative Officer o r
designee will provide Contractor with a written explanation of his or her determination o n
each incident(s)/non-performance prior to authorizing the assessment of liquidate d
damages . The decision of the City Administrative Officer or designee shall be final .
C.Amount.The City Administrative Officer may assess liquidated damages for eac h
calendar day or event, as appropriate, that Contractor is determined to be liable i n
accordance with this Agreement.
4
D.Timing of Payment.Contractor shall pay any liquidated damages assessed by Cit y
within ten (10) days after they are assessed . If they are not paid within the ten (10) da y
period, City may proceed against the performance bond required by this Agreement o r
order the termination of this Agreement, or both .
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Residential Recycling Services Agreemen t
12.4 Excuse from Performanc e
The parties shall be excused from performing their respective obligations hereunder in th e
event they are prevented from so performing by reason of floods, earthquakes, other "act s
of God", war, civil insurrection, riots, acts of any government (including judicial action),
and other similar catastrophic events which are beyond the control of and not the fault o f
the party claiming excuse from performance hereunder . Labor unrest, including but no t
limited to strike, work stoppage or slowdown, sick-out, picketing, or other concerted jo b
action conducted by Contractor's employees or directed at Contractor or its selecte d
facilities is not an excuse from performance and Contractor shall be obligated to continu e
to provide service notwithstanding the occurrence of any or all such events .
The party claiming excuse from performance shall, within two (2) days after such part y
has notice of such cause, give the other party notice of the facts constituting such caus e
and asserting its claim to excuse under this Section .
The interruption or discontinuance of Contractor's services caused by one or more of th e
events excused shall not constitute a default by Contractor under this Agreement .
Notwithstanding the foregoing, however, if Contractor is excused from performing it s
obligations hereunder for any of the causes listed in this Section for a period of seven (7 )
days or more, City shall have the right to review the circumstances under which th e
excuse from performance was granted . After such review, if the City determines th e
excuse from service is no longer valid, the City shall notify the Contractor in writing t o
resume service within two (2) days from the receipt of such notification . If the Contractor
fails to resume service within the two (2) days, the City shall have the right to terminat e
this Agreement by giving ten (10) days notice, in which case the provisions relative t o
taking possession of Contractor's land, equipment and other property and engagin g
Contractor's personnel in Article 11, City's Right to Perform Services, and this Article 1 2
shall apply .
12 .5 Financial Material Errors, Omissions or Irregularitie s
The City may review, test and audit the books and records of the Contractor for th e
purpose of determining whether the Contractor is complying with the terms of the
Agreement . In the event that material errors or omissions or irregularities are identified ,
then the cost associated with the audit, test or review shall be paid by the Contractor t o
the City . In the case of errors, materiality shall be deemed to be two percent (2%) o r
greater of the gross revenues of the Contractor from activities performed under thi s
agreement . Recovery of any over payment will be negotiated on a case by case basis ,
either immediately or through the next rate setting evaluation .
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Residential Recycling Services Agreemen t
ARTICLE 1 3
OTHER AGREEMENTS OF THE PARTIE S
13 .1 Relationship of Partie s
The parties intend that Contractor shall perform the services required by this Agreemen t
as an independent Contractor engaged by City and not as an officer or employee of City
nor as a partner of or joint venture with City . No employee or agent or Contractor shal l
be. or shall be deemed to be an employee or agent of City . Except as expressly provide d
herein, Contractor shall have the exclusive control over the manner and means o f
conducting the Recycling services performed under this Agreement, and all Person s
performing such services . Contractor shall be solely responsible for the acts an d
omissions of its officers, employees, subcontractors and agents . Neither Contractor no r
its officers, employees, subcontractors and agents shall obtain any rights to retiremen t
benefits, workers compensation benefits, or any other benefits which accrue to Cit y
employees by virtue of their employment with City .
13 .2 Compliance with la w
In providing the services required under this Agreement, Contractor shall at all times, a t
its sole cost, comply with all applicable laws of the United States, the State of California ,
City, and with all applicable regulations promulgated by federal, state, regional or loca l
administrative and regulatory agencies, now in force and as they may be enacted, issue d
or amended during the Term .
13.3 Governing La w
This Agreement shall be governed by, and construed and enforced in accordance with, th e
laws of the State of California .
13.4 Jurisdictio n
Any lawsuits between the parties arising out of this Agreement shall be brought an d
concluded in the courts of the State of California, which shall have exclusive jurisdictio n
over such lawsuits .
13 .5 Assignmen t
Except as may be provided for in Article 11, (City's Right to Perform Service), neithe r
party shall assign its rights, nor delegate, subcotltract or otherwise transfer its obligation s
under this Agreement to any other Person without the prior written consent of the othe r
party . Any such assignment made without the consent of the other party shall be void an d
the attempted assignment shall constitute a material breach of this Agreement . The
Contractor shall consent to any assignment to a joint powers authority, or any simila r
public entity assignee of the City .
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Residential Recycling Services Agreemen t
For purposes of this Section when used in reference to Contractor, "assignment" shal l
include, but not be limited to (1) a sale, exchange or other transfer of at least fifty-on e
percent (51%) all of Contractor's assets dedicated to service under this Agreement to a
third party ; (2) a sale, exchange or other transfer of outstanding common stock o f
Contractor to a third party provided said sale, exchange or transfer may result in a chang e
of control of Contractor ; (3) any dissolution, reorganization, consolidation, merger, re -
capitalization, stock issuance or re-issuance, voting trust, pooling agreement, escro w
arrangement, liquidation or other transaction to which results in a change of ownership o r
control of Contractor ; (4) any assignment by operation of law, including insolvency o r
bankruptcy, making assignment for the benefit of creditors, writ of attachment for a n
execution being levied against this Agreement, appointment of a receiver takin g
possession of Contractor's property, or transfer occurring in the event of a probat e
proceeding ; and (5) any combination of the foregoing (whether or not in related o r
contemporaneous transactions) which has the effect of any such transfer or change o f
ownership, or change of control of Contractor .
Contractor acknowledges that this Agreement involves rendering a vital service to City's
residents and businesses, and that City has selected Contractor to perform the service s
specified herein based on (1) Contractor's experience, skill and reputation for conductin g
its Solid Waste management operations in a safe, effective and responsible fashion, at al l
times in keeping with applicable Environmental Laws, regulations and best wast e
management practices, and (2) Contractor's financial resources to maintain the require d
equipment and to support its indemnity obligations to City under this Agreement . City
has relied on each of these factors, among others, in choosing Contractor to perform th e
services to be rendered by Contractor under this Agreement .
If Contractor requests City's consideration of and consent to an assignment, City ma y
deny or approve such request in its complete discretion . The City is concerned about th e
possibility that assignment could result in significant rate increases, as well as a change i n
the quality of service . Accordingly, the following standards have been set to ensure tha t
assignment will result in continued quality service . In addition, the City reserves the righ t
to solicit competitive bids for these services if the assignment results in a request by the
assignee for rate increases that are higher than the inflationary index and do not reflec t
value changes in service standards . At a minimum, no request by Contractor for consen t
to an assignment need be considered by City unless and until Contractor has met th e
following requirements :
A. Contractor shall undertake to pay City its reasonable expenses for attorney's fees an d
investigation costs necessary to investigate the suitability of any proposed assignee, an d
to review and finalize any documentation required as a condition for approving any suc h
assignment ;
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Residential Recycling Services Agreement
B.Contractor shall furnish City with audited financial statements of the propose d
assignee's operations for the immediately preceding three (3) operating years ;
C.Contractor shall furnish City with satisfactory proof : 1) that the proposed assignee ha s
at least ten (10) years of Recyclable Material management experience on a scale equal t o
or exceeding the scale of operations conducted by Contractor under this Agreement ; 2 )
that in the last five (5) years, the proposed assignee has not suffered any significan t
citations or other censure from any federal, state or local agency having jurisdiction ove r
its Solid Waste management operations due to any significant failure to comply wit h
state, federal or local Environmental Laws and that the assignee has provided City with a
complete list of such citations and censures ; 3) that the proposed assignee has at all time s
conducted its operations in an environmentally safe and conscientious fashion ; 4) that th e
proposed assignee conducts its Recyclable Materials management practices in accordance
with sound waste management practices in full compliance with all federal, state an d
local laws regulating the Collection, transportation, processing, marketing and disposal o f
Solid Waste including Hazardous Wastes ; and, 5) of any other information required b y
City to ensure the proposed assignee can fulfill the Terms of this Agreement in a timel y
safe and effective manner .
Under no circumstances shall the City be obliged to consider any proposed assignment b y
Contractor if Contractor is in default at any time during the period of consideration .
13 .6 Subcontracting
Except as approved in writing by the City, Contractor shall not enter into an agreement t o
have another Person perform Contractor's duties of this Agreement. Contractor shal l
undertake to pay City its reasonable expenses for attorney's fees and investigation cost s
necessary to investigate the suitability of any proposed subcontractor, and to review an d
finalize any documentation required as a condition for approving any such subcontractin g
agreemen t
13 .7 Binding on Assign s
The provisions of this Agreement shall inure to the benefit to and be binding on the
permitted assigns of the parties .
13.8 Transition to Next Contractor
4
If the transition of services to another Contractor occurs through expiration of term ,
default and termination, or otherwise, Contractor will cooperate with City and subsequen t
Contractor(s) to assist in an orderly transition which will include Contractor providin g
route lists and billing information . Contractor will not be obliged to sell collection
vehicles or Containers to the next Contractor . Depending on Contractor's circumstance s
at the point of transition, Contractor at its option may enter into negotiations with the nex t
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Residential Recycling Services Agreemen t
Contractor to sell (in part or all) Collection vehicles and/or containers .
13 .9 Parties in Interes t
Nothing in the Agreement, whether express or implied, is intended to confer any rights o n
any persons other than the parties to it and their representatives, successors and permitte d
assigns .
13 .10 Waiver
The waiver by either party of any breach or violation of any provisions of this Agreemen t
shall not be deemed to be a waiver of ariy breach or violation of any other provision no r
of any subsequent breach of violation of the same or any other provision . The subsequen t
acceptance by either party of any monies which become due hereunder shall not b e
deemed to be a waiver of any pre-existing or concurrent breach or violation by the othe r
party of any provision of this Agreement .
13 .11 Contractor's Investigatio n
Contractor has relied on its own investigations, and not on any representations of the Cit y
or its agents of the conditions and circumstances surrounding the Agreement and th e
work to be performed by it .
13 .12 Notice
All notices, demands, requests, proposals, approvals, consents and other communication s
which this Agreement requires, authorizes or contemplates shall be in writing and shall
either be personally delivered to a representative of the parties at the address below or b e
deposited in the United States mail, first class postage prepaid, addressed as follows :
If to City :
Utilities Directo r
City of San Luis Obisp o
955 Morro Street
San Luis Obispo, CA 9340 1
If to Contractor :
Tom Martin
San Luis Garbage Compan y
970 Monterey Street
San Luis Obispo, CA 9340 1
The address to which communications may be delivered may be changed from time t o
time by a notice given in accordance with this Section . The notice, if mailed, is deeme d
served three (3) days after the mailing .
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Residential Recycling Services Agreemen t
13 .13 Representatives of the Partie s
References in this Agreement to the "City" shall mean the City Council and all actions t o
be taken by City shall be taken by the City Council except as provided below . The City
Council may delegate, in writing, authority to the City Administrative Officer, Utilitie s
Director, and/or to the City employees and may permit such employees, in turn, t o
delegate in writing some or all of such authority to subordinate employees . Contractor
may rely upon actions taken by such delegates if they are within the scope of the authorit y
properly delegated to them.
Contractor shall, by the effective date, designate in writing a responsible officer who shal l
serve as the representative of Contractor in all matters related to the Agreement and shal l
inform City in writing of such designation and of any limitations upon his or her authority
to bind Contractor . City may rely upon action taken by such designated representative a s
actions of Contractor unless they are outside the scope of the authority delegated t o
him/her by Contractor as communicated to City .
13 .14 City Free to Negotiate withThirdPartie s
City may investigate all options for the Collection, processing and marketing of
Recyclable Materials after the expiration of the Term . Without limiting generality of th e
foregoing, City may solicit proposals from Contractor and from third parties for th e
provision of Recycling services, and any combination thereof, and may negotiate an d
execute Agreements for such services which will take effect upon the expiration or earlie r
termination under Section 12 .1 (Events of Default) of this Agreement .
13 .15 Compliance with City Code
Contractor shall comply with those provisions of the City code which are applicable, an d
with any and all amendments to such applicable provisions during the Term of thi s
Agreement .
13.1-6 Privacy
Contractor shall strictly observe and protect the rights of privacy of customers .
Information identifying individual customers or the composition or contents of a
customer's waste stream shall not be revealed to any person, governmental unit, private
agency, or contractor, unless upon the authority of a court of law, by statute, or upon valid
authorization of the customer . This provision shall not be construed to preclude
Contractor from preparing, participating in, or assisting in the preparation of wast e
characterization studies or waste stream analyses which may be required by AB 939 .
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Residential Recycling Services Agreemen t
ARTICLE 1 4
MISCELLANEOUS AGREEMENTS
14.1 Entire Agreemen t
This Agreement, including the exhibits, represents the full and entire Agreement betwee n
the parties with respect to the matters covered herein .
14 .2 Section Headings
The article headings and section headings in this Agreement are for convenience o f
reference only and are not intended to be used in the construction of this Agreement no r
to alter or affect any of its provisions .
14 .3 References to laws and Other Agreeme n
All references in this Agreement to laws shall be understood to include such laws as the y
may be subsequently amended or recodified, unless otherwise specifically provided . Thi s
Agreement supersedes any and all Agreements for Recyclable Materials Collection ,
processing and/or marketing heretofore entered into by the parties and the City .
14 .4 Interpretation
.
This Agreement, including the exhibits attached hereto, shall be interpreted and construed
reasonably and neither for nor against either party, regardless of the degree to whic h
either party participated in its drafting .
14 .5 Agreemen t
This Agreement may not be modified or amended in any respect except by a writin g
signed by the parties .
14 .6 Severability
If any non-material provision of this Agreement is for any reason deemed to be invali d
and unenforceable, the invalidity or unenforceability of such provision shall not affect an y
of the remaining provisions of this Agreement which shall be enforced as if such invali d
or unenforceable provision had not been contained herein .
14 .7 Exhibits
4
Each of exhibits identified as Exhibit "A" is attached hereto and incorporated herein an d
made a part hereof by this reference .
52
Residential Recycling Services Agreemen t
IN WITNESS WHEREOF, City and Contractor have executed this Agreement as of the day an d
year first above written .
San Luis Garbage Compan y
("Contractor")
By/f,{j '%
Name :1 0ly'l
Title :Gdy'` o.s_01 f
The City of San Luis Obisp o
("City")
Approved as to Form :
4
53
4