HomeMy WebLinkAboutslogarbagegreenwasteagmtAGREEMENT BETWEE N
THE CITY OF SAN LUIS OBISP O
AN D
SAN LUIS GARBAGE COMPAN Y
For Collection and Disposal of Green Wast e
Within the City of San Luis Obispo
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This Agreement (Agreement) is made and entered into this 3rd day of September, 2001, in th e
State of California by and between the City of San Luis Obispo, A Charter Municipa l
Corporation of the State of California, (City) and San Luis Garbage, a California corporation ,
(Contractor), for the Collection and processing of residential Green Waste and the Performanc e
of other services related to meeting the goals and requirements of the California Integrated Wast e
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 Green Wast e
handling within their jurisdictions . AB 939 requires a fifty percent (50%) reduction in th e
amount of waste which is landfilled by the year 2000 ; and
2.
The separate Collection and processing of residential Green Waste to produce usabl e
compost was selected in the City's Source Reduction and Recycling Element adopted ,
June 1994 hereinafter referred to as the SRRE, as a means of meeting the 1995 and 200 0
State mandated diversion goals of AB 939 ; and
The City has entered into an exclusive franchise with San Luis Garbage Company of th e
Collection, transportation, processing, diversion and disposal of refuse from residentia l
properties, Multi-Family Dwelling Units, institutional and commercial and industria l
properties ; and
4.
The City has determined that an Agreement grated to a private company for the
Collection and processing of residential Green Waste is the most effective and efficien t
way to collect and divert residential Green Waste within the City ; and
5.
The City declares its intention of maintaining reasonable rates and high quality service fo r
the Collection and processing of residential Green Waste ; and
6.
The Contractor is responsible for arranging for Green Waste Collection and processin g
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services ; and
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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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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 to Compan y
by virtue of direct or indirect common ownership interest or common management shal l
be deemed to be "Affiliated with" Contractor and included within the term "Affiliate s
with" Contractor and included within the "Affiliates" as used herein . An Affiliate shal l
include a business in which Contractor owns a direct or indirect ownership interest,a
business which has a direct or indirect ownership interest in Contractor and/ or a busines s
which is also owned, controlled or managed by any business or individual which has a
direct or indirect ownership interest exists, the constructive ownership provisions o f
Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date of thi s
Agreement, shall apply ; provided, however, that (i) "ten percent (10%)" shall b e
substituted for "fifty percent (50%)" in Section 318(a)(2)(C) and in Section 318(a)(3)(C )
thereof; and (ii) Section 318(a)(5)(C) shall be disregarded. For purposes of 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 on the basi s
of the percentage'of voting interest or value which the ownership interest represents ,
whichever is greater .
1 .3
"Agreement"means this Green Waste Agreement dated September 3, 2001, includin g
all exhibits and attachments, and any amendments thereto) between City and Contracto r
for Collection, processing and marketing of Green Waste and other 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 .
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"California Integrated Waste Management Act of 1989"means Public Resource s
Code, § 40,000 et. 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 .
1 .7
"Collect" or "Collection"means to take physical possession, transport, and remov e
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Green Waste within and from the City.
1 .8
"Commercially Generated Green Waste"means Green Waste generated at commercia l
and/or industrial property and separated by the Waste Generator for Collection and whic h
are excluded from the scope of this Agreement as described in Article 4, Scope o f
Agreement.
1 .9
"Compost"means a stabilized humus product which is the result of composting .
1 .10 "Composting means a controlled biological decomposition that converts raw organi c
matter into a stabilized humus product .
1 .11 "Container"means any bin, vessel, can or receptacle used for Collection and storin g
Green Waste before removal .
1 .12 "Contractor"means San Luis Garbage Company, a corporation organized and operatin g
under the laws of the State of California, and its officers, directors, employees, agents ,
companies and subcontractors where applicable .
1 .13
"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 et seq .;the Resourc e
Conservation and Recovery Act, 42 USC §6902 et seq,;the Federal Clean Water Act, 3 3
USC §1251 et seq .;the Toxic Substances Control Act, 15 USC §1601 et seq .;the
Occupational Safety and Health Act, 29 USC §651 et seq .;the California Hazardou s
Waste Control Act, California Health and Safety Code §25100 et seq.;the Californi a
Toxic Substances Account Act, California Health and Safety Code §25300 et seq .;th e
Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Cod e
§25249 .5 et seq.;as currently in force or as hereafter amended, and all rules an d
regulations promulgated thereunder .
1 .14 "Facility" means any plant or site, owned or leased and maintained and/or operated o r
used by Contractor for the purposes of performing the duties to fulfill this Agreement .
1 .15 "Fiscal Year" means the period commencing 3n January 1 and concluding December 3 1
for Contractor . For City it means the period commencing July 1 of one year an d
concluding June 30 of the subsequent year .
1 .16 "Green Waste" means tree trimmings, grass cuttings, dead plants, leaves, branches, dea d
trees and scrap wood (not more than six (6) inches in diameter) and similar material s
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generated at the premises .
1.17 "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 .
1 .18 "Materials Recovery Facility"means a permitted Facility where Solid Waste ,
Recyclable Materials or Green Waste are sorted or separated for the purposes o f
Recycling, Composting or reuse .
1 .19 "Multi-family Dwelling Unit"means any Premises, other than a Single Famil y
Dwelling Unit, used for residential purposes, irrespective of whether residence therein i s
transient, temporary or permanent.
1 .20 "Owner" means the person holding the legal title to the real property constituting th e
Premises to which Green Waste collection service is to be provided under thi s
Agreement .
1.21 "Person"means any individual, firm, association, organization, partnership, corporation ,
business trust, joint venture, the-United States, the State of California, the County of Sa n
Luis Obispo, local agencies, cities and special purpose districts .
1 .22 "Premises"means any land or building in the City where Solid Waste is generated o r
accumulated .
1 .23 "Recyclable Materials"means residential by-products or discards of economic value se t
aside, handled, packaged or offered for Collection in 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 .
1.24 "Recycling"means the process of separating for Collection, Collecting, treating and/o r
reconstituting Green Waste which would otherwise be discarded without receivin g
compensation or returning them to the economy4 in the form-of raw materials for new ,
reused, or reconstituted products . The Collection, transfer, transportation or disposal of
Green Waste not intended for, or capable of, reuse is not Recycling . Recycling does not
include the use of Green Waste for conversion to energy .
1.25 "Related Party Entity"means any Affiliate which has financial transactions wit h
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Company.
1 .26 "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 .27 "Solid Waste" means all putrescible and non-putrescible refuse, garbage, green waste ,
construction and demolition debris, rubbish, and Recyclable Materials, and as otherwis e
defined in Public Resources Code 40191 .
1 .28 "Term" means the term of this Agreement, as provided for in Article 2 .
1 .29 "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 .30 "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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ARTICLE 2
GRANT AND ACCEPTANCE OF AGREEMEN T
2 .1 Grant and Acceptance of Agreemen t
Subject of Section 2 .5 (Conditions to the Effectiveness of Agreement), City hereby grant s
to Contractor an exclusive franchise to collect and process Green Waste accumulating a t
all Premises in the City that are offered for Collection to Contractor in accordance wit h
this Agreement .
Contractor hereby accepts the Agreement on the terms and conditions set forth in thi s
Agreement .
2 .2
Effective Date
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. on September 3, 2001, an d
expire 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 an d
processing services to be implemented under this Agreement obsolete, unnecessary ,
impractical, undesirable,or illegal, the City reserves the right to terminate this Agreement
upon the giving of a six (6) month prior written notice of City's election to so terminat e
this Agreement . It is understood between Contractor and City that this Agreement i s
motivated by the passage of AB 939, and that subsequent legislation could make thi s
Agreement unnecessary and/or adverse to the best interests of the City . In particular, City
and Contractor acknowledge the possibility of future legislation changing th e
requirements of AB 939, and/or requiring a coordination of the collection of Solid Wast e
and Green Waste .
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 elects to exercise this option, it shall giv e
written notice not later than one hundred eightyl(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 commenc e
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performing its obligations under this Agreement is subject to the satisfaction of each and
all of the conditions set out in this Section 2 .5 below, each of which may be waived i n
whole or in part by City .
A.Accuracy of Representations .The representations and warranties made b y
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 challenging
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 .
2 .6
Responsibilities of City
The City does not assume any responsibility for, nor shall it be held liable for damages fo r
the failure on the part of any Person producing Green Waste material within the City t o
deliver the same to Contractor ; provided, however, it is mutually understood and agree d
that the City and its officers will at all times during the period of this Agreemen t
cooperate to enforce the terms of this exclusive Agreement as it relates to the Collectio n
of Green Waste within the City .
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ARTICLE 3
TERMS OF AGREEMEN T
3 .1
Contractor Status
Contractor is duly organized, validly existing and in good standing under the laws of the
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 this "-
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 Charter
and Chapter 8 .04 of the Municipal Code .
3 .4 Serve Without Interruptio n
Contractor shall Collect and process Green Waste throughout 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 all
charges and fees, and give all notices as necessary .
3 .6 Preservation ofCityProperty
Contractor shall pay to the City, on demand, the cost of all repairs to public property
made necessary by any of the operations of Contractor under this Agreement.
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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 Green Waste Collection, except where otherwise precluded by law .
4.2
Limitations to Scop e
The Agreement for the Collection and processing Green Waste granted to Contracto r
shall be exclusive except as to the following categories of Green Waste listed in thi s
Section . The granting of this Agreement shall not preclude the categories of Green Wast e
listed below from being delivered to and Collected and transported by others provide d
that nothing in this Agreement is intended to or shall be construed to excuse any perso n
from obtaining any authorization from City which is otherwise required by law :
A.Green Waste which are separated at any Premises and which are transported b y
the owner or occupant of such Premises (or by his/her employee) to a Facility ;
B.Green Waste removed from a Premises by a gardening, landscaping, or tre e
trimming company as incidental part of a total service offered by that company .
Contractor acknowledges and agrees that City may permit other Persons besid e
Contractor to Collect any or all types of the Green Waste listed in this Section 4 .2 ,
without seeking or obtaining approval of Contractor under this Agreement .
This Agreement to Collect, transport and process Green Waste shall be interpreted to b e
consistent with state and federal laws, now and during the term of the Agreement, and th e
scope of this Agreement shall be limited by current and developing state and federal law s
with regard Green Waste handling and related doctrines . In the event that futur e
interpretations of current law, enactment or developing legal trends limit the ability of th e
City to lawfully provide for the scope of services as specifically set forth herein ,
Contractor agrees that the scope of the Agreement will be limited to those services an d
materials which are lawfully provided for under this Agreement : The City shall not b e
responsible for any lost profits and/or damages claimed by the Contractor as a result o f
changes in law .
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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 .
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4.4
Use of City Street s
Such grant of Agreement shall give Contractor the right and privilege to operate Gree n
Waste Collection vehicles and equipment on such streets, public ways, rights-of-way, o r
easements of the City .
4.5 Annexation
Contractor shall automatically extend all services herein described to any area annexed t o
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 five
(5) years .
4.6 City Right to Request Change s
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 (Extraordinary
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
description of the following :
q 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 .
q 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 underlyiAg the projections and the support fo r
those assumptions .
q 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
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Contractor to provide additional Green Waste services not otherwise contemplated unde r
Section 4 .6 (City's Right to Request Changes). If pursuant to Section 4 .6 .2 (New
Diversion Programs), Contractor and City cannot agree on terms and conditions of suc h
services in ninety (90) days from the date when City first requests a proposal fro m
Contractor to perform such services, Contractor acknowledges and agrees that City ma y
permit Persons other than Contractor to provide such services .
4.6.4 Implementing new Services
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 or
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 Green Wast e
Once Green Waste is placed in Containers and properly presented for Collection ,
ownership and the right to possession shall transfer directly from the Generator t o
Contractor by operation of this Agreement . Contractor is hereby granted the right t o
retain, recycle, process, reuse, compost and otherwise use such Green Waste or any par t
thereof, in any lawful fashion or for any lawful purpose consistent with the hierarchy an d
goals of AB 939 . Subject to the provisions of this Agreement, Contractor shall have th e
right to retain any benefit resulting from its right to retain, recycle, process, compost o r
reuse the Green Waste which it Collects . Green Waste or any part thereof, which ar e
delivered to a Facility (Facility, transformation Facility, transfer station, or Materia l
Recovery Facility) shall become the property of the owner or operator of the Facility(ies )
once deposited there by Contractor .
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ARTICLE 5
DIRECT SERVICES
5 .1
General
The work to be done by Contractor pursuant to this Agreement shall include the
furnishing of all labor, supervision, equipment, materials, supplies, and all other item s
necessary to perform the services required as presented in the Company'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 th e
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 provided
reliable, courteous and high-quality Green Waste Collection service at all times . The
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
Residential Green Waste Service s
Contractor shall Collect and remove all Green Waste placed in or adjacent t o
Containers at the designated Collection locations for Single Family Dwelling Units an d
Multifamily Dwelling Units .
Green Waste Collection shall be a minimum of once each week on the same day of th e
week as Said Waste Collection service . Contractor will notify Green Waste customers
of holiday Collection schedules . Should the Solid Waste collection day change,
Contractor shall re-route Collections within sixty (60) days of the notification by th e
change in Solid Waste collection days to provide same .day service .
5 .3
Materials To Be Collecte d
Green waste material to be collected include tree trimmings, grass cuttings, dead plants ,
leaves, branches and dead trees (not more than six (6) inches in diameter) and simila r
materials generated at the premises .
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5.4
Refusal to Provide Collection Service s
Contractor may refuse to Collect Green Waste and shall not be obligated to continue t o
provide Green Waste Container(s) to any participant in the Green Waste program who ,
after reasonable warning, fails to properly sort and set out Green Waste . Contractor shal l
report monthly to City any warning notices issued .
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5 .5
Christmas Tree Collection Progra m
Contractor shall operate an annual Christmas Tree Collection and diversion program .
The program shall include curbside and drop-off Collection of Christmas Trees targetin g
all Single Family and Multi-family Dwelling Units and shall divert these Christmas Tree s
from landfill disposal .
5.6 End Uses for Green Wast e
Contractor shall develop and implement plans and programs to divert materials Collected
through curbside Collection of Green Waste and Christmas Tree Collection fro m
Disposal . Contractor must provide end uses for Green Waste that maximizes diversio n
credits for the City according to regulations established by the California Integrate d
Waste Management Board .
5 .7
Operations
5 .7 .1 Schedule s
To preserve peace and quiet, no Green Waste shall be Collected from or within two-
hundred (200) feet of residential Premises between 6 :30 P .M . and 6 :30 A.M . on any day
and such Green Waste shall be Collected, Monday through Friday on the same day a s
Solid Waste collection . When the regularly scheduled Collection day falls on a holiday ,
Collection shall take place on the following regularly scheduled collection day. In th e
event the Contractor misses the collection of set out Green Waste, the Contractor shal l
collect the missed pickups with one (1) business day of notification.
5 .7 .2 Vehicle s
A.General.Contractor shall provide a fleet of Collection vehicles sufficient in _
number and capacity to perform the work required by this Agreement an d
proposed in Exhibit "A" (Contractor's proposal) and in strict accordance with it s
terms . Contractor shall have available on Collection days sufficient back-up
vehicles in order to respond to complaints and emergencies . The fleet shall b e
maintained according to the requirements of Municipal Code 8 .04 .030 .
B.Specifications .All vehicles used by Contractor in providing Green Wast e
Collection services under this Agreement shall comply with all federal, state, an d
local requirements for such vehicles as they now exist or may be amended in the
future, and be registered with the California Department of Motor Vehicles . Al l
such vehicles shall have water-tight bodies designed to prevent leakage, spillage
or overflow . All such vehicles shall comply with U .S . Environmental Protectio n
Agency noise emission regulations and other applicable noise control regulations .
C.Condition
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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
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 .7.3 Green Waste Container s
Contractor shall. supply each Single Family Dwelling Unit with a waste wheeler i n
size consistent with the City approved green waste collection program .
Contractor shall supply each multi-family complex with the appropriate type of
container to adequately service the needs of the complex per the solid waste
handling location . Containers shall be identified for Green Waste only .
Contractor agrees to provide additional appropriate Containers, as required .
City and Contractor acknowledge that from time to time, a customer may damage
or destroy a Container . City and Contractor also acknowledge that from time to
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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 .7 .4 Litter Abatement
Contractor shall use due care to prevent Green Waste from being spilled o r
scattered during the Collection or transportation process . If any Green Waste i s
spilled during Collection, Contractor shall promptly clean up all spilled materials .
Each collection vehicle shall carry a broom and shovel at all times for thi s
purpose .
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5 .7 .5 Personne l
A.General.Contractor shall furnish as presented in Exhibit "A" such qualifie d
drivers, mechanical, supervisory, clerical, and other personnel as may b e
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 Collectio n
worker wears a clean uniform which displays the Contractor's company name an d
the worker's name or identification number .
C.Fees &Gratuities .Company 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 Department 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 wh o
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 effort s
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 shall
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 .8 Implementation Pla n
The parties recognize that substantial planning will be required in order to assure a n
orderly initiation of Green Waste Collection services on July 1, 1996, To that end, Cit y
has required Contractor to submit, as part of its proposal, a detailed implementation pla n
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Green Waste Services Agreement
addressing, among other things, the steps Contractor will take and the schedule on whic h
it will take them, to prepare for such an orderly initiation of service . The implementatio n
plan shall cover Contractor's schedule for acquiring necessary equipment, personnel ,
storage and maintenance facilities, administrative offices, customer relations material s
(including Collection schedules, route maps, billing forms, complaint forms, servic e
request forms, etc .). Contractor agrees to adhere strictly to the implementation plan . Th e
implementation shall be subject to the City's review and 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 .
5 .9
Green Waste Processin g
5 .9 .1 Receipt of Green Waste
Commencing July 1, 1996, the Contractor shall have in place or have made arrangement s
for a Facility to receive and accept all deliveries of Green Waste 'generated in the city .
Contractor has- designated the Cold Canyon Landfill facility to utilized as of the Effectiv e
date .
5.9.2 Status of Green Waste Facilit y
Any Facility used by contractor must be designed and constructed in accordance with al l
applicable state and local laws (e .g ., CEQA, California Code of Regulations, etc). Th e
Facility must have all permits from federal, state, regional, county and city agencie s
necessary for it to operate as a Green Waste Facility and must be in full regulator y
compliance with all such permits .
The selected Green Waste Facility must be authorized to accept, under its existing permit,
and have sufficient uncommitted capacity to accept, all Green Waste delivered to it by, o r
on behalf of, the City for the term of this ,Agreement . Contractor shall immediately notify
City of any notice of breach or default received from Green Waste Facility .
5 .9 .3 Alternative Processing Facility
If Contractor becomes unable to deliver the City's Green Waste to the Green Waste
Facility due to causes within its control or which could have been avoided by the exercis e
of due care, the Contractor shall arrange for it to be accepted at another Green Wast e
Facility, in which case Contractor shall pay for my increased transportation costs, an y
differences in the fees charged at such Green Waste Facility and the fees then in effec t
under this Agreement . If Contractor's inability to deliver the City's Green Waste to th e
Green Waste Facility is not due to causes within its control or which could have bee n
avoided by the exercise of due care, then Contractor shall propose alternative Gree n
Waste Facilities including all related costs and City shall select the alternative to be used .
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Green Waste Services Agreemen t
5.9.4 Disposition of Unauthorized Waste
Contractor shall ensure that procedures to identify and reject materials delivered to th e
Green Waste Facility which are Hazardous Waste, or which otherwise may not be legall y
accepted at the Green Waste Facility under their permits, are in place . Contractor may, i n
the course of implementing such procedures, refuse to accept Green Waste deposite d
from the City if they constitute Hazardous Waste, or otherwise may not be legall y
accepted at the Green Waste Facility, and Contractor shall be solely responsible of th e
materials which are accepted . If Contractor discovers Hazardous Waste, or other materia l
which may not be legally accepted, among materials which it has accepted, it shal l
dispose of such waste at its own expense . Contractor may pursue all legal rights an d
remedies it may have against the Waste Generator(s) of such Solid Waste, if the Wast e
Generator(s) can be identified .
5.10 Disposa l
Contractor shall ensure that the residual Solid Waste from the City's Green Waste
delivered to the Green Waste Facility by the Contractor are disposed of at a permitte d
disposal site in full regulatory compliance .
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Green Waste Services Agreemen t
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 Gree n
Waste fees for that property .
6 .2
Collection of Bills from Delinquent Customers
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 orBilling Audit
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 to
conduct said audits . The cost of such audits will be an allowable cost under the rate
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 through
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Green Waste Services Agreement
Friday, exclusive of holidays . A responsible and qualified representative of Contracto r
shall be available during office hours for communication with the public . Telephon e
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 typically
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 hav e
a representative, answering or message providing/receiving (voice-mail) service availabl e
at said after hours telephone number .
6.4 .2 Complaint documentatio n
All service complaints related to Green Waste Collection shall be directed to Contractor .
Daily logs of complaints concerning Collection of Green Waste shall be retained for a
minimum of twenty-four (24) months and shall be available to City at all times durin g
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 o f
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 or
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 Liaison
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Green Waste Services Agreement
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
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 submitte d
a plan to this effect in Exhibit "A". Accordingly, Contractor agrees to cooperate wit h
City in exploring opportunities to expand public and customer knowledge concernin g
needs and methods to reduce, reuse and recycle Solid Waste and to cooperate fully wit h
City in 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 green waste program, mailings prior to the star t
of 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 be
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, reuse and other diversion techniques a t
community events and local activities . Such participation would normally includ e
providing, without cost to the City, educational and publicity information promoting th e
goals of the City's AB 939 programs .
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Green Waste 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 Green Waste Collectio n
services . Such franchise fee shall be a "pass-through" expense for purposes of rat e
review .
7.2 AB 939 Fe e
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 be
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 or a flat
monthly fee as determined by the City . If any fees are not paid on or before the fifteent h
(15th) day of any month, Contractor shall pay to City a late payment penalty in an amoun t
equal to one percent (1%) of the amount owing for that month . Contractor shall pay an
additional late payment penalty of one percent (1%) owing on any unpaid balance fo r
each following thirty (30) day period the fee remains unpaid. Late payment penalty
amounts shall not be included in any revenue requirement .
7.6 Adjustment of Fee s
The City may adjust the amount of fees annually . Such adjustment shall be reflected i n
the rates that the Contractor is allowed to charge and collect from customers .
7 .7 Review of Fee Payments
The City, or its agent, reserves the right to annually perform an independent review of fe e
23
Green Waste Services Agreement
payments, to verify that fees are being paid in accordance with Agreement . The cost of
such reviews will be an allowable cost under the rate setting methodology unless there ar e
findings pursuant to Section 12 .5
4
24
Green Waste Services Agreement
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 a t
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 chargin g
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 .
`
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Green Waste Services Agreemen t
8 .4
Subsequent Rate s
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".
8 .5
Right to Perform Rate Review s
City reserves the right to perform, or have a qualified third party perform, a detaile d
review of Contractor's expenses and revenues for the purposes of adjusting rates . Th e
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 Adjustments
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 propose d
revenue requirement . For each such request, Contractor shall prepare a schedul e
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 7%, applied to Contractor's costs as calculated in Contractor's proposed revenu e
requirement . Such request shall be prepared in a form acceptable to City with support for
assumptions made by Contractor in preparing the estimate . Contractor and City shal l
negotiate a mutually acceptable adjustment amount .
4
26
Green Waste Services Agreemen t
ARTICLE 9
RECORDS, REPORTS AND INFORMATION, STUDIE S
AND HEARING REQUIREMENT S
9.1
Record s
9 .1 .1 General
Contractor shall maintain records required to conduct its operations, to support requests it
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 necessary
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 Record s
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 Records
City approved records (format) shall be maintained for the City separate from othe r
jurisdictions relating to :
o Customer services ;
o Weight of Green Waste ;
o Routes ;
o Facilities, inventory of equipment and personnel used ;
o Facilities and equipment operations, maintenance and repair ;
o Processing of Green Waste and marketing and sale of Compost 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 Green Waste Collected in the City for the perio d
of this Agreement . In the event Contractor discontinues providing Green Waste service s
to City, Contractor shall provide all records of all Green Waste Collected in City to Cit y
within thirty (30) days of discontinuing service . Records shall be in chronological and
organized form and readily and easily interpreted .
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Green Waste 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 format s
that are responsive to the objectives and audiences for each report . The format of eac h
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 Green Waste collected, sorted by type of Generator, in tons, by month, and cumulativ e
for report year .
o 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 Green Waste Container distribution .
The City may designate any additional information that it wishes provided in the monthly
reports .
9.2 .3 Annual Repor t
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 als o
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 detailed
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 practic e
public accounting in the State of California as determined by the State of Californi a
Department of Consumer Affairs Board of Accountancy . The CPA opinion on
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Green Waste Services Agreemen t
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 .
9 .3
Right to Inspect Record s
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 other
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 a s
a CPA, participate in the records inspection . The cost of such inspection or review wil l
be an allowable cost under the rate setting methodology unless there are findings pursuan t
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 an
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) days
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 disposa l
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 o f
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
29
Green Waste Services Agreemen t
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/or
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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Green Waste Services Agreement
ARTICLE 10
INDEMNIFICATION, INSURANCE AND BOND
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 earlie r
termination of this Agreement .
10 .2 Landfill Diversion
The Contractor acknowledges that the City has adopted a SRRE which selects Gree n
Waste Collection and Composting programs as a means of diverting an estimated 6,79 6
tons in 1995 and 8,248 tons per year by the year 2000 . It is therefore of foremost
-
importance that the Green Waste and wood debris collected under this Agreement be
converted into a functional and marketable product in order that the materials may b e
diverted from landfill disposal in compliance with the City's SRRE, and AB 939 . The
Contractor shall therefore ensure that the processing method used shall, at all times, mee t
the intent of the City's SRRE and AB 939 . Should the Contractor find it necessary t o
utilize another method of processing in order to ineet the intent of the SRRE and AB 939 ,
the City shall be given an opportunity to make its own determination as to the suitability
and cost-effectiveness of such process and shall 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 it be determined that the Green Waste progra m
being implemented and/or proposed under this Agreement is ineffective in meeting th e
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Green Waste Services Agreement
City's diversion goals and objectives . Upon termination, the Contractor shall be entitle d
only to revenues less expenses incurred to that date . All revenues received thereafter shal l
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 to th e
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 Insuranc e
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 Employer s
Liability limits of $1,000,000 per accident .
B . Deductibles and Self : Insured Retentions .Any deductibles or self-insured retention s
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 bond
guaranteeing payment of losses and related investigations, claim administration and
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 Coverage s
a) The City, its officials, employees, directors, and volunteers are to be covered as
insured as respects : liability arising outbf 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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Green Waste Services Agreement
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 of
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 City
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 .
4
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 annua l
contract price guaranteeing the faithful performance of the contract, including any
33
Green Waste Services Agreemen t
attorney's fees or other collection costs .
4
34
Green Waste 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 or process any or all green waste materials which it is required by thi s
Agreement to Collect and process, at the time and in the manner provided in thi s
Agreement, for a period of more than seven (7) calendar days, and if, as a result thereof ,
Green Waste should accumulate in the City to such an extent, in such a manner, or fo r
such a time that the City Administrative Officer should find that such accumulatio n
endangers or menaces the public health, safety or welfare, then City shall have the right ,
but not the obligation, upon twenty-four (24) hour prior written notice to Contracto r
during the period of such emergency as determined by the City Administrative Officer ,
(1) to perform, or cause to be performed, such services itself with its own or othe r
personnel without liability to Contractor ; and/or (2) to take possession of any or all o f
Contractor's land, equipment and other property to Collect, transport or process any Gree n
Waste generated within the City which Contractor would otherwise be obligated t o
Collect, transport, process or market pursuant to this Agreement. In the event the Cit y
takes possession of the Contractor's equipment and other property, the City shall b e
entitled to have another contractor operate such equipment and property under Cit y
direction . Additionally, in the event the City takes possession of the Contractor's
equipment and other property, the City does not guarantee repair of existing problem s
with equipment and facilities .
Notice of Contractor's failure, refusal or neglect to Collect, transport or process Gree n
Waste may be given orally by telephone to Contractor at its principal office and shall b e
effective immediately . Written confirmation of such oral notification shall be sent t o
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 service
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 and processing Green Waste, including, if City so desires ,
employees previously or then employed by Contractor, Contractor further agrees, if Cit y
so requests, to furnish City the services of any or all management or office personne l
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Green Waste Services Agreemen t
employed by Contractor whose services are necessary or useful for Green Wast e
Collection, Transportation and processing operations and for the billing and collection o f
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 Cit y
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 Green Waste Services which may include the grant of a Contract to another company .
The same notice requirements of Section 11 .1 are applicable .
11 .3 Billing and Compensation to CityDuring City's Possessio n
During such time that city is providing Green Waste services, as above provided ,
Contractor 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 Cit y
for any and all costs and expenses incurred by City in taking over possession of the
above-mentioned property for Green Waste service in such manner and to an extent a s
would otherwise be required of Contractor under the Terms of this Agreement . Suc h
reimbursement shall be made from time to time after submission By City to Contractor o f
each statement listing such costs and expenses, but in no event later than five (5) workin g
days from and after each such submission . The City shall have the right, at its sole
36
Green Waste Services Agreemen t
discretion, to take over billing and payment collection activities . The City shall then pa y
any net revenues to the Contractor, after deducting all expenses, including City-incurre d
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 Green Waste services as provided in this Agreement ,
whereupon Contractor shall be bound to resume the same .
11 .5 Duration of Ci y'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 City
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 o f
time and may at any time, in its sole discretion, relinquish possession to Contractor .
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37
Green Waste Services Agreemen t
ARTICLE 12
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 of thi s
contract for the 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 Green Waste 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, including
liquidated damages and penalties, required under this Agreement and/or fails to provide
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
38
Green Waste Services Agreement .
fail to commence to correct or remedy such violation within the time set forth in suc h
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 an y
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 . If the violation is not corrected within the 10 days, the City shal l
have the right to terminate the Agreement per the provisions provided in Section 12 .2 .
For purposes of this Agreement and any notice required thereunder, the term "days" shal l
mean calendar days .
12 .2 Right to Terminate Upon Defaul t
Upon a default by Contractor, City shall have the right to terminate this Agreement upo n
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 of
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 equipmen t
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 .
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
39
Green Waste Services Agreement
inadequate and City shall be entitled in injunctive relief.
12.3 Liquidated Damages
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 .
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40
Green Waste Services Agreement
B . Service Performance Standards ; Liquidated Damages for Failure to Mee t
Standards.The parties acknowledge that consistent, reliable Green Waste 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 defined i n
this Section, comply with complaint resolution criteria, or fails to submit require d
documents in a timely manner, City and its residents will suffer damages and that it is an d
will be impractical and extremely difficult to ascertain and determine the exact amount o f
damages which City will suffer . Therefore, without prejudice to City's right to treat suc h
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 set
forth below :
Collection Reliability and Qualit y
o For each failure over five (5) annually to commence service to
a new customer account within seven (7) days after order :
$150 .0 0
o For each failure over ten (10) annually to Collect Green Waste ,
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 Green Waste which hav e
been properly set out for Collection, from the same customer o n
two (2) consecutive scheduled pickup days :
$150 .00
o For each occurrence over five (5) annually of damage to privat e
property:
$250 .0 0
q For each occurrence of discourteous behavior $250 .0 0
q For each failure over ten (10) annually to clean up Green waste spilled from Bins :
$150 .00
q For each occurrence over five (5) annually of Collectin g
Green Waste during unauthorized hours :
$250 .00
q For each failure to respond to a customer complaint withi n
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Green Waste Services Agreement
twenty-four (24) working hours :
$100 .00
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42
Green Waste Services Agreemen t
Timeliness of Submissions to Cit y
REPORTS
Any report shall be considered late until such time as a correct and
complete report is received by City . For each calendar day a report is late,
the daily assessment shall be :
Monthly Reports :
For each infraction
$100 per day
Annual Reports :
For each infraction
$500 per day
Liquidated damages will only be assessed after Contractor has been given the opportunity
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 te n
(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 .
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) day
period, City may proceed against the performance bond required by this Agreement o r
order the termination of this Agreement, or both pursuant to the terms of this Agreement .
12.4 Excuse from Performance
4
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
43
Green Waste Services Agreement
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 selected
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 th e
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 financial errors, materiality shall be deemed to be two percen t
(2%) or greater of the gross revenues of the Contractor from activities performed unde r
this agreement . Recovery of any overpayment will be negotiated on a case by case basis ,
either immediately or through the next rate setting evaluation .
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44
Green Waste Services Agreemen t
ARTICLE 13
OTHER AGREEMENTS OF THE PARTIE S
13 .1 Relationship of Parties
The parties intend that Contractor shall perform the services requiredby this Agreemen t
as an independent Contractor engaged by City and not as an officer or employee of Cit y
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 of
conducting the Green Waste services performed under this Agreement, and all Person s
performing such services . Contractor shall be solely responsible for the acts and
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, issued .
or amended during the Term .
13.3 Governing La w
This Agreement shall be governed by, and construed and enforced in accordance with, the
laws of the State of California .
13.4 Jurisdiction
Any lawsuits between the parties arising out of this Agreement shall be brought and
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, subcontract 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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Green Waste Services Agreement
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 that City has selected Contractor to perform the services specified herei n
based on (1) Contractor's experience, skill and reputation for conducting its Solid Wast e
management operations in a safe, effective and responsible fashion, at all times i n
keeping with applicable Environmental Laws, regulations and best waste managemen t
practices, and (2) Contractor's financial resources to maintain the required equipment an d
to support its indemnity obligations to City under this Agreement. City has relied on eac h
of these factors, among others, in choosing Contractor to perform the services to b e
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 the
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 th e
assignee for rate increases that are higher than the inflationary i?idex 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 and
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
46
Green Waste Services Agreement
assignment;
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 Green Waste management experience on a scale equal to o r
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 significant citation s
or other censure from any federal, state or local agency having jurisdiction over its Soli d
Waste management operations due to any significant failure to comply with state, federa l
or local Environmental Laws and that the assignee has provided City with a complete lis t
of such citations and censures ; 3) that the proposed assignee has at all times conducted it s
operations in an environmentally safe and conscientious fashion ; 4) that the proposed
assignee conducts its Green Waste management practices in accordance with sound waste
management practices in full compliance with all federal, state and local laws regulatin g
the Collection,.transportation, processing, marketing and disposal of Solid Wast e
including Hazardous Wastes ; and, 5) of any other information required by City to ensur e
the proposed assignee can fulfill the Terms of this Agreement in a timely safe and
effective manner .
Under no circumstances shall the City be obliged to consider any proposed assignment b y
City if Contractor is in default at any time during the period of consideration .
13 .6 Subcontractin g
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 shall
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
agreement .
13.7 Binding on Assign s
The provisions of this Agreement shall inure to the benefit to and be binding on th e
permitted assigns of the parties .
13 .8 Transition to Next Contracto r
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 collectio n
47
Green Waste Services Agreemen t
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
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 Waive r
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 any 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 Investigation
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 Notic e
All notices, demands, requests, proposals, approvals, consents and other communication s
which this Agreement requires, authorizes or contemplates shall be in writing and shal l
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 Mono Stree t
San Luis Obispo, CA 9340 1
If to Contractor :
Tom Marti n
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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Green Waste Services Agreement
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 .
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Green Waste Services Agreemen t
13 .14 City Free to Negotiate with Third Partie s
City may investigate all options for the Collection and processing of Green Waste afte r
the expiration of the Term . Without limiting generality of the foregoing, City may solici t
proposals from Contractor and from third parties for the provision of_Green Wast e
services, and any combination thereof, and may negotiate and execute Agreements fo r
such services which will take effect upon the expiration or earlier termination unde r
Section 12 .1 (Events of Default) of this Agreement .
13.15 Compliance with City Cod e
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 .16 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 vali d
authorization of the customer . This provision shall not be construed to preclud e
Contractor from preparing, participating in, or assisting in the preparation of waste
characterization studies or waste stream analyses which may be required by AB 939 .
4
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Green Waste 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 Agreement s
All references in this Agreement to laws shall be understood to include such laws as they
may be subsequently amended or recodified, unless otherwise specifically provided . Thi s
Agreement supersedes any and all Agreements for Green Waste Collection, processin g
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 construe d
reasonably and neither for nor against either party, regardless of the degree to whic h
either party participated in its drafting .
14.5 Agreemet
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 exhibit identified as Exhibit "A" is attached hereto and incorporated herein an d
made a part hereof by this reference .
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Green Waste Services Agreemen t
IN WITNESS WHEREOF, City and Contractor have executed this Agreement as of the day an d
year first above written .
The City of San Luis Obisp o
("City")
By
Name :i®y /Y a.c-t,r
Title :Go Ykfire)r~r ,
Approved as to Form :
4
52
EXHIBIT 2
Residential Recycling Services Agreement
A