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ORDINANCE NO. 1396 (2001 Series)
AN ORDINANCE OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO
GRANTING EXCLUSIVE FRANCHISES TO SAN LUIS GARBAGE COMPANY FOR
GREEN WASTE AND RESIDENTIAL RECYCLING COLLECTION SERVICES
WHEREAS, the City of San Luis Obispo has adopted a Source Reduction and Recycling
Element (SRRE) to meet the state law AB 939 requirements; and
WHEREAS, the SRRE states that the City will provide residential curbside recycling
and green waste collection services; and
WHEREAS, the San Luis Garbage Company has provided recycling services at a
reasonable rate since 1977; and
WHEREAS, San Luis Garbage Company has agreed to continue the provisions in the
franchise agreements.
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of San Luis
Obispo as follows:
SECTION 1. Exclusive franchises shall be granted to San Luis Garbage Company for
services to collect 1) residential and commercial green waste and 2) residential recyclables
subject to the terms and conditions presented in Exhibit A, Green Waste Services Agreement and
Exhibit B, Residential Recycling Services Agreement.
SECTION 2. Ordinance No. 1308 (1996 Series) shall be repealed upon the effective date
of this ordinance.
SECTION 3. A summary of this ordinance, approved by the City Attorney, together
with the names of the Council members voting for and against it, shall be published at least five
days prior to its final passage, in the Tribune, a newspaper published and circulated in this City.
This ordinance will go into effect at the expiration of thirty (30) days after its final passage.
INTRODUCED on the 17TH day of July 2001 AND FINALLY ADOPTED by the
Council of the City of San Luis Obispo on the 3rd day of August 2001, on the following roll call
vote:
AYES: Council Members Marx, Mulholland, Schwartz, Vice Mayor Ewan and
Mayor Settle
NOES: None
ABSENT: None
01396
Y
Ordinance No. 1396 (2001 Series)
Page 2
ATTEST:
olv,,WN2�
Lee P : e, dly Clerk/
APPR ` ED AS TO FORM:
effrey . J rgensen, City Attorney
EXHIBIT 1
Green Waste Services Agreement
AGREEMENT BETWEEN
THE CITY OF SAN LUIS OBISPO
AND
SAN LUIS GARBAGE COMPANY
For Collection and Disposal of Green Waste
Within the City of San Luis Obispo
This Agreement (Agreement) is made and entered into this 3rd day of September, 2001, in the
State of California by and between the City of San Luis Obispo, A Charter Municipal
Corporation of the State of California, (City) and San Luis Garbage, a California corporation,
(Contractor), for the Collection and processing of residential Green Waste and the Performance
of other services related to meeting the goals and requirements of the California Integrated Waste
Management Act of 1989.
RECITALS
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 Integrated
Waste Management Act of 1989 (AB 939) Division 30 of the California Public Resources
Code, commencing with § 40000, has declared that it is within the public interest to
authorize and require local agencies to make adequate provisions for Green Waste
handling within their jurisdictions. AB 939 requires a fifty percent (50 %) reduction in the
amount of waste which is landfilled by the year 2000; and
2. The separate Collection and processing of residential Green Waste to produce usable
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 2000
State mandated diversion goals of AB 939; and
3. The City has entered into an exclusive franchise with San Luis Garbage Company of the
Collection, transportation, processing, diversion and disposal of refuse from residential
properties, Multi- Family Dwelling Units, institutional and commercial and industrial
properties; and
4. The City has determined that an Agreement granted to a private company for the
Collection and processing of residential Green Waste is the most effective and efficient
way to collect and divert residential Green Waste within the City; and
The City declares its intention of maintaining reasonable rates and high quality service for
the Collection and processing of residential Green Waste; and
6. The Contractor is responsible for arranging for Green Waste Collection and processing
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Green Waste Services Agreement
services; and
7. This Franchise Agreement has been developed by and is satisfactory to the parties.
NOW, THEREFORE, for and in consideration of the mutual promises herein contained,
it is hereby agreed by and between the City and Contractor as follows:
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Green Waste Services Agreement
ARTICLE I
DEFINITIONS
1.1 "AB 939 means the California Integrated Waste Management Act of 1989, as it maybe
amended from time to time.
1.2 "Affiliate" means all businesses (including corporations, limited and general
partnerships and sole proprietorships) which are directly or indirectly related to Company
by virtue of direct or indirect common ownership interest or common management shall
be deemed to be "Affiliated with" Contractor and included within the term "Affiliates
with" Contractor and included within the "Affiliates" as used herein. An Affiliate shall
include a business in which Contractor owns a direct or indirect ownership interest, a
business which has a direct or indirect ownership interest in Contractor and/ or a business
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 of
Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date of this
Agreement, shall apply; provided, however, that (i) "ten percent (10 %)" shall be
substituted for "fifty percent (50 %)" in Section 318(a)(2)(C) and in 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 basis
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, including
all exhibits and attachments, and any amendments thereto) between City and Contractor
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 Contractor
pursuant to this Agreement.
1.5 "California Integrated Waste Management Act of 1989" means Public Resources
Code, § 40,000 et. sea.
1.6 "City" means the City of San Luis Obispo, a Charter municipal corporation, and all the
territory lying within the municipal boundaries of the City as presently existing or as such
boundaries may be modified during the term, acting through the City Council or the City
Administrative Officer.
1.7 "Collect" or "Collection" means to take physical possession, transport, and remove
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Green Waste Services Agreement
Green Waste within and from the City.
1.8 "Commercially Generated Green Waste" means Green Waste generated at commercial
and/or industrial property and separated by the Waste Generator for Collection and which
are excluded from the scope of this Agreement as described in Article 4, Scope of
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 organic
matter into a stabilized humus product.
1.11 "Container" means any bin, vessel, can or receptacle used for Collection and storing
Green Waste before removal.
1.12 "Contractor" means San Luis Garbage Company, a corporation organized and operating
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 City
ordinances and regulations concerning public health, safety and the environment
including, by way of example and not limitation, the comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 USC §9601 et sea.; the Resource
Conservation and Recovery Act, 42 USC §6902 et sea.; the Federal Clean Water Act, 33
USC §1251 et sea.; the Toxic Substances Control Act, 15 USC §1601 et sea.; the
Occupational Safety and Health Act, 29 USC §651 et sea.; the California Hazardous
Waste Control Act, California Health and Safety Code §25100 et sea.; the California
Toxic Substances Account Act, California Health and Safety Code §25300 et se q.; the
Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code
§25249.5 et se q.; as currently in force or as hereafter amended, and all rules and
regulations promulgated thereunder.
1.14 "Facility" means any plant or site, owned or leased and maintained and/or operated or
used by Contractor for the purposes of performing the duties to fulfill this Agreement.
1.15 "Fiscal Year" means the period commencing on January 1 and concluding December 31
for Contractor. For City it means the period commencing July 1 of one year and
concluding June 30 of the subsequent year.
1.16 "Green Waste" means tree trimmings, grass cuttings, dead plants, leaves, branches, dead
trees and scrap wood (not more than six (6) inches in diameter) and similar materials
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Green Waste Services Agreement
generated at the premises.
1.17 "Hazardous Waste" means any discarded material or mixture of materials, which is
toxic, corrosive, flammable, radioactive or which, because of its quantity, concentration,
physical, chemical or infectious characteristics may do harm to either humans, animals or
the environment, or as defined in Article 2, Chapter 6.5 §25117 of the Health and Safety
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 of
Recycling, Composting or reuse.
1.19 "Multi- family Dwelling Unit" means any Premises, other than a Single Family
Dwelling Unit, used for residential purposes, irrespective of whether residence therein is
transient, temporary or permanent.
1.20 "Owner" means the person holding the legal title to the real property constituting the
Premises to which Green Waste collection service is to be provided under this
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 San
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 or
accumulated.
1.23 "Recyclable Materials" means residential by- products or discards of economic value set
aside, handled, packaged or offered for Collection in a manner different from Solid
Waste. Including, but not limited to, aluminum, newspaper, clear and colored glass, tin
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/or
reconstituting Green Waste which would otherwise be discarded without receiving
compensation or returning them to the economy 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 with
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Green Waste Services Agreement
Company.
1.26 "Single Family Dwelling Unit" means each Premises used for or designated as a single
family residential dwelling, including each unit of a duplex or triplex in all cases in which
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 otherwise
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, temporarily
store, separate, convert, or otherwise process the materials in the solid wastes, or to
transfer the solid wastes directly from smaller to larger vehicles for transport and those
facilities used for transformations.
1.30 "Waste Generator" means any Person as defined by the Public Resources Code, whose
act or process produces Solid Waste as defined in the Public Resources Code, or whose
act first causes Solid Waste to become subject to regulation.
Green Waste Services Agreement
ARTICLE 2
GRANT AND ACCEPTANCE OF AGREEMENT
2.1 Grant and Acceptance of Agreement
Subject of Section 2.5 (Conditions to the Effectiveness of Agreement), City hereby grants
to Contractor an exclusive franchise to collect and process Green Waste accumulating at
all Premises in the City that are offered for Collection to Contractor in accordance with
this Agreement.
Contractor hereby accepts the Agreement on the terms and conditions set forth in this
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, and
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 and
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 terminate
this Agreement. It is understood between Contractor and City that this Agreement is
motivated by the passage of AB 939, and that subsequent legislation could make this
Agreement unnecessary and/or adverse to the best interests of the City. In particular, City
and Contractor acknowledge the possibility of future legislation changing the
requirements of AB 939, and/or requiring a coordination of the collection of Solid Waste
and Green Waste.
2.4 Option to Extend
The City shall have the sole option to extend this Agreement up to 24 months in periods
of a least twelve (12) months each. If City elects to exercise this option, it shall give
written notice not later than one hundred eighty (18 0) days prior to the initial termination
date, or, if one extension has been exercised, one hundred eighty (180) days prior to the
extended termination date.
2.5 Conditions to Effectiveness of Agreement
The obligation of City to permit this Agreement to become effective and to commence
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Green Waste Services Agreement
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 in
whole or in part by City.
A. Accuracy of Representations. The representations and warranties made by
Contractor throughout this Agreement are accurate, true and correct on and as of
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 or
seeking to restrain or enjoin its performance.
C. Furnishing of Insurance and Bonds. Contractor has furnished evidence of the
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 prior
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 for
the failure on the part of any Person producing Green Waste material within the City to
deliver the same to Contractor; provided, however, it is mutually understood and agreed
that the City and its officers will at all times during the period of this Agreement
cooperate to enforce the terms of this exclusive Agreement as it relates to the Collection
of Green Waste within the City.
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Green Waste Services Agreement
ARTICLE 3
TERMS OF AGREEMENT
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 this
Agreement. Additionally, the Contractor has no suits or threatened suits which would
impair the financial ability of the Contractor to perform its obligations under this
Agreement, and that the entering into this Agreement by Contractor will not in any way
constitute a breach of any other agreements entered into by Contractor with other parties,
or constitute a violation of any law.
3.2 Contractor Authorization
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) have
taken all actions required by law, its articles of incorporation, its bylaws or otherwise to
authorize the execution of this Agreement. The persons signing this Agreement on behalf
of Contractor have the authority to do so.
3.3 Compliance with Laws and Regulations
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 Interruption
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 Licenses
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 of City Property
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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Green Waste Services Agreement
ARTICLE 4
SCOPE OF AGREEMENT
4.1 Scope of Agreement
Subject to Section 4.2 (Limitations to Scope), the Agreement granted to Contractor shall
be exclusive for Green Waste Collection, except where otherwise precluded by law.
4.2 Limitations to Scope
The Agreement for the Collection and processing Green Waste granted to Contractor
shall be exclusive except as to the following categories of Green Waste listed in this
Section. The granting of this Agreement shall not preclude the categories of Green Waste
listed below from being delivered to and Collected and transported by others provided
that nothing in this Agreement is intended to or shall be construed to excuse any person
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 by
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 tree
trimming company as incidental part of a total service offered by that company.
Contractor acknowledges and agrees that City may permit other Persons beside
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 be
consistent with state and federal laws, now and during the term of the Agreement, and the
scope of this Agreement shall be limited by current and developing state and federal laws
with regard Green Waste handling and related doctrines. In the event that future
interpretations of current law, enactment or developing legal trends limit the ability of the
City to lawfully provide for the scope of services as specifically set forth herein,
Contractor agrees that the scope of the Agreement will be limited to those services and
materials which are lawfully provided for under this Agreement: The City shall not be
responsible for any lost profits and/or damages claimed by the Contractor as a result of
changes in law.
4.3 Administration of Agreement
The City Administrative Officer shall administer this Agreement and the City's Utilities
Director shall supervise Contractor compliance with the Agreement terms and conditions.
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Green Waste Services Agreement
4.4 Use of City Streets
Such grant of Agreement shall give Contractor the right and privilege to operate Green
Waste Collection vehicles and equipment on such streets, public ways, rights -of -way, or
easements of the City.
4.5 Annexation
Contractor shall automatically extend all services herein described to any area annexed to
the City, except that the City may permit a firm franchised by the County of San Luis
Obispo before the annexation to continue service the area for a period not less than five
(5) years.
4.6 City Right to Request Changes
4.6.1 General
City may request Contractor to perform additional services (including new diversion
programs, billing services, etc.) or modify the manner in which it performs existing
services. Pilot programs and innovative services which may entail new Collection
methods, different kinds of services and/or new requirements for Waste Generators are
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 expanded
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 Programs
Contractor shall present, within 30 days of a request to do so by City, a proposal to
provide additional or expanded diversion services. The proposal shall contain a complete
description of the following:
• Collection methodology to be employed (equipment, manpower, etc.)
• Equipment to be utilized (vehicle number, types, capacity, age, etc.).
• Labor requirements (number of employees by classification).
• Type of Containers to be utilized.
• Provision for program publicity /education/marketing.
• A projection of the financial results of the program's operations for the remaining Term
of the Agreement in a balance sheet and operating statement format including
documentation of the key assumptions underlying the projections and the support for
those assumptions.
O Materials processing facility to be utilized.
4.6.3 City's Right to Acquire Services
Contractor acknowledges and agrees that City may permit other Persons besides
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Green Waste Services Agreement
Contractor to provide additional Green Waste services not otherwise contemplated under
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 such
services in ninety (90) days from the date when City first requests a proposal from
Contractor to perform such services, Contractor acknowledges and agrees that City may
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 requested
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 in
Contractor's compensation has been requested but has not been agreed upon or
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 such
additional or modified service pursuant to the terms of Section 4.6.3.
4.7 Ownership of Green Waste
Once Green Waste is placed in Containers and properly presented for Collection,
ownership and the right to possession shall transfer directly from the Generator to
Contractor by operation of this Agreement. Contractor is hereby granted the right to
retain, recycle, process, reuse, compost and otherwise use such Green Waste or any part
thereof, in any lawful fashion or for any lawful purpose consistent with the hierarchy and
goals of AB 939. Subject to the provisions of this Agreement, Contractor shall have the
right to retain any benefit resulting from its right to retain, recycle, process,, compost or
reuse the Green Waste which it Collects. Green Waste or any part thereof, which are
delivered to a Facility (Facility, transformation Facility, transfer station, or Material
Recovery Facility) shall become the property of the owner or operator of the Facility(ies)
once deposited there by Contractor.
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Green Waste Services Agreement
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 items
necessary to perform the services required as presented in the Company's proposal
incorporated in this document as Exhibit A. The enumeration of, and specification of
requirements for, particular items of labor or equipment shall not relieve Contractor of the
duty to furnish all others, as may be required, whether enumerated or not.
The work to be done by Contractor pursuant to this Agreement shall be accomplished in a
thorough and professional manner so that the residents within the City are 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 quality
shall not relieve Contractor of the duty of accomplishing all other aspects in the manner
provided in this Section, whether such aspects are enumerated elsewhere in the
Agreement or not.
5.2 Residential Green Waste Services
Contractor shall Collect and remove all Green Waste placed in or adjacent to
Containers at the designated Collection locations for Single Family Dwelling Units and
Multifamily Dwelling Units.
Green Waste Collection shall be a minimum of once each week on the same day of the
week as Solid 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 the
change in Solid Waste collection days to provide same'day service.
5.3 Materials To Be Collected
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 similar
materials generated at the premises.
5.4 Refusal to Provide Collection Services
Contractor may refuse to Collect Green Waste and shall not be obligated to continue to
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 shall
report monthly to City any warning notices issued.
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Green Waste Services Agreement
5.5 Christmas Tree Collection Proeram
Contractor shall operate an annual Christmas Tree Collection and diversion program.
The program shall include curbside and drop -off Collection of Christmas Trees targeting
all Single Family and Multi - family Dwelling Units and shall divert these Christmas Trees
from landfill disposal.
5.6 End Uses for Green Waste
Contractor shall develop and implement plans and programs to divert materials Collected
through curbside Collection of Green Waste and Christmas Tree Collection from
Disposal. Contractor must provide end uses for Green Waste that maximizes diversion
credits for the City according to regulations established by the California Integrated
Waste Management Board.
5.7 Operations
5.7.1 Schedules
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 as
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 the
event the Contractor misses the collection of set out Green Waste, the Contractor shall
collect the missed pickups with one (1) business day of notification.
5.7.2 Vehicles
A. General. Contractor shall provide a fleet of Collection vehicles sufficient in
number and capacity to perform the work required by this Agreement and
proposed in Exhibit "A" (Contractor's proposal) and in strict accordance with its
terms. Contractor shall have available on Collection days sufficient back -up
vehicles in order to respond to complaints and emergencies. The fleet shall be
maintained according to the requirements of Municipal Code 8.04.030.
B. Specifications. All vehicles used by Contractor in providing Green Waste
Collection services under this Agreement shall comply with all federal, state, and
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. All
such vehicles shall have water -tight bodies designed to prevent leakage, spillage
or overflow. All such vehicles shall comply with U.S. Environmental Protection
Agency noise emission regulations and other applicable noise control regulations.
C. Condition
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Green Waste Services Agreement
1) Contractor shall maintain all of its properties, facilities, and equipment used in
providing service under this Agreement in a safe, neat, clean and operable
condition at all times.
2) Contractor shall inspect each vehicle daily to ensure that all equipment is
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 operate
properly and safely. Contractor shall perform all scheduled maintenance
functions in accordance with the manufacturer's specifications and schedule.
Contractor shall keep accurate records of all vehicle maintenance, recorded
according to date and mileage and shall make such records available to City upon
request.
3) Contractor shall repair, or arrange for the repair of, all of its vehicles and
equipment for which repairs are needed because of accident, breakdown or any
other cause so as to maintain all equipment in a safe and operable condition.
Contractor shall maintain accurate records of repair, which shall include the
date /mileage, nature of repair and the signature of a maintenance supervisor that
the repair has been properly performed.
4) 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 as
required in Municipal Code section 8.04.090.
E. Operation. Vehicles shall be operated in compliance with the California Vehicle
Code, and all applicable safety and local ordinances. Contractor shall not load
vehicles in excess of the manufacturer's recommendations or limitations imposed
by state or local weight restrictions on vehicles.
5.7.3 Green Waste Containers
Contractor shall supply each Single Family Dwelling Unit with a waste wheeler in
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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Green Waste Services Agreement
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 no
charge to the customer.
5.7.4 Litter Abatement
Contractor shall use due care to prevent Green Waste from being spilled or
scattered during the Collection or transportation process. If any Green Waste is
spilled during Collection, Contractor shall promptly clean up all spilled materials.
Each collection vehicle shall carry a broom and shovel at all times for this
purpose.
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Green Waste Services Agreement
5.7.5 Personnel
A. General. Contractor shall furnish as presented in Exhibit "A" such qualified
drivers, mechanical, supervisory, clerical, and other personnel as may be
necessary to provide services required by this Agreement in a safe and efficient
manner.
B. Identification. Contractor shall ensure that while on duty each Collection
worker wears a clean uniform which displays the Contractor's company name and
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 services
performed under this Agreement except as provided in Article 8 of this
Agreement.
D. Training. All drivers shall be trained and qualified in the operation of
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, and
Hazardous Waste identification and handling training for all of its employees who
use or operate equipment or who are otherwise directly involved in Collection or.
other related operations.
E. Customer Courtesy. Contractor shall train its employees in customer
courtesy, shall prohibit the use of loud or profane language, and shall instruct
Collection crews to perform the work quietly. Contractor shall use its best efforts
to ensure that all employees present a neat appearance and conduct themselves in
a courteous manner. If any employee is found to be discourteous or not to be
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 reassign
the employee to duties not entailing contact with the public while Contractor is
pursuing its investigation and corrective action process.
5.8 Implementation Plan
The parties recognize that substantial planning will be required in order to assure an
orderly initiation of Green Waste Collection services on July 1, 1996, To that end, City
has required Contractor to submit, as part of its proposal, a detailed implementation plan
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Green Waste Services Agreement
addressing, among other things, the steps Contractor will take and the schedule on which
it will take them, to prepare for such an orderly initiation of service. The implementation
plan shall cover Contractor's schedule for acquiring necessary equipment, personnel,
storage and maintenance facilities, administrative offices, customer relations materials
(including Collection schedules, route maps, billing forms, complaint forms, service
request forms, etc.). Contractor agrees to adhere strictly to the implementation plan. The
implementation shall be subject to the City's review and approval.
Failure to adhere to the implementation schedule will constitute a breach of this
Agreement, and, if incurred, an event of default, under Article 12, Default, Remedies, and
Liquidated Damages.
5.9 Green Waste Processing
5.9.1 Receipt of Green Waste
Commencing July 1, 1996, the Contractor shall have in place or have made arrangements
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 Effective
date.
5.9.2 Status of Green Waste Facility
Any Facility used by contractor must be designed and constructed in accordance with all
applicable state and local laws (e.g., CEQA, California Code of Regulations, etc). The
Facility must have all permits from federal, state, regional, county and city agencies
necessary for it to operate as a Green Waste Facility and must be in full regulatory
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, or
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 exercise
of due care, the Contractor shall arrange for it to be accepted at another Green Waste
Facility, in which case Contractor shall pay for any increased transportation costs, any
differences in the fees charged at such Green Waste Facility and the fees then in effect
under this Agreement. If Contractor's inability to deliver the City's Green Waste to the
Green Waste Facility is not due to causes within its control or which could have been
avoided by the exercise of due care, then Contractor shall propose alternative Green
Waste Facilities including all related costs and City shall select the alternative to be used.
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Green Waste Services Agreement
5.9.4 Disposition of Unauthorized Waste
Contractor shall ensure that procedures to identify and reject materials delivered to the
Green Waste Facility which are Hazardous Waste, or which otherwise may not be legally
accepted at the Green Waste Facility under their permits, are in place. Contractor may, in
the course of implementing such procedures, refuse to accept Green Waste deposited
from the City if they constitute Hazardous Waste, or otherwise may not be legally
accepted at the Green Waste Facility, and Contractor shall be solely responsible of the
materials which are accepted. If Contractor discovers Hazardous Waste, or other material
which may not be legally accepted, among materials which it has accepted, it shall
dispose of such waste at its own expense. Contractor may pursue all legal rights and
remedies it may have against the Waste Generator(s) of such Solid Waste, if the Waste
Generator(s) can be identified.
5.10 Disposal
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 permitted
disposal site in full regulatory compliance.
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Green Waste Services Agreement
ARTICLE 6
OTHER SERVICES
6.1 Billin
The City Council shall establish an integrated rate for the Green Waste, Recycling and
Solid Waste services. Contractor shall bill and collect for its services at no more nor less
than these rates. Contractor's billing plan, including billing frequency, and format shall
be subject to approval by City, and City shall have the right to revise the billing format to
itemize certain charges.
The City may also direct Contractor to insert mailers relating to contractor provided
services with the billings and shall be responsible for all labor costs with respect to the
mailing inserts. The mailers must fit in standard envelopes and not increase the required
postage. The City will provide not less than thirty (30) days notice to Contractor prior to
the mailing date of any proposed mailers to permit Contractor to make appropriate
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, or
in any other manner, provided that the records cannot be altered, and can be preserved
and retrieved for inspection and verification in a timely manner.
The owner of occupied Premises shall be responsible and liable for paying the Green
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 actions
pursuant to Chapter 8.04 of the Municipal Code to collect delinquent accounts.
6.3 Periodic Performance or Billing Audit
The City shall have the right to periodically, not less than annually, request a performance
audit or billing audit be completed by the Contractor, the City or an independent third
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 Service
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 Contractor
shall be available during office hours for communication with the public. Telephone
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 free
telephone number for use during other than normal business hours. Contractor shall have
a representative, answering or message providing/receiving (voice -mail) service available
at said after hours telephone number.
6.4.2 Complaint documentation
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 during
this Agreement upon twenty -four (24) hour notice.
Contractor shall log all complaints received orally or in writing and said log shall include
the date and time the complaint was received, name, address and telephone number of
complainant to the extent that such information is provided by complainant, description
of complaint, employee recording complaint and the action taken by Contractor to
respond to and remedy complaint. All complaints received shall be responded to within
twenty four (24) working hours of receipt.
All customer service records and logs kept by Contractor shall be available at all times
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 to
Contractor's customer service department for purposes of monitoring the quality of
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 Complaints
Contractor shall notify customers of this complaint procedure at the time customers apply
for or are provided service, and subsequently, annually.
A customer dissatisfied with Contractor's decision regarding a complaint may ask the City
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 of
breach of any of the Terms of this Agreement. Any resolution of these customer
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 responsible
for working with the City Administrative Officer, Utilities Director and/or one of their
designated representative(s) to resolve customer complaints.
6.5 Education and Public Awareness
Contractor acknowledges and agrees that education and public awareness are critical, key
and essential elements of any efforts to achieve AB 939 requirements. and has submitted
a plan to this effect in Exhibit "A ". Accordingly, Contractor agrees to cooperate with
City in exploring opportunities to expand public and customer knowledge concerning
needs and methods to reduce, reuse and recycle Solid Waste and to cooperate fully with
City in this regard.
Contractor shall perform all necessary public education activities related to the Recycling
services as presented in Exhibit "A ". This shall include, but not be limited to, annual
mailings to all customers explaining the green waste program, mailings prior to the start
of services, flyers handed out with Container delivery and follow -up mailings or handouts
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, Contractor
shall participate in and promote Recycling, reuse and other diversion techniques at
community events and local activities. Such participation would normally include
providing, without cost to the City, educational and publicity information promoting the
goals of the City's AB 939 programs.
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Green Waste Services Agreement
ARTICLE 7
PAYMENTS TO CITY
7.1 Franchise Fee
In consideration of the exclusive franchise provided for in this Agreement, Contractor
shall pay the City six percent (6 %) of its gross revenues for Green Waste Collection
services. Such franchise fee shall be a "pass- through" expense for purposes of rate
review.
7.2 AB 939 Fee
If requested by City, Contractor shall pay an AB 939 fee, to be specified annually by the
City. All AB 939 fees paid to the City shall be considered a pass through cost for
purposes of rate setting.
7.3 Business License Tax
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. These
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 of
rate setting.
7.5 Time and Method of Payment
If Contractor is directed to pay an AB 939, Franchise Fee or "Other" Fee, it shall do so on
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 fifteenth
(15th) day of any month, Contractor shall pay to City a late payment penalty in an amount
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 for
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 Fees
The City may adjust the amount of fees annually. Such adjustment shall be reflected in
the rates that the Contractor is allowed to charge and collect from customers.
7.7 Review of Fee Payments
The City, or its agent, reserves the right to annually perform an independent review of fee
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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 are
findings pursuant to Section 12.5
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Green Waste Services Agreement
ARTICLE 8
CONTRACTOR'S COMPENSATION AND RATES
8.1 General
Contractor's compensation provided for in this Article shall be the full, entire and
complete compensation due to Contractor pursuant to this Agreement for all labor,
equipment, materials and supplies, taxes, insurance, bonds, overhead, profit and all other
things necessary to perform all the services required by this Agreement in the manner and
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 in
consideration of the right to charge and collect from customers for services rendered at
rates fixed by the City from time -to -time and the right to sell compost generated from
Green Waste. The City shall have the right to structure those rates as it deems
appropriate so long as the revenues forecasted to be received by Contractor from charging
such rates can reasonably be expected to generate sufficient revenues to provide for
Contractor's compensation.
8.2 Contractor's Compensation for Subsequent Rate Years
Contractor's compensation for performance of all its responsibilities and duties in
subsequent years of this Agreement will be set using the guidelines and approach outlined
in the City's "Rate Setting Process and Methodology Manual for Integrated Solid Waste
Management Rates ".
An operating ratio of 7% will be applied to Contractor's costs to determine the allowable
level of profit.
8.3 initial Rates
Contractor will submit required financial documentation for this service as part of an
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 for
Integrated Solid Waste Management Rates ". The portion of the rate attributable to this
service shall be identified as part of the Council rate - setting process but will not be
separated from the integrated rate.
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Green Waste Services Agreement
8.4 quhs n lent Rates
Contractor may request rate revisions in future solid waste rate applications. The rate
application must comply with the City's "Rate Setting Process and Methodology Manual
for Solid Waste Management ".
8.5 R�iuht to Perform Rate Reviews
City reserves the right to perform, or have a qualified third party perform, a detailed
review of Contractor's expenses and revenues for the purposes of adjusting rates. The
results of this detailed rate review will be used to adjust rates, and the Contractor's
calculated revenue requirements will be used the following year to adjust rates according
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 allowable
level of profit.
8.6 Fxtraordinnry A_ justments
Contractor or City may request an adjustment to rates at times other than that required in
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, or
regulations, and significant changes in Contractor's workload due to new residential or
commercial development. However, when an extraordinary adjustment is requested, such
adjustment shall consider changes in all costs and revenues from Contractor's proposed
revenue requirement. For each such request, Contractor shall prepare a schedule
comparing the original proposed costs and revenues by line item to the then current costs
and revenues, including an estimates of the cost impact of the change, using an operating
ratio of 7 %, applied to Contractor's costs as calculated in Contractor's proposed revenue
requirement. Such request shall be prepared in a form acceptable to City with support for
assumptions made by Contractor in preparing the estimate. Contractor and City shall
negotiate a mutually acceptable adjustment amount.
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Green Waste Services Agreement
ARTICLE 9
RECORDS, REPORTS AND INFORMATION, STUDIES
AND HEARING REQUIREMENTS
9.1 Records
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 records
reasonably necessary to develop reports and financial statements required with respect to
this Agreement. Adequate record security shall be maintained to preserve records from
events that can be reasonably anticipated such as a fire, theft and earthquake.
Electronically maintained data/records shall be protected and backed up.
9.1.2 Financial Records
Financial records shall separate all records related to the services performed under this
Agreement from any and all other types of businesses and operations conducted by the
Contractor.
9.1.3 General Records
City approved records (format) shall be maintained for the City separate from other
jurisdictions relating to:
o Customer services;
0 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 the
purchaser, the date of sales transaction, processing cost per ton, quantity purchased, value
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 period
of this Agreement. In the event Contractor discontinues providing Green Waste services
to City, Contractor shall provide all records of all Green Waste Collected in City to City
within thirty (30) days of discontinuing service. Records shall be in chronological and
organized form and readily and easily interpreted.
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Green Waste Services Agreement
9.2 Reports
9.2.1 Report Formats and Schedule
Records shall be maintained in forms and by methods that facilitate flexible use of data
contained in them to structure reports, as needed. Contractor may propose report formats
that are responsive to the objectives and audiences for each report. The format of each
report shall be approved by the City.
Monthly reports shall be submitted within twenty (20) calendar days after the end of the
month being reported. Annual reports shall be submitted before September 30th, for the
previous reporting year.
9.2.2 Monthly Reports
The information listed shall be the minimum reported:
o Green Waste collected, sorted by type of Generator, in tons, by month, and cumulative
for report year.
• Complaint summary, for month and cumulative for report year.
• Narrative summary assessment of problems encountered and actions taken with
recommendations to City for improvement.
O Number of accounts by category for each month of reporting year.
• Participation rates.
• Green Waste Container distribution.
The City may designate any additional information that it wishes provided in the monthly
reports.
9.2.3 Annual Report
The Annual Report is to be essentially in the form and content of the monthly reports. In
addition, Contractor's annual audited financial reports /statements, with the operations
related to the City services segregated, shall be included. The annual report shall also
include a complete inventory of equipment used to provide all services.
Financial statements shall include a supplemental schedule combining Contractor's results
of operations, separating the specific revenues and expenses, including detailed
information with respect to general overhead claimed by the Contractor, in connection
with the operations provided for in this Agreement from others included in such financial
statements. The financial statements, supplemental schedule, management letter and
footnotes shall be prepared in accordance with Generally Accepted Accounting Principles
(GAAP) and audited, in accordance with Generally Accepted Auditing Standards
(GAAS) by a certified public accountant (CPA) licensed (in good standing) to practice
public accounting in the State of California as determined by the State of California
Department of Consumer Affairs Board of Accountancy. The CPA opinion on
Green Waste Services Agreement
Contractor's annual financial statements and supplemental schedule shall be unqualified,
except as to uncertainties for which the ultimate outcome cannot be determined by the
date of the CPA's opinion.
9.3 Right to Inspect Records
City shall have the right to inspect or review the payroll tax reports, specific documents or
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 this
Agreement and Contractor's performance provided for in this Agreement. The City
retains the right to have an independent third party or agent of the City's choosing, such as
a CPA, participate in the records inspection. The cost of such inspection or review will
be an allowable cost under the rate setting methodology unless there are findings pursuant
to Section 12.5.
9.3.1 Right to Review Basis for Landfill Tipping Fee Increases
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 to
the County of San Luis Obispo. Additionally, the Contractor shall notify the City of the
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 executed
resolution. The City retains the right to have an independent third party or agent of the
City's choosing, such as a CPA, participate in the review. The cost of such inspection or
review will be an allowable cost under the rate setting methodology unless there are
findings pursuant to Section 12.5.
9.4 Waste Generation/Characterization Studies
Contractor acknowledges that the city must perform Solid Waste generation and disposal
characterization studies periodically to comply with AB 939 requirements. Contractor
agrees to participate and cooperate with City and its agents to accomplish studies and data
collection and prepare reports as needed to determine weights and volumes of Solid
Waste generated, diverted, disposed, transformed, or otherwise handled/processed to
satisfy AB 939 requirements.
9.5 Performance Hearing
The City maintains the right to hold a public hearing at any time, not more than once each
year, at which the Contractor shall be present and shall participate, to review its services
and performance. The purpose of the hearing is to provide for a discussion and review of
technological, economic, and regulatory changes in order to achieve a continuing,
advanced Solid Waste management system; and to ensure customer service quality and
any other areas that may be addressed regarding services are being provided with
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Green Waste Services Agreement
adequate quality, efficiency and economy.
Sixty (60) days after receiving notice from City of a Performance Hearing, Contractor
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 costs
and minimize impacts on rates; and (2) any specific plans for provision of changed or
new services by Contractor.
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Green Waste Services Agreement
ARTICLE 10
INDEMNIFICATION, INSURANCE AND BOND
10.1 Indemnification
Contractor shall indemnify and hold harmless City, its officers, Directors, employees, and
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 limited
to, injury to and death of any Person and damage to property, or for contribution or
indemnity claimed by third parties) arising or resulting from and in any way connected
with (1) the negligence or willful misconduct of Contractor, its officers, employees agents
and/or sub Contractors in performing services under this Agreement; (2) the failure of
Contractor, its officers, employees, agents and/or subcontractors to comply in all respects
with the provisions of this Agreement, applicable laws (including, without limitation, the
Environmental Laws) and regulations, and/or applicable permits and licenses; (3) the acts
of Contractor, its officers, employees, agents and/or subcontractors in performing services
under this Agreement for which strict liability is imposed by law (including, without
limitation, the Environmental Laws). Contractor further agrees to and shall, upon
demand of City, at Contractor's sole cost and expense, defend (with attorneys acceptable
to City) the City, its officers, directors, employees, and agents against any claims, actions,
suits or other proceedings, whether judicial, quasi-judicial or administrative in nature,
arising or resulting from any events described in the immediately preceding paragraph.
Contractor's duty to indemnify and defend shall survive the expiration or earlier
termination of this Agreement.
10.2 Landfill Diversion
The Contractor acknowledges that the City has adopted a SRRE which selects Green
Waste Collection and Composting programs as a means of diverting an estimated 6,796
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 be
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, meet
the intent of the City's SRRE and AB 939. Should the Contractor find it necessary to
utilize another method of processing in order to meet the intent of the SRRE and AB 939,
the City shall be given an opportunity to make 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 program
being implemented and/or proposed under this Agreement is ineffective in meeting the
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Green Waste Services Agreement
City's diversion goals and objectives. Upon termination, the Contractor shall be entitled
only to revenues less expenses incurred to that date. All revenues received thereafter shall
be the property of the City unless otherwise agreed.
10.3 AB 939 Indemnification
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 California
Integrated Waste Management Board in the event the source reduction and recycling
goals or any other requirement of AB 939 are not met by City with respect to the waste
stream Collected under this Agreement and such failure is due in substantial part to the
failure of Contractor to meet its obligations under this Agreement or for delays in
providing information that prevents City from submitting reports required by AB 939 in a
timely manner.
10.4 Insurance
A. Minimum Limits of Insurance. Contractor shall maintain limits no less than:
1. Comprehensive General Liability: One Million Dollars ($1,000,000) combined
single limit per occurrence for bodily injury, Personal injury and property damage.
2. Automobile Liability: One Million Dollars ($1,000,000) combined single limit
per accident for bodily injury and property damage.
3. Workers' Compensation and Employers Liability: Workers' compensation
limits as required by the Labor Code of the State of California and Employers
Liability limits of $1,000,000 per accident.
B. Deductibles and Self - Insured Retentions. Any deductibles or self- insured retentions
must be declared to and approved by the City. At the option of the City, either: the
insurer shall reduce or eliminate such deductibles or self- insured retentions as respects the
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 Coverages
a) The City, its officials, employees, directors, and volunteers are to be covered as
insured as respects: liability arising out of activities performed by or on behalf of
Contractor; products and completed operations of Contractor; Premises owned,
leased or used by Contractor; or automobiles owned, leased, hired or borrowed by
Contractor. The coverage shall contain no special limitations on the scope of
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, its
officials, directors, employees and volunteers. Any insurance or self- insurance
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 affect
coverage provided to City, its officials, employees or volunteers.
d) Coverage shall state that Contractor's insurance shall apply separately to each
insured against whom claim is made or suit is brought, except with respect to the
limits of the insurer's liability.
2. Workers' Compensation and Employers Liability Coverage - The insurer shall
agree to waive all rights of subrogation against City, its officials, employees and
volunteers for losses arising from work performed by Contractor for City.
3. All Coverages - Each insurance policy required by this clause shall be endorsed
to state that coverage shall not be suspended, voided, canceled by either party,
reduced in coverage or limits except after thirty (30) days prior written notice by
certified mail, return receipt requested, has been given to City.
D. Acceptability of Insurers. The insurance policies required by this Section shall
be issued by an insurance contractor or companies admitted to do business in the
State of California subject to the jurisdiction of the California Insurance
Commissioner and with a rating in the most recent edition of Best's Insurance
Reports of size category VII or larger and a rating classification of A or better.
E. Verification of Coverage. Contractor shall furnish City with certificates of
.insurance and with original endorsements affecting coverage required by this
clause. The certificates and endorsements for each insurance policy are to be
signed by a Person authorized by that insurer to bind coverage on its behalf. The
certificates and endorsements are to be 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 insurance
policies, at any time.
10.5 Faithful Performance Bond
Simultaneously with the execution of this Agreement, Contractor shall file with City
surety bond, payable to City, securing Contractor's faithful performance of its obligations
under this Agreement. The bond shall be in the amount of 125% of the total annual
contract price guaranteeing the faithful performance of the contract, including any
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Green Waste Services Agreement
attorney's fees or other collection costs.
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Green Waste Services Agreement
ARTICLE 11
CITY'S RIGHT TO PERFORM SERVICE
11.1
General
In the event that Contractor, for any reason whatsoever, fails, refuses or is unable to
Collect, transport or process any or all green waste materials which it is required by this
Agreement to Collect and process, at the time and in the manner provided in this
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 for
such a time that the City Administrative Officer should find that such accumulation
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 Contractor
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 other
personnel without liability to Contractor; and/or (2) to take possession of any or all of
Contractor's land, equipment and other property to Collect, transport or process any Green
Waste generated within the City which Contractor would otherwise be obligated to
Collect, transport, process or market pursuant to this Agreement. In the event the City
takes possession of the Contractor's equipment and other property, the City shall be
entitled to have another contractor operate such equipment and property under City
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 problems
with equipment and facilities.
Notice of Contractor's failure, refusal or neglect to Collect, transport or process Green
Waste may be given orally by telephone to Contractor at its principal office and shall be
effective immediately. Written confirmation of such oral notification shall be sent to
Contractor within twenty -four (24) hours of the oral notification.
Contractor further agrees that in such event:
O It will take direction from City to effect the transfer of possession of property to City
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.
0 City may immediately engage all or any personnel necessary or useful for the
Collection, transportation and processing Green Waste, including, if City so desires,
employees previously or then employed by Contractor, Contractor further agrees, if City
so requests, to furnish City the services of any or all management or office personnel
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Green Waste Services Agreement
employed by Contractor whose services are necessary or useful for Green Waste
Collection, Transportation and processing operations and for the billing and collection of
fees for these services.
City agrees that it assumes complete responsibility for the proper and normal use of such
equipment and facilities while in its possession.
If the interruption or discontinuance in service is caused by any of the reasons listed in
Section 12.4 (Excuse From Performance), City shall pay to Contractor the reasonable
rental value of the equipment and facilities, possession of which is taken by City, for the
period of City's possession, if any, which extends beyond the period of time for which
Contractor has rendered bills in advance of service.
Except as otherwise expressly provided in the previous paragraph, City's exercise of its
rights under this Article 11 (1) does not constitute a taking of private property for which
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 Article
10, Indemnification, Insurance and Bond, which are meant to extend to circumstances
arising under this Section, provided that Contractor is not required to indemnify City
against claims and damages arising from the sole negligence of City officers, employees
and agents in the operation of Collection vehicles during the time City has taken
possession of such vehicles.
11.2 Temporary Possession of Contractor's Property
If the City suffers an interruption or discontinuance of service as described in Section
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 provision
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 City During City's Possession
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 City
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 as
would otherwise be required of Contractor under the Terms of this Agreement. Such
reimbursement shall be made from time to time after submission By City to Contractor of
each statement listing such costs and expenses, but in no event later than five (5) working
days from and after each such submission. The City shall have the right, at its sole
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Green Waste Services Agreement
discretion, to take over billing and payment collection activities. The City shall then pay
any net revenues to the Contractor, after deducting all expenses, including City - incurred
expenses.
11.4 City's Right to Relinquish Possession
It is further mutually agreed that City may at any time at its discretion relinquish
possession of any or all of the above - mentioned property to Contractor and thereupon
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 City's Possession
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 longer
reasonably requires such facilities or equipment. In any case, City has no obligation to
maintain possession of Contractor's property and/or continue its use for any period of
time and may at any time, in its sole discretion, relinquish possession to Contractor.
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Green Waste Services Agreement
ARTICLE 12
DEFAULT, REMEDIES AND LIQUIDATED DAMAGES
12.1 Events of Default
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 deceit
upon city.
B. Insolvency or Bankruptcy. If Contractor becomes insolvent, unable, or unwilling to
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 this
contract for the benefit of its creditors.
C. Failure to Maintain Coverage. If Contractor fails to provide or maintain in full force
and effect the Workers' Compensation, liability, indemnification coverage or any
insurance coverage or bond required under this Agreement.
D. Violations of Regulation. If Contractor facilities fall out of full regulatory
compliance or if Contractor violates any orders or filings of any regulatory body having
jurisdiction over Contractor relative to this Agreement, provided that Contractor may
contest any such orders or filings by appropriate proceedings conducted in good faith, in
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 required
under this Agreement for a period of two (2) days or more, for any reason within the
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 for
in the Agreement.
G. Acts or Omissions. Any other act or omission by Contractor which violates the
terms, conditions, or requirements of this Agreement, the California Integrated Waste
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 remedied
within the time set in the written notice the violation or, if Contractor cannot reasonably
correct or remedy the breach within the time set forth in such notice, if Contractor should
Green Waste Services Agreement
fail to commence to correct or remedy such violation within the time set forth in such
notice and diligently effect such correction or remedy thereafter.
H. False or Misleading Statements. Any representation or disclosure made to City by
Contractor in connection with or as an inducement to entering into this Agreement, or any
future amendment to this Agreement, which proves to be false or misleading in any
material respect as of the time such representation or disclosure is made, whether or not
any such representation or disclosure appears as part of this Agreement.
I. Attachment. There is a.seizure of attachment of, or levy on, the operating equipment
of Contractor, including without limits its equipment, maintenance or office facilities, or
any part thereof.
J. Suspension or Termination of Service. There is any termination or suspension of the
transaction of business by Contractor, including without limit, due to labor unrest
including strike, work stoppage or slowdown, sickout, picketing, or other concerted job
action lasting more than two (2) days.
Upon default by the Contractor, the City Administrative Officer shall provide written
notice to Contractor of the violation. The City Administrative Officer shall include in the
notice, a demand that the Contractor correct the violation within 10 days following the
delivery of said notice. If the violation is not corrected within the 10 days, the City shall
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" shall
mean calendar days.
12.2 Right to Terminate Upon Default
Upon a default by Contractor, City shall have the right to terminate this Agreement upon
a ten (10) days notice if the public health or safety is threatened, or otherwise a thirty (30)
days notice, but without the need for any hearing, suit or legal action. This right of
termination is in addition to any other rights of City upon a failure of Contractor to
perform its obligations under this Agreement.
City's right to terminate this Agreement and to take possession of Contractor's equipment
and facilities are not exclusive, and City's termination of this Agreement shall not
constitute an election of remedies. Instead, they shall be in addition to any and all other
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 granted
by City to Contractor, the remedy of damages for a breach hereof by Contractor is
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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 this
Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of
damages which shall be incurred by City as a result of a breach by Contractor of its
obligations under this Agreement.
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Green Waste Services Agreement
B. Service Performance Standards; Liquidated Damages for Failure to Meet
Standards. The parties acknowledge that consistent, reliable Green Waste service is of
utmost importance to City and that city has considered and relied on Contractor's
representations as to its quality of service commitment in awarding the Agreement to it.
The parties further recognize that some quantified standards of performance are necessary
and appropriate to ensure consistent and reliable service and performance. The parties
further recognize that if Contractor fails to achieve the performance standards defined in
this Section, comply with complaint resolution criteria, or fails to submit required
documents in a timely manner, City and its residents will suffer damages and that it is and
will be impractical and extremely difficult to ascertain and determine the exact amount of
damages which City will suffer. Therefore, without prejudice to City's right to treat such
non - performance as an event of default under this Article 12, the parties agree that the
following liquidated damage amounts represent a reasonable estimate of the amount of
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 could
be anticipated and the anticipation that proof of actual damages would be costly or
inconvenient. Recognizing the importance of resolving any failure to meet the service
performance standard, the City shall contact Contractor within two (2) days of any failing
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 Quality
0 For each failure over five (5) annually to commence service to
a new customer account within seven (7) days after order: $150.00
o For each failure over ten (10) annually to Collect Green Waste,
which as been properly set out for Collection, from
an established customer account on the scheduled Collection day: $150.00
O For each failure to Collect Green Waste which have
been properly set out for Collection, from the same customer on
two (2) consecutive scheduled pickup days: $150.00
0 For each occurrence over five (5) annually of damage to private
property: $250.00
O For each occurrence of discourteous behavior: $250.00
O For each failure over ten (10) annually to clean up Green waste spilled from Bins:
$150.00
O For each occurrence over five (5) annually of Collecting
Green Waste during unauthorized hours: $250.00
o For each failure to respond to a customer complaint within
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Green Waste Services Agreement
twenty -four (24) working hours:
EAN
$100.00
Green Waste Services Agreement
Timeliness of Submissions to City
REPORTS Any report shall be considered late until such time as a correct and
complete report is received by City. For each calendar 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 events
giving rise to liquidated damages through the observation of its own employees or
representative or investigation of customer complaints.
Prior to assessing liquidated damages, City shall give Contractor notice of its intention to
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 the
possession of City relating to incident(s) /non - performance. Contractor may, within ten
(10) days after receiving the notice, request a meeting with City. If a meeting is
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 and
others relevant to the incident(s) /non performance. The City Administrative Officer or
designee will provide Contractor with a written explanation of his or her determination on
each incident(s) /non - performance prior to authorizing the assessment of liquidated
damages. The decision of the City Administrative Officer or designee shall be final.
C. Amount. The City Administrative Officer may assess liquidated damages for each
calendar day or event, as appropriate, that Contractor is determined to be liable in
accordance with this Agreement.
D. Timing of Payment. Contractor shall pay any liquidated damages assessed by City
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 or
order the termination of this Agreement, or both pursuant to the terms of this Agreement.
12.4 Excuse from Performance
The parties shall be excused from performing their respective obligations hereunder in the
event they are prevented from so performing by reason of floods, earthquakes, other "acts
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 of
the party claiming excuse from performance hereunder. Labor unrest, including but not
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Green Waste Services Agreement
limited to strike, work stoppage or slowdown, sick -out, picketing, or other concerted job
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 continue
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 party
has notice of such cause, give the other party notice of the facts constituting such cause
and asserting its claim to excuse under this Section.
The interruption or discontinuance of Contractor's services caused by one or more of the
events excused shall not constitute a default by Contractor under this Agreement.
Notwithstanding the foregoing, however, if Contractor is excused from performing its
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 the
excuse from performance was granted. After such review, if the City determines the
excuse from service is no longer valid, the City shall notify the Contractor in writing to
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 terminate
this Agreement by giving ten (10) days notice, in which case the provisions relative to
taking possession of Contractor's land, equipment and other property and engaging
Contractor's personnel in Article 11, City's Right to Perform Services, and this Article 12
shall apply.
12.5 Financial Material Errors, Omissions or Irregularities
The City may review, test and audit the books and records of the Contractor for the
purpose of determining whether the contractor is complying with the terms of the
Agreement. In the event that material errors or omissions or irregularities are identified,
then the cost associated with the audit, test or review shall be paid by the Contractor to
the City. In the case of financial errors, materiality shall be deemed to be two percent
(2 %) or greater of the gross revenues of the Contractor from activities performed under
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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