HomeMy WebLinkAbout2007-030 Atascadero Waste Alternatives AMENDED AND RESTATED SOLID WASTE COLLECTION
FRANCHISE AGREEMENT
This Amended and Restated Solid Waste Collection Franchise Agreement (this
"Agreement") is entered into on the 27th day of November, 2007 by and between the City of
Atascadero, a political subdivision of the State of California ("City") and U.S.A. Waste of
California, Inc., d/b/a Atascadero Waste Alternatives, a Delaware corporation ("Contractor") for
Contractor to provide garbage, recycling and greenwaste services within the incorporated limits of
City.
RECITALS
WHEREAS the City and Contractor are parties to that certain Solid Waste Franchise
Agreement (the "Prior Agreement") dated May 1, 1996, which was approved by a Resolution of the
City Council; and
WHEREAS the City and Contractor have entered into three subsequent amendments,
modifying certain provisions of the Prior Agreement, and adding certain disposni and processing
requirements; and
WHEREAS City and Contractor now desire to further amend and restate, in its entirety,
the Prior Agreement, as set forth herein; and
WHEREAS 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 Recyclable Materials handling
within their jurisdictions; and
WHEREAS the separate Collection, processing and marketing of Recyclable Materials for
beneficial reuse or Recycling was selected in the City's Source Reduction and Recycling Element
adopted in 1994, hereinafter referred to as the SRRE, as a means of meeting the 1995 and 2000
State mandated diversion goals of AB 939; and
WHEREAS the City has determined that an Agreement granted to a private company for
the Collection, processing and marketing of commercial and residential Recyclable Materials is the
most effective and efficient way to collect and divert commercial and residential Recyclable
Materials within the City; and
WHEREAS the City declares its intention of maintaining reasonable rates and high quality
service for Garbage Service and the Collection, processing, and marketing of Recyclable Materials;
and
WHEREAS the Contractor is responsible for arranging for commercial and residential
Recyclable Materials Collection, processing and marketing services; and
WHEREAS this Agreement has been developed by and is satisfactory to the parties.
NOW, THEREFORE, for and in consideration of the mutual promises herein contained,
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 1
the adequacy of which is hereby acknowledged, it is hereby agreed by and between the City and
Contractor as follows:
ARTICLE 1
DEFINITIONS
1.1 "AB 939" means the California Integrated Waste Management Act of 1989, as it may be
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 Contractor 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(x) 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(x), 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 residential and commercial Amended and Restated Solid Waste
Collection Franchise Agreement (including all exhibits and attachments, and any
amendments thereto) between City and Contractor.
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,
§40000 et. seq.
1.6 "City" means the City of Atascadero, a political subdivision of the State of California, 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 Manager.
1.7 "Collect" or "Collection" means to take physical possession, transport, and remove Garbage
and Recyclable Materials within and from the City.
1.8.1 "Commercially Generated Recyclable Materials" means Recyclable Materials generated at
commercial, governmental and/or industrial property and separated by the Waste
Generator for Collection.
1.9 "Container" means any waste wheeler can or bin used for Collection and storing of
Garbage or Recyclable Materials before removal.
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 2
1.10 "Contractor' means, USA Waste of California, Inc., d/b/a Atascadero Waste Alternatives,
and its officers, directors, employees, agents, companies and subcontractors where
applicable.
1.11 "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 seq.; the Resource
Conservation and Recovery Act, 42 USC 6901 et seq.; the Federal Clean Water Act, 33
USC 1251 et seq.; the Toxic Substances Control Act, 15 USC 2601 et seq.; the
Occupational Safety and Health Act, 29 USC 651 et seci., the California Hazardous Waste
Control Law, California Health and Safety Code §25100 et seq.; the California Hazardous
Substances Account Act, California Health and Safety Code §25300 et seq.; the Safe
Drinking Water and Toxic Enforcement Act, California Health and Safety Code §25249.5
et 5g_q.; currently in force and as hereinafter amended, and all rules and regulations
promulgated there tinder.
1.12 "Facility" means any plant or site, owned or leased and maintained and/or operated or
used by Contractor for the purposes of performing the duties to fulfill this Agreement.
1.13 "Fiscal Year" means the period commencing January 1 and concluding December 31.
1.14 "Force Majeure" see section 12.4 for definition.
1.15 "Garbage" means solid waste comprised of rubbish, trash and refuse.
1.16 "Gross Revenues Collected" means any and all revenue or compensation actually collected
by Contractor from customers under this Agreement for the exclusive collection,
transportation, processing, recycling and disposal of Solid Waste, Recyclables, and Green
Waste within the City, in accordance with Generally Accepted Accounting Principals
(GAAP), net of Franchise Fees and AB 939 fees. The term Gross Revenues, for purposes
of this Agreement, shall not include any: a) City, or other federal, state, or local taxes or
surcharges; b) any customer late fees, NSF charges, interest, or reactivation charges; or c)
any revenues generated from the sale of Recyclables or any recycling rebates received from
the State.
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 Section 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 or Recyclable
Materials are sorted, processed, transferred or separated for the purposes of Recycling or
reuse.
1.19 "Multifamily 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
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 3
Premises to which solid 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 by-products or discards set aside, handled, packaged or
offered for Collection from residential, commercial, governmental or industrial customers
in a manner different from Solid Waste. Including, but not limited to, aluminum,
newspaper, clear and colored glass, tin and bi-metal, all plastic containers, cardboard,
chipboard, magazines, mixed paper (including magazines, phone books and junk mail) and
motor oil and filters (separately collected). Greenwaste material is included in this
definition, but is collected separately from other Recyclable Materials, and includes grass
clippings, leaves, weeds, brush, wood, Christmas Trees and branches.
1.24 'Recycling" means the process of separating for Collection, Collecting, treating and/or
reconstituting Recyclable Materials 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
Recyclable Materials not intended for, or capable of, reuse is not Recycling.
1.25 'Related Party Entity" means any Affiliate that has financial transactions with Contractor.
1.26 "Residential Recyclable Materials" means Recyclable Materials generated at Single Family
Dwelling Units and separated by the Waste Generator for Collection.
1.27 "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.
1.28 "Solid Waste" means all putrescible and non-putrescible refuse, garbage, rubbish, and
Recyclable Materials, and as otherwise defined in Public Resources Code §40191.
1.29 "Term" means the term of this Agreement, as provided for in Article 3.
1.30 "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.
1.31 "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.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF CONTRACTOR
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 4
2.1 Contractor Status
Contractor shall be an independent contractor and not an agent or employee of the City.
2.2 Contractor Authorization
Contractor has the authority to enter into and perform its obligations under this
Agreement. The Board of Directors and 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.
2.3 Compliance With Laws and Regulations
Contractor shall comply with all existing and future City, county, state, and federal laws,
including all Environmental Laws.
2.4 Grant and Acceptance of Agreement
Subject to Article 3.4 (Conditions of the Effectiveness of Agreement), City hereby grants to
Contractor the exclusive right and privilege to collect and dispose all Solid Wastes
generated and/or accumulated within City.
Subject to Article 4.2 City also hereby grants to Contractor the exclusive right and privilege
to collect Recyclable Materials including greenwaste generated and/or accumulated at
Single Family and Multi-family dwelling units in the City and Commercially Generated
Recyclable Materials including greenwaste that are offered for Collection to Contractor in
accordance with this Agreement.
Contractor shall perform all duties required under this Agreement in accordance with all
applicable current and future federal, state, and local laws and regulations at rates
established by this Agreement and by City pursuant to the procedures set forth herein. For
purposes of this Agreement, said laws, rules, and regulations shall include but not be
limited to any policy, resolution, or ordinance adopted by a duly constituted governing
body of a public agency, including joint powers authorities and districts.
Contractor hereby accepts the Agreement on the terms and conditions set forth in this
Agreement.
2.5 Serve Without Interruption
Contractor shall perform all duties throughout the term of this Agreement without
interruption.
2.6 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. In addition, any property owned or used
by the Contractor in Atascadero shall be kept in a clean and orderly condition consistent
with industry standard and the trucking yard located at 7675 San Luis Avenue shall not be
used to store or transfer solid waste or recyclables without the approval of Atascadero.
2.7 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 directly caused by
Contractor.
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 5
ARTICLE 3
TERM OF AGREEMENT
3.1 Effective Date
The effective date of this Agreement shall be January 1, 2008 (the "Effective Date").
3.2 Term of Agreement
The term of this Agreement shall be seven (7) years commencing on the Effective Date and
expiring seven years thereafter, unless extended by the parties as provided in Article 3.3
(Option to Extend).
In the event of a change of law which would render the collection and disposal services to
be implemented under this Agreement 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.
3.3 Option to Extend
The City shall have the sole option to extend this Agreement up to 36 months in periods
of at least twelve (12) months each. If City elects to exercise this option, it shall give
written notice not later than one hundred eighty (180) 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. The terms and conditions of this Agreement shall be
applicable during said extension option unless the parties mutually agree upon any
changes.
3.4 Conditions to Effectiveness of Agreement
The obligation of City to permit this Agreement to become effective and to perform its
undertakings provided for in this Agreement is subject to the satisfaction of each and all of
the conditions set out 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 Performance Bond. At least 30 (thirty) calendar
days before the effective date of the Agreement, the Contractor shall provide proof
of insurance in the form, coverages, and amounts specified in Article D of these
specifications and the performance bond set forth in Section 10.5.
D. Effectiveness of City Council Action. The City's approving this Agreement shall
become effective pursuant to California law on or prior to the effective date of this
Agreement.
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 6
ARTICLE 4
SCOPE OF AGREEMENT
4.1 Scope of Agreement
Subject to Article 4.2 (Limitations to Scope), the Agreement granted to Contractor shall be
exclusive for Solid Waste, Recyclable Materials, and greenwaste, except where otherwise
precluded by law. This Agreement does not include construction and demolition debris,
however, the City reserves the right to add construction and demolition debris, at its
discretion, at some point in the future.
4.2 Limitations to Scope
The Agreement for the Collection, processing and marketing of Recyclable Materials
granted to Contractor shall be exclusive except as to the following categories of Recyclable
Materials listed in this Article. The granting of this Agreement shall not preclude the
categories of Recyclable Materials 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 that is
otherwise required by law:
A. Recyclable Materials separated from Solid Waste by the Waste Generator and for
which Waste Generator sells or is otherwise compensated by a collector in a
manner resulting in a net payment to the Waste Generator for such Recycling or
related services.
B. Recyclable Materials donated to a charitable, environmental or other non-profit
organization.
C. Recyclable Materials which are separated at any Premises and which are transported
by the owner or occupant of such Premises (or by his/her hill-time employee) to a
recycling center;
D. Other Governmental Agencies within the City which can contract for separate solid
waste and recycling services; and,
E. The City may contract with third parties to process and market Recyclable Materials
and may direct the Contractor to deliver Recyclable Materials collected by the
Contractor under this Agreement to such third parties for processing.
This Agreement to Collect, transport, process, and market Recyclable Materials 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 to Recyclable Materials handling, Recyclable Materials
flow control, and related doctrines. In the event that changes in law limit the ability of the
City to lawfully provide for the scope of services as specifically set forth herein, Contractor
and City agree to work in good faith to amend the scope of the Agreement so as to comply
with such changes in law, and 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 Manager or his designee shall administer this Agreement and shall supervise
Contractor compliance with the Agreement terms and conditions.
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 7
4.4 Use of City Streets
Contractor shall have the right and privilege to operate Collection vehicles and equipment
on any and all streets, public ways, rights-of-way, or easements of the City.
4.5 City Request to Direct Chances
4.5.1 General
City may request Contractor to perform additional services (including new diversion
programs, etc.) or modify the manner in which it performs existing services. Pilot
programs and innovative services that may entail new Collection methods, different kinds
of services and/or new requirements for Waste Generators are included among the kinds
of changes that 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 Article 4.5.2. Contractor shall be entitled to an adjustment in its
compensation in accordance with Article 8.9 (Extraordinary Adjustments), for providing
such additional or modified services.
4.5.2 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 or other services. The proposal shall contain a complete
description of the following:
a. Collection methodology to be employed (equipment, manpower, etc.)
b. Equipment to be utilized (vehicle number, types, capacity, age, etc.).
c. Labor requirements (number of employees by classification).
d. Type of Containers to be utilized.
e. Provision for program publicity/education/marketing.
f. Materials Recovery Facility to be utilized for diversion and/or recovery of materials.
g. 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.
4.5.3 City's Right to Acquire Services
If pursuant to Article 4.5.2 (New Diversion Programs), Contractor and City cannot agree
on terms and conditions of such new 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 Ownership of Garbage and Recyclable Materials
All Solid Waste Collected, removed, and transported by Contractor from the Premises
where produced, generated, and/or accumulated pursuant to this Agreement shall be the
property and responsibility of Contractor. Notwithstanding the foregoing, Contractor
shall have no duty or obligation to collect any Hazardous Waste or other material that does
not meet the definition of Solid Waste, and ownership of all such non-conforming
materials shall remain with the Waste Generator.
Once Recyclable Materials are 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
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 8
retain, recycle, process, reuse, and otherwise use such Recyclable Materials 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 or reuse the
Recyclable Materials that it Collects. Recyclable Materials or any part thereof, which are
delivered to a Facility (processing 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.
The Parties acknowledge that City has the right to direct Contractor to deliver Recyclable
Materials including greenwaste Collected by Contractor to a third party for processing,
marketing and sale. On June 1, 2004 the City entered into a non-exclusive agreement with
North San Luis Obispo County Inc. to process and market Recyclable Materials Collected
by the Contractor in the City for a 10 year period ( the "Third Party Processing
Agreement"). Separated cardboard collected from commercial customers in the City is not
included in the Third Party Processing Agreement. For as long as this Third Party
Processing Agreement remains in force, the City acknowledges and agrees that it shall
require North San Luis Obispo County, Inc., to comply with all relevant terms and
conditions of this Agreement and to ensure the proper handling and diversion of
Recyclables by North San Luis Obispo County, Inc.
4.7 City's Right To Perform Service; Tagging of Improper Set-Outs
In the event Contractor fails to Collect, remove, and dispose of Garbage or Recyclable
Material on a customer's regularly scheduled Collection day, within twenty-four (24) hours
of a request from City or a customer to do so, City may collect said materials and
Contractor shall be liable for all related expenses incurred by City. Such expenses include
but are not limited to disposal, administrative, and legal costs. Contractor shall reimburse
City for such expenses as required.
In the event Contractor does not Collect any item or Container of Solid Waste, Recyclable
Materials or greenwaste material due to a customer's non-compliance with rules and
regulations for proper set-out, if possible Contractor shall attach a tag securely to the item
or container not Collected specifying the reasons for non-collection. The tag shall contain
Contractor's name and telephone number.
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, as set forth in this Agreement. 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 and businesses within the City are
provided reliable, courteous and high-quality Garbage and Recycling Collection services 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
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 9
the manner provided in this Article, whether such aspects are enumerated elsewhere in the
Agreement or not.
5.2 Garbage, Recycling and Greenwaste Services
Contractor shall provide weekly Collection of Garbage for all places and Premises within
City, or such other level of service as may be determined by City with the consent of
Contractor and at rates established by this Agreement. Contractor shall provide more
frequent Collection services at rates established by this Agreement for those Premises
within the City that generate larger volumes of Solid Waste.
Contractor shall Collect and remove all Recyclable Materials and greenwaste placed in
Containers (one Container for all commingled Recyclable Materials and a second
Container for greenwaste) at the designated Collection locations for Single Family
Dwelling Units and Multifamily Dwelling Units and shall also collect and remove all
Commercially Generated Recyclable Materials including greenwaste, all at the rates
established by this Agreement. Residential Recyclable Material and greenwaste Collection
shall be weekly on the same day of the week as Garbage Collection service. Commercially
Generated Recyclable Materials Collection shall be on a schedule as determined by
Contractor and the Waste Generator.
5.3 Recyclable Materials To Be Collected
Materials to be collected are to include but not be limited to: newspaper, aluminum, tin
and bi-metal cans, clear and colored glass containers, all plastic containers, corrugated
cardboard, mixed paper (including white and colored ledger paper, chipboard, junk mail,
magazines and phone books) and motor oil and filter (which shall be collected separate
from the Recycling Container). In addition greenwaste will also be Collected in a
separate Container.
5.4 Refusal to Provide Collection Services
Contractor may refuse to Collect Recyclable Materials or greenwaste and shall not be
obligated to continue to provide Container(s) to any participant in the Recycling or
greenwaste program who, after reasonable warning by Contractor, fails to properly sort and
set out Recyclable Materials or greenwaste, including excessive contamination. Contractor
shall report monthly to City any warning notices issued.
5.5 Marketing and Sale of Recyclable Materials
Contractor shall be responsible for the marketing and sale of all Recyclable Materials
including greenwaste Collected pursuant to this Agreement. Revenues from the sales of
these materials shall be retained by Contractor. The Parties acknowledge that the City has
a right to direct the Contractor to deliver Recyclable Materials including greenwaste
collected by the Contractor under this Agreement to a third party for processing,
marketing and sale.
5.6 Operations
5.6.1 Schedules
To preserve peace and quiet, no Garbage, Recyclable Materials including greenwaste shall
be Collected from or within two-hundred (200) feet of residential Premises between 5:00
P.M. and 6:00 A.M. on any day. Residential Garbage, Recyclable Materials including
greenwaste shall be Collected, Monday through Friday on the same day. The one
exception is the Contractor may elect to collect motor oil and filters with a separate vehicle
using an on-call program. When the regularly scheduled Collection day falls on a holiday,
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 10
Collection shall take place on the following regularly scheduled Collection day. In the
event the Contractor misses the Collection of properly set out Garbage, Recyclables, or
greenwaste the Contractor shall collect the missed pickups within one (1) business day of
notification.
5.6.2 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 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.
B. Specifications. All vehicles used by Contractor in providing Garbage, Recyclable
Materials, and greenwaste 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, including all applicable air emissions requirements, and shall be
registered with the California Department of Motor Vehicles. All such vehicles shall have
watertight 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. The Contractor will, in good faith, consider
incorporating LNG trucks into its Collection fleet, to the extent practicable, and if such
new trucks require an additional capital investment, the Parties shall work in good faith to
negotiate an adjustment to Contractor's rates to account for such LNG trucks.
C. Condition
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
approved by the City.
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
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007)Page 11
weight restrictions on vehicles.
5.6.3 Garbage, Recycling and Greenwaste Containers
Contractor shall supply each Single Family Dwelling Unit with a 32, 64 or 96 gallon
Container for Garbage. The monthly service fee for each size Container is shown in
Exhibit A. In addition each Single Family Dwelling Unit will receive from Contractor a
96-gallon Container for all commingled Recyclable Materials except greenwaste and a 96-
gallon Container for greenwaste. If requested by customer, Contractor shall provide to the
customer either a 32 gallon or a 64 gallon Recyclable and/or greenwaste Container,
however the default Container size unless requested otherwise shall be 96 gallons.
Contractor shall supply each multi-family complex and commercial or governmental agency
with appropriately sized Containers for Garbage, commingled Recyclables and Greenwaste.
Contractor agrees to provide additional Containers, as requested, by all Persons at the
rental rate as shown on Exhibit A. Contractor agrees not to limit the specific type of
Recyclable Material (Stich as cardboard only) that can be placed in a Container unless
approved by the City on a customer by customer basis.
For both residential and commercial customers, all garbage Containers shall be grey, all
Recyclable Materials Containers shall be blue and all greenwaste Containers shall be green.
Within the first 12 months of this Agreement, Contractor shall replace any existing
Container that is not the proper color with a Containers that is the proper color that is
either a new Container or a Container that is in the existing Contractor's inventory.
Notwithstanding the foregoing 12 month timetable, Contractor agrees to use good faith
efforts to replace such containers within the first 9 months of this Agreement. Containers
for Recyclable Materials shall include an in molded graphic or sticker which provides
instructions to the Waste Generator. The final color and signage, including the in molded
graphic or sticker on the Containers shall be approved by the City.
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 time
Containers may be stolen from the curb or damaged due to normal use. The fee schedule
to replace lost or damaged Containers is shown on Exhibit A.
All Contractor supplied Containers for Garbage, Recyclables, and Greenwaste shall remain
the property of Contractor. Containers damaged due to lack of reasonable care by the
customer, or Containers damaged by graffiti may be replaced by Contractor, the fee for
which shall be the same as for lost or damaged Containers as set forth on Exhibit A.
Contractor may recover Containers used by customers for other than their intended
purpose.
5.6.4 Litter Abatement
Contractor shall use due care to prevent Garbage or Recyclable Materials from being
spilled or scattered during the Collection or transportation process. If any Garbage or
Recyclable Materials are spilled during Collection, Contractor shall promptly clean tip all
spilled materials. Each Collection vehicle shall carry a broom, shovel and oil spill kit at all
times for this purpose.
5.6.5 Personnel
A. General. Contractor shall furnish Stich qualified drivers, mechanical, supervisory,
clerical, and other personnel as may be necessary to provide services required by this
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 12
Agreement in a safe and efficient manner. If the City adopts a living wage ordinance, the
Contractor agrees to voluntarily comply with the ordinance.
B. Identification. Contractor shall ensure that while on duty each Collection worker
wears a clean uniform that displays the Contractor's company name and the worker's name
or identification number.
C. Fees & Gratuities. Contractor shall not, nor shall it permit any agent, employee, or
subcontractors employed by it to request, solicit, demand, or accept, either directly or
indirectly any compensation or gratuity for any 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 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.
5.7 Disposal Requirements
A) Contractor shall dispose of all Solid Waste and Recyclable Materials Collected
under this Agreement at Contractor's own expense and in accordance with all Federal,
State and local laws, rules, and regulations. Contractor shall be responsible for securing an
appropriate location for disposal of all Solid Waste and processing of all Recyclable
Materials Collected by Contractor pursuant to this Agreement.
B) Contractor shall secure within 90 days of the effective date of this Agreement,
sufficient disposal site capacity commitment including landfill disposal site capacity to
adequately serve the reasonable anticipated Garbage disposal needs of Contractor's
customers. City reserves the right to review said disposal capacity commitments.
C) If Contractor receives notice from the landfill operator or recyclables processor or
otherwise finds, during the term of the Agreement, to be prevented from delivering
Garbage to the designated site, Contractor shall immediately notify, in writing, the City
Manager, stating the reason(s) Contractor is prevented, or expects to be prevented, from
delivering Garbage at the designated facility. Contractor shall expeditiously identify and
evaluate alternative sites. An alternative designated site or sites shall be arranged for and
secured by Contractor.
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 13
D) The parties understand and agree that City intends to commence and participate in
waste diversion and resource recovery programs pursuant to regional and/or local
implementation of AB 939, or such other programs as may be established by City.
E) Contractor shall deliver all Garbage to any landfill which collects the San Luis
Obispo County AB 939 Tipping Fee Surcharge and Waste Management Program Fund
Fee, pursuant to County Resolution No. 90-383. If the Contractor delivers Garbage to a
landfill which does not collect the County Tipping Fee Surcharge and Waste Management
Program Fund Fee, the Contractor will make, on a monthly basis, the equivalent payment
directly to the County's Waste Management Tipping Fee -AB 939 Trust Fund #0159 and
Waste Management Tipping Fee Trust-Site Fund # 0160.
F) Payment of the equivalent fees shall be made to County within thirty (30) days after
the end of each calendar month, or prorated portion thereof, in which the Contractor
delivers waste to an alternate facility. In the event that Payment is not received by County
within thirty (30) days after the date specified, then Contractor shall pay a penalty of ten
percent (10%) on the outstanding balance, and Contractor shall also pay to County
interest on the outstanding balance at a rate of ten percent (10%) per annum, or the
maximum legal rate of interest, whichever is greater, from the date of Contractor's failure
to pay.
G) As of March 1, 2007 the Tipping Fee Surcharge for Fund # 0159 is $3.00 per ton
and the Waste Management Program Fund Fee for Fund # 0160 is $0.40 per ton.
Payments made by the Contractor shall be sent to the County Franchise Coordinator
along with an itemized statement regarding how the payment was calculated. Payments
shall be adjusted to reflect any future changes in the amount of these fees.
H) Contractor hereby agrees to dispose of all or a portion of the Solid Waste including
Recyclable Materials collected pursuant to this Agreement in such manner as may be
reasonably designated by City. As of the effective date of this Agreement the City has
entered into an agreement with Chicago Grade Landfill Inc. to dispose of Solid Waste
except for Recyclable Materials Collected by the Contractor from the City. The
Contractor is directed to take all Solid Waste except for Recyclable Materials Collected in
the City to Chicago Grade Landfill until such time as the City may direct otherwise. On
June 1, 2004 the City entered into a non-exclusive agreement with North San Luis Obispo
County Inc. to process and market all Recyclable Materials Collected by the Contractor
(other than source separated cardboard) in the City for a 10 year period. Contractor is
directed to take all Recyclable Material (other than separated cardboard) to North San Luis
Obispo County Inc. until such time as the City may direct otherwise.
I) Contractor may propose, and the City may consider other processing and disposal
alternatives. In the event a different manner of or location for processing or disposal is
selected by the City, then the Parties shall work in good faith to adjust the Contractor's
rates hereunder to reflect any increase or decrease in disposal or processing fees, which
adjustment shall be effective at the time the new designated manner of disposal or
processing begins. City and Contractor will not unreasonably deny any such adjustment.
In the event Contractor receives any additional compensation for the value, if any, of the
Garbage or recyclables disposed in such a manner, such compensation shall be considered
in connection with future rate adjustments.
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007)Page 14
5.8 Cleaning Commercial Bins
Contractor shall steam clean and refurbish all commercial bins at Contractor's own
expense up to once per year upon request. Customers desiring more frequent cleaning
may arrange additional cleaning with Contractor at a rate established by City, including
pick-up, cleaning, and replacement of dumpster.
5.9 Clean-Up Days
Each year throughout the term of this Agreement for a one-day period in the spring and a
one-day period in the fall, Contractor shall collect, on a designated Saturday, at no
additional charge to customers or City all solid wastes delivered to designated sites located
within the City, pursuant to rules as mutually agreed by the parties. Said clean up days
shall be established annually as mutually agreed by the parties. Contractor shall prepare
related public education materials and arrange for publication or broadcasting said
materials. Contractor shall pay all advertising costs for said clean up days.
5.10 Garbage and Recycling Service in Public Areas
The Contractor will provide collection of Garbage Containers and Recyclable Material
Containers from City facilities enumerated and described on Exhibit B.
5.11 Material Processing
5.11.1 Receipt of Recyclable Material Including Greenwaste
The Contractor shall have in place or have made arrangements for a Materials Recovery
Facility or Facilities to receive and accept all deliveries of Recyclable Materials and
greenwaste generated in the City. The Parties acknowledge that the City may direct
Contractor to deliver Recyclable Materials including greenwaste Collected by Contractor
under this Agreement to a third party for processing, marketing, and sale.
5.11.2 Status of Materials Recovery Facility
Any Materials Recovery 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 Materials Recovery Facility must have all permits from federal, state,
regional, county and city agencies necessary for it to operate as a Material Recovery Facility
and must be in full regulatory compliance with all such permits.
The selected Materials Recovery Facility must be authorized to accept, under its existing
permit, and have sufficient uncommitted capacity to accept, all Recyclable Materials
and/or greenwaste delivered to it by, or on behalf of, Contractor for the term of this
Agreement. Contractor shall immediately notify City of any notice of breach or default
received from Materials Recovery Facility.
5.11.3 Alternative Processing Facility
If Contractor becomes unable to deliver the City's Recyclable Materials to the Materials
Recovery Facility due to causes within its control and which could have been avoided by
the exercise of due care, the Contractor shall arrange for it to be accepted at another
Materials Recovery Facility, in which case Contractor shall pay for any increased
transportation costs, any differences in the fees charged at such Materials Recovery Facility
and the fees then in effect under this Agreement. If Contractor's inability to deliver the
City's Recyclable Materials to the Materials Recovery 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 Material Recovery Facilities including all related costs and City
shall have the right to approve the alternative to be used. The City shall pay for the
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 15
increased cost of using an alternative facility.
5.11.4 Disposition of Unauthorized Waste
It is understood that the Contractor is not authorized and is not required hereunder to
collect and transport Hazardous Waste or restricted or other waste that is not acceptable or
permitted for disposal at a transfer station, Material Recovery Facility, or disposal site. In
addition, Contractor shall not be required to collect containers that are not set out or filled
in accordance with, or do not meet Contractor's collection requirements. Regardless of
the reason, when any Solid Waste, Recyclable Material or other material is not collected by
Contractor, Contractor shall leave a tag on the material stating the reasons for
Contractor's refusal to collect the same. Adequate records of the tags shall be maintained
by Contractor and shall be available to the City for inspection upon reasonable notice
during business hours. If Contractor observes any substances which it or its employees
reasonably believe or suspect to contain Hazardous Waste unlawfully disposed of or
released in reportable quantities in the City, including on, in, under or about City
property, including streets, easements, rights of way and City waste containers, Contractor
shall immediately notify the City of the same. If Contractor discovers Hazardous Waste, or
other material that may not be legally accepted, among materials that it has inadvertently
accepted, Contractor may either return such materials to the applicable Waste Generator
or dispose of such waste at its own expense and pursue all legal rights and remedies it may
have against the Waste Generator(s) of such Hazardous Waste, if the Waste Generator(s)
can be identified.
5.12 Disposal
Contractor shall ensure that the residual from the Recyclable Materials delivered to the
Materials Recovery Facility by the Contractor are disposed of at a permitted disposal site in
full regulatory compliance. Monthly residue shall not exceed ten (10) percent of the
monthly Recyclable Materials delivered to the Materials Recovery Facility. If the City
directs Contractor to deliver Recyclable Materials to a third party facility for processing,
then such third party facility shall be responsible for disposal of residual and the processing
requirements as described above and the City shall use its best efforts to enforce such
requirements against the third party processor.
ARTICLE 6
OTHER SERVICES
6.1 Billing and Collection of Charges
Contractor shall be responsible for directly billing and collecting charges due from all
residential and commercial customers at rates established by the Agreement. Contractor
shall bill residential customers bi-monthly in advance and commercial customers monthly
in arrears. The City shall approve the format of the bills sent to customers. The
Contractor may indicate any AB 939 fees or other fees (other than franchise fees) as a
separate line item on customer invoices.
Contractor shall be solely responsible for collecting all delinquent charges pursuant to a
collection method approved by City. City shall not be responsible for paying Contractor
for said delinquent charges, provided, however, City may, at its sole discretion, establish a
method for City to collect said delinquent charges as allowed by law. The City shall render
reasonable cooperation, as requested by Contractor in its attempts to collect delinquent
accounts.
Ataseadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 16
6.2 Accounting
Contractor shall keep a system of books and accounts relating to Contractor's performance
of services under this Agreement in accordance with generally accepted accounting
principles and shall keep all records for a period of at least three (3) years after the
termination of this Agreement.
City and its auditors shall have the right to examine all records and accounts of Contractor
relating to Contractor's performance of services under this Agreement in order to ensure
Contractor's compliance with the terms hereof, Monday through Friday between the hours
of 9:00 a.m. and 5:00 p.m. upon forty eight (48) hours advance notice. In the event that
Contractor requests a base year rate review pursuant to Section 8.3, and if requested by
City, a certified public accountant selected by Contractor shall prepare at Contractor's
expense audited statements of Contractor's financial records or reviewed statements related
to this Agreement. Contractor shall not be required to provide such audit more than once
per year. The scope of the audit shall be as selected by the City.
City reserves the right to perform an independent audit at City's expense of Contractor's
compliance with the franchise fee provisions of this Agreement. In the event there is a
discrepancy of five (5) percent or more between the City's audit and Contractor's actual
payments, Contractor shall reimburse City for the cost of said audit.
6.3 Liaison With City
Contractor shall maintain on-going liaison with City regarding all solid waste management
activities and any matters relating to the performance of this Agreement, including
complaints. Such liaison includes but is not limited to Contractor's attendance at City
Council meetings as requested by the City and at no extra charge to the City.
6.4 Complaints
Contractor shall maintain a record of all written and verbal complaints received, which
shall be provided to City upon request. Said record shall contain at minimum information
as follows, subject to cooperation from the public:
X Name, address, and telephone number of complaining party;
X Name, service address, and telephone number if different than above;
X Description of problem/complaint and related date and time if applicable;
X Date received; and
X Date and description of Contractor's response and action taken.
Complaints received from customers or City shall be acted upon immediately and
Contractor shall make every reasonable effort to resolve said complaints within twenty-four
(24) hours of receipt.
6.5 Office
Contractor shall maintain an office in the City of Atascadero, or such other area as may be
mutually agreed by the parties, at a fixed location where customers may arrange for service
and file complaints. Telephone numbers shall either be a local or a toll free call to
residents and businesses of the City. Contractor shall at all times between 9:00 a.m. and
5:00 p.m., Monday through Friday, except holidays, have qualified personnel with whom
City and members of the public may communicate. During all other hours, Contractor
shall have a representative, answering or message providing/receiving (voice mail) service
available to the public. Contractor's office and telephone shall be open to the public
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 17
during normal business hours.
ARTICLE 7
PAYMENTS TO CITY
7.1 Franchise Fee
Contractor shall pay to City a franchise fee in an amount set by City and collected by
Contractor for services performed under this Agreement, payable monthly on or before the
last business day of the following month. Contractor shall provide to City with each
monthly franchise fee payment a statement of Gross Revenues Collected by Contractor
during the previous month. The initial amount of the franchise fee shall be 10%.
Contractor shall pay a late charge of five (5) percent per month on all franchise fees that
are not paid within thirty(30) days of the date due. The parties agree that such late charges
represent a fair estimate of the City's added administrative expenses caused by such
delinquent payments.
The franchise fee is a pass through expense for purposes of this Agreement, and as such, if
the City changes the franchise fee, the Contractor's rates under this Agreement shall be
adjusted accordingly. The franchise fee shall be included in the rates charged by
Contractor and shall not be separately itemized on bills to Contractor's customers.
7.2 AB 939 Fee
If requested by City, Contractor shall pay an AB 939 fee, to be specified annually by the
City. In addition if the San Luis Obispo County Integrated Waste Management Authority
"IWMA" implements an AB 939 fee Contractor shall pay that fee directly to the IWMA.
All AB 939 fees paid to the City or IWMA shall be considered a pass through cost for
purposes of rate setting, and as such if the City or IWMA changes these fees, the
Contractor's rates shall be adjusted accordingly.
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, and as such if the City adopts or changes these fees, the Contractor's rates shall be
adjusted accordingly.
7.5 Adiustment 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.
7.6 Review of Fee Payments
The City, or its agent, reserves the right to annually perform an independent review of fee
payments at its own expense, to verify that fees are being paid in accordance with
Agreement.
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 18
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 the
established under this Agreement, as may be adjusted from time-to-time. The City and
Contractor, by mutual agreement, may re-structure the rates set forth in this Agreement as
they deem appropriate so long as such re-structuring is revenue neutral to Contractor.
8.2 Collection Rates
Contractor shall provide the Collection, recycling, transportation and disposal services
required under this Agreement for the rates set forth in the Service Rate Schedule attached
hereto and incorporated herein as Exhibit A, as the same may be adjusted in accordance
with this Section.
8.3 CPI Adjustment
Commencing on the one year anniversary of the effective date of this Agreement, and on
the same date annually thereafter (the "Adjustment Date"), the rates set forth in this
Agreement, as adjusted hereunder, shall be automatically adjusted by a percentage equal to
85% of the annual percent change in the Consumer Price Index ("CPI") for All Urban
Consumers - All Items, for the Los Angeles - Riverside - Orange County metropolitan
area (1982.84 = 100) as published by the Bureau of Labor Statistics for the 12-month
period ending September 30. At least thirty (30) days prior to the Adjustment Date,
Contractor shall notify City of the CPI adjustment to take effect on the Adjustment Date
and shall provide City with its computations therefore.
After August 1, 2009, but no more than once every two years, the Contractor may request
a base year rate review. If such review is requested by Contractor, Contractor will use the
guidelines and approach outlined in the City of San Luis Obispo's "Rate Setting Process and
Methodology Manual for Integrated Solid Waste Management Rates". Rates shall be based upon
an operating ratio of 92 percent as defined in the Rate Setting Process and Methodology
Manual for Integrated Solid Waste Management Rates .
8.4 Extraordinary Rate Adiustments
The rates set by this Agreement are calculated to pay certain expenses and costs that are of
a contingent and uncertain nature. Therefore, in addition to the annual rate adjustment
provided by Section 8.3, the rates under this Agreement shall, upon written request of
Contractor or City, be further adjusted on an interim basis for increased or decreased
expenses associated with performance of the services hereunder due to any one or more of
the following causes:
(a) material changes in Contractor's costs resulting from a Force Majeure event;
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007)Page 19
(b) changes to Contractor's operations or the Franchise Fee or other fees required
or initiated by City;
(c) Contractor desires to provide additional new services or the City requests the
Contractor to provide any additional new services, or Contractor desires or the City
requests the Contractor to change the method of providing, or the technology used to
provide, existing services under this Agreement;
(d) any increase or decrease in disposal fees or in fees for the processing of
Recyclable Materials if such Recyclables Materials are being processed at a third party
facility; or
(e) any change in law, statute, rule, regulation, ordinance, order or requirement of
any federal, state, regional or local government that occurs after the Effective Date of this
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: customer services; weight of recyclable materials by type of
materials; weight of garbage; routes; facilities, inventory of equipment and personnel used;
facilities and equipment operations, maintenance and repair; processing, marketing and
sale of recyclable materials including name of the purchaser, the date of sales transaction,
processing cost per ton, quantity purchased, value per ton and net sales records;
complaints; and, missed pick ups. If a third party is designated by the City to perform
processing of Recyclables, then the reporting related to processing and sale of Recyclables
shall be provided to the City and Contractor by such third party, provided, however, that
Contractor shall remain responsible for filing the certification for the City curbside
recycling (CS) program and Contractor shall continue to receive the annual CRV
payments.
Contractor shall maintain records for a period of 3 year past the termination of this
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007)Page 20
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 City shall approve
the format of each report.
Monthly reports shall be submitted within twenty (20) calendar days after the end of the
month being reported. Annual reports shall be submitted before March 30th, for the
previous Fiscal Year.
9.2.2 Monthly Reports
The information listed shall be the minimum reported:
1. Garbage (sorted by type of Generator) and Recyclable Materials collected, in tons,
by month, and cumulative for report year.
2. Complaint summary, for month and cumulative for report year and narrative
summary assessment of problems encountered and actions taken with
recommendations to City for improvement.
3. Number of accounts by category for each month of reporting year.
4. Commercial Recyclable Materials Container distributions.
The City may designate any additional information that it wishes provided in the monthly
reports.
9.2.3 Annual Report
If requested by City, Contractor shall submit an Annual Report is to be essentially in the
form and content of the monthly reports. The annual report shall also include a complete
inventory of equipment used to provide all services.
9.3 Right to Inspect Records
City shall have the right to inspect or review 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 reasonable discretion, necessary to evaluate the services
performed by Contractor under 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 borne by the City.
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.
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 21
ARTICLE 10
INDEMNIFICATION, INSURANCE AND BOND
10.1 Indemnification
Contractor shall indemnify and hold harmless City, its officers, elected officials, 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, elected officials, 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. Nothing in this paragraph, however, shall require Contractor to indemnify or
defend City to the extent any claims or liabilities arise out of the sole negligence or willful
misconduct of City, or the actions or activities of any third party processing facility or third
party disposal facility designated by the City
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 that selects Recycling
programs as a means of diverting waste. It is therefore of foremost importance that the
Recyclable Materials 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. If the City directs Contractor to deliver
Recyclables to a third party for processing, then the foregoing requirements shall be
enforced against such third party processor, rather than Contractor.
10.3 AB 939 Indemnification
Contractor agrees to indemnify and hold harmless City, its officers, elected officials,
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 if such failure is due in substantial part due
to the failure of Contractor to perform its obligations tinder this Agreement or for delays
in providing information that prevents City from submitting reports required by AB 939 in
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007)Page 22
a timely manner. Nothing in this paragraph, however, shall require Contractor to
indemnify or defend City to the extent any claims or liabilities arise out of the sole
negligence or willful misconduct of City, or the actions or activities of any third party
processing facility or third party disposal facility designated by the City.
10.4 Insurance
During the term of this Agreement, Contractor shall carry insurance in accordance with
this Article and such other insurance as required by law. Lack of insurance or inadequate
insurance do not negate the Contractor's obligations under this Agreement. Contractor
agrees that in the event of loss due to any of the perils for which it has agreed to provide
insurance, Contractor shall look solely to its insurance for recovery, except where caused by
the active negligence, sole negligence, or willful misconduct of the City. Contractor hereby
grants to the City, on behalf of any insurer providing insurance to either Contractor or
City with respect to the services (occupancy of premises) of Contractor herein, a waiver of
any right to subrogation which any such insurer of said Contractor may acquire against the
City by virtue of the payment of any loss under such insurance.
Insurance shall be secured and approved by City's risk manager prior to commencement of
work according to this Agreement.
Maintenance of proper insurance coverage is a material element of this Agreement and
failure to maintain or renew coverage or to provide evidence of coverage and/or renewal
may be treated by the City as a material breach of Agreement. Contractor shall forward
the City proof of insurance.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
1 Insurance Services Office Commercial Liability coverage (occurrence form
CG 0001).
2. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile
Liability, code 1 (any auto).
3. Workers' Compensation insurance as required by the State of California and
Employer's Liability insurance.
4. Pollution Legal Liability.
B. Minimum Limits of Insurance. Contractor shall maintain limits no less than:
1. Commercial or Comprehensive General Liability: Five Million Dollars
($5,000,000) combined single limit per occurrence for bodily injury, personal
injury, and property damage. If Commercial General Liability or other form with a
general aggregate limit is used, either the general aggregate limit shall apply
separately to this Agreement or the general aggregate limit shall be twice the
required occurrence limit.
Commercial Liability policy shall contain no pollution exclusion of any description
unless Contractor provides for pollution insurance coverage in an amount equal to
or greater than Commercial Liability policy.
2. Automobile Liability: Five Million Dollars ($5,000,000) combined single limit per
occurrence for bodily injury and property damage and accidental spills and discharges
while transporting and/or processing materials.
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007)Page 23
3. Workers' Compensation and Employers Liability: Workers' compensation limits as
required by the Labor Code of the State of California and employers liability with
limits of$1,000,000 per occurrence for bodily injury or disease.
4. Pollution Liabilities: One Hundred Thousand Dollars ($100,000).
C. Other Insurance Provisions. The general liability and automobile liability policies are to
contain, or be endorsed to contain, the following provisions:
1. The City, Council members, its officers, officials, employees, agents and volunteers
are to be covered as insureds as respects: liability arising out of activities performed
by or on behalf of the Contractor; products and completed operations of the
Contractor; premises owned, occupied or used by the Contractor; or automobiles
owned, leased, hired or borrowed by the Contractor. The coverage shall contain
no special limitations on the scope of protection afforded to the City, its officers,
officials, employees, agents or volunteers.
2. For any claims related to this project, the Contractor's insurance coverage shall be
primary insurance as respects the City, Council members, its officers, officials,
employees, agents and volunteers. Any insurance or self-insurance maintained by
the City, its officers, officials, employees, agents or volunteers shall be excess of the
Contractor's insurance and shall not contribute with it.
3. Any failure to comply with reporting or other provisions of the policies including
breaches of warranties shall not affect coverage provided to the City, Council
members, its officers, officials, employees, agents or volunteers.
4. The Contractor's insurance shall apply separately to each insured against whom
claim is made or suit is brought except with respect to the limits of the insurer's
liability.
5. Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be suspended, voided, canceled by either party, reduced in
coverage or in limits except after thirty (30) days prior written notice by certified
mail, return receipt required, has been given to the City.
6. Pollution, if on a Claims Made form:
a. The Retro Date must be shown, and must be before the date of the
contract or the beginning contract work.
b. Insurance must be maintained and evidence of insurance must be
provided for at least five (5) years after completion of the contract
work.
C. If coverage is canceled or non-renewed, and not replaced with
another claims made policy form with a Retro Date prior to the
contract effective date, the Contractor must purchase extended
reporting coverage for a minimum of two years after completion of
contract.
7. Coverage shall not extend to any indemnity coverage for the active negligence of
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007)Page 24
the additional insured in any case where an agreement to indemnify the additional
insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code.
D. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's
rating of no less than A:VI. Insurers selected by Contractor shall be admitted to issue the
specific line of required insurance in the State of California.
E. Verification of Coverage. Contractor shall furnish the City with copies of required
insurance certificates or endorsements effecting coverage required herein. 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.
F. Subcontractors. Contractor shall include all subcontractors as insureds under its policies
or shall furnish copies of required insurance policies and endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the requirements
stated herein.
G. Occurrence Based Coverage. All policies secured by Contractor shall be occurrence and
not claims based unless City so consents in writing.
H. Upon direction of the City, Contractor shall reduce or eliminate deductibles or self-
insured retentions with respect to the City or procure a bond guaranteeing payment of
losses and related investigations, claim administration and defense expenses. If any third
person makes a claim against Contractor or any subcontractors exceeding the amount of
any deductibles or self-insured reserves, Contractor shall promptly notify the insurer and
City thereof.
10.5 Performance Bond
The Contractor shall provide and maintain at all times a valid Contractor's Performance
and Payment Bond or bonds, letter of credit or other similar instrument reasonably
acceptable to and approved in writing by the City in the amount of three hundred
thousand dollars ($300,000). The bond, letter of credit or other similar instrument shall
be issued for a period of not less than one year, and the Contractor shall provide a new
bond, letter of credit or similar instrument, and evidence reasonably satisfactory to the City
of its renewability, no less than sixty (60) calendar days prior to the expiration of the bond,
letter of credit or other similar instrument then in effect. The City shall be notified in
writing of any cancellation by the issuer of the bond at least thirty days prior to such
cancellation.
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, process or market any or all Garbage or Recyclable Materials which it is
required by this Agreement to Collect, process and market, 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, Garbage or Recyclable Materials should accumulate in the City to such an
extent, in such a manner, or for such a time that the City Manager or his/her designee
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
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 25
prior written notice to Contractor during the period of such emergency as determined by
the City Manager or his/her designee, (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 temporary possession of any or all of Contractor's equipment and other property to
Collect, transport, process, market and/or dispose any Garbage or Recyclable Materials
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 required to
pay a reasonable rental fee for such equipment, but the City does not guarantee repair of
existing problems with equipment and facilities.
If Contractor is then providing billing services and City performs the services, Contractor
will promptly forward to City all rates Contractor has collected in advance, or otherwise, to
City for the period in duration equal to City's performance of the services. If Contractor
does not promptly forward those rates, City may draw on the performance bond or other
approved security for those amounts.
Notice of Contractor's failure, refusal or neglect to Collect, transport, process, market
and/or dispose Garbage or Recyclable Materials 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:
(1) It will take direction from City to affect the transfer of possession of property and
equipment to City for City's use.
(2) It will, if City so requests, keep in good repair and condition all of such property and
equipment, 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.
(3) City may immediately engage all or any personnel necessary or useful for the Collection,
transportation, processing marketing and/or disposing of Garbage or Recyclable Materials,
including, if City so desires, employees previously or then employed by Contractor,
Contractor further agrees, if City so requests, to furnish City the services of any or all
management or office personnel employed by Contractor whose services are necessary or
useful for Garbage or Recyclable Materials Collection, Transportation, processing and
marketing operations and for the billing and collection of fees for these services.
City agrees that it assumes complete responsibility and liability for the proper and normal
use of such equipment and facilities while in its possession.
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
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007)Page 26
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 Article, provided that Contractor is not required to indemnify City
against claims and damages arising from the negligence of City officers, employees and
agents in the operation of Collection vehicles or performance of services during the time
City has taken possession of such equipment.
11.2 Temporary Possession of Contractor's Property
If the City suffers an interruption or discontinuance of service as described in Article 11.1
(including interruptions and discontinuance due to events described in Article 12.4,
Excuse from Performance), City may take temporary possession of and use all of
Contractor's property described above until other suitable arrangements can be made for
the provision of such services. The same notice requirements of Article 11.1 are
applicable.
11.3 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 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.
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 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
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 27
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 Garbage, Recycling or Greenwaste
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 of the violation or, if Contractor cannot reasonably correct or
remedy the breach within the time set forth in such notice, if Contractor should 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.
1. 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 business days, unless caused by a Force Majeure event.
Upon default by the Contractor, the City Manager or his/her designee shall provide
written notice to Contractor of the violation. The City Manager or his/her designee shall
include in the notice, a demand that the Contractor correct the violation. The Contractor
shall thereafter have thirty (30) days to cure the violation, of if the violation cannot be
cured within such timeframe, the Contractor shall have commenced to cure said violation
in a manner that is acceptable to the City, in its reasonable discretion. 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, and Contractor's failure to cure, the City shall have the
right to terminate this Agreement upon one (1) day notice if the public health or safety is
threatened, or otherwise twenty (20) days notice, following a hearing by the City Council.
This right of termination is in addition to any other rights of City upon a failure of
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007)Page 28
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 that 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 inadequate
and City shall be entitled to 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.
B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards.
The parties acknowledge that consistent, reliable Garbage, Recycling and Greenwaste
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, comply with complaint resolution criteria, or fails to submit
required documents in a timely manner, City and its residents will stiffer damages and that
it is and will be impractical and extremely difficult to ascertain and determine the exact
amount of damages that 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
For each failure over five (5) annually to commence service to a new customer account
within seven (7) days after order: $150.00
For each failure over twenty-four (24) annually to Collect Garbage, Recyclables
or Greenwaste, which has been properly set out for Collection, from an established
customer account on the scheduled Collection day and not collected within 24 hours after
notice of missed pick-up: $150.00
For each failure to Collect Garbage, Recyclables
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 29
or Greenwaste, which have been properly set out for Collection,
from the same customer on two (2) consecutive scheduled pickup days: $150.00
For each occurrence over five (5) annually of damage to private
property: $250.00
For each occurrence over ten (10) annually of discourteous behavior: $250.00
For each failure over ten (10) annually to clean up Garbage, Recyclables
or Greenwaste, spilled from Containers: $150.00
For each occurrence over five (5) annually of Collecting
Garbage, Recyclables or Greenwaste, during unauthorized hours: $250.00
For each failure to respond to a customer complaint within
twenty-four (24)working hours: $100.00
Timeliness of Submissions to City
REPORTS Any report shall be considered late until such time as City receives a correct
and complete report. For each calendar day a report is late, the daily
assessment shall be:
Monthly Reports: For each infraction $25 per day
Annual Reports: For each infraction $50 per day
Liquidated damages will only be assessed after Contractor has beengiven 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 Manager 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 Manager 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
Manager or designee shall be final.
C. Amount. The City Manager or his/her designee 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 thirty (30) days after they are assessed. If they are not paid within the thirty (30) day
period, City may proceed against the security required by this Agreement or order the
termination of this Agreement, or both.
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007)Page 30
12.4 Force Majeure
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),
unavailability of third party disposal or processing facilities designated by the City, and
other similar catastrophic events which are beyond the control of and not the fault of the
party claiming excuse from performance hereunder.
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 Article.
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 Article for a period of thirty (30)
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 related to the
services provided hereunder 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 errors, materiality shall be deemed to
be five percent (5%) or greater in franchise fee payments due the City. Recovery of any
over payment will be negotiated on a case-by-case basis.
ARTICLE 13
OTHER AGREEMENTS OF THE PARTIES
13.1 Relationship of Parties
The parties intend that Contractor shall perform the services required by this Agreement as
an independent Contractor engaged by City and not as an officer or employee of City nor
as a partner of or joint venture with City. No employee or agent of Contractor shall be or
shall be deemed to be an employee or agent of City. Except as expressly provided herein,
Contractor shall have the exclusive control over the manner and means of conducting the
Recycling services performed under this Agreement, and all Persons performing such
services. Contractor shall be solely responsible for the acts and omissions of its officers,
employees, subcontractors and agents. Neither Contractor nor its officers, employees,
subcontractors and agents shall obtain any rights to retirement benefits, workers
compensation benefits, or any other benefits which accrue to City employees by virtue of
their employment with City.
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007)Page 31
13.2 Compliance with law
In providing the services required under this Agreement, Contractor shall at all times, at 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 local
administrative and regulatory agencies, now in force and as they may be enacted, issued or
amended during the Term.
13.3 Governing Law
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 jurisdiction
over such lawsuits. Venue of any such lawsuits shall be in San Luis Obispo County.
13.5 Assignment
Except as may be provided for in Article 11, (City's Right to Perform Service), neither party
shall assign its rights, nor delegate, subcontract or otherwise transfer its obligations under
this Agreement to any other Person without the prior written consent of the other party.
Any such assignment made without the consent of the other party shall be void and the
attempted assignment shall constitute a material breach of this Agreement. The
Contractor shall consent to any assignment to a joint powers authority, or any similar
public entity assignee of the City. In addition, Contractor may assign this Agreement
without consent to another corporate affiliate of Waste Management, Inc., provided such
entity has assets at least as significant as Contractor.
For purposes of this Article when used in reference to Contractor, "assignment" shall
include, but not be limited to (1) a sale, exchange or other transfer of at least fifty-one
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 of
Contractor to a third party provided said sale, exchange or transfer may result in a change
of control of Contractor; (3) any dissolution, reorganization, consolidation, merger, re-
capitalization, stock issuance or re-issuance, voting trust, pooling agreement, escrow
arrangement, liquidation or other transaction to which results in a change of ownership or
control of Contractor; (4) any assignment by operation of law, including insolvency or
bankruptcy, making assignment for the benefit of creditors, writ of attachment for an
execution being levied against this Agreement, appointment of a receiver taking possession
of Contractor's property, or transfer occurring in the event of a probate proceeding; and
any combination of the foregoing (whether or not in related or contemporaneous
transactions)which has the effect of any such transfer or change of ownership, or change of
control of Contractor.
Contractor acknowledges that this Agreement involves rendering a vital service to City's
residents and businesses, and that City has selected Contractor to perform the services
specified herein based on (1) Contractor's experience, skill and reputation for conducting
its Solid Waste management operations in a safe, effective and responsible fashion, at all
times in keeping with applicable Environmental Laws, regulations and best waste
management practices, and (2) Contractor's financial resources to maintain the required
equipment and to support its indemnity obligations to City under this Agreement. City
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007)Page 32
has relied on each of these factors, among others, in choosing Contractor to perform the
services to be rendered by Contractor under this Agreement.
If Contractor requests City's consideration of and consent to an assignment, the City may
deny or approve such request at its complete discretion. The City is concerned about the
possibility that assignment could result in significant rate increases, as well as a change in
the quality of service. Accordingly, the following standards have been set to ensure that
assignment will result in continued quality service. In addition, the City reserves the right
to solicit competitive bids for these services if the assignment results in a request by the
assignee for rate increases that are higher than the inflationary index and do not reflect
value changes in service standards. At a minimum, no request by Contractor for consent
to an assignment need be considered by City unless and until Contractor has met the
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, and to
review and finalize any documentation required as a condition for approving any such
assignment;
B. Contractor shall furnish City with audited financial statements of the proposed
assignee's operations for the immediately preceding three (3) operating years;
C. Contractor shall furnish City with satisfactory proof: 1) that the proposed assignee has at least
five (5) years of Recyclable Material management experience on a scale equal to or exceeding the
scale of operations conducted by Contractor under this Agreement; 2) that in the last five (5) years,
the proposed assignee has not suffered any significant citations or other censure from any federal,
state or local agency having jurisdiction over its Solid Waste management operations due to any
significant failure to comply with state, federal or local Environmental Laws and that the assignee
has provided City with a complete list of such citations and censures; 3) that the proposed assignee
has at all times conducted its operations in an environmentally safe and conscientious fashion; 4)
that the proposed assignee conducts its Solid Waste management practices in accordance with
sound waste management practices in full compliance with all federal, state and local laws
regulating the Collection, transportation, processing, marketing and disposal of Solid Waste
including Hazardous Wastes; 5) that the proposed assignee, and any its officers, directors or
employees have not been convicted of a) fraud or criminal offense in connection with obtaining,
attempting to obtain, procuring or performing a public or private agreement related to
Recyclables or Solid Waste services of any kind (including collection, hauling, transfer,
processing, composting or disposal), including this Agreement or any amendment thereto or b)
bribery or attempting to bribe a public officer or employee of a local, state, or federal agency in
that officer or director's of Contractor's employee's official capacity; or c) embezzlement,
extortion, racketeering, false claims, false statements, forgery, falsification or destruction of
records, obstruction of justice, knowingly receiving stolen property, theft, or misprision (failure
to disclose) of a felony; or d) unlawful disposal of hazardous or designated waste the occurrence
of which the Contractor knows or should have known; and, 6) of any other information required
by City to ensure the proposed assignee can fulfill the Terms of this Agreement in a timely safe
and effective manner.
13.6 Subcontracting
Except as approved in writing by the City, Contractor shall not enter into an agreement to
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 33
have another Person perform Contractor's duties of this Agreement. Contractor shall
undertake to pay City its reasonable expenses for attorneys fees and investigation costs
necessary to investigate the suitability of any proposed subcontractor, and to review and
finalize any documentation required as a condition for approving any such subcontracting
agreement.
13.7 Binding on Assigns
The provisions of this Agreement shall inure to the benefit to and be binding on the
permitted assigns of the parties.
13.8 Transition to Next Contractor
If the transition of services to another Contractor occurs through expiration of term,
default and termination, or otherwise, Contractor will cooperate with City and subsequent
Contractor(s) to assist in an orderly transition which will include Contractor providing
route lists and billing information. Contractor will not be obliged to sell Collection
vehicles or Containers to the next Contractor. Depending on Contractor's circumstances
at the point of transition, Contractor at its option may enter into negotiations with the
next Contractor to sell (in part or all) Collection vehicles and/or containers.
13.9 Parties in Interest
Nothing in the Agreement, whether express or implied, is intended to confer any rights on
any persons other than the parties to it and their representatives, successors and permitted
assigns.
13.10 Waiver
The waiver by either party of any breach or violation of any provisions of this Agreement
shall not be deemed to be a waiver of any breach or violation of any other provision nor of
any subsequent breach of violation of the same or any other provision. The subsequent
acceptance by either party of any monies that become due hereunder shall not be deemed
to be a waiver of any pre-existing or concurrent breach or violation by the other party of
any provision of this Agreement.
13.11 Contractor's Investigation
Contractor has relied on its own investigations, and not on any representations of the City
or its agents of the conditions and circumstances surrounding the Agreement and the work
to be performed by it.
13.12 Notice
All notices, demands, requests, proposals, approvals, consents and other communications
which this Agreement requires, authorizes or contemplates shall be in writing and shall
either be personally delivered to a representative of the parties at the address below or be
deposited in the United States mail, first class postage prepaid, addressed as follows:
If to City: City of Atascadero
6907 El Camino Real
Atascadero, CA 93422
Attn. City Manager
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 34
If to Contractor: USA Waste of California, Inc., dba AWA
7625 San Luis Avenue
Atascadero, CA 93422
Attn. Keith Ramsey
The address to which communications may be delivered may be changed from time to time
by a notice given in accordance with this Article. The notice, if mailed, is deemed served
three (3) days after the mailing.
13.13 Representatives of the Parties
References in this Agreement to the "City" shall mean the City Council and all actions to
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 Manager or his/her designee, City
Attorney, and/or to other City employees and may permit such employees, in turn, to
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 authority
properly delegated to them.
Contractor shall, by the effective date, designate in writing a responsible officer who shall
serve as the representative of Contractor in all matters related to the Agreement and shall
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 as
actions of Contractor unless they are outside the scope of the authority delegated to
him/her by Contractor as communicated to City.
13.14 City Free to Negotiate with Third Parties
City may investigate all options for the Collection, processing and marketing of Recyclable
Materials after the expiration of the Term. Without limiting generality of the foregoing,
City may solicit proposals from Contractor and from third parties for the provision of
Garbage and Recycling services, and any combination thereof, and may negotiate and
execute Agreements for such services that will take effect upon the expiration or earlier
termination under Article 12.1 (Events of Default) of this Agreement.
13.15 Compliance with City Municipal Code
Contractor shall comply with all provisions of the City Municipal Code and with any and
all amendments to these provisions during the Term of this 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 valid
authorization of the customer. This provision shall not be construed to preclude
Contractor from preparing, participating in, or assisting in the preparation of waste
characterization studies or waste stream analyses that may be required by AB 939.
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007)Page 35
ARTICLE 15
MISCELLANEOUS AGREEMENTS
14.1 Entire Agreement
This Agreement, including the exhibits, represents the full and entire Agreement between
the parties with respect to the matters covered herein.
14.2 Article Headings
The article headings in this Agreement are for convenience of reference only and are not
intended to be used in the construction of this Agreement nor to alter or affect any of its
provisions.
14.3 References to Laws and Other Agreements
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. This
Agreement supersedes the Prior Agreement dated May 1, 1996, and any subsequent
amendments.
14.4 Interpretation
This Agreement, including the exhibits attached hereto, shall be interpreted and construed
reasonably and neither for nor against either party, regardless of the degree to which either
party participated in its drafting.
14.5 Agreement
This Agreement may not be modified or amended in any respect except by a writing signed
by the parties.
14.6 Severability
If any non-material provision of this Agreement is for any reason deemed to be invalid and
unenforceable, the invalidity or unenforceability of such provision shall not affect any of
the remaining provisions of this Agreement that shall be enforced as if such invalid or
unenforceable provision had not been contained herein.
14.7 Exhibits
Each of exhibits is attached hereto and incorporated herein and made a part hereof by this
reference.
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 36
IN WITNESS WHEREOF, City and Contractor have executed this Agreement as of the day and
year first above written.
The City of Atascadero USA Waste of California, Inc.
Ij
y- - -----
- --
-
- By �
Wade McKinney, City Mana r _
Title:
Attest:
Marcia Torgerson, City Clerk
Appro as to F .
&.)-V --------
Brian Pierik, City Attorney
Atascadero Solid Waste Collection Franchise Agreement (November 27, 2007) Page 37
Exhibit A
ATASCADERO WASTE ALTERNATIVES -WASTE MANAGEMENT
CITY OF ATASCADERO
RESIDENTIAL REFUSE CART RATES COMMERCIAL REFUSE CART RATES
Service Type Service Type
32 gal $19.02 32 gal $35.37
60 gal $33.36 60 gal $4715
90 gal $43.08 90 gal $60.99
Rates for the 2%IWMA Charge
32 gal $19.08
60 gal $33.69
90 gal $43.60
COMMERCIAL REFUSE BIN RATES Commercial Commingled Bin Recycling
Service Type Service Type
1.0x1 $113.23 1.0x1 No Charge
1.0x2 $204.59 1.0x2 $49.27
1.0x3 $294.52 1.0x3 $87.02
1.00 $383.73 1.0X4 $124.07
1.0x5 $473.27 1.0x5 $160.75
1.5x1 $133.95 1.5x1 No Charge
1.5x2 $243.02 1.6x2 $55.67
1.6x3 $350.97 1.6x3 $98.31
1.5x4 $460.59 1.5x4 $140.40
1.5x5 $570.29 1.5x5 $183.32
2x1 $153.34 2x1 No Charge
2x2 $281.37 2x2 $61.40
2x3 $409.32 2x3 $109.56
2x4 $537.36 2x4 $157.68
2x5 $694.73 2x5 $205.85
3x1 $189.77 3x1 No Charge
3x2 $358.31 3x2 $71.69
3x3 $524.38 3x3 $132.18
3x4 $690.76 3x4 $191.42
3x5 $857.06 3x5 $250.83
3x6 $1,025.36 3x6 $310.21
4x1 $230.11 4x1 No Charge
4x2 $436.91 4x2 $83.93
4x3 $639.65 4x3 $155.62
4x4 $846.22 4x4 $225.28
4x6 $1,056.75 4x5 $296.85
4x6 $1,255.76 4x6 $370.40
6x1 $297.10 6x1 $101.57
6x2 $568.60 6x2 $189.75
6x3 $842.31 6x3 $279.04
6x4 $1,115.81 6x4 $368.22
6x5 $1,389.36 6x5 $457.43
6x6 $1,663.16 6x6 $546.76
All rates are inclusive of the IWMA fee,added landfill fee,and the mandated recycling initiative as set by the City Council on 11/29/2007.
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EXHIBIT B
Garbage and Recycling Service in Public Areas
FACILITY ADDRESS TYPE OF SERVICE
City Hall 6907 EI Camino Real Waste/ Recycle
Historic City Administration Building 6500 Palma Avenue Waste/ Recycle
George C. Beatie Skate Park 5493 Traffic Way Waste/ Recycle
Police Department 5505 EI Camino Real Waste/ Recycle
Fire Station#1 6005 Lewis Avenue Waste/ Recycle
Fire Station#2 9801 W. Front Street Waste/ Recycle
Lake Pavilion 9315 Pismo Avenue Waste/Recycle
Colony Park Maintenance Yard 5599 Traffic Way Waste/ Recycle/Greenwaste
Waste Water Treatment Plant 8005 Gabarda Waste/ Recycle/Greenwaste
Atascadero Lake Park 9315 Pismo Avenue Waste/ Recycle/Greenwaste
Charles Paddock Zoo 9305 Pismo Avenue Waste/ Recycle
Alvord Baseball Field 9305 Pismo Avenue Waste/ Recycle
Paloma Park 11665 Viejo Camino Waste/Recycle/Greenwaste
Colony Park Community Center 5599 Traffic Way Waste/ Recycle