CC SR 20160315 R - Annual Commercial Waste Haulers AgmtsRANCHO PALOS VERDES CITY COUNCIL
AGENDA REPORT
AGENDA DESCRIPTION:
MEETING DATE: 03/15/2016
AGENDA HEADING: Consent Calendar
Consideration and possible action to award commercial solid waste hauling agreements
for calendar years 2016-2017 to eight companies
RECOMMENDED COUNCIL ACTION:
1) Consider awarding non-exclusive commercial solid waste hauling franchise
agreements to: California Waste Services LLC; CalMet Services Inc.;
Consolidated Disposal Service, LLC DBA Republic Services; Easy Roll Off
Services; EDCO Disposal Corporation; Universal Waste Systems, Inc.; USA
Waste of California, Inc., DBA Waste Management of Los Angeles; and West
Coast Waste & Roll Off Service;
2) Authorize the Mayor and City Clerk to execute the agreements, subject to final
approval as to form by the City Attorney. The agreements shall be in a form
substantially similar to that attached hereto, subject to minor or non -substantive
revisions acceptable to the City Attorney; and,
3) Adopt Resolution No. 2016- _, restricting the number of haulers in calendar
years 2016-2017 to the same haulers as previously approved in 2015.
FISCAL IMPACT: None
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: Lauren Ramezani, Senior Administrative Analyst
REVIEWED BY: Michael Throne, Director of Public Works
APPROVED BY: Doug Willmore, City ManagerVAI`1
ATTACHED SUPPORTING DOCUMENTS:
A. Non -Exclusive Commercial Hauling Agreement for Calendar Years 2016-
2017 (page A-1)
B. Resolution 2016- (page B-1)
BACKGROUND AND DISCUSSION:
The City has previously awarded non-exclusive commercial hauling franchise
agreements to various small-, medium- and large -size haulers for a period of one
calendar year. The most recent annual agreement was set to expire on December 31,
2015. In December 2015, at the request of the new City Attorney, the existing 2015
agreement was extended to March 31, 2016.
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The City Attorney's office has prepared the attached form for a new non-exclusive
franchise agreement, which allows the authorized haulers to provide temporary roll -offs
and/or bins to businesses and residential customers for construction, demolition and
other short-term projects and cleanup activities, and provide regular bin service to
businesses and commercial customers. The City does not set rates or assign
geographic service areas. The haulers are required to obtain a City business license
and proper insurance, indemnify the City, and provide quarterly tonnage reports and
fees.
The new attached form of an agreement incorporates some updates and changes,
including: extending the term of the agreement from one calendar year to two (expiring
December 31, 2017); increasing insurance limits; establishing liquidated damages;
enhanced indemnity protections favoring the City; clarifications of State waste diversion
requirements; more robust requirements for equipment, vehicles and personnel; legal
updates to reflect recent changes in the law; and enhancing recycling and reporting
requirements. The new agreement also includes a non -bribery certification.
In 2014, the City Council adopted a resolution limiting the number of authorized haulers
in order to better monitor haulers' activities, reporting, accountability and compliance
with State rules and regulations, and to protect the condition of City streets and prevent
excessive traffic. This resolution set a limit of eight authorized commercial haulers for
2015. Staff recommends the same limitation On the number of haulers for calendar
years 2016-2017, and has attached a Resolution for City Council adoption.
ALTERNATIVES:
In addition to the Staff recommendations, the following alternative action is available for
the City Council's consideration:
Allow additional haulers (i.e., more than the eight -hauler limit proposed in
the resolution) to provide commercial solid waste hauling services,
provided they sign an agreement, obtain a business license and insurance
requirements, and submit quarterly fees and reports.
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Attachment A
Non -Exclusive Commercial
Hauling Agreement for
Calendar Years
2016-2017
A-1
NON-EXCLUSIVE FRANCHISE AGREEMENT
FOR PROVISION OF SOLID WASTE HANDLING SERVICES
THIS NON-EXCLUSIVE FRANCHISE AGREEMENT FOR PROVISION OF SOLID
WASTE HANDLING SERVICES ("Agreement") is made and entered into this day
of 2016 by and between
("Franchisee") and the CITY OF RANCHO PALOS VERDES, a municipal corporation of the
State of California ("Cily"). City and Franchisee are occasionally herein referred to each as a
"Party" and collectively as the "Parties".
RECITALS
A. The Legislature of the State of California, by enactment of the California
Integrated Waste Management Act of 1989 ("AB 939") declares that a city may determine all
aspects of solid waste handling which are of local concern, including, but not limited to,
frequency of Collection, means of Collection and transportation, level of services, charges and
fees and the nature, location and extent of providing solid waste handling services;
B. The passage of AB 32, the California Global Warming Solutions Act of 2006,
("AB 32") required by law a sharp reduction of greenhouse gas (GHG) emissions. AB 32
requires California to reduce its GHG emissions to 1990 levels by 2020 — a reduction of
approximately 15% below emissions expected under a "business as usual" scenario. Local
governments will play a vital role in the implementation of AB 32 by identifying opportunities
and best practices to increase waste reduction and recycling, thereby reducing carbon emissions.
Franchisee's operation of a mixed waste processing system will contribute to GHG emissions
reductions by maximizing diversion to reduce gas -producing landfill deposits and utilizing latest
fuel and vehicular technologies to reduce carbon emissions produced by waste hauling vehicles
in performing waste Collection and Diversion activities for the City and by recovering and
recycling commodities in the waste stream;
C. In 2011, the State of California enacted Assembly Bill 341 ("AB 341"), which
provides further procedures for complying with AB 32. The purpose of AB 341 is to achieve the
reduction in GHG by increasing the amount of commercial waste recycled in California,
specifically, by requiring businesses and public entities that generate four cubic yards or more of
solid waste per week, and multifamily residences with five or more units, to recycle. The
provision of commercial recycling services is required by this Agreement;
D. The Legislature of California, by enactment of Chapter 12.9 of Part 3 of Division
30 of the Public Resources Code (Section 42649.8, et seq.; also known as "AB 1826"), requires
each jurisdiction to implement an Organic Waste Recycling program on and after January 1,
2016, and requires business that generate eight or more cubic yards of waste per week to arrange
for organic waste recycling services by April 1, 2016. The provision of organic waste recycling
services is required by this agreement;
E. AB 939, AB 32, AB 341, and AB 1826 and related laws pertaining to the
environmental impacts of solid waste, as may be enacted or amended in the future, are
collectively referred to herein as the "Refuse Impact Reduction Laws." Pursuant to California
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Public Resources Code Section 40059(a)(2), and Rancho Palos Verdes Municipal Code Section
8.20.260, the City Council of the City of Rancho Palos Verdes has determined that the public
health, safety, and welfare require that a non-exclusive franchise be awarded to qualified Solid
Waste Enterprises for Commercial Solid Waste handling and On -Call Commercial and
Residential Bin and Box services in the City;
F. The successful implementation of Commercial solid waste handling and On -Call
Commercial and Residential Bin and Box services in the City will entail the expenditure of large
sums of capital by the Franchisee, for which the Franchisee is entitled to be compensated. City
intends that this Agreement will contribute to safeguarding public health by providing the most
cost-effective, efficient, reliable, and environmentally appropriate solid waste services to its
citizens;
G. Prior to entering into this Agreement, City entered into an exclusive franchise
agreement, and a subsequent amendment thereto, with EDCO Disposal Corporation for
Residential Solid Waste Management Services ("EDCO Agreement"). The current Agreement is
intended to compliment and not conflict with the EDCO Agreement.
NOW THEREFORE, in consideration of the promises and covenants contained herein,
the above recitals, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS; DELEGATION OF AUTHORITY.
1.1. General. Whenever any term used in this Agreement has been defined by the
provisions of Chapter 8.20 of the Rancho Palos Verdes Municipal Code (hereinafter "Chapter
8.20") or by Division 30, Part I or Part 3 of the California Public Resources Code, the definitions
in the Municipal Code or the Public Resources Code shall apply unless the term is otherwise
defined in this Agreement, in which case this Agreement shall control.
1.2. Definitions. Except as provided in Section 1. 1, words beginning with lower case
letters are being used with their common ordinary meanings, not as defined terms. Otherwise, the
following capitalized words and terms shall have the following respective meanings:
1.2.1 AB 32. "AB 32" means Assembly Bill 32, the Global Warming
Solutions Act of 2006.
1.2.2 AB 341. "AB 341" means Assembly Bill 341 from the 2011-2012
Regular Session of the California Legislature (Chapter 476, Statutes 2011).
1.2.3 AB 939. "AB 939" means the California Integrated Waste Management
Act of 1989, Public Resources Code Section 40000 et seq. and regulations promulgated
thereunder, as amended from time to time.
1.2.4 AB 939 Fee. "AB 939 Fee" means the fee paid by Franchisee to the City
to aid the City's compliance with Refuse Impact Reduction Laws, as described in Section 3.3.2
hereof.
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1.2.5 AB 1826. "AB 1826" means Chapter 12.9 of Part 3 of Division 30 of the
Public Resources Code, beginning at Section 42649.8, which requires each jurisdiction to
implement an Organic Waste Recycling program on and after January 1, 2016, and requires
businesses that qualify as "Organic Waste Generators" to arrange for Organic Waste recycling
services on and after April 1, 2016.
1.2.6 Affiliate. "Affiliate" means all businesses (including corporations,
limited and general partnerships and sole proprietorships) which are directly or indirectly related
to Franchisee by virtue of direct or indirect ownership interest or common management. All
such businesses shall be deemed to be "Affiliated with" Franchisee and included within the term
"Affiliates" as used herein. An Affiliate shall include a business in which Franchisee owns a
direct or indirect ownership interest, a business which has a direct or indirect ownership interest
in Franchisee and/or a business which is also owned, controlled or managed by any business or
individual which has a direct or indirect ownership interest in Franchisee. For purposes of
determining whether an indirect ownership interest exists, the constructive ownership provisions
of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date of this
Agreement, shall apply; provided, however, that (i) "ten percent (10%)" shall be substituted for
"fifty percent (50%)" in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof, and
(ii) Section 318(a)(5)(C) shall be disregarded. For purposes of determining ownership under this
paragraph and constructive or indirect ownership under Section 318(a), ownership interest of less
than ten percent (10%) shall be disregarded and percentage interests shall be determined on the
basis of the percentage of voting interest or value which the ownership interest represents,
whichever is greater. Being an Affiliate does not exempt a business from the application of
assignment requirements under Article VIII hereof.
1.2.7 Agreed Upon Procedure. "Agreed Upon Procedure" shall mean the
procedures and methodology approved by the City's Finance Department for review and audit of
Franchisee's financial records in connection with this Agreement.
1.2.8 Agreement. "Agreement" means this Agreement for Provision of Solid
Waste Handling Services.
1.2.9 Annual Diversion Report. "Annual Diversion Report" means the annual
report submitted by the Franchisee to the City describing the previous year's Diversion activities,
Diversion percentages and associated calculations and the description of the Diversion activity
planned for the upcoming year, if applicable. The Annual Diversion Report shall be prepared in
a manner that directly corresponds to the reporting requirements of the California Department of
Resources Recycling and Recovery (CalRecycle) and the California Integrated Waste
Management Act, as amended.
1.2.10 Bin. "Bin" means a detachable container with a capacity equal to or less
than six (6) cubic yards that is serviced using a front end loading vehicle (i.e., a "dumpster").
1.2.11 Box. "Box," sometimes known as a "roll -off," means a metal container
with a capacity of (10) or more cubic yards that is normally loaded onto a motor vehicle and
transported to an appropriate facility.
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1.2.12 Bulky Waste. "Bulky Waste" means an item too large to fit in the
container on the premises, including but not limited to household appliances (including
refrigerators with and without Freon, ranges, washers, dryers, water heaters, dishwashers,
plumbing, small household appliances, and other similar items commonly known as "white
goods"); furniture (including chairs, sofas, mattresses, and rugs); Electronic Waste (including
discarded electronic equipment such as, but not limited to, television sets, computer monitors,
central processing units (CPUs), laptop computers, and peripherals (e.g., external computer hard
drives, computer keyboards, computer mice, and computer printers), and other similar items
commonly known as "brown goods" and "e -waste"); residential wastes (Green Waste larger than
four (4) inches in diameter or four (4) feet in length, such as tree stumps, trunks or branches not
exceeding one cubic yard per Collection); clothing; and tires. Bulky Waste does not include car
bodies, Construction and Demolition Debris or items requiring more than two persons to remove.
In the event a question ever arises as to whether a specific item or category of items meets the
definition of Bulky Waste, City shall be responsible to determine whether said definition shall
apply, which determination shall be final and binding on the Parties. Bulky Waste must have
been generated on the customer's Premises in order to qualify for removal.
1.2.13 Ca1Recycle. "CalRecycle" means the California Department of
Resources Recycling and Recovery.
1.2.14 City. "City" means the City of Rancho Palos Verdes, a municipal
corporation organized under the laws of the State of California, and all of the territory lying
within the municipal boundaries of the City as presently existing and, subject to the provisions of
Section 3.1.2, all geographic areas which may be added or annexed thereto during the term of
this Agreement.
1.2.15 City Manager. "City Manager" means the Manager of the City or his or
her designee(s).
1.2.16 Collection. "Collection" means the process whereby Solid Waste is
removed and transported from within the City.
1.2.17 Commercial. "Commercial" means relating to Commercial Premises.
1.2.18 Commercial Premises. "Commercial Premises" shall have the meaning
given in Chapter 8.20 of the Rancho Palos Verdes Municipal Code, as amended from time to
time.
1.2.19 Complaint. "Complaint" means any complaint received by mail, email,
in writing, verbally, by telephone or in person.
1.2.20 Construction and Demolition Debris or C&D Material. "Construction
and Demolition Material" or "C&D Material," means any combination of inert building materials
and Solid Waste resulting from construction, remodeling, repair, cleanup, or demolition
operations. This term includes, but is not limited to, asphalt, concrete, cement, brick, lumber,
gypsum wallboard, cardboard, and other associated packaging, roofing material, ceramic tile,
carpeting; plastic pipe and steel. The material may be commingled with rock, soil, tree stumps;
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and other vegetative matter resulting from land clearing and landscaping for construction or land
development projects.
1.2.21 County. "County" means the County of Los Angeles.
1.2.22 Day. 'Day" means calendar day, unless otherwise stated in this
Agreement.
1.2.23 Disposal Site. 'Disposal Site" means a final end-point or permanent site
for the disposal of Solid Waste, such as a landfill, incineration facility or final processing facility
for Recyclables.
1.2.24 Divert or Diversion. 'Divert" or 'Diversion" means to divert from
disposal facilities or transformation facilities (including incineration, pyrolysis, distillation,
gasification or biological conversion) through source reduction, Recycling and composting, as
provided in Section 41780 of the Act as such Act may be hereafter amended or superseded
provided that Divert or Diversion shall include delivery to transformation facilities if the overall
Diversion achieved by the City is at a level where delivery to such facilities shall be considered
Diversion pursuant to the Act.
1.2.25 EDCO Agreement. "EDCO Agreement" means that certain agreement
between City and EDCO Disposal Corporation for exclusive Residential Solid Waste
Management Services dated on or about November 24, 2009, and Amendment 1 to that same
agreement dated June 30, 2015.
1.2.26 Effective Date. "Effective Date" means the date that this Agreement has
been fully executed.
1.2.27 Electronic Waste. `Electronic Waste" means "Covered Electronic
Waste" as defined in Section 42463 of the Public Resources Code and other discarded electronic
equipment commonly known as "brown goods" such as, but not limited to, CD players and
recorders, DVD players and recorders, stereos, computers, printers, keyboards, and peripherals.
Revenues from the recycling of Electronic Waste shall be accounted for separately from
revenues from other Recyclable Materials.
1.2.28 Franchisee. "Franchisee" means the entity above identified.
1.2.29 Franchise Documents. "Franchise Documents" means Chapter 8.20 as
the same exists or may be amended in the future of the Municipal Code of the City of Rancho
Palos Verdes, and this Agreement.
1.2.30 Franchise Fee. "Franchise Fee" means that consideration paid by
Franchisee to the City as consideration for the grant of non-exclusive franchise effected by the
Agreement and as described in Section 3.3.1 hereof.
1.2.31 Franchisee Provided Container or Container. "Franchisee Provided
Container" or "Container" refers to either a Bin or a Box provided by Franchisee to customers.
Such Containers shall be constructed of a minimum of twenty percent (20%) post -consumer
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recycled content once Franchisee has exhausted its existing inventory of Containers (i.e.,
Franchisee's existing inventory may not meet the 20% requirement but all Containers acquired
by Franchisee following this Agreement shall meet such requirement). Franchisee shall not be
required to replace its existing Containers to meet the requirements of this Section unless or until
they are in need of replacement as reasonably determined by Franchisee or as otherwise provided
in this Agreement. Containers not meeting the 20% requirement and replaced under a
manufacturer's warranty shall be exempt from the 20% requirement.
1.2.32 Green Waste. "Green Waste" means any and all forms of biodegradable
plant material which can be placed in a covered Container, such as wastes generated from the
maintenance or alteration of public, Commercial or Residential landscapes including, but not
limited to, yard clippings, leaves, tree trimmings, prunings, brush, and weeds. Tree stumps and
limbs greater than three (3) inches in diameter are excluded unless they are reduced to a chipped
form; otherwise, such large portions of Green Waste shall be considered Bulky Waste.
1.2.33 Gross Receipts. "Gross Receipts" means any and all revenue received
from billings by Franchisee, and compensation in any form, of Franchisee or subsidiaries, parent
companies or other Affiliates of Franchisee, for the Collection and transportation of Solid Waste
pursuant to this Agreement, in accordance with generally accepted accounting principles,
including, but not limited to, monthly customer fees for Collection of Solid Waste, without
subtracting Franchise Fees or AB 939 Fees or any other cost of doing business. Gross Receipts
include Gross Recycling Receipts and Gross Recycling Revenue.
1.2.34 Gross Recycling Receipts. "Gross Recycling Receipts" means any and
all revenue received from billings by Franchisee, and compensation in any form, of Franchisee or
subsidiaries, parent companies or other Affiliates of Franchisee, for the Collection and
transportation of Recyclables pursuant to this Agreement, in accordance with generally accepted
accounting principles, including, but not limited to, monthly customer fees for Collection of
Recyclables, without subtracting Franchise Fees or AB 939 Fees or any other cost of doing
business. Gross Recycling Receipts is included in Gross Receipts.
1.2.35 Gross Recycling Revenue. "Gross Recycling Revenue" means the
revenues received by Franchisee from the sale of all Recyclable Materials handled by Franchisee
(including the recycling of Electronic Waste, HHW, U -Waste and White Goods). Gross
Recycling Revenue is included in Gross Receipts.
1.2.36 Hazardous Waste. "Hazardous Waste" means any hazardous or toxic
substance, material or waste which is or becomes regulated by any local governmental authority,
the State of California or the United States Government. The term "Hazardous Material"
includes, without limitation, any material or substance which is: (i) petroleum or oil or gas or any
direct or derivate product or byproduct thereof, (ii) defined as a "hazardous waste," "extremely
hazardous waste" or "restricted hazardous waste" under Sections 25115, 25117, or 25122.7, or
listed pursuant to Section 25140, of the California Health and Safety Code, Division 20, Chapter
6.5 (Hazardous Waste Control Law); (iii) defined as a "hazardous substance" under Section
25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter -Presley -
Tanner Hazardous Substance Account Act); (iv) defined as a "hazardous material," "hazardous
substance," or "hazardous waste" under Sections 25501 of the California Health and Safety
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Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory);
(v) defined as a "hazardous substance" under Section 25281 of the California Health and Safety
Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (vi) "used oil"
as defined under Section 25250.1 of the California Health and Safety Code; (vii) asbestos; (viii)
listed under Chapter 11 of Division 4.5 of Title 22 of the California Code of Regulations, or
defined as hazardous or extremely hazardous pursuant to Chapter 10 of Division 4.5 of Title 22
of the California Code of Regulations; (ix) defined as a hazardous substance pursuant to the
Porter -Cologne Act, Section 13050 of the California Water Code; (x) designated as a "toxic
pollutant" pursuant to the Federal Water Pollution Control Act, 33 U.S.C. Section 1317; (xi)
defined as a "hazardous waste" pursuant to the Federal Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C. § 6903); (xii) defined as a "hazardous substance"
pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601, et seq. (42 U.S.C. § 9601); (xiii) defined as "Hazardous Material" pursuant
to the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101, et seq.; or (xiv) defined
as such or regulated by any "Superfund" or "Superlien" law, or any other federal, state or local
law, statute, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning Hazardous Materials and/or oil wells and/or
underground storage tanks and/or pipelines, as now, or at any time hereafter, in effect.
1.2.37 Household Hazardous Waste or HHW. "Household Hazardous Waste"
or "HHW" shall mean that waste resulting from products purchased by the general public for
household use which, because of their quantity, concentration, or physical, chemical, or
infectious characteristics, may pose a substantial known or potential hazard to human health or
the environment when improperly treated, disposed, or otherwise managed.
1.2.38 Infectious Waste. "Infectious Waste" means waste capable of producing
an infection or pertaining to or characterized by the presence of pathogens including, but not
limited to, certain wastes generated by medical practitioners, hospitals, nursing homes, medical
testing labs, mortuaries, taxidermists, veterinarians, veterinary hospitals and medical testing labs.
1.2.39 Materials Recovery Facility. "Material Recovery Facility or MRF" shall
mean a transfer station which is designed to, and as a condition of its permit shall, source
separate or recover disposed materials for reuse, Recycling or other Diversion from the waste
stream.
1.2.40 MRF/TS. "MRF/TS" means a fully permitted facility where Solid
Waste, Recyclable Materials, and other materials are processed, sorted or separated for the
purposes of recovering reusable or Recyclable Materials, processing or composting, which
facility may or may not include a transfer station that receives Solid Waste from Collection
vehicles and transfers the material to larger vehicles for transport to landfills and other
destinations.
1.2.41 Oil Waste. "Oil Waste" means used motor oil and used oil filters.
1.2.42 On -Call. "On -Call" means service provided by Franchisee that is not
regularly scheduled or is scheduled more than twenty-four (24) hours in advance. On -Call
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service is initiated by a customer by calling, writing, emailing, or requesting the service in person
at Franchisee's office.
1.2.43 Organic Waste. "Organic Waste" shall have the meaning set forth in
California Public Resources Code Section 42649.8(c), as may be amended from time to time.
1.2.44 Owner. "Owner" means the person, organization or corporation holding
the legal title to the real property constituting the Premises to which solid waste management
services are provided. For the purposes of provisions in this Agreement pertaining to the sending
of notices, billings or other communications by Franchisee to an Owner, Franchisee may regard
as the Owner the person, organization, corporation or other entity shown in the records of the
Assessor of the County or as may be indicated by documents recorded in the Office of the
Recorder of the County. "Owner" includes the Owner's authorized representative(s).
1.2.45 Premises. "Premises" means any parcel of land, building(s) and/or
structure(s), or portion thereof, in the City where Solid Waste is produced, generated or
accumulated and which is billed as one customer.
1.2.46 Proposition 218. "Proposition 218" means Articles XIIIC and XIIID of
the California Constitution and any implementing legislation promulgated thereunder, as may be
amended from time to time.
1.2.47 Reasonable Business Efforts. "Reasonable Business Efforts" means
those efforts a reasonably prudent business person would expend under the same or similar
circumstances in the exercise of such person's business judgment, intending in good faith to take
steps calculated to satisfy the obligation which such person has undertaken to satisfy.
1.2.48 Recyclable Materials or Recyclables. "Recyclable Materials" or
"Recyclables" interchangeably mean any product salvaged or collected for the purpose of
reprocessing or remanufacturing including, but not limited to, Organic Waste, Electronic Waste,
glass, newsprint, aluminum, cardboard, paper, Green Waste, wood, plastics or metal. Recyclable
Materials discarded by the Owner (including where the Owner pays a fee or other consideration
to have Recyclable Materials collected by another party) are Solid Waste.
1.2.49 Refuse Impact Reduction Laws. "Refuse Impact Reduction Laws"
means AB 939, AB 32, AB 341, and AB 1826 and related laws pertaining to the environmental
impacts of solid waste, as may be enacted or amended in the future.
1.2.50 Remodel. The term "Remodel" or "Remodeling" shall refer to any
construction or demolition project (other than mere repair work) requiring the issuance of a
building permit or such construction and demolition project that generates for disposal bulky
structural items, appliances (household or Commercial) like showers, tubs, toilets, ovens, stoves,
cabinetry and built-in units, roofing materials, etc., and other C&D Material.
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1.2.51 Residential. "Residential" means relating to Residential Premises.
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1.2.52 Residential Premises. "Residential Premises" shall have the meaning
given in Chapter 8.20 of the Rancho Palos Verdes Municipal Code, as amended from time to
time.
1.2.53 Solid Waste or Refuse. "Solid Waste" is synonymous with "Refuse"
and means all solid wastes generated by Residential and Commercial sources, and all solid waste
generated at construction and demolition sites. Municipal Solid Waste does not include
Hazardous Waste or any waste which is not permitted to be disposed of at a Class III landfill and
which fall within the definition of "Nonhazardous Solid Waste" set forth in Title 23, Chapter 15,
Section 2523(a) of the California Code of Regulations as amended or designated Class II wastes.
Materials shall be deemed "Solid Waste" consistent with the meaning of California Public
Resources Code Section 40191, and for purposes of this Agreement shall be regulated as such,
whether or not they may be potentially recyclable, if (i) the material is mixed or commingled
with other types of Solid Waste, or (ii) the payment of a fee, charge, or other consideration, in
any form or amount, is directly or indirectly solicited or received from the generator by any
person or combination of persons in exchange for Collection, removal, transportation, storage,
processing, conversion, consulting, container rental or disposal services ("fee for service"
recycling), whether or not arranged by or through a subcontractor, broker, agent or Affiliate of
the service provider.
1.2.54 Solid Waste Enterprise. "Solid Waste Enterprise" means "solid waste
enterprise" as defined in Public Resources Code Section 40193 (i.e., any individual, partnerships,
joint venture, unincorporated private organization, or private corporation, which is regularly
engaged in the business of providing solid waste handling services).
1.2.55 Solid Waste Handling. "Solid waste handling" or "handling" (or other
form thereof) means: (i) "Solid Waste Handling" or "Handling" as defined in Public Resources
Code Section 40195 (i.e., the Collection, transportation, storage, transfer, or processing of solid
wastes) and Solid Waste disposal by a Solid Waste Enterprise defined in Section 40193 of the
Public Resources Code, such as Residential or Commercial Refuse Collection in packer -type
vehicles by haulers whose core business is refuse Collection or the small-scale Collection and
disposal of Residential or Commercial Solid Waste in any type of truck, trailer or vehicle; and
(ii) the development and operation of Solid Waste facilities.
1.2.56 Source Reduction. "Source Reduction" means the process of reducing
the amount of waste produced by the person or organization generating such waste. Source
Reduction occurs through the use of alternative goods and products and/or the reuse of goods
and products.
1.2.57 Source Separated and Source Separation. "Source Separated" and
"Source Separation" describe the segregation, by the generator, of materials designated for
separate Collection for some form of materials recovery or special handling.
1.2.58 U -Waste. "Universal Waste" or "U -Waste" means all waste defined by
Title 22, Subsections 66273.1 through 66273.9 of the California Code of Regulations. These
include, but are not limited to, batteries, fluorescent light bulbs, mercury switches, and Electronic
Waste.
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1.2.59 Waste Diversion or Diversion. "Waste Diversion" or "Diversion" means
to divert from Disposal Sites or Transformation facilities (as "Transformation" is described in
Section 40201 of the Act, as may be amended) through source reduction, Recycling and
composting, as provided in Section 41780 of the Act, provided that "Divert" or "Diversion" shall
include delivery to Transformation facilities if the overall Diversion achieved by the City is at a
level where delivery to such facilities shall be considered Diversion pursuant to the Act.
1.2.60 White Goods. "White Goods" means inoperative and discarded
refrigerators, microwave ovens, ranges, water heaters, freezers, and other similar household
appliances.
1.3. Delegation of Authority. The administration of this Agreement by the City shall
be under the supervision and direction of the City Manager and the actions specified in this
Agreement shall be taken by the City Manager or his/her designee.
ARTICLE II
GENERAL REPRESENTATIONS & TERM
2.1. Documents. All of the provisions of the Franchise Documents are incorporated
and made a part of this Agreement as though set forth in full. Nothing shall prevent the City
from amending Chapter 8.20 of the Municipal Code or from adopting such other and further
legislation as the City deems necessary or appropriate; provided, however, that the City shall
give Franchisee thirty (30) Days' notice prior to considering any amendment to Chapter 8.20,
and if such amendment would affect costs or revenue under this Agreement the parties shall meet
and confer in good faith to determine whether the planned amendment will materially increase
Franchisee's costs.
2.2. Effective Date; Commencement of Services. This Agreement shall become
effective at the "Effective Date." However, except where specified, the provision of Solid Waste
Collection and other services by Franchisee, shall commence on April 1, 2016 (the
"Commencement Date"). Franchisee understands and agrees that the time between the Effective
Date and the Commencement Date, is intended to provide Franchisee with ample and sufficient
time to, among other things, order equipment, prepare necessary routing schedules and route
maps, obtain any permits and licenses, establish/build facilities, obtain required service
agreements, and begin the public awareness campaign as part of Franchisee's transition program
as specified in this Agreement.
2.3. Term& Extended Term. Unless earlier terminated in accordance with Article
XI of this Agreement, this Agreement shall continue in full force and effect from the Effective
Date until December 31, 2017. If contractor provides written notice to City of its willingness to
extend the Agreement not later than six (6) calendar months prior to expiration of the term or any
extended term of the Agreement, City may, in its sole and unfettered discretion, extend the term
of this Agreement, under its then -existing terms and conditions, for a maximum of three (3)
years (or any shorter period of time, as may be determined by City). City may waive the six-
month notice requirement in its sole discretion.
2.4. Representations and Warranties of Franchisee.
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2.4.1 Corporate Status. Franchisee is a company duly organized, validly
existing and in good standing under the laws of the State of California. Franchisee is qualified to
transact business in the State of California and has the corporate power to own its properties and
to carry on its business as now owned and operated and as required by this Agreement.
2.4.2 Corporate Authorization. The persons executing this Agreement on
behalf of Franchisee hereto warrant that (i) they are duly authorized to execute and deliver this
Agreement on behalf of said party, (ii) by so executing this Agreement, such party is formally
bound to the provisions of this Agreement, and (iii) that entering into this Agreement does not
violate any provision of any other Agreement to which said party is bound.
2.4.3 Accuracypresentations. The representations and warranties made
by Franchisee in this Section 2.4 are true and correct on and as of the Effective Date of this
Agreement.
2.5. Ownership of Solid Waste. City and Franchisee understand and agree that it is
Franchisee, and not City, who will arrange to collect Solid Waste, that City has not, and, by this
Agreement does not, instruct Franchisee on its Collection methods, nor supervise the Collection
process; nor do the Parties intend to place title to Solid Waste collected by Franchisee in City.
Rather, the Parties intend that whatever, if any, title in and to the Solid Waste that is collected by
Franchisee that otherwise might exist in or with City in the absence of this Agreement is hereby
transferred to Franchisee; and further that if Franchisee gains title to such Solid Waste it is by
operation of law and agreement with its customers and is not the result of this Agreement. At no
time does City obtain any right of ownership or possession of Solid Waste or Recyclable
Materials placed for Collection, and nothing in this Agreement shall be construed as giving rise
to any inference that City has any such rights. City and Franchisee agree that, for the purposes
of the Uniform Commercial Code and all other laws imposing liability for defective products, it
is Franchisee, and not City which is to be considered the merchant of goods recycled pursuant to
this Agreement. Subject to the provisions of this Agreement, Franchisee shall have the right to
retain, Recycle, process, dispose of, and otherwise use Solid Waste collected pursuant to the
terms hereof in any lawful fashion or for any lawful purpose; and, further, shall have the right to
retain any benefit resulting from its right to retain, Recycle, process, dispose of, or reuse the
Solid Waste which it collects.
ARTICLE III
GRANT OF FRANCHISE; SCOPE OF FRANCHISE; EXCLUSIONS
3.1. Grant of Franchise.
3.1.1 General Grant. The City grants to Franchisee, and Franchisee shall have
during the Term of this Agreement, the non-exclusive franchise, right, license and privilege
(except as provided in Section 3.2 below) to engage in the business of collecting, transporting,
transferring, processing, recycling, treating, Diverting, converting, and collecting for disposal all
Solid Waste and Recyclable Materials generated by Commercial Premises, and to provide On -
Call Box and Bin services to Residential and Commercial Premises, within the City of Rancho
Palos Verdes. It is expressly understood that the Solid Waste management business is conducted
by Franchisee and not City, and while City grants the right to conduct the business within the
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terms of this Agreement, the Franchisee must determine what personnel to employ, terms and
conditions of employment, what equipment to utilize and at what cost, rates and charges to
establish for customers, and all methods, costs, obligations and mechanisms to undertake the
terms of the franchise.
3.1.2 Annexations. This Agreement shall extend to any territory annexed to
the City during the Term that is not covered by an existing Solid Waste permit, license,
agreement or franchise granted by another public entity, except to the extent that Collection by
Franchisee within that annexed territory would violate the provisions of Public Resources Code
Section 49520. In such event, this Agreement shall become effective as to such area at the
earliest possible date permitted by law, and City agrees that it shall cooperate with Franchisee to
fulfill any requirement necessary for Franchisee to serve the annexed area consistent with this
Section 3.1.2.
3.2. Scope of Franchise; Exceptions. The franchise granted to Franchisee shall be
non-exclusive within City limits such that Franchisee and all other contractors to whom City may
grant a franchise (collectively, "franchise haulers"), shall be the sole providers of general Solid
Waste and Recyclable Materials hauling services to City residents and businesses. To this end,
at all times during the Term of this Agreement the City shall require that all Solid Waste and
Recyclable Materials collected from Residential and Commercial Premises for a fee, service
charge, or other consideration be collected by a franchise hauler, with the following exceptions:
3.2.1 EDCO Agreement. Franchisee's franchise rights are subject to the
exclusive residential franchise rights set forth in the EDCO Agreement.
3.2.2 Other Authorized Commercial Haulers. City expressly reserves the right
to grant non-exclusive franchise rights to other Solid Waste Enterprises to provide services
similar to or identical to the services that Franchisee will provide under this Agreement.
3.2.3 Intergovernmental Immunity. The following entities may contract with
non -franchise haulers for any Solid Waste handling services: (i) public universities, (ii) public
school districts, (iii) other state agencies, (iv) any other governmental entity that is not subject to
the City's police powers, and (v) any entity covered by the exclusivity provisions of any
ordinance to be adopted by the City.
3.2.4 City Hauls. Nothing in this Agreement prohibits the City, through City
officers or employees in the normal course of their City employment, from engaging in casual or
emergency Collection, removal, disposal or Diversion of Solid Waste.
3.2.5 Self -Hauling. City residents, Owners, or occupants of Premises may
engage in self -hauling. To qualify as a "self -hauler" for purposes of this exemption, an Owner or
occupant must remove and personally transport Solid Waste or Recyclables from his/her own
Premises using his/her own equipment for the purpose of lawfully delivering same to a Disposal
Site or MRF/TS authorized to receive and handle Solid Waste or Recyclables. The use of a
subcontractor is not "self haul" within the meaning of this exception.
3.2.6 Gardner/Landscaper Green Waste. Green Waste and other compostables
may be removed from a Premises by an Owner or resident of the Premises or by a gardening,
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landscaping or tree trimming contractor as an incidental part of a total service offered by that
contractor rather than as a hauling service. To qualify for this exemption, a gardener or
landscaper must not be a hauling service or Solid Waste Enterprise, must not separately or
additionally charge for the incidental service of removing, transporting or disposing (except for
tipping fee) of the Green Waste, and must utilize only his or her own employees and equipment
to collect, transport and dispose of said Green Waste.
3.2.7 C&D Material. The Collection, transportation and disposal by a
construction contractor of C&D Material from Remodeling jobs which are generated as an
incidental part of providing such Remodeling services, provided that the construction contractor
is not a hauling service or Solid Waste Enterprise, does not separately or additionally charge for
the incidental service of removing, transporting or disposing (except for tipping fee) of the C&D
Material, and utilizes only his/her own employees and equipment to collect, transport and
dispose of the C&D Material.
3.2.8 Automotive Dismantling. A properly licensed non -franchise hauler may
collect, transport, and dispose of vehicles or machine parts and waste generated by an
automotive/vehicle dismantler or Owner of a vehicular salvage or disposal yard.
3.2.9 Asphalt/Concrete/Dirt Materials. A properly licensed non -franchise
hauler may collect, process, and/or transport asphalt, concrete, and dirt.
3.2.10 Hazardous Waste. A properly licensed non -franchise hauler may
collect, process and/or transport Hazardous Waste and non-spadeable wastewater or sewage
sludge.
3.2.11 Recyclable Materials. A properly licensed non -franchise hauler may
collect, transport, and recycle or sell Source Separated Recyclable Materials with a market value
which the Owner of the generating Premises has not discarded, but rather sold or donated to such
hauler, provided that such hauler is not engaged in the business of Collecting Solid Waste for a
fee or other charge or consideration, and that no such materials are transported for disposition to
a landfill or transfer station. A mere discount or reduction in price of third -party charges for the
handling of Recyclables is not a sale or donation within the meaning of this Agreement and is
thus precluded.
3.2.12 Oil Waste. Franchisee's franchise does not preclude the Collection,
processing and/or transport of oil/used oil by third -party entities duly licensed to handle such
waste.
3.2.13 Tires. Franchisee's franchise does not preclude the Collection,
processing and/or transport of tires by third -party entities duly licensed to handle such waste.
3.2.14 Infectious Waste. Franchisee's franchise does not preclude the
Collection, processing and/or transport of Infection Waste by third -party entities duly licensed to
handle such Infectious Waste.
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3.2.15 HHW, White Goods and U -Waste. Franchisee's franchise does not
preclude the Collection, processing and/or transport of HHW, White Goods and U -Waste by
third -party entities duly licensed to handle such Waste.
3.2.16 Bulky Waste. Franchisee's franchise does not preclude the Collection,
processing and/or transport of Bulky Waste by duly licensed non -franchise haulers.
3.2.17 Legally -Required Exemptions. Franchisee's franchise rights shall be
limited by any other exemption created by City, State, or Federal law.
3.3. Compensation To City for Grant of Franchise.
3.3.1 Franchise Fee. In consideration for the grant of the franchise provided
herein, Franchisee agrees to pay the City a franchise fee equaling five percent (5%) of the Gross
Receipts received by Franchisee from the services provided in the City pursuant to this
Agreement.
3.3.2 AB 939 Fee. To aid the City in complying with the Refuse Impact
Reduction Laws, and during the entire Term of this Agreement, Franchisee shall also pay to the
City an AB 939 Fee of five percent (5%) of Gross Receipts received by Franchisee from the
services provided in the City pursuant to this Agreement. Further, to the extent Franchisee can
show by documentary evidence satisfactory to the City Manager that Solid Waste was processed
or disposed of in a manner that constitutes Diversion, the AB 939 Fee due for that period shall be
reduced by the ratio of the Diverted Solid Waste to all Solid Waste collected during that period
(e.g., if 10% of Solid Waste is Diverted, the AB 939 Fee for that period is reduced by 10%).
3.3.3 Payment Protocol. All such Franchise Fees and AB 939 Fees required
pursuant to this Section 3.3 shall be made to City within thirty (30) Days of the conclusion of
each calendar quarter during the Term hereof, including any extension thereof. Upon the
expiration of any such thirty (30) Day period, a delinquent assessment of twenty-five percent
(25%) per month shall be levied against any unpaid balance. Each payment of the Franchisee
Fee and AB 939 Fee shall be accompanied by a statement setting forth the Gross Receipts
collected by Franchisee and the computation of the total of each fee due. Each statement shall
include the following certification executed by an officer of the Franchisee:
"I hereby certify that the foregoing statement of the Franchise Fee
and AB 939 Fee payments is made by me, that I am authorized to
make such statement, and that, to the best of my knowledge and
belief, it is true, correct and complete."
No acceptance by City of any payment shall be construed as an accord that the
amount is the correct amount, nor shall such acceptance of payment be construed as a release of
any claim City may have against Franchisee for any additional sums payable under the
provisions of this Agreement. All amounts paid shall be subject to independent audit and
recompilation by City.
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ARTICLE IV
SERVICES OF FRANCHISEE
4.1. General Standards.
4.1.1 Furnishing of Services. The work to be performed pursuant to this
Agreement shall include:
(a) the furnishing of all labor, materials and equipment necessary for,
and the scheduled Collection of all Solid Waste and Recyclables from, Commercial Premises
within the City where Franchisee has an agreement with the Commercial Premises Owner(s) for
such service; and
(b) the furnishing of all labor, materials and equipment necessary for
the On -Call provision of Bins and Boxes for Solid Waste and Recyclables to Residential and
Commercial Premises upon request from customers and the subsequent Collection of the same in
accordance with a schedule to be determined by the Franchisee and customer, to the extent not in
conflict with the EDCO Agreement or other such agreements with Solid Waste Enterprises.
All services shall be provided according to the terms of this Agreement.
Franchisee shall own or lease and maintain at its expense all equipment necessary to perform its
duties as provided for under the Agreement, including sufficient radio equipment for office to
field equipment communication. All work shall be accomplished in a courteous, thorough and
workmanlike manner and adhere to the highest standards consistent with the best practice in the
industry. As of the Effective Date of this Agreement, Franchisee shall not be required to collect
materials unless they have been properly placed in Franchisee -Provided Containers unless
otherwise specifically stated herein, including but not limited to Bulky Waste, Christmas trees
and Green Waste. Notwithstanding the foregoing, the Parties hereto acknowledge that a need
may arise for Franchisee to collect materials that are either placed in alternative, non -Franchisee -
Provided Containers or that are placed directly for Collection without containment; to this end,
the Parties may meet and confer in good faith in order to reach an accord as to how such needs
may be met. Any program specifically requiring Franchisee to collect materials from alternative
containers or to collect uncontained materials shall be memorialized in writing executed by each
Party.
4.1.2 Oversight of City Manager. Performance of each of the provisions of
this Agreement shall be under the direction of the City Manager or designee and the work
hereunder shall be done in a thorough and workmanlike manner under the direction, and to the
satisfaction, of the City Manager or designee. To this end, the City Manager shall have the
power to establish rules and regulations relating to the accumulation, Collection, Recycling,
disposal, and management of Solid Waste not inconsistent herewith and/or as necessary to ensure
compliance with laws, ordinances and regulations, and which the City Manager finds are
reasonably necessary for enforcement hereof or of applicable laws, ordinances and regulations,
or for preservation of the public peace, health, and safety. Franchisee shall be given thirty (30)
Days prior written notice of any such changes in rules or regulations excepting in those
circumstances where the changes are necessitated by an immediate threat to the public health,
safety and/or welfare.
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4.1.3 Designated Disposal Site. Franchisee shall dispose of all collected
Refuse at Franchisee's expense at a Disposal Site determined by Franchisee, except that any such
Disposal Site shall be certified to accept all Solid Waste delivered by Franchisee and shall be in
compliance with all federal, state, and local laws.
4.1.4 Hazardous Materials.
(a) The scope of this Agreement and franchise excludes the handling
of Hazardous Materials, and no right to provide Hazardous Materials handling services is
conferred on Franchisee as a result of this Agreement. Franchisee shall ensure that only persons
duly -licensed to handle Hazardous Materials shall be engaged when such services become
necessary.
(b) Franchisee shall implement a system of Hazardous Waste
screening, identification, and prevention protocol reasonably designed to screen -out Hazardous
Waste and prohibited materials that Franchisee is not permitted to handle pursuant to applicable
law prior to Franchisee accepting such materials. If Franchisee inadvertently collects Hazardous
Waste or other materials that Franchisee is not qualified or permitted to handle (under any
applicable permit conditions or applicable laws), the Franchisee shall arrange, at no cost and
without liability to City, for the proper disposal of such materials in accordance with applicable
laws and regulations; provided however, that Franchisee shall be entitled to return any such
Hazardous Waste, if the customer can be identified, or at its own expense pursue all legal rights
and remedies it may have against the customer(s) who generated such materials. The City shall
be indemnified by Franchisee from liability for any disposal of Hazardous Waste or other
materials that Franchisee is not qualified or permitted to handle pursuant to Section 9.2 hereof.
4.2. Standards of Performance.
4.2.1 Availability of Franchisee. Franchisee has established, and shall
continue to maintain a local office for the purpose of receiving customer payments and handling
customer inquiries, orders and Complaints. The local office shall be open to the public between
the hours of 8:00 a.m. to 5:00 p.m., five (5) Days per week, Monday through Friday, except
Holidays. A representative of Franchisee shall be available during office hours for
communication with the public at such local office. Additionally, the Franchisee shall continue
to employ the services of a telephone representative, answering exchange or message system for
calls during non -business hours and provide a telephone system sufficient and adequate to handle
calls during peak periods.
4.2.2 Franchisee Liaison to City. Franchisee shall be reasonably available to
the City. The Franchisee shall provide the City Manager, the local Los Angeles County Sheriff's
Department, and the local Los Angeles County Fire Department with an emergency telephone
number for effectively reaching Franchisee in the case of off -hour emergencies. Franchisee shall
also provide the City Manager with the cellular phone number of a Franchisee representative(s)
with day-to-day managerial responsibility over Franchisee services provided within the City.
One or more of the Franchisee's representatives described in this Section shall visit City offices
at such reasonable times as the City Manager shall designate for the purpose of discussing any
matters relating to this Agreement or the Franchisee's performance thereof. Any representative
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appointed by Franchisee shall occupy a position of sufficient managerial authority and
knowledge of day-to-day Franchisee operations as to be able to meaningfully discuss
performance issues with the City Manager.
4.2.3 Citizen Complaints. The Franchisee shall commence response to all
Complaints within eight (8) business hours, shall return all customer phone calls within eight (8)
business hours, and shall exercise Reasonable Business Efforts to resolve all Complaints. The
City may, but is not obligated to, respond to Complaints that have not been addressed within two
(2) business days and may charge the Franchisee for the actual costs incurred therefor. In
connection herewith, Franchisee shall adequately staff its telephone system so that it is capable
of handling all calls during peak business hours.
4.2.4 Record of Complaints. Franchisee shall maintain a record of all
Complaints received by mail, by telephone or in person (including date, time, name, address of
complainant and nature of Complaint) for a period of three (3) years. Franchisee will maintain
records listing the date of consumer Complaints, the customer, describing the nature of the
Complaint or request, and when and what action was taken by the Franchisee to resolve the
Complaint. Copies of all Complaints and records described in this Section shall be submitted to
the City Manager on a monthly basis, no later than two (2) business days following month's end.
4.2.5 Disputes. Disputes between the Franchisee and its customers regarding
the services provided in accordance with this Agreement may be resolved by the City; provided,
however, the City shall not be obligated to resolve any such disputes. The City Council by
resolution may prescribe the procedures for processing customer Complaints. The City's
decision shall be final and binding unless challenged in a court of competent jurisdiction.
4.2.6 Tags & Record of Non -Collected Material. The Franchisee shall notify
customers in the event any item left for disposal is not picked up. Said notification shall be in
the form of a written tag placed upon the customer's container, stating Franchisee's telephone,
address and the reason for non -Collection. Reasons for non -Collection may include, but are not
limited to the following: containers inaccessible to Franchisee (after Franchisee has made a
reasonable effort to secure access); improper container or use of a non -Franchisee Provided
Container; container overfilled; heavy container; or, the container includes Hazardous Waste.
The Franchisee shall maintain a record of all items not collected. Should Franchisee fail to
collect and dispose of materials set out or placed for Collection at times required, after
notification by City and a reasonable time thereafter, City may collect and dispose of uncollected
materials and Franchisee shall be liable to the City for the expenses incurred, plus overhead
charges equal to thirty (30%) of the City's expenses in Collection.
4.2.7 Property Damage Caused by Franchisee. The Franchisee shall be
responsible for the cost of repairing any property damaged by the negligent or intentional
conduct of its employees or agents. The City may, but is not obligated to, respond to Complaints
that have not been addressed in accordance with Section 4.2.3 hereof and may charge the
Franchisee for the actual costs incurred by the City therefor.
4.2.8 Quality of Service Surveys. The City may, at its own expense, conduct
periodic quality of service surveys of Franchisee's customers. Prior to finalizing the survey
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form, the City shall review the survey with the Franchisee. Results of the quality of service
survey shall be reviewed with the Franchisee and used to discuss improvements in service
delivery.
4.2.9 Annual Route Audit. At least once annually, Franchisee shall, at its own
expense, conduct an audit of its Collection routes. The annual route audit shall include the truck
identity servicing each route, number of accounts serviced per route (Commercial and
Residential, as applicable), frequency of pick-ups, size of container for each account on the
route, frequency of service for each account on the route, as well as the weight of the truck and
refuse delivered to the applicable Disposal Site. Results of the annual route audit shall be
available for review by the City.
4.2.10 "On -Call" Equipment and Personnel. During normal business hours, the
Franchisee shall have "on-call" at least one (1) truck to handle called -in pick-ups or missed
Collections. After normal business hours, the Franchisee shall have "on-call" the necessary
manpower and equipment (including without limitation an emergency service vehicle to attend to
Complaints or emergency calls) to respond to customer emergencies that are an immediate threat
to life or property. Franchisee's on-call equipment and personnel shall also be available to assist
the City with debris Collection and removal within a reasonable time resulting from emergencies
and natural disasters, excepting that nothing in this Section shall require Franchisee to collect,
haul or dispose of waste that Franchisee is not permitted to handle.
4.3. Hours & Dates of Collection. Franchisee shall so conduct its operations so as to
offer the least possible obstruction and inconvenience to public traffic or disruption to the peace
and quiet of the area within which Collections are effected. In accordance therewith, Collection
services by Franchisee shall only be performed between the hours of 7:00 a.m. and 7:00 p.m.
(standard and daylight savings time) of any day, except that no Collections shall be made on
Sunday. City may, from time to time, revise the Collection hours specified in this Section by
duly adopted resolution. Further, Franchisee shall observe the following holidays annually
(whereby there will be no Collection services and Collection shall occur one Day late following
the holiday):
• New Year's Day
• Memorial Day
• Independence Day
• Labor Day
• Thanksgiving Day
• Christmas Day
Franchisee shall also observe any additional holidays coinciding with the holiday
schedule observed by the County to the extent such County -observed holiday results in the
closure of the County's Disposal Sites. In any week in which one of these holidays falls on a
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Collection day, Collection will be delayed to the next business day. Any changes to the holiday
Collection schedule may only be made as approved by the City in advance in writing.
4.4. Collection of Refuse, Recyclable Materials, Green Waste, and Organic Waste
For Commercial Customers.
4.4.1 Commercial Refuse Collection. Franchisee shall collect Refuse from
Commercial Premises as frequently as scheduled by customer, but not less than once per week
and more frequently if required to handle the waste generated at the Premises where the
Containers are located. The Franchisee shall provide Containers as part of the Collection
services. The size of the container and the frequency (above the minimum) of Collection shall
be determined by agreement between the customer and the Franchisee. Size and frequency shall
be sufficient to provide that no Refuse need be placed outside the Container. Unless expressly
instructed by the City, Franchisee shall provide Franchisee Provided Containers only to those
Commercial Premises that provide an appropriate location for such Container in accordance with
the Rancho Palos Verdes Municipal Code.
4.4.2 Commercial Recyclable Materials Collection. Franchisee shall provide
Recyclable Materials Collection services upon request by customers. Franchisee shall collect
Recyclable Materials from Commercial Premises that have subscribed to Recyclable Materials
Collection services as frequently as scheduled by the customer, but not less than once per week.
Franchisee may determine the method of Recyclable Materials Collection, except that any such
method must enable Commercial customers to comply with Public Resources Code Section
42649.2 either through Source Separation or through mixed waste processing that yields
Diversion results comparable to Source Separation. Franchisee shall collect Recyclable
Materials at the location agreed upon by Franchisee and customer. The designated Collection
location, if disputed by Franchisee or customer, shall be determined by the City. Franchisee
shall not be required to furnish a separate Container for Recyclable Materials unless such is
required by Franchisee's chosen method of compliance with this paragraph.
Franchisee shall use Reasonable Business Efforts to provide Commercial
customers who qualify as Commercial Waste Generators (as that term is defined in Public
Resources Code Section 42649.1) with such assistance and services as may be necessary to
enable those Generators to comply with Public Resources Code Section 42649.2.
4.4.3 Commercial Green Waste Collection. Franchisee shall provide Source -
Separated Green Waste Collection services upon request by customers. Franchisee shall collect
Source -Separated Green Waste from Commercial Premises that have subscribed to Source -
Separated Green Waste Collection services as frequently as scheduled by the customer, but not
less than once per week. Franchisee shall allow Commercial Premises to select a Collection
service method that best suits the needs of their Premises. Franchisee shall collect Source -
Separated Green Waste Materials at the location agreed upon by Franchisee and customer. The
designated Collection location, if disputed by Franchisee or customer, shall be determined by the
City.
4.4.4 Commercial Organic Waste Collection. Franchisee shall provide Organic
Waste recycling services upon request by customers. Franchisee shall collect Organic Waste
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from Commercial Premises that have subscribed to Organic Waste recycling services as
frequently as scheduled by the customer, but not less than once per week. Franchisee may
determine the method of Organic Waste Collection, except that any such method must enable
Commercial customers to comply with Public Resources Code Section 42649.81(b) either
through Source Separation or through mixed waste processing that specifically recycles Organic
Waste. Franchisee shall collect Organic Waste at the location agreed upon by Franchisee and
customer. The designated Collection location, if disputed by Franchisee or customer, shall be
determined by the City. Franchisee shall not be required to furnish a separate Container for
Organic Waste unless such is required by Franchisee's chosen method of compliance with this
paragraph.
Franchisee shall use Reasonable Business Efforts to provide Commercial
customers who qualify as Organic Waste Generators (as that term is defined in Public Resources
Code Section 42649.8) with such assistance and services as may be necessary to enable those
Generators to comply with Public Resources Code Section 42649.81.
4.4.5 Special Collection Considerations for Commercial Premises.
(a) Shared Containers. Commercial Premises may share Containers
with neighboring business establishments provided that all sharing units share the same Premises
and so long as the sharing of Containers does not result in the overfilling of, or overflow from,
Containers.
(b) Food Establishments. Those Commercial Premises consisting of
food processing operations shall utilize their own Container for the disposal of food -related Solid
Wastes (i.e., a Container not shared with other Commercial Premises unless such Premises
sharing the Container are also food processing operations disposing of food -related Solid
Wastes).
4.5. On -Call Container Services. Franchisee shall provide Bins and Boxes to
Residential and Commercial Premises on an On -Call basis as requested by customers. Container
services shall include, but not be limited to, moving manually or by a specialized "scout" truck
the Bins or Boxes from their non -curbside or non -regular storage location for Collection and
returning the Bins or Boxes to such storage location.
4.6. Encroachment Permits Required. Franchisee shall not place any Container at
any Premises within the City until Franchisee has verified that the Owner of the Premises has
obtained a required encroachment permit or has verified with the City that none is required. No
Container shall be placed or used in any manner that violates an applicable encroachment permit.
Franchisee shall immediately remove any Container that does not have a valid encroachment
permit, unless notified by the City that none is required. The Franchisee shall furnish and install
flashing barricades adjacent to any Container that is placed within the public right of way. Upon
request of the City, Franchisee shall provide the City with the address of any Premise where a
Container will be placed, the size of the Container, the duration of the placement, and the type of
material that will be placed in the Container. If City removes a Container that is placed in
violation of this Section, Franchisee shall immediately reimburse City for all costs incurred by
City in removing the Container.
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4.7. On -Call Services for Collection of Bulky Waste. Franchisee shall provide
Bulky Waste Collection service for Commercial Premises upon request. Franchisee shall make
provisions for the recycling of Bulky Waste if a market for such waste is available.
(a) Bulky Waste Collection Restrictions. The following applies to
items Collected under this Section:
i. No single item that cannot be handled by two workers shall
be accepted.
ii. The following items shall not be picked up: Hazardous
Substances and Hazardous Waste.
iii. Vehicles used for Collection of Bulky Waste shall not use
compactor mechanisms or mechanical handling equipment that may
damage reusable goods or release Freon or other gases from pressurized
appliances.
(b) Bulky Waste Containing Freon. In the event Franchisee Collects
Bulky Waste that contains Freon, Franchisee shall handle such Bulky Waste in a manner such
that the Bulky Waste is not subject to regulation as Hazardous Waste under applicable state and
federal laws or regulations.
4.8. Christmas Tree Pickup. Franchisee agrees to collect holiday trees at no
additional charge to customers for a four (4) week period or more following December 25 of the
applicable calendar year. Franchisee may set reasonable requirements for the placement and
condition of trees (e.g., whether they need to be placed in Containers or whether they need to be
cut into pieces) in order to ensure the safe and efficient Collection of the trees by Franchisee
employees and to avoid the creation of a nuisance. Collector shall deliver the collected holiday
trees to an appropriate facility for processing.
ARTICLE V
WASTE DIVERSION.
5.1. State Mandate. The Refuse Impact Reduction Laws currently set the directive of
Diverting fifty percent (50%) of the City's Solid Waste, with a requirement to Divert 75% by the
year 2020. If the City fails to implement its required plans to achieve the aforementioned
directive under the Refuse Impact Reduction Laws, CalRecycle may impose administrative civil
penalties of up to TEN THOUSAND DOLLARS ($10,000.00) per day until the City implements
its plans. Furthermore, City anticipates that the State Legislature will adopt new legislation that
will increase the minimum Diversion requirement. Upon the effective date of any new
legislation that affects the Diversion requirements currently imposed by the current Refuse
Impact Reduction Laws, Franchisee agrees to implement a revised or new Diversion program
meeting such amended legislative requirements, to the extent reasonably necessary to enable the
City to comply with the Refuse Impact Reduction Laws. Failure to implement an amended
Diversion program based upon new State legislation mandating Waste Diversion levels shall
constitute a default of this Agreement.
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5.2. Development of Diversion Program. Upon City's request, Franchisee shall
meet and confer with City in good faith to jointly develop Solid Waste Diversion strategies and
develop Diversion programs adequate to meet the requirements established by the State. In the
event of any change to State or regional laws, regulations or mandates setting new Diversion
requirements applicable to the City, the Parties shall promptly meet and confer to negotiate in
good faith the implementation of such amendments to law through the City's Solid Waste
Diversion program. City and Franchisee shall reasonably cooperate in good faith to meet
statutory Diversion requirements and otherwise to ensure compliance with the Refuse Impact
Reduction Laws. If the City and Franchisee cannot agree on a program within thirty (30) Days
after initially commencing any meet and confer process, City shall be entitled to specify the
program to be implemented.
5.3. Cooperation and Education. The Franchisee shall cooperate with the Solid
Waste Diversion activities of the City and shall coordinate Diversion activities and programs to
the extent possible. The Franchisee shall cooperate with the City's efforts to develop and
implement public education and information programs designed to promote Source Reduction,
Recycling and composting in general as well as specific Waste Diversion strategies. Franchisee
shall have a public education program in place by which it will distribute free educational
information about Solid Waste management and Recycling to customers in their regular bills.
5.4 Waste Diversion Reporting Requirements. The Franchisee shall comply with
the Waste Diversion reporting requirements established by the City. Franchisee shall provide
City with regular written reports in a form acceptable to the City and adequate to meet City's
reporting requirements to CalRecycle in compliance with all Refuse Impact Reduction Laws,
including a breakdown of the type and quantity of waste (by weight and volume) hauled by
Franchisee, generator type (e.g., Commercial or Residential, or more specific categories as may
be determined by City), the type and quantity of Recyclable Materials, HHW/U-Waste/E-Waste
(as may be inadvertently received by Franchisee), Green Waste and Bulky Waste, and including
a discussion of the quarterly Waste Diversion percentages achieved during the year. Franchisee
shall report such information on a quarterly basis and shall also provide City with an Annual
Diversion Report. Quarterly records will allow for reporting of seasonal variation in waste
quantities and will assist in program operation, improvement and expansion.
ARTICLE VI
VEHICLES, EQUIPMENT AND PERSONNEL
6.1. Vehicles.
6.1.1 General. Franchisee shall continue to provide a fleet of Collection
vehicles sufficient in number and capacity to perform efficiently the work required by this
Agreement in strict accordance with its terms. Franchisee agrees to maintain each piece of
equipment used by it in good order and repair, and not more than ten (10) years of age. All
vehicles shall be uniformly painted and fully equipped for efficient automated Collection. All
vehicles shall be registered with the California Department of Motor Vehicles and shall meet or
exceed all applicable State and local requirements, including all applicable air pollution control
laws. Each vehicle shall also carry a fire extinguisher, first aid kit and a broom and shovel to be
used for the immediate removal of any spilled material. All spilled material shall be immediately
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removed by Franchisee. Franchisee shall be responsible for the cost of repairing all damage to
driveway approaches caused by Franchisee's vehicles.
Franchisee shall comply with the requirements of the Air Resources Board, or any
successor agency, regarding Solid Waste Collection Vehicles, found in Title 13, California Code
of Regulations, Sections 2020 through 2021.2, as may be amended from time to time. The City
may require Franchise to improve or upgrade Collection vehicles to incorporate the latest
technology available to control environmental impacts of the services provided hereunder.
6.1.2 Truck Bodies. All truck bodies used by Franchisee shall be constructed
of metal, shall be watertight and leak -proof and shall be so constructed as to prevent odors or the
falling, leaking or spilling of Solid Waste, Recyclables, or other materials. Franchisee shall
maintain all trucks and equipment used within City in good mechanical condition and the same
shall be clean and uniformly painted and numbered. All trucks and equipment shall have painted
thereon, or affixed thereto, in letters and numbers at least six (6) inches in height, the name and
telephone number of Franchisee, which name and telephone shall be clearly visible at all times.
Each vehicle utilized by Franchisee shall be identified by numerals at least six (6) inches in
height in a location or locations on such vehicles to be specified by City. A list showing each
vehicle so identified shall be made available to City and maintained in the current status by
Franchisee and, upon notice given by City, Franchisee shall make the equipment available for
inspection. If City finds that any truck or equipment being used by Franchisee is not in
satisfactory condition then the truck or equipment requiring correction of defects shall not be
used by Franchisee in the performance of the Agreement until corrected to the reasonable
satisfaction of City. In addition, if Franchisee's trucks are inspected by any other public
agencies, copies of any inspection report shall be made available to the City upon request.
6.1.3 Backup Alarm. Each vehicle used for collecting, hauling or disposing of
Solid Waste and/or Recyclables shall be equipped with an audible warning device that is
activated when the vehicle is backing up.
6.1.4 Gross Vehicle -Weight Limit. No vehicle used for collecting, hauling or
disposing of Solid Waste and/or Recyclables shall be loaded in excess of the manufacturer's
gross vehicle weight rating or in excess of the maximum weight specified by the California
Vehicle Code, whichever is less. Evidence of the manufacturer's name and gross vehicle weight
rating shall be maintained in, or upon, every vehicle.
6.1.5 Preventive Maintenance and Repair Program. Within thirty (30) Days of
the Effective Date of this Agreement, Franchisee shall have implemented a complete and
comprehensive preventive maintenance and repair program, or if such repair program has
already been implemented, Franchisee shall continue its performance thereof. Franchisee shall
provide a copy of its preventative maintenance program to City for its review and approval, or if
such a program has already been approved by the City, Franchisee shall notify the City of any
updates to the program for City approval. Franchisee shall perform all scheduled maintenance
functions in accordance with the manufacturer's specifications and schedule and shall inspect
each vehicle daily to ensure that all equipment is in good working order. Franchisee shall keep
accurate records of all vehicle maintenance and repairs, recorded according to date and mileage,
nature of maintenance or repair and the signature of a maintenance supervisor or mechanic that
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the maintenance or repair has been properly performed. Franchisee shall make such maintenance
records available to City on request.
6.1.6 Vehicle Cleaning. Each vehicle used within the City shall be cleaned
thoroughly by washing with water after each Day's use. Vehicles shall be washed completely at
least once a week and steam -cleaned on a regular basis so as to present a clean appearance and
minimize odors, but in no event less than once a month.
6.1.7 Vehicle Storage. No vehicle used by Franchisee in performance of this
Agreement shall be stored on any public street or other public property in the City. All
Franchisee's vehicles if kept within the boundaries of the City shall at all times when not in use
be kept on property of the proper zone either within a building or fenced yard.
6.2. Container Condition. Franchisee at its sole cost and expense shall maintain all
Franchisee Provided Containers in good condition and repair as needed and shall clean and/or
paint each Container annually. More frequent cleaning and painting shall be conducted by
Franchisee if needed. Franchisee shall, at no charge, replace any Franchisee Provided Containers
which become unusable by reason of normal conditions of wear and tear. If damages occur to a
Franchisee Provided Container necessitating repairs or replacement of the Container, and if said
damages were incurred as a direct result of customer negligence, the customer may be liable for
such repair costs and/or replacement costs for the Container. During all times that a Franchisee
Provided Container is in the custody and control of Franchisee, Franchisee shall not store such
Container in or on public streets or rights-of-way.
6.2.1 Franchisee Provided Containers that have graffiti on them must be
(i) removed and replaced, or (ii) cleaned of all graffiti, or (iii) repainted to a like -new appearance
within 24 hours of Franchisee reasonably becoming aware of such graffiti.
6.2.2 Any addresses, name, company or other identifiers on Franchisee
Provided Containers shall be neatly stenciled on the Containers.
6.2.3 If new laws or regulations relating to composting are enacted such that
additional receptacles are required to be provided to customers for purposes of complying with
the composting program, Franchisee will supply appropriate Franchisee -Provided Containers at
no additional cost.
6.2.4 Commercial Franchisee Provided Containers shall be steam -cleaned at
least once per year at no cost to the City or customers in a manner that does not materially
disrupt the services provided under this Agreement or create a nuisance.
6.3. Inspection.
6.3.1 City Inspections. Franchisee shall give the City at least fifteen (15)
Days prior written notice of any vehicle inspection to be performed by the California Highway
Patrol ("CHP") and the City may elect to observe the CHP inspection. Without limiting the
City's right to observe the CHP inspections, City reserves the right to cause any vehicle used in
performance of this Agreement to be inspected and tested at any commercially reasonable time
and in such manner as may be appropriate to determine that the vehicle is being maintained in
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compliance with the provisions of the Rancho Palos Verdes Municipal Code and the State
Vehicle Code, including but not limited to California Vehicle Code §§ 27000(b), 23114, 23115,
42030, 42032, and all Vehicle Code Sections regarding smog equipment requirements. City may
direct the removal of any vehicle from service if that vehicle is found to be in nonconformance
with applicable codes. No vehicle directed to be removed from service shall be returned to
service until it conforms with applicable codes and such conformance has been acknowledged by
City. The City may elect in its sole discretion to hire an independent contractor to perform a
comprehensive inspection of Franchisee's vehicles. If the City hires an independent contractor to
perform the inspection on behalf of the City the Franchisee shall pay for the cost of such
inspection. City shall act prudently in requesting any such inspection.
6.3.2 Brake Inspections. The brake system of each vehicle used in
performance of this Agreement shall be inspected bi-annually by the CHP and shall comply with
State law. Notice of certification shall be filed with the City within thirty (30) Days after each
such certification. Failure to submit the required certification shall be grounds for terminating
this Agreement.
6.3.3 Correction of Defects. Following any inspection, the City Manager shall
have the right to reasonably require Franchisee to take out of service any vehicles and equipment
not in good working order and cause Franchisee to recondition or replace any vehicle or
equipment found to be unsafe, unsanitary or unsightly within thirty (30) Days of notification of
defect in such vehicle or equipment. The City Manager's determination may be appealed to the
City Council.
6.4. Personnel.
6.4.1 General. Franchisee shall furnish such qualified drivers, mechanical,
supervisory, clerical and other personnel as may be necessary to provide the services required by
this Agreement in a courteous, safe and efficient manner. Franchisee shall keep itself fully
informed of existing and future State and Federal laws, rules and regulations in any manner
affecting those engaged and employed in or on the work contemplated herein or in any way
affecting the conduct of that work and of all orders or decrees of bodies of officials having
jurisdiction or authority over the same, and shall, at all times, observe and comply with and
cause any and all persons employed by Franchisee or under Franchisee cause to observe and
comply with all such laws, ordinances, rules, regulations, orders and decrees. Franchisee and
any subcontractors and/or employees under Franchisee shall comply with and be governed by the
law of the State of California having to do with working hours as set forth in the Labor Code of
the State of California, as the same may be amended from time to time.
6.4.2 Driver Qualifications. All drivers shall be trained and qualified in the
operation of Collection vehicles and must have in effect a valid license, of the appropriate class,
issued by the California Department of Motor Vehicles.
6.4.3 Uniforms and Identification Badges. Franchisee shall require its drivers
and all other Collection personnel to wear a suitable and appropriate uniform as a means of
identifying the employee. All other employees of Franchisee who come into contact with the
public shall carry suitable identification badges or cards upon their person.
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6.4.4 Employee Appearance and Conduct. All employees, while engaged in
the Collection of Solid Waste and/or Recyclables within the City or otherwise engaged in
services described in this Agreement, shall be attired in uniform. At least one member of every
Collection truck crew shall be able to read and speak English. Franchisee shall use its best
efforts to assure that all employees present a neat appearance and conduct themselves in a
courteous manner. Franchisee shall regularly train its employees in customer courtesy, shall
prohibit the use of loud or profane language, and shall instruct Collection crews to perform the
work as quietly as possible. If any employee is found not to be courteous or not to be performing
services in the manner required by this Agreement, Franchisee shall take all appropriate
corrective measures.
6.4.5 Safety Training. Franchisee shall provide suitable operational and safety
training for all its employees who use or operate vehicles or equipment for Collection of Solid
Waste or who are otherwise directly involved in such Collection. Franchisee shall train its
employees involved in Solid Waste and/or Recycling Collection to identify, and not to collect,
Hazardous Wastes. Franchisee and its employees shall comply with the terms of all contracts
between the Los Angeles County Department of Public Works and any Disposal Site that is used
by Franchisee.
6.4.6 Safety. All work performed pursuant to this Agreement shall be
performed in a manner that provides safety to the public and meets or exceeds safety standards
outlined by the California Construction Safety Orders under the State of California Code of
Regulations ("CAL -OSHA"). City reserves the right to issue restraint or cease and desist orders
to Franchisee when unsafe or harmful acts are observed or reported to City. Franchisee shall
instruct its employees to report immediately any hazardous conditions or Hazardous Wastes they
observe within the City during the course of their work to the City.
6.4.7 No Gratuities. Franchisee shall not permit its employees or
subcontractors to demand or solicit, directly or indirectly, any additional compensation or
gratuity from members of the public for the work performed by those employees or
subcontractors pursuant to this Agreement.
6.4.8 Notice of Labor Disputes. Franchisee shall advise City in writing at the
time any negotiations are undertaken between Franchisee and its employees relating to the wages
and benefits and Franchisee shall report the status of said negotiations from time to time
including any pending strike, lock out, walkout, boycott or other labor dispute.
ARTICLE VII
RATES
7.1. Franchisee Sets Rates; Discounted Rate for Recyclables. Franchisee shall
receive payment for services rendered under this Agreement according to rates set by the
Franchisee as set forth in the service contract between Franchisee and Franchisee's customers.
Franchisee may establish such rates and charges Franchisee believes are appropriate in the
marketplace, except that the rate for the Collection and disposal of Recyclable Materials shall be
no higher than 75% of the rate charged by Franchisee for the Collection and disposal of non -
01203.0001/286603.4 26
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Recyclable Materials. No compensation for services shall be provided or paid to Franchisee by
City except as expressly provided in this Agreement.
7.2. Proposition 218 Indemnification. Franchisee shall indemnify, defend with
counsel reasonably acceptable to the City, protect and hold harmless the City, its officers,
employees, agents and volunteers, (collectively, "indemnitees") from and against all claims,
damages, injuries, losses, costs, including demands, debts, liens, liabilities, causes of action,
suits, legal or administrative proceedings, interest fines, charges, penalties and expenses
(including attorneys' and expert witness fees, expenditures for investigation, and administration)
and costs or losses of any kind whatsoever (collectively, "claims or liabilities") paid, imposed
upon, endured or suffered by or assessed against Franchisee or any of the indemnitees resulting
from the establishment of maximum rates for service under this Agreement or in connection with
the application of Proposition 218 to the imposition, payment or Collection of rates and fees for
services provided by Franchisee under this Agreement. Notwithstanding the foregoing, this
indemnity shall not extend to any loss arising directly from the negligence of City, its officers
and employees. Nothing herein is intended to imply that Proposition 218 applies to the setting of
rates for the services provided under this Agreement; rather this Section is provided merely to
allocate risk of loss as between the Parties. In connection herewith:
(a) Franchisee will defend any action or actions filed in connection
with any of said claims or liabilities stated in this Section and will pay all costs and expenses,
including legal costs and attorneys' fees, incurred in connection therewith;
(b) Franchisee will promptly pay any judgment rendered against the
City, its officers, agents or employees for any such claims or liabilities arising out of or in
connection with Proposition 218; and Franchisee agrees to save and hold the City, its officers,
agents and employees harmless therefrom;
(c) In the event the City, its officers, agents or employees is made a
party to any action or proceeding filed or prosecuted against Franchisee for such damages or
other claims arising out of or in connection with Proposition 218, Franchisee agrees to pay to the
City, its officers, agents or employees, any and all costs and expenses incurred by the City, its
officers, agents or employees in such action or proceeding, including but not limited to, legal
costs and attorneys' fees.
Franchisee's obligations hereunder shall survive the termination or expiration of this
Agreement.
7.3. Direct Billing. All accounts shall be directly billed by Franchisee and in
accordance with protocols established by Franchisee.
7.4. Delinquent Accounts; No Termination of Services Without City Consent.
Franchisee shall use Reasonable Business Efforts to collect all delinquent accounts for services
provided under this Agreement. If, after using Reasonable Business Efforts for ninety (90) days,
Franchisee remains unable to collect on any delinquent account, Franchisee shall request that the
City meet and confer in good faith regarding further options for collecting and resolving issues
of service to delinquent accounts. City and Franchisee shall meet and confer in good faith for a
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period of at least ninety (90) days unless a resolution is earlier reached. Under no circumstance
shall Franchisee terminate service to any customer within the City without express written
permission from the City. Nothing herein waives or supersedes the City's rights to initiate code
enforcement action(s) in response to the build-up, long-term stagnation, or misplacement of
Solid Waste as a result of any termination of Franchisee's service.
ARTICLE VIII
TRANSFERS OF INTEREST.
8.1. Restrictions on Transfers. The City, in entering into this Agreement, has placed
a special value, faith and confidence in the experience, background, and expertise of the
Franchisee in the field of waste disposal. Such faith and confidence being a substantial
consideration in the granting of this Agreement warrants the transfer restrictions provided in this
Article VIII.
8.2. Definition of Transfer. As used in this Section, the term "Transfer" shall include
any hypothecation, mortgage, pledge, or encumbrance of this Agreement by Franchisee, subject
to the exceptions set forth in Section 8.4 below. A Transfer shall also include the transfer to any
person or group of persons acting in concert of more than thirty percent (30%) of the present
equity ownership and/or more than thirty percent (30%) of the voting control of Franchisee
(jointly and severally referred to herein as the "Trigger Percentages"), taking all transfers into
account on a cumulative basis, except transfers of such ownership or control interest to an
Affiliate owned or controlled by the present beneficial owners of Franchisee or members of their
immediate family, or between members of the same immediate family, or transfers to a trust,
testamentary or otherwise, in which the beneficiaries are limited to members of the transferor's
immediate family. A transfer of interests (on a cumulative basis) in the equity ownership and/or
voting control of Franchisee in amounts less than Trigger Percentages shall not constitute a
Transfer subject to the restrictions set forth herein. In the event Franchisee or its successor is a
corporation or trust, such Transfer shall refer to the transfer of the issued and outstanding capital
stock of Franchisee, or of beneficial interests of such trust; in the event that Franchisee or any
general partner comprising Franchisee is a limited or general partnership or a limited liability
company, such Transfer shall refer to the transfer of more than the Trigger Percentages in the
limited or general partnership or limited liability company interest; in the event that Franchisee
or any general partner is a joint venture, such Transfer shall refer to the transfer of more than the
Trigger Percentages of such joint venture partner, taking all transfers into account on a
cumulative basis.
8.3. Transfers Require City Approval. Franchisee shall not Transfer this
Agreement or any of Franchisee's rights hereunder, directly or indirectly, voluntarily or by
operation of law, except as provided below, without the prior written approval of City Manager —
unless the Transfer is of such significance that, in the sole discretion of the City Manager, the
approval of the City Council is required — and if so purported to be transferred, such Transfer
shall be null and void. Franchisee will submit its request for City consent to the City together
with documents, including but not limited to: (i) the transferee's audited financial statements for
at least the immediately preceding three (3) operating years; (ii) proof that the proposed
transferee has municipal Solid Waste management experience on a scale equal to or exceeding
the scale of operations conducted by Franchisee; (iii) proof that in the last five (5) years, the
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proposed transferee has not suffered any citations or other censure from any federal, state, or
local agency having jurisdiction over its waste management operations due to any significant
failure to comply with federal, state, or local waste management law and that the transferee has
provided the City with a complete list of such citations and censures; (iv) proof that the proposed
transferee has at all times conducted its operations in an environmentally safe and conscientious
fashion; (v) proof that the proposed transferee conducts its municipal Solid Waste management
practices in accordance with sound waste management practices in full compliance with all
federal, state, and local laws regulating the Collection and disposal of waste, including
Hazardous Waste; (v) proof that the transferee's officers or directors have no criminal
convictions for fraud, deceit, false claims or racketeering with respect to the transferee's course
of business; (vi) a "transition plan" describing how Franchisee proposes to efficiently transition
the rights and obligations hereunder to the transferee or assignee without material disruptions to
service, and (vii) any other information required by the City to ensure the proposed transferee
can fulfill the terms of this Agreement, including the payment of indemnities and damages and
provision of bonds and/or the Standards of Performance in Section 4.2, in a timely, safe, and
effective manner.
8.4. Exceptions. The requirement to obtain City approval for a Transfer shall not
apply to any of the following:
(a) Any mortgage, deed of trust, sale/lease-back, or other form of
conveyance for financing and any resulting foreclosure therefrom.
(b) A sale or transfer resulting from or in connection with a
reorganization as contemplated by the provisions of the Internal Revenue Code of 1986, as
amended or otherwise, in which the ownership interests of a corporation are assigned directly or
by operation of law to a person or persons, firm or corporation which acquires the control of the
voting capital stock of such corporation or all or substantially all of the assets of such
corporation.
(c) A sale or transfer to an Affiliate of Franchisee owned or controlled
by the present beneficial owners of Franchisee or members of their immediate family, or
between members of the same immediate family, or transfers to a trust, testamentary or
otherwise, in which the beneficiaries are limited to members of the transferor's immediate
family.
8.5. Assumption of Obligations. No attempted Transfer of any of Franchisee's
obligations hereunder shall be effective unless and until the successor party executes and delivers
to City an assumption agreement in a form approved by the City assuming such obligations.
Following any such assignment or Transfer of any of the rights and interests of Franchisee under
this Agreement, the exercise, use and enjoyment shall continue to be subject to the terms of this
Agreement to the same extent as if the assignee or transferee were Franchisee.
8.6. Release of Franchisee. City's consent to a Transfer shall not be deemed to
release Franchisee of liability for performance under this Agreement unless such release is
specific and in writing executed by City, which release shall not be unreasonably withheld.
Upon the written consent of City to the complete assignment of this Agreement and the express
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written assumption of the assigned obligations of Franchisee under this Agreement by the
assignee, Franchisee shall be relieved of its legal duty from the assigned obligations under this
Agreement, except to the extent Franchisee is in default under the terms of this Agreement prior
to said Transfer. Franchisee shall cooperate with the City and transferee or assignee to assist in
an orderly transition of obligations and rights, including without limitation Franchisee timely
providing route lists, billing information, etc., to the transferee or assignee.
8.7. Subcontracting. This Agreement, or any portion thereof, shall not be
subcontracted except with the prior written consent of the City, which consent shall not be
unreasonably withheld. No such consent shall be construed as making the City a Party to such
subcontract, or subject the City to liability of any kind to any subcontractor. Franchisee shall
submit all subcontracts for review and approval by the City and any permitted subcontract shall
terminate on or before the termination of this Agreement. All subcontractors shall be licensed as
required under State, Federal and local laws and regulations to perform their subcontracted work
and obtain and maintain a City business license if required. Franchisee shall remain otherwise
liable for the full and complete performance of its obligations hereunder.
8.8. Heirs and Successors. The terms, covenants and conditions of this Agreement
shall apply to and shall bind the heirs, successors, executors, administrators and assigns of the
Franchisee and City.
ARTICLE IX
INSURANCE & INDEMNITY.
9.1. Insurance. Franchisee shall procure and maintain, at its sole cost and expense, in
a form and content satisfactory to City, during the entire term of this Agreement including any
extension thereof, the policies of insurance contained in Exhibit A hereto.
9.2. Indemnification. Without regard to the limits of any insurance coverage,
Franchisee agrees to indemnify, defend with counsel appointed by the City, protect and hold
harmless the City, its representatives, officers, agents and employees against any and all fines,
response costs, assessments, actions, suits, injunctive relief, claims, damages to persons or
property, losses, costs penalties, obligations, errors, omissions or liabilities, ("claims or
liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in
connection with (i) violations of the commerce clause of the U.S. Constitution, AB 939, the
Comprehensive Environmental Response, Compensation and Liability Act, Title 42 U.S.C.
§9601 et seq. ("CERCLA"), HSAA, RCRA, any other Hazardous Waste laws, or other federal,
state or local environmental statutes, ordinances and regulations which arise from this
Agreement; (ii) the negligent performance of the work or services of Franchisee, its agents,
employees, subcontractors, or invitees, provided for in this Agreement; (iii) the negligent acts or
omissions of Franchisee hereunder, or arising from Franchisee's negligent performance of or
failure to perform any term, provision, covenant or condition of this Agreement, whether or not
there is concurrent passive or active negligence, on the part of the City, its representatives,
officers, agents or employees but excluding such claims or liabilities arising from the sole
negligence or willful misconduct of the City, its representatives, officers, agents or employees,
who are directly responsible to the City, and in connection therewith:
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(a) Franchisee will defend any action or actions filed in connection
with any of said claims or liabilities and will pay all costs and expenses, including legal costs and
attorneys' fees, incurred in connection therewith;
(b) Franchisee will promptly pay any judgment rendered against the
City, its officers, agents or employees for any such claims or liabilities arising out of or in
connection with the negligent performance of or failure to perform such work or services of
Franchisee hereunder; and Franchisee agrees to save and hold the City, its officers, agents and
employees harmless therefrom;
(c) In the event the City, its officers, agents or employees is made a
party to any action or proceeding filed or prosecuted against Franchisee for such damages or
other claims arising out of or in connection with the negligent performance of or failure to
perform the work or services of Franchisee hereunder, Franchisee agrees to pay to the City, its
officers, agents or employees, any and all costs and expenses incurred by the City, its officers,
agents or employees in such action or proceeding, including but not limited to, legal costs and
attorneys' fees.
Franchisee's obligations hereunder shall survive the termination or expiration of this
Agreement.
9.3. Refuse Impact Reduction Laws Guarantee and Indemnification. Without in
any way limiting the indemnification provisions in Section 9.2 above, Franchisee
unconditionally guarantees compliance with the requirements of the Refuse Impact Reduction
Laws as amended from time to time. Franchisee shall carry out its obligations under this
Agreement so that the City will meet or exceed the Diversion requirements set forth in the
Refuse Impact Reduction Laws, and all amendments thereto. City and Franchisee shall
reasonably assist each other to meet the City's Diversion requirements under the Refuse Impact
Reduction Laws. In carrying out the provisions of this Section, Franchisee agrees to perform the
following obligations at its sole cost and expense:
(a) Defend, with counsel approved by City, indemnify and hold
harmless the City against all fines and/or penalties imposed by CalRecycle, if Franchisee fails or
refuses to provide information relating to its operations which is required under this Agreement
and such failure or refusal prevents or delays City from submitting reports required by the
Refuse Impact Reduction Laws in a timely manner;
(b) Assist City in preparing for, and participating in, any review of the
City's source reduction and recycling element pursuant to Public Resources Code Section 41825;
(c) Assist City in conducting any hearing conducted by CalRecycle
relating to the Refuse Impact Reduction Laws, or in any other investigative or enforcement
manner undertaken by any agency;
(d) Defend, with counsel acceptable to City, and indemnify and hold
harmless the City against any fines or penalties levied against it for violation of the Diversion
requirements under the Refuse Impact Reduction Laws, provided that Franchisee's obligation to
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indemnify City shall be subject to the limitations set forth in Public Resources Code Section
40059.1 as may be amended from time to time;
(e) Cooperate with the City, should it seek to become its own
enforcement agency, to the extent it may be permitted under state law.
Franchisee's obligations hereunder shall survive the termination or expiration of this
Agreement.
ARTICLE X
ACCOUNTING AND RECORDS.
10.1. Recordkeepim. Franchisee understands and agrees that it shall keep full and
complete books, records and accounts of all financial transactions with respect to this
Agreement. All such books, records and accounts shall be maintained for a minimum of five (5)
years from and after the end of the fiscal year in which any such books, records and accounts are
created. Records subject to this Section shall include paper, electronic, magnetic or other media
including, but not limited to, records of recovered materials, marketing records, cash register
records of purchases of Source Separated Recyclables, and video tape recordings of Franchisee
operations, vehicular registration and maintenance records, Complaint logs, the log of
uncollected materials, personnel files, customer correspondence and other correspondence, etc.
10.2. Financial Statement. City Manager or his/her designee may elect to review
Franchisee' records and/or financial statements. Within ninety (90) Days of a City request,
Franchisee shall allow the City Manager, his/her designee or an independent certified public
accountant to review copies of financial statements at the Franchisee's local office (as defined in
Section 4.2.1 hereof), or other such mutually -agreeable premises of Franchisee. City may
request review or copying of other financial statements maintained by Franchisee, which may
include, without limitation, comparative balance sheets, comparative operating statements,
statements of changes in investments in property and equipment, statements of source and
application of funds, and a statement of any changes in Franchisee's equity, in which shall be set
forth the names of principal officers and stockholders of the corporation, and any other
documents that may reasonably be requested by a certified public accountant acting in
accordance with generally -accepted accounting principles, consistently applied. City and
Franchisee agree to use reasonable efforts to protect the confidential nature of the Franchisee's
financial statements.
10.3. Inspection of Franchisee's Other Accounts and Records. Franchisee's records
of customer Complaints, Refuse Impact Reduction Laws compliance records, maps, billing
records, gross income, franchise fee payments and customer payment histories shall be available
at the Franchisee's local office as set forth in Section 4.2.1 at any time during regular business
hours for inspection on twenty-four (24) hours' notice, and/or performance of financial review of
Franchisee's records by the City or its duly authorized representative in accordance with the
Agreed Upon Procedures (as such term is associated with standard audit procedures), for a
period of three (3) years following the close of the Franchisee's fiscal year. Franchisee shall
provide City with a copy of any requested record at no cost to City.
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10.4. Payments and Refunds. The City may annually perform an Agreed Upon
Procedure of Franchisee's books and records. Should the performance of an Agreed Upon
Procedure by the City disclose that the Franchise Fee or AB 939 Fee payable by the Franchisee
was underpaid or that customers were overcharged for the period under review, Franchisee shall
pay to City any underpayments of the Franchise Fee or AB 939 Fee and/or refund to Franchisee's
customers any overcharges. Should the performance of an Agreed Upon Procedure by the City
disclose that Franchise Fee or AB 939 Fee were overpaid, City shall promptly refund to
Franchisee the amount of the overpayment.
10.5. Cost of Agreed Upon Procedures. Should the City's performance of Agreed
Upon Procedures disclose that the Franchise Fee or AB 939 Fee payable by the Franchisee was
underpaid by three percent (3%) or more, or that customers were overcharged by three percent
(3%) or more, for the period under review, Franchisee shall pay for the cost of City's performing
the Agreed Upon Procedures in addition to the reimbursing the City for the underpayment and/or
refunded the Customers for their overpayment.
ARTICLE XI
ENFORCEMENT OF AGREEMENT.
11.1. California Law. This Agreement shall be interpreted, construed and governed
both as to validity and to performance of the parties in accordance with the laws of the State of
California. Legal actions concerning any dispute, claim or matter arising out of or in relation to
this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of
California, or any other appropriate court in such county, and Franchisee covenants and agrees to
submit to the personal jurisdiction of such court in the event of such action. In the event of
litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California,
in the County of Los Angeles, State of California.
11.2. Disputes; Default. In the event that Franchisee is in default under the terms of
this Agreement, the City may give notice to Franchisee of the default and the reasons for the
default. The notice shall include the timeframe in which Franchisee may cure the default. This
timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if
circumstances warrant. If Franchisee does not cure the default, the City may take necessary
steps to terminate this Agreement under this Article or to assess liquidated damages under
Section 11.10. Any failure on the part of the City to give notice of the Franchisee's default shall
not be deemed to result in a waiver of the City's legal rights or any rights arising out of any
provision of this Agreement.
11.3. Waiver. Waiver by any party to this Agreement of any term, condition, or
covenant of this Agreement shall not constitute a waiver of any other term, condition, or
covenant. Waiver by any party of any breach of the provisions of this Agreement shall not
constitute a waiver of any other provision or a waiver of any subsequent breach or violation of
any provision of this Agreement. Acceptance by City of any services by or payments from
Franchisee shall not constitute a waiver of any of the provisions of this Agreement. No delay or
omission in the exercise of any right or remedy by a non -defaulting party on any default shall
impair such right or remedy or be construed as a waiver. Any waiver by either party of any
01203.0001/286603.4 33
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default must be in writing and shall not be a waiver of any other default concerning the same or
any other provision of this Agreement.
11.4. Rights and Remedies are Cumulative. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the
parties are cumulative and the exercise by either party of one or more of such rights or remedies
shall not preclude the exercise by it, at the same or different times, of any other rights or
remedies for the same default or any other default by the other party.
11.5. Legal Action. In addition to any other rights or remedies, either party may take
legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for
any default, to compel specific performance of this Agreement, to obtain declaratory or
injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
Notwithstanding any contrary provision herein, Franchisee shall file a statutory claim pursuant to
Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action under
this Agreement.
11.6. Termination Prior to Expiration of Term. This Section shall govern any
termination of this Contract. The City reserves the right to terminate this Contract at any time,
with or without cause, upon thirty (30) days' written notice to Franchisee, except that where
termination is due to the fault of the Franchisee, the period of notice may be such shorter time as
may be determined by the City Manager. In addition, the Franchisee reserves the right to
terminate this Contract at any time, with or without cause, upon sixty (60) days' written notice to
City, except that where termination is due to the fault of the City, the period of notice may be
such shorter time as the Franchisee may determine. Upon receipt of any notice of termination,
Franchisee shall immediately cease all services hereunder except such as may be specifically
approved by the City Manager. In the event of termination without cause pursuant to this
Section, the terminating party need not provide the non -terminating party with the opportunity to
cure pursuant to Section 11.2.
11.7. City's Right to Perform or Transfer Service. In addition to any and all other
legal or equitable remedies, in the event that Franchisee, for any reason whatsoever, fails, refuses
or is unable to collect, transport or process any or all Solid Waste or Recyclables which it is
required by this Agreement to collect and transport, at the time and in the manner provided in
this Agreement, City may undertake such services through its own employees or contract with
another Solid Waste Enterprise for the performance of such services.
11.8. Attorneys' Fees. If either party to this Agreement is required to initiate or defend
or made a party to any action or proceeding in any way connected with this Agreement, the
prevailing party in such action or proceeding, in addition to any other relief which may be
granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's
fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees
shall be entitled to all other reasonable costs for investigating such action, taking depositions and
discovery and all other necessary costs the court allows which are incurred in such litigation. All
such fees shall be deemed to have accrued on commencement of such action and shall be
enforceable whether or not such action is prosecuted to judgment.
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11.9. Cooperation Following Termination. At the end of the Term or in the event
this Agreement is terminated for cause prior to the end of the Term, Franchisee shall cooperate
fully with City and any subsequent contractor to assure a smooth transition of Solid Waste
management services. Franchisee's cooperation shall include, but not be limited to, providing
operating records needed to service all properties previously serviced by Franchisee under this
Agreement.
11.10. Remedies for Nuisance Violations; Liquidated Damages.
11.10.1 Liquidated Damages. In addition to any and all other legal or equitable
remedies, in the event that Franchisee, for any reason whatsoever, produces any nuisance
condition, City may assess liquidated damages against Franchisee in the following amounts:
(a) $250 per Day for every Day the condition persists after City has
given Franchisee written notice of the condition, for up to three (3) Days;
(b) $350 per Day, beginning on the fourth Day and every Day
thereafter that the condition either persists or recurs.
11.10.2 Nuisance Conditions. For purposes of this Section, the term "nuisance
conditions" shall include, but is not limited to, the following:
(a) Failure to duly collect Solid Waste and/or Recyclables that have
been properly set out for Collection through the willful or negligent conduct of Franchisee
employees;
(b) Uncured damage to the property of third parties or customers
through the willful or negligent conduct of Franchisee employees;
(c) Legitimate Complaints of rude or unprofessional behavior or
conduct by Franchisee's employees in the course of their duties;
(d) Failure to perform route audits as required by Section 4.2.9 hereof,
(e) Unreasonable leakage or spillage of Solid Waste or other collected
materials from Franchisee's vehicles;
(f) Failure to immediately or promptly collect Solid Waste or other
materials that spilled or fell from Franchisee's vehicles onto public streets or third -party property;
(g) Poor maintenance of Franchisee's vehicles, containers and
equipment in violation of Sections 6.1 through 6.3 hereof,
(h) Violations of personnel standards and qualifications in
contravention of Section 6.4 hereof,
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(i) Any other failure to meet the Standards of Performance in Section
4.2 in such a manner as to give rise to a condition of public nuisance or threat to public health
and safety.
11.10.3 Basis for Liquidated Damages. The Parties recognize that if Franchisee
recurrently fails to prevent and remediate nuisance conditions, the City and its residents will
suffer damages and that it is and will be impractical and extremely difficult to ascertain and
determine the exact amount of damages which City and its citizens will suffer. Therefore, the
Parties agree that the liquidated damages established herein represent a reasonable estimate of
the amount of such damages for such specific violations, 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 impractical. In placing their initials at the places provided, each
Party specifically confirms the accuracy of the statements made above and the fact that each
Party has had ample opportunity to consult with legal counsel and obtain an explanation of these
liquidated damage provisions prior to entering this Agreement.
Franchisee's Initials City Initials
11.11. Default for Criminal Activity. Franchisee shall be in default of this Agreement
should any of Franchisee's officers or directors have a criminal conviction from a court of
competent jurisdiction for any offence related to Solid Waste activities, or for any other activity
involving:
(a) Fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public or private agreement; or
(b) Bribery or attempting to bribe a public officer or employee of a
local, state, or federal agency in such person's official capacity; or
(c) Embezzlement, racketeering, false claims, false statements,
forgery, falsification or destruction of records, obstruction of justice, receiving stolen property,
or theft.
11.12. No Waiver Of City's Police Powers Or Legal Rights. Nothing in this
Agreement is intended to limit the power and ability of the City or any law enforcement agency
to initiate administrative and/or judicial proceedings for the abatement of nuisance conditions or
violations of any applicable law. Nothing herein shall waive or limit any other legal rights or
recourses the City may have in response to Franchisee's repeated, material violations of the
Standards of Performance in Section 4.2 or failure to mitigate nuisance conditions.
ARTICLE XII
GENERAL PROVISIONS.
12.1. Force Majeure. The time period(s) specified for performance of the provisions
of this Agreement shall be extended because of any delays due to unforeseeable causes beyond
the control and without the fault or negligence of the Franchisee, including, but not restricted to,
acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods,
01203.0001/286603.4 36
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epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts
of any governmental agency, including the City if the Franchisee shall within ten (10) Days of
the commencement of such delay notify the City Manager in writing of the causes of the delay;
no extension of time for performance shall be granted, however, by reason of the unavailability
of any Disposal Site or by reason of strikes, lockouts, or other labor disturbances, or breakage or
accidents to vehicles, equipment, machinery or plants. The City Manager shall ascertain the
facts and the extent of delay, and extend the time for performing the services for the period of the
enforced delay when and if in the judgment of the City Manager such delay is justified. In no
event shall Franchisee be entitled to recover damages against the City for any delay in the
performance of this Agreement, however caused, Franchisee's sole remedy being extension of
the Agreement pursuant to this Section 12.1.
12.2. Notices. All notices, demands, requests, approvals, disapprovals, proposals,
consents, or other communications whatsoever which this Agreement contemplates or
authorizes, or requires or permits either Party to give to the other, shall be in writing and shall be
personally delivered, sent by telecopier or sent by registered or certified mail, postage prepaid,
return receipt requested, addressed to the respective Party as follows:
If to Franchisee:
If to City: Director of Public Works
City of Rancho Palos Verdes
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
Phone: (310) 544-5252
Fax: (310) 544-5292
Email: publicworks@rpvca.gov
With copy to: Aleshire & Wynder, LLP
18881 Von Karman Avenue, Suite 1700
Irvine, CA 92612
Attention: Dave Aleshire, City Attorney
or to such other address as either Party may from time to time designate by notice to the other
given in accordance with this Section 12.2. Notice shall be deemed effective on the date
personally served or by facsimile or, if mailed, three (3) Days from the date such notice is
deposited in the United States mail.
12.3. Non-discrimination. Franchisee covenants that, by and for itself, its heirs,
executors, assigns and all persons claiming under or through them, that there shall be no
discrimination against or segregation of, any person or group of persons on account of race,
color, creed, religion, sex, marital status, national origin, sexual orientation, or ancestry in the
performance of this Agreement. Franchisee shall take affirmative action to ensure that applicants
are employed and that employees are treated during employment without regard to their race,
color, creed, religion, sex, marital status, sexual orientation, national origin or ancestry.
01203.0001/286603.4 37
•
12.4. Compliance with Immigration Laws. Franchisee agrees that, in the
performance of this Agreement, it will comply with all applicable immigration laws and
regulations.
12.5. No Liability of City Officials. No officer, employee or agent of the City shall be
personally liable to the Franchisee, or any successor in interest, in the event -of any default or
breach by the City or for any amount that may become due to the Franchisee or to its successor,
or for breach of any obligation of the terms of this Agreement.
12.6. Laws and Regulations. Franchisee shall observe all the terms of any City
ordinance or resolution now in effect, or as the same maybe subsequently adopted or amended by
the City, governing or affecting the Collection, removal and disposal of Municipal Solid Waste
in the City of Rancho Palos Verdes. Franchisee further agrees to comply with all applicable
County, state or federal laws or regulations as they exist now or may subsequently be adopted or
amended, governing the Collection, removal and disposal of Municipal Solid Waste or related
environmental laws. Franchisee further agrees to comply with all applicable state and federal
laws governing employment, wages, working conditions, use of materials, equipment, supplies
and the like.
12.7. Proprietary Information: Public Records. The City acknowledges that a
number of the records and reports of the Franchisee are proprietary and confidential. Franchisee
is obligated to permit City inspection of certain of its records, as provided herein, on demand and
to provide copies to City where requested. City will endeavor to maintain the confidentiality of
all proprietary information provided by Franchisee and shall not voluntarily disclose such
proprietary information. Notwithstanding the foregoing, any documents provided by Franchisee
to City that are public records may be disclosed pursuant to a proper public records request. City
shall notify Franchisee of any such request affecting Franchisee's records or reports at least five
(5) business days prior to their release, to enable Franchisee to seek a protective order or
otherwise prevent disclosure; provided, however, that City's failure to provide such notice shall
not be a breach of this Agreement.
12.8. Conflict of Interest. No officer or employee of the City shall have any financial
interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in
any decision relating to the Agreement which affects his financial interest or the financial interest
of any corporation, partnership or association in which he is, directly or indirectly, interested, in
violation of any State statute or regulation. The Franchisee warrants that it has not paid or given
and will not pay or give any officer, employee or agent of the City any money or other
consideration for obtaining this Agreement.
12.9. Interpretation. The terms of this Agreement shall be construed in accordance
with the meaning of the language used and shall not be construed for or against either Party by
reason of the authorship of this Agreement or any other rule of construction which might
otherwise apply. Where the terms of this Agreement conflict with the City's municipal code, the
municipal code shall govern. However, it shall not be deemed a conflict if this Agreement is
narrower than, but not inconsistent with, the City's municipal code.
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12.10. Inteiration; Amendment. It is understood that there are no oral agreements
between the Parties hereto affecting this Agreement and this Agreement supersedes and cancels
any and all previous negotiations, arrangements, agreements and understandings, if any, between
the Parties, and none shall be used to interpret this Agreement. This Agreement may only be
amended at any time by the mutual consent of the Parties by an instrument in writing. This
Agreement is intended, in part, to carry out City's obligation to comply with the provisions of
AB 939 and regulations promulgated thereunder, as amended from time to time. In the event that
AB 939 or other state or federal laws or regulations enacted after this Agreement prevent or
preclude compliance with one or more provisions of this Agreement, such provisions of this
Agreement shall be modified or suspended as may be necessary to comply with such state or
federal laws or regulations. No other amendment of this Agreement shall be valid unless in
writing duly executed by the Parties.
12.11. Severability. In the event that part of this Agreement shall be declared invalid or
unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity
or unenforceability shall not affect any of the remaining portions of this Agreement which are
hereby declared as severable and shall be interpreted to carry out the intent of the Parties
hereunder unless the invalid provision is so material that its invalidity deprives either Party of the
basic benefit of their bargain or renders this Agreement meaningless.
12.12. No Joint Venture. Neither the City nor any of its employees shall have any
control over the manner, mode or means by which Franchisee, its agents or employees, perform
the services required herein, except as otherwise set forth. Franchisee shall perform all services
required herein independent from the City and shall remain at all times as to City a wholly
independent entity with only such obligations as are consistent with that role. Franchisee shall
not at any time or in any manner represent that it or any of its agents or employees are agents or
employees of City. City shall not in any way or for any purpose become or be deemed to be a
partner of Franchisee in its business or otherwise or a joint venturer or a member of any joint
enterprise with Franchisee.
01203.0001/286603.4 39
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IN WITNESS WHEREOF, the Parties hereto do hereby set their hands and seals as of the
day and the year first written above.
CITY OF RANCHO PALOS VERDES FRANCHISEE
By:
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
Dave Aleshire, City Attorney
01203.0001/286603.4
By: , President
By: , Vice President
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EXHIBIT "A"
INSURANCE COVERAGES
Franchisee shall procure and maintain, at its sole cost and expense, in a form and content
satisfactory to City, during the entire term of this Agreement including any extension thereof, the
following policies of insurance which shall cover all elected and appointed officers, employees
and agents of City:
(a) Commercial General Liability Insurance. Franchisee shall maintain
commercial general liability insurance with coverage at least as broad as Insurance Services
Office form CG 00 01, in an amount not less than $2,000,000 per occurrence, $4,000,000 general
aggregate, for bodily injury, personal injury, and property damage, and a $4,000,000 completed
operations aggregate. The policy must include contractual liability that has not been amended.
Any endorsement restricting standard ISO "insured contract" language will not be accepted.
(b) Worker's Compensation Insurance. A policy of worker's
compensation insurance in such amount as will fully comply with the laws of the State of
California and which shall indemnify, insure and provide legal defense for the Franchisee against
any loss, claim or damage arising from any injuries or occupational diseases occurring to any
worker employed by or any persons retained by the Franchisee in the course of carrying out the
work or services contemplated in this Agreement; and a policy of Employer's Liability Insurance
with limits of at least $1,000,000.
(c) Automobile Liability Insurance. Franchisee shall maintain
automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering
bodily injury and property damage for all activities of the Franchisee arising out of or in
connection with work to be performed under this Agreement, including coverage for any owned,
hired, non -owned or rented vehicles used or operated by Franchisee, in an amount not less than
$2,000,000 combined single limit for each accident, and endorsed to include pollution liability
(written on form CA 99 48 or its equivalent).
(d) Umbrella or Excess Liability Insurance. Franchisee shall obtain
and maintain an umbrella or excess liability insurance that will provide bodily injury, personal
injury and property damage liability coverage at least as broad as the primary coverages set forth
above, including commercial general liability and employer's liability. Such policy or policies
shall include the following terms and conditions:
• A drop down feature requiring the policy to respond in the event that any primary
insurance that would otherwise have applied proves to be uncollectable in whole or in part for
any reason;
01203.0001/286603.4
Pay on behalf of wording as opposed to reimbursement;
Concurrency of effective dates with primary policies;
Policies shall "follow form" to the underlying primary policies;
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• Must include a non-contributory and primary coverage endorsement; and
• Insureds under primary policies shall also be insureds under the umbrella or
excess policies.
If the Franchisee maintains higher limits than the minimums shown above, the Agency
requires and shall be entitled to coverage for the higher limits maintained by the Franchisee. Any
available insurance proceeds in excess of the specified minimum limits of insurance and
coverage shall be available to the Agency.
(e) Subcontractors. Franchisee shall include all subcontractors as
insureds under its policies or shall furnish separate certificates and certified endorsements for
each subcontractor. All coverages for subcontractors shall include all of the requirements stated
herein.
GENERAL INSURANCE REQUIREMENTS
All of the above policies of insurance shall be primary insurance and shall name the City,
its elected and appointed officers, employees and agents as additional insureds and any insurance
maintained by City or its officers, employees or agents may apply in excess of, and not
contribute with Franchisee's insurance. The insurer is deemed hereof to waive all rights of
subrogation and contribution it may have against the City, its officers, employees and agents and
their respective insurers. Moreover, the insurance policy must specify that where the primary
insured does not satisfy the self-insured retention, any additional insured may satisfy the self-
insured retention.
All of said policies of insurance shall provide that said insurance may not be amended or
cancelled by the insurer or any party hereto without providing thirty (30) days prior written
notice by certified mail return receipt requested to the City. In the event any of said policies of
insurance are cancelled, the Franchisee shall, prior to the cancellation date, submit new evidence
of insurance in conformance with this Exhibit A to the City Manager.
No work or services under this Agreement shall commence until the Franchisee has
provided the City with Certificates of Insurance, additional insured endorsement forms or
appropriate insurance binders evidencing the above insurance coverages and said Certificates of
Insurance or binders are approved by the City. City reserves the right to inspect complete,
certified copies of and endorsements to all required insurance policies at any time. Any failure
to comply with the reporting or other provisions of the policies including breaches or warranties
shall not affect coverage provided to City.
All certificates shall name the City as additional insured (providing the appropriate
endorsement) and shall conform to the following "cancellation" notice:
CANCELLATION:
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED
BEFORE THE EXPIRATION DATED THEREOF, THE ISSUING COMPANY
01203.0001/286603.4
A-43
SHALL MAIL THIRTY (30) -DAY ADVANCE WRITTEN NOTICE TO
CERTIFICATE HOLDER NAMED HEREIN.
[to be initialed]
Franchisee Initials
City, its respective elected and appointed officers, directors, officials, employees, agents
and volunteers are to be covered as additional insureds as respects: liability arising out of
activities Franchisee performs; products and completed operations of Franchisee; premises
owned, occupied or used by Franchisee; or any automobiles owned, leased, hired or borrowed by
Franchisee. The coverage shall contain no special limitations on the scope of protection afforded
to City, and their respective elected and appointed officers, officials, employees or volunteers.
Franchisee'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.
Any deductibles or self-insured retentions must be declared to and approved by City. At
the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects City or its respective elected or appointed officers, officials, employees and
volunteers or the Franchisee shall procure a bond guaranteeing payment of losses and related
investigations, claim administration, defense expenses and claims. The Franchisee agrees that
the requirement to provide insurance shall not be construed as limiting in any way the extent to
which the Franchisee may be held responsible for the payment of damages to any persons or
property resulting from the Franchisee's activities or the activities of any person or persons for
which the Franchisee is otherwise responsible nor shall it limit the Franchisee's indemnification
liabilities as provided in this Agreement.
In the event the Franchisee subcontracts any portion of the work, the contract between the
Franchisee and such subcontractor shall require the subcontractor to maintain the same policies
of insurance that the Franchisee is required to maintain pursuant to this Exhibit A, and such
certificates and endorsements shall be provided to City.
Insurance required by this Agreement shall be satisfactory only if issued by companies
qualified to do business in California, rated "A" or better in the most recent edition of Best
Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a
financial category Class VII or better, unless such requirements are waived by the Risk Manager
of the City ("Risk Manager") due to unique circumstances. If this Agreement continues for more
than 3 years duration, or in the event the Risk Manager determines that the work or services to be
performed under this Agreement creates an increased or decreased risk of loss to the City, the
Franchisee agrees that the minimum limits of the insurance policies may be changed accordingly
upon receipt of written notice from the Risk Manager.
01203.0001/286603.4 A-3
I'M"
EXHIBIT "B"
NON -BRIBERY CERTIFICATION
Franchisee certifies, under penalty of perjury, that no person(s) acting on behalf of
Franchisee has paid, or offered or attempted to pay, any elected or appointed official, officer, or
employee of the City of Rancho Palos Verdes any compensation or consideration, in any form
whatsoever, in connection with obtaining or entering into this Agreement.
Name & Title
Name of Franchisee
Signature & Date
01203.0001/286603.4
A-45
Attachment B
Resolution 2016 -
Limiting the Number of
Haulers
RESOLUTION 2016-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
RANCHO PALOS VERDES LIMITING THE NUMBER OF HAULERS
AUTHORIZED TO PROVIDE SOLID WASTE COLLECTION AND
RECYCLING SERVICES TO COMMERCIAL PREMISES, AND
ROLL OFF SERVICES TO RESIDENTIAL AND COMMERCIAL
PREMISES IN THE CITY OF RANCHO PALOS VERDES IN
CALENDAR YEARS 2016-2017
WHEREAS, the City of Rancho Palos Verdes ("City") currently has collection
agreements with eight (8) solid waste haulers to provide solid waste collection and
recycling services to commercial premises and on-call roll off services to commercial and
residential premises ("Commercial Haulers"): California Waste Services LLC; CalMet
Services, Inc.; Consolidated Disposal Service, LLC; Easy Roll Off Services; EDCO
Disposal Corporation; Universal Waste Systems, Inc.; USA Waste of California, Inc., dba
Waste Management of Los Angeles; and West Coast Waste & Roll Off Service; and
WHEREAS, pursuant to Section 8.20.260 of the City of Rancho Palos Verdes
Municipal Code, and to improve monitoring and reporting of commercial and roll off
disposal and recycling tonnage, and public education activities, only parties to a collection
agreement with the City may collect and dispose of solid waste in the City, with limited
exceptions; and
WHEREAS, on November 18, 2014, the City Council of the City of Rancho Palos
Verdes adopted Resolution No. 2014-75, limiting the number of Commercial Haulers in
calendar year 2015 to eight; and
WHEREAS, the City Council, in adopting Resolution No. 2014-75, found that more
than eight Commercial Haulers would overburden the streets and create traffic problems,
as well as potentially damaging the pavement, and would increase the difficulty of
efficiently monitoring and reporting commercial and roll off disposal and recycling
tonnage, and public education activities; and
WHEREAS, the City Council has considered the ongoing impact of Commercial
Haulers on City streets, including their impact on traffic, as well as monitoring and
reporting, and public education activities; and
WHEREAS, the City Council has determined that it is still the case that having
more than eight Commercial Haulers would overburden the streets and create traffic
problems, as well as potentially damaging the pavement, and would increase the difficulty
of efficiently monitoring and reporting commercial and roll off disposal and recycling
tonnage, and public education activities; and
WHEREAS, all eight Commercial Haulers provided timely quarterly reports and
fees, and provided the required proof of valid general liability and workers compensation
insurance during calendar year 2015;
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF RANCHO PALOS VERDES THAT:
The following eight solid waste haulers who entered into commercial collection
agreements in calendar year 2015 and provided required quarterly reports and
insurance documentation are permitted to enter into such agreements in
calendar years 2016-2017: California Waste Services LLC; CalMet Services,
Inc.; Consolidated Disposal Service, LLC; Easy Roll Off Services; EDCO
Disposal Corporation; Universal Waste Systems, Inc.; USA Waste of California,
Inc., dba Waste Management of Los Angeles; and West Coast Waste & Roll
Off Service.
2. No other solid waste haulers will be authorized to collect solid waste and
recyclables from commercial premises, or provide roll off services to
commercial and residential premises in the City in calendar years 2016-2017,
except as provided in the City's Municipal Code Chapter 8.20 and any contract
executed between the City and any Commercial Hauler.
PASSED, APPROVED, AND ADOPTED THE 15th DAY OF MARCH, 2016.
ATTEST: MAYOR
CITY CLERK
State of California )
County of Los Angeles ) ss
City of Rancho Palos Verdes )
I, CARLA MORREALE, City Clerk of The City of Rancho Palos Verdes, hereby certify that
the above Resolution No. 2016- was duly and regularly passed and adopted by the
said City Council at a regular meeting thereof held on March 15, 2016.
CITY CLERK