HomeMy WebLinkAbout2021-04-06; City Council; Resolution 2021-075RESOLUTION NO. 2021-075
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, APPROVING A CITY FRANCHISE AGREEMENT FOR RECYCLING,
ORGANICS AND SOLID WASTE COLLECTION AND ORGANIC MATERIALS
PROCESSING SERVICES WITH ALLIED WASTE SERVICES, INC. DBA REPUBLIC
SERVICES OF SAN DIEGO ("REPUBLIC") AND AUTHORIZING THE CITY
MANAGER, OR DESIGNEE, TO EXECUTE ALL FUNCTIONS OF THE "CITY
CONTRACT MANAGER" AS DESCRIBED IN THE FRANCHISE AGREEMENT
WHEREAS, the City of Carlsbad is responsible for providing for safe collection, transport and
disposal of solid waste, including designated recyclables, to ensure the safety, health and general
welfare of the community; and
WHEREAS, the city requires the continued services of a contractor to collect, transport, and
dispose of solid waste, including designated recyclables; and
WHEREAS, on June 16, 2020, the City Council adopted Resolution No. 2020-111 authorizing
staff to issue a Request for Proposals (RFP) for solid waste services including recycling and organics
recycling; and
WHEREAS, on Sept. 10, 2020, staff received two proposals — one from EDCO Disposal
Corporation and one from Allied Waste Systems, Inc. dba Republic Services of San Diego (Republic);
and
WHEREAS, staff evaluated both proposals based on qualifications, technical approach,
acceptance of RFP and franchise terms and cost and rate proposals; and
WHEREAS, the city will receive, on a quarterly basis, a franchise fee of 7.5% of gross revenue
over the ten-year term and for each year the term of the franchise agreement is extended; and
WHEREAS, the franchise fee will cover the costs and expenses incurred by the city: (1) in
managing the franchise agreement for waste and recycling services by a third party; (2) in meeting
the mandates of the State of California for waste collection and recycling services; and (3) in
April 6, 2021 Item #8 Page 589 of 671
addressing physical impacts the city will experience on its roads, storm water facilities, and other
infrastructure adversely affected by the city's contractor and its vehicles and equipment; and
WHEREAS, the city planner has determined that pursuant to California Public Resources Code
Section 21065, award of this contract does not constitute a "project" within the meaning of the
California Environmental Quality Act (CEQA) in that is has no potential to cause either a direct or
indirect physical change in the environment, or a reasonably foreseeable indirect physical change in
the environment and, therefore, does not require environmental review; and
WHEREAS, the franchise agreement for the provision of recycling, organics and solid waste
collection and organic materials processing services shall be approved between Republic and the City
of Carlsbad for a 10-year term (becoming effective on July 1, 2022 and expiring June 30, 2032), with
the option to renew for up to an additional five-year period.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1.That the above recitations are true and correct.
2.That the Mayor of the City of Carlsbad is authorized and directed to execute a franchise
agreement with Republic for the provision of recycling, organics and solid waste
collection and organic materials processing services, attached hereto as Attachment A.
3.That the City Council delegates authority to the City Manager, or designee, to execute
all functions of the "City Contract Manager" as described in the franchise agreement.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 6th day of April, 2021, by the following vote, to wit:
AYES: Acosta, Bhat-Patel, Schumacher.
NAYS: Hall, Blackburn.
ABSENT: None.
MATT HALL, Mayor
BARBARA ENGLESON, City Clerk
(SEAL)
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•
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ATTACHMENT A
FRANCHISE AGREEMENT
BETWEEN
CITY OF CARLSBAD
AND
ALLIED WASTE SERVICES, INC.
FOR
RFP20-115OENV
RECYCLING, ORGANICS, AND SOLID WASTE COLLECTION
AND
RECYCLING, ORGANICS, AND C&D PROCESSING SERVICES
MARCH 5, 2021
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Table of Contents
RECITALS ................................................................................................................................ 1
ARTICLE 1. GRANT AND ACCEPTANCE OF FRANCIDSE .................................................... 2
1.1 GRANT AND ACCEPTANCE OF FRANCHISE ............................................................. 2
1.2 LIMITATIONS TO TIIE FRANCHISE ........................................................................... 2
1.3 OBLIGATIONS OF PARTIES ....................................................................................... 4
ARTICLE 2. TERM OF AGREEMENT ...................................................................................... 5
2.1 TERM AND OPTION TO EXTEND .............................................................................. 5
2.2 CONDITIONS TO EFFECTIVENESS OF AGREEMENT ................................................ 5
ARTlCLE 3. SCOPE OF AGREEMENT .................................................................................... 6
3.1 SUMMARY SCOPE OF SERVICES .............................................................................. 6
3 .2 USE OF APPROVED FACILITIES ................................................................................ 7
3.3 SUBCONTRACTING ................................................................................................... 7
3.4 RESPONSIBILITY FOR MATERIALS .......................................................................... 7
3.5 CITY-DIRECTED CHANGES TO SCOPE ..................................................................... 8
ARTICLE 4. SCOPE OF SERVICES .......................................................................................... 8
4.1 RECYCLABLE MATERIALS ....................................................................................... 8
4.2 ORGANIC MATERIALS ............................................................................................. 10
4.3 SOLIDWASTE ........................................................................................................... 13
4.4 BULKY ITEMS AND REUSABLE MATERIALS .......................................................... 14
4.5 SPECIAL EVENTS ..................................................................................................... 14
4.6 PUBLIC EDU CA TJON AND OUTREACH ................................................................... 15
4.7 BILLING .................................................................................................................... 16
4.8 CUSTOMER SERVICE PROGRAM ............................................................................. 18
4.9 ACCESS TO CUSTOMER SERVICE AND BILLING SYSTEMS ................................... 20
4.10 SERVICE EXEMPTIONS ............................................................................................ 21
4.11 CONTAMIN'ATION MONITORING ............................................................................ 23
ARTICLE 5. STANDARD OF PERFORMANCE ....................................................................... 29
5.1 GENERAL .................................................................................................................. 29
5.2 OPERATING HOURS AND SCHEDULES ................................................................... 29
5.3 COLLECTION STANDARDS ...................................................................................... 30
5.4 TRANSFER AND PROCESSING STANDARDS ........................................................... 32
5.5 COLLECTION VEHICLE REQUIREMENTS ................................................................ 33
5.6 CONTAINER REQUJREMENTS .................................................................................. 34
5.7 PERSONNEL .............................................................................................................. 39
5.8 HAZARDOUS WASTE INSPECTION AND HANDLING .............................................. 41
5.9 CONTRACTMANAGEMENT ..................................................................................... 41
5.10 ENVIRONMENTALLY-PREFERABLE PURCHASING ................................................ 42
5.11 LOCAL PURCHASING PREFERENCE ........................................................................ 42
5.12 ·oIVERSION REQUIREMENTS ................................................................................... 43
5.13 CUSTOMER REBATES FOR FAIL URE TO PROVIDE SERVICE ................................. .43
ARTICLE 6. RECORD KEEPING AND REPORTING .............................................................. 44
6.1 RECORD KEEPING .................................................................................................... 44
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6.2 REPORT SUBMITTAL REQUIREMENTS ................................................................... 45
6.3 PERFORMANCE REVIEW AND AUDIT ..................................................................... 46
ARTICLE 7. CITY REil\fflURSEMENT ................................................................................... 46
7.1 FRANCHISE FEE ....................................................................................................... 46
7.2 AB 939/SB 1383 REIMBURSEMENT ........................................................................... 47
7 .3 VEHICLE IMP ACT MITIGATION REIMBURSEMENT ............................................... .47
7.4 STORM WATER REIMBURSEMENT ........................................................................ .47
7.5 ADJUSTMENT TO REIMBURSEMENT ...................................................................... 47
7.6 PAYMENT SCHEDULE AND LATE FEES .................................................................. 47
7.7 PROCUREMENT REIMBURSEMENT ........................................................................ .48
ARTICLE 8. CONTRACTOR'S COMPENSATION AND RATE SETTING ............................... 48
8.1 GENERAL .................................................................................................................. 48
8.2 RATES AND ANNUAL ADJUSTMENTS ..................................................................... 49
8.3 EXTRAORDINARY RATE ADJUSTMENTS ................................................................ 50
ARTICLE 9. INDEMNITY, INSURANCE, AND PERFORMANCE BOND ................................ 50
9.1 INDEMNIFICATION .................................................................................................. 50
9.2 INSURANCE .............................................................................................................. 53
9.3 PERFORMANCE BOND ............................................................................................. 55
ARTICLE 10. DEFAULT AND REMEDIES .............................................................................. 56
10.1 EVENTS OF DEFAULT .............................................................................................. 56
10.2 CONTRACTOR'S RlGHT TO CURE; RlGHT TO TERMINATE UPON EVENT OF
DEFAULT .............................................................................................................................. 58
10.3 CITY'S REMEDIES IN THE EVENT OF DEFAULT ..................................................... 58
10.4 POSSESSION OF RECORDS UPON TERMINATION ................................................... 59
10.5 CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE ................................. 59
10.6 PERFORMANCE STANDARDS AND LIQUIDATED DAMAGES ................................. 59
10.7 EXCUSE FROM PERFORMANCE ............................................................................... 61
10.8 RlGHT TO DEMAND ASSURANCES OF PERFORMANCE ......................................... 62
10.9 DISPUTE RESOLUTION ............................................................................................. 62
ARTICLE 11. REPRESENT A TIO NS AND WARRANTIES OF THE P ARTIES ......................... 63
11.1 CONTRACTOR'S CORPORATE STATUS ................................................................... 63
11.2 CONTRACTOR'S CORPORATE AUTHORIZATION ................................................... 63
11.3 AGREEMENT WILL NOT CAUSE BREACH ............................................................... 63
11.4 NO LITIGATION ........................................................................................................ 63
11.5 NO ADVERSE JUDICIAL DECISIONS ........................................................................ 64
11.6 NO LEGAL PROHIBITION ......................................................................................... 64
11.7 CONTRACTOR'S ABILITY TO PERFORM ................................................................. 64
ARTICLE 12. OTHER AGREEMENTS OF THE PARTIES ...................................................... 64
12.1 RELATIONSHIP OF PAR TIES .................................................................................... 64
12.2 COMPLIANCE WITH LAW ........................................................................................ 64
12.3 GOVERNING LAW .................................................................................................... 64
12.4 JURISDICTION .......................................................................................................... 64
12.5 BINDING ON SUCCESSORS ...................................................................................... 65
12.6 ASSIGNMENT ........................................................................................................... 65
12.7 NO THlRD-PARTY BENEFICIARIES .......................................................................... 67
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12.8 WAIVER .................................................................................................................... 67
12.9 NOTICE PROCEDURES ............................................................................................. 67
12.10 REPRESENTATIVES OF THE PARTIES .................................................................. 68
ARTICLE 13. MISCELLANEOUS AGREEMENTS .................................................................. 68
13.1 ENTIRE AGREEMENT ............................................................................................... 68
13.2 SECTION HEADINGS ................................................................................................ 68
13.3 REFERENCES TO LAWS ........................................................................................... 69
13.4 AMENDMENTS ......................................................................................................... 69
13.5 SEVERABILJTY ......................................................................................................... 69
13.6 COUNTERPARTS ...................................................................................................... 69
13.7 EXHIBITS .................................................................................................................. 69
List of Exhibits
A. Definitions
8. Direct Services
81. Single-Family Residential Services
82. Multi-Family Residential Services
83. Commercial Services
84. City Services
85. City Service Levels and Locations
C. Public Education and Outreach Requirements
D. Reporting Requirements
E. Rate Adjustment Methodology
El. Multi-Index Rate Adjustment Methodology
E2. Cost-Based Rate Adjustment Methodology
E3. Recyclable Materials Processing Rate Adjustment Methodology
F. Performance Standards and Liquidated Damages
G. Contractor's Proposal
Gl. Technical Proposal
62. Cost Basis for Proposal
63. Initial Rates for Collection Services
64. Implementation Plan and Schedule
GS. Approved Subcontractors
66. Contractor's Clarifications
H. Anticipated Required Positions
I. Environmentally Preferable Purchasing Policy
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1 Franchise Agreement
2 between
3 City of Carlsbad
4 and
s Allied Waste Services, Inc.
6 for Recycling, Organics, and Solid Waste Collection
7 and Recycling, Organics, and C&D Processing Services
8 THIS FRANCHISE AGREEMENT is made and entered into as of ______ ~ 2021 between the City
9 of Carlsbad, California, a municipal corporation (hereinafter "City"), and Allied Waste Services, Inc.,
10 (hereinafter referred to as the "Contractor") (each a "Party" and collectively the "Parties").
11 RECITALS
12 This Agreement is entered into with reference to the following facts and circumstances:
13 WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste
14 Management Act of 1989 (AB 939) (California Public Resources Code Section 40000 et seq.), has declared
15 that it is in the public interest to authorize and require local agencies to make adequate provisions for
16 Solid Waste Collection within their jurisdiction; and,
17 WHEREAS, the State of California has found and declared that the amount of refuse generated in
18 California, coupled with diminishing Disposal capacity and potential adverse environmental impacts from
19 landfilling and the need to conserve natural resources, have created an urgent need for State and local
20 agencies to enact and implement an aggressive integrated waste management program. The State has,
21 through enactment of AB 939 and subsequent related legislation including, but not limited to: the Jobs
22 and Recycling Act of 2011 (AB 341), the Event and Venue Recycling Act of 2004 (AB 2176), SB 1016
23 (Chapter 343, Statutes of 2008 [Wiggins, SB 10161), the Mandatory Commercial Organics Recycling Act of
24 2014 (AB 1826), and the Short-Lived Climate Pollutants Bill of 2016 (SB 1383), directed the responsible
25 State agency, and all local agencies, to promote Diversion and to maximize the use of feasible waste
26 reduction, re-use, Recycling, and Composting options in order to reduce the amount of refuse that must
27 be Disposed; and,
28 WHEREAS, SB 1383 establishes regulatory requirements for jurisdictions, Generators, haulers, Solid Waste
29 facilities, and other entities to support achievement of State-wide Organic Waste Disposal reduction
30 targets; and,
31 WHEREAS, SB 1383 requires the City to implement Collection programs, meet Processing Facility
32 requirements, conduct contamination monitoring, provide education, maintain records, submit reports,
33 monitor compliance, conduct enforcement, and fulfill other requirements; and, the City has chosen to
34 delegate some of its responsibilities to the Contractor, acting as the City's designee, through this
35 Agreement; and,
36 WHEREAS, pursuant to California Public Resources Code Section 40059(a)(2), the City has determined that
37 the public health, safety, and well-being require that an exclusive right be awarded to a qualified
38 Contractor to provide for the Collection of Recyclable Materials, Organic Materials, and Solid Waste and
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39 other services related to meeting the City's economic and environmental goals; and,
40 WHEREAS, the City further declares its intent to approve and maintain reasonable Rates for the Collection,
41 Recycling, Processing, Composting, and/or Disposal of Recyclable Materials, Organic Materials, and Solid
42 Waste; and,
43 WHEREAS, the City desires, having determined that Contractor, by demonstrated experience, reputation
44 and capacity is qualified to provide for both the Collection of Recyclables Materials, Organic Materials,
45 and Solid Waste within the corporate limits of the City and the Transportation of such material to
46 appropriate places of Processing, Recycling, Composting, and/or Disposal, that Contractor be engaged to
47 perform such services on the basis set forth in this Agreement; and,
48 WHEREAS, the City and Contractor have attempted to address conditions affecting their performance of
49 services under this Agreement but recognize that reasonably unanticipated conditions may occur during
50 the Term of this Agreement that will require the Parties to meet and confer to reasonably respond to such
51 changed conditions; and,
52 WHEREAS, under Municipal Code Section 6.08.180, the City may enter into a contract for the Collection,
53 removal and Disposal of all refuse in and from the City and the collection of Rates therefor, and the City
54 Council is authorized to enter into such contract with any terms it deems necessary to protect the best
55 interests of the City.
56 NOW, THEREFORE, in consideration of the mutual promises, covenants, and conditions contained in this
57 Agreement and for other good and valuable consideration, the Parties agree as follows:
58 ARTICLE 1.
59 GRANT AND ACCEPTANCE OF FRANCHISE
60 1.1 GRANT AND ACCEPTANCE OF FRANCHISE
61 By the signing of this Agreement, the City grants to Contractor and Contractor accepts an exclusive
62 franchise within the corporate limits of the City. The franchise granted to Contractor shall be for the scope
63 of services described in this Agreement, subject to the limitations described in Section 1.2 and except
64 where otherwise precluded by Federal, State, and local laws and regulations.
65 1.2 LIMITATIONS TO THE FRANCHISE
66 The award of this Agreement shall not preclude the categories of Recyclable Materials, Organic Materials,
67 Solid Waste, or other materials listed below from being delivered to and Collected and Transported by
68 others, provided that nothing in this Agreement is intended to or shall be construed to excuse any Person
69 from obtaining any authorization from the City which is otherwise required by law:
70 A.
71
72
73
74
Recyclable and Organic Materials. Other Persons shall maintain the right to: {1) accept Source
Separated Recyclable Materials and Source Separated Organic Materials donated from the service
recipient, or (2) to pay the service recipient for Source Separated Recyclable Materials and Source
Separated Organic Materials provided that there is no net payment made by the service recipient
to such other Person.
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75 B.
76
77 C.
78
79
80
81 D.
82
83
84
85 E.
86
87
88
89
90 F.
91
92
93
94 G.
95
96
97
98
99
100
101
102
103
104 H.
105
106 I.
107
108
109
110
111
112 J.
113
114
Self-Hauled Materials. A Commercial business Owner or Resident may Dispose of Recyclable
Materials, and Organic Materials, generated in or on their own Premises with their own vehicle.
Construction and Demolition Debris (C&D). Other Persons shall have the right to Collect C&D,
provided that such Persons maintain a City-issued permit granting such right, and the C&D was
generated from a construction, demolition, alteration, or remodel project pursuant to a permit
issued by the City.
Donated or Sold Materials. Any items which are Source Separated at any Premises by the
Generator and (a) sold or (bl that are donated to youth, civic, or charitable organizations.
Materials will not be deemed donated if they are Collected by a non-franchised waste hauler that
is not a 50l(c)(3) organization.
Edible Food. Edible Food which is Collected from a Generator by other Person(s), such as a Person
from a Food Recovery Organization or Food Recovery Service, for the purposes of Food Recovery;
or which is Self-Hauled by the Generator to another Person(s), such as a Person from a Food
Recovery Organization, for the purposes of Food Recovery, regardless of whether the Generator
donates, sells, or pays a fee to the other Person(s) to Collect or receive the Edible Food.
Food Scraps. Food Scraps that are separated by the Generator and used by the Generator or
distributed to other Person(s) for lawful use as animal feed, in accordance with 14 CCR Section
18983.l(b)(7). Food Scraps intended for animal feed may be Self-Hauled by Generator or hauled
by another party.
Materials That Contractor Does Not Divert. Discarded Materials which the Contractor is not
required to Process and Divert under this Agreement as of the Effective Date of this Agreement
which subsequently, in the City's reasonable judgment, become economically feasible to Divert.
In such event, Contractor shall have the exclusive right to Collect and Process such materials if
Contractor agrees to do so without any change in Rates. If Contractor is unwilling to Process and
Divert such new materials at existing Rates, the City may provide for Collection, Processing, and
Diversion of such materials in any manner it deems appropriate. Such materials may include, but
not be limited to, Organic Materials which Contractor would otherwise Dispose. Contractor may
not enforce its exclusive franchise rights in a manner that would prevent the Diversion of material
that Contractor is unable or unwilling to Divert.
Beverage Containers. Containers delivered for Recycling under the California Beverage Container
Recycling and Litter Reduction Act, Section 14500, et seq. California Public Resources Code.
Materials Removed by Customer's Contractor as Incidental Part of Services. Recyclable
Materials, Organic Materials, Solid Waste, and Bulky Items removed from a Premises by a
contractor (e.g., gardener, landscaper, tree-trimming service, construction contractor, Residential
clean-out service) as an incidental part of the service being performed, rather than as a separately
contracted or subcontracted hauling service; or if such contractor is providing a service which is
not included in the scope of this Agreement.
On-site or Community Composting. Organic Materials Composted or otherwise legally managed
at the site where it is generated (e.g., backyard Composting, or on-site anaerobic digestion) or at
a Community Composting site.
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115 K.
116
117 L.
118
119 M.
120 N.
121
122
123
Animal, Grease Waste, and Used Cooking Oil. Animal waste and remains from slaughterhouse or
butcher shops, grease, or used cooking oil.
Sewage Treatment By-Product. By-products of sewage treatment, including sludge, sludge ash,
grit, and screenings.
Excluded Waste. Excluded Waste regardless of its source.
Materials Generated by State and County Facilities. Materials generated by State and County
facilities located in the City, including but not limited to the Carlsbad Unified School District,
provided that the Generator has arranged services with other Persons or has arranged services
with the Contractor through a separate agreement.
124 Contractor acknowledges and agrees that the City may permit other Persons besides the Contractor to
125 Collect any and all types of materials excluded from the scope of this Franchise, as set forth above, without
126 seeking or obtaining approval of Contractor. If Contractor can produce evidence that other Persons are
127 servicing Collection Containers or are Collecting and Transporting Recyclable Materials, Organic Materials,
128 and/or Solid Waste in a manner that is not consistent with this Agreement or the City's Code, it shall
129 report the location, the name and phone number of the Person or company to the City's Contract Manager
130 along with Contractor's evidence. In such case, City may notify the Generator and Person providing service
131 of Contractor's rights under this Agreement.
132 This Agreement and scope of this franchise shall be interpreted to be consistent with Applicable Law, now
133 and during the Term of the Agreement. If future judicial interpretations of current law or new laws,
134 regulations, or judicial interpretations limit the ability of the City to lawfully contract for the scope of
135 services in the manner and consistent with all provisions as specifically set forth herein, Contractor agrees
136 that the scope of the Agreement will be limited to those services and materials which may be lawfully
137 included herein and that the City shall not be responsible for any lost profits or losses claimed by
138 Contractor to arise out of limitations to the scope or provisions of the Agreement set forth herein. In such
139 an event, it shall be the responsibility of Contractor to minimize the financial impact of such future judicial
140 interpretations or new laws and the Contractor may meet and confer with City and may petition for a Rate
141 adjustment pursuant to Section 8.3.
142 1.3 OBLIGATIONS OF PARTIES
143 In addition to the specific performance required under the Agreement, City and Contractor shall:
144 1.
145
146
147
148 2.
149
150 3.
151
152 4.
Use their reasonable commercial efforts to enforce the exclusive nature of the franchise by the
Contractor's identification and documentation of violations of the franchise Agreement and the
City's notification of Generators and collection companies reasonably believed to be violating the
franchise regarding the terms of this Agreement.
Provide timely notice to one another of a perceived failure to perform any obligations under this
Agreement and access to information demonstrating the Party's failure to perform.
Provide timely access to the City Contract Manager and the Contractor's designated
representative and complete and timely responses to requests of the other Party.
Provide timely notice of matters which may affect either Party's ability to perform under the
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153
154
155
156 2.1
Agreement.
ARTICLE 2.
TERM OF AGREEMENT
TERM AND OPTION TO EXTEND
157 The Term of this Agreement shall commence July 1, 2022 (Commencement Date) and continue in full force
158 for a period of approximately ten (10) years, through and including June 30, 2032, unless the Agreement
159 is extended in accordance with this Section or terminated pursuant to Section 10.2.
160 At City's sole discretion, this Agreement may be extended one or more times without amendment for a
161 period of no more than five (5) additional years for a total Term that does not extend beyond June 30,
162 2037. If City desires to extend the Agreement, City shall provide the Contractor with written notice of its
163 decision to extend the Agreement at least one (1) year before the expiration of the initial Term and at
164 least six (6) months before the expiration of any extended term. Such notice by City shall specify the
165 duration of the extension.
166 In accordance with Section 5.12, this Agreement may also be extended automatically without amendment
167 if: (a) Contractor achieves a sixty five percent (65%) annual Diversion rate for all materials Collected during
168 any complete calendar year under the terms of this Agreement, Contractor shall have the option to extend
169 the Agreement for a period of no more than a three (3) additional years, expiring no later than June 30,
170 2035; or, (b) Contractor achieves a seventy five percent (75%) annual Diversion rate for all materials
171 Collected during any complete calendar year under the terms of this Agreement, Contractor wish all have
172 the option to extend the Franchise Agreement for no more than a five (5) additional years, expiring no
173 later than June 30, 2037 period. If Contractor elects to exercise either option, it shall give written notice
174 to City of not less than one (1) year prior to the initial termination date of this Agreement. These Diversion-
175 related extension options shall not be available to Contractor if City has found Contractor to be in breach
176 of the Agreement or has assessed Liquidated Damages at any time during the Term of the Agreement.
177 Between the Effective Date and Commencement Date, Contractor shall perform all activities necessary to
178 prepare itself to start providing services required by this Agreement on the Commencement Date.
179 2.2 CONDITIONS TO EFFECTIVENESS OF AGREEMENT
180 The obligation of City to permit this Agreement to become effective and to perform its undertakings
181 provided for in this Agreement is subject to the satisfaction of all the conditions below, each of which may
182 be waived, in written form only, in whole or in part by City.
183 A.
184
185
186 B.
187
188 C.
189
Accuracy of Representations. The Contractor's representations and warranties made in
Contractor's Proposal and Article 11 of this Agreement are true and correct on and as of the
Effective Date.
Furnishings of Insurance and Performance Bond. Contractor has furnished evidence of the
insurance and performance bond required by Article 9 that is satisfactory to the City.
Absence of Litigation. To the best of Contractor's knowledge, after reasonable investigation,
there is no action, suit, proceeding or investigation, at law or in equity, before or by any court or
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190
191
192
193
194
195
196
197 D.
198
199
200 E.
201
202
203
204
205
206
207
208
209
210
211
212 3.1
governmental authority, commission, board, agency or instrumentality decided, pending or
threatened against Contractor wherein an unfavorable decision, ruling or finding, in any single
case or in the aggregate, would:
1.
2.
3.
Materially adversely affect the performance by Contractor of its obligations hereunder;
Adversely affect the validity or enforceability of this Agreement; or,
Have a material adverse effect on the financial condition of Contractor, or any surety or
entity guaranteeing Contractor's performance under this Agreement.
Permits Furnished. Contractor has provided City with copies of all permits necessary for operation
of all Approved Facilities owned or operated by Contractor or any Subcontractor for use under
the terms of this Agreement.
Legal Challenge. Contractor understands and acknowledges that the award of this Agreement and
related decisions may be subject to review and repeal by the City's citizens through a referendum
or similar petition, and to various types of legal and environmental challenges {such referenda,
similar petition and legal and environmental challenges being referred to collectively as "Legal
Challenges"). Accordingly, this Agreement shall not become effective until the City reasonably
determines that (1) any Legal Challenges that had been initiated as of the time of such
determination have been resolved in favor of the City's award of this Agreement to Contractor;
and (2) the deadline to initiate any additional Legal Challenges has expired; provided, however,
that Contractor shall be entitled to rescind this Agreement upon thirty (30) days' prior written
notice to the City if such determination is not made by June 30, 2021.
ARTICLE 3.
SCOPEOFAGREEMENT
SUMMARY SCOPE OF SERVICES
213 The Contractor or its Subcontractor(s) shall be responsible for the following:
214 A.
215
216
217 8.
218
219 C.
220
221 D.
222
223
224
225 E.
Providing a three-Container Collection program for the separate Collection of Recyclable
Materials, Organic Materials, and Solid Waste generated by and placed for Collection by
Customers pursuant to the requirements of Article 4 and Exhibit B.
Transporting Collected materials to the appropriate Approved Facilities pursuant to requirements
of Article 4 and Exhibit B;
Processing Collected Recyclable Materials and Organic Materials at the appropriate Approved
Facilities pursuant to the requirements of Article 4 and Exhibit B;
Performing all other services required by this Agreement including, but not limited to, Customer
billing, public education, Customer service, contamination monitoring, record keeping, and
reporting pursuant to Articles 4 and 6 and Exhibits C (Public Education & Outreach) and D
(Reporting);
Furnishing all labor, supervision, vehicles, Containers, other equipment, materials, supplies, and
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all other items and services necessary to perform its obligations under this Agreement;
Paying all expenses related to provision of services required by this Agreement including, but not
limited to, taxes, regulatory fees (including City Fees and Reimbursements), and utilities;
Performing or providing all services necessary to fulfill its obligations in full accordance with t his
Agreement at all times using best industry practice for comparable operations; and,
Complying with all Applicable Laws.
232 The enumeration and specification of particular aspects of service, labor, or equipment requirements shall
233 not relieve Contractor of the duty to perform all other tasks and activities necessary to fulfill its obligations
234 under this Agreement, regardless of whether such requirements are enumerated elsewhere in the
235 Agreement, unless excused in accordance with Section 10.7.
236 3.2 USE OF APPROVED FACILITIES
237 The Contractor, without constraint and as a free-market business decision in accepting this Agreement,
238 agrees to use the Approved Facilities for the purposes of Processing and/or Disposing of all Recyclable
239 Materials, Organic Materials, Solid Waste, and other materials Collected in the City. Use of a facility must
240 be approved, in writing, by the City prior to use consistent with the requirements of Article 4. Such
241 decision by Contractor in no way constitutes a restraint of trade notwithstanding any Change in Law
242 regarding Flow Control limitations or any definition thereof.
243 3.3 SUBCONTRACTING
244 Contractor shall not engage any Subcontractors for Collection, Transportation, or Processing of Recyclable
245 Materials, Organic Materials, or Solid Waste services without the prior written consent of City Contract
246 Manager. As of the Effective Date of this Agreement, City has approved Contractor's use of those
247 Subcontractors identified in Contractor's Proposal, included herein as Exhibit GS. If the Contractor plans
248 to engage other affiliated or related party entities in the provision of services, Contractor shall provide
249 City Contract Manager with thirty (30) days written notification of its plans and provide an explanation of
250 any potential impacts related to the quality, timeliness, or cost of providing services under this
251 Agreement. All insurance documents must be reviewed and approved by the City's Risk Manager prior to
252 City acceptance. Contractor shall require that all Subcontractors file insurance certificates with the City,
253 name City as an additional insured, and comply with all material terms of this Agreement.
254 3.4 RESPONSIBILITY FOR MATERIALS
255 Once Recyclable Materials, Organic Materials, and/or Solid Waste are placed in the Contractor's
256 Containers and at the Collection location, the responsibility for their proper handling shall Transfer directly
257 from the Generator to Contractor, with the exception of Excluded Waste if the Contractor can identify the
258 Generator pursuant to Section 5.8.B. Once Recyclable Materials, Organic Materials, and/or Solid Waste
259 are deposited by Contractor at the appropriate Approved Facility, such materials shall become the
260 responsibility of the Owner or operator of the Approved Facility except for Excluded Waste pursuant to
261 Section 5.8.C.
262 Responsibility for Excluded Waste that has been inadvertently Collected by the Contractor shall remain
263 with the Contractor if it cannot identify the Generator, and Contractor shall assume all responsibility for
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264 its proper Disposal.
265 3.5 CITY-DIRECTED CHANGES TO SCOPE
266 City may require a proposal from Contractor to establish the scope of any modification to existing services
267 (which may include use of Approved Facilities) to be provided under this Agreement. In such case,
268 Contractor shall present, within thirty (30) calendar days of City's request, unless an alternate schedule is
269 mutually agreed-upon, a written proposal to provide such modified or additional services. City shall review
270 the Contractor's Proposal for the change in scope of services. City and Contractor may meet and confer
271 t o negotiate Contractor's proposed revisions and costs and shall amend this Agreement, as appropriate,
272 to reflect the mutually agreed-upon changes in scope. If the City and Contractor are unable to agree on
273 terms and conditions, including compensation adjustments, of such services within ninety (90) calendar
274 days from City receipt of Contractor's Proposal for such services, the City may permit other Persons to
275 provide such services. Nothing herein shall prevent the City from soliciting cost and operating information
276 from other Persons in order to inform the City's evaluation of Contractor's Proposal.
277 At any time during the Term of this Agreement, the City may solicit proposals from other Persons for
278 services not contemplated under this Agreement. In the event that contracting with other Persons for
279 such services will reduce Contractor's Compensation under this Agreement, as described in Article 8, the
280 Contractor shall be offered the opportunity to match any other Person's proposed pricing and retain the
281 added scope of services. However, nothing in this Agreement shall prevent the City from contracting with
282 other Persons in the event that Contractor is unable or unwilling to provide such services at or below the
283 cost proposed by the other Person.
284 ARTICLE 4.
285 SCOPE OF SERVICES
286 Contractor shall perform the Recyclable Materials, Organic Materials, Solid Waste, and Bulky Item services
287 described in this Article 4, for any Customer in the City that subscribes to Contractor's Collection services.
288 Contractor's Collection services shall be offered to any Customer that places Containers in a public right-
289 of-way or that provides a waiver for Contractor to access the Private Road(s) where Customer places its
290 Containers.
291 This Article 4 describes the general requirements for the services to be provided. More specific
292 requirements for how each service shall be provided to each Customer Type are described in Exhibit B.
293 Failure to specifically require an act necessary to perform the service does not relieve Contractor of its
294 obligation to perform such act.
295 4.1
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RECYCLABLE MATERIALS
Collection. Contractor shall provide Recyclable Materials Collection services as described in
Exhibit B.
Transfer. Contractor plans to Transport Recyclable Materials to the Approved Transfer Facility
where the materials will be unloaded from Collection vehicles and loaded into large-capacity
vehicles and Transported to the Approved Recyclable Materials Processing Facility. Contractor
shall keep all existing permits and approvals necessary for use of the Approved Transfer Facility
in full regulatory compliance. Upon request, Contractor shall provide copies of facility permits
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and/or notices of violations (obtained from its Transfer Facility Subcontractor if necessary) to City
Contract Manager. If the Contractor is unable to use the Approved Transfer Facility, then the
Contractor shall be responsible for making other Transportation arrangements. In such event,
Contractor shall not be compensated for any additional costs. If the Contractor plans to change
its Transfer method, Contractor shall obtain written approval from the City prior to making the
change.
Processing. Contractor shall Transport and deliver all Source Separated Recyclable Materials
placed in Recyclable Material Containers in the City to the Approved Recyclable Materials
Processing Facility. All t ipping fees and other costs associated with Transporting to and Processing
of such Recyclable Materials at the Approved Recyclable Materials Processing Facility and
Disposing of the Residue as required in Section 4.1.E below shall be paid by Contractor.
Contractor guarantees sufficient capacity at the Approved Recyclable Materials Processing Facility
to Process all Source Separated Recyclable Materials Collected by Contractor under this
Agreement throughout the Term of the Agreement.
Contractor shall keep all existing permits and approvals necessary for use of t he Approved
Recyclable Materials Processing Facility in full regulatory compliance. Upon request, Contractor ·
shall provide copies of facility permits and/or notices of violations {obtained from its Processing
Facility Subcontractor if necessary) to City Contract Manager.
If Contractor is unable to use the Approved Recyclable Materials Processing Facility due to an
event that meets the requirements for excusing Contractor from performance of this specific
obligation as described in Section 10.7, Contractor shall use an alternative Processing Facility
provided that the Contractor provides written notice to City Contract Manager. Within forty-eight
(48) hours of such emergency or sudden and -unforeseen closure, the Contractor shall provide a
written description of the reasons the use of the Approved Recyclable Materials Processing
Facility is not feasible, and the period of time Contractor proposes to use the alternative
Processing Facility. Such a change in Processing Facility shall be temporarily permitted until such
time as the City Contract Manager is able to consider and respond to the use of the proposed
alternative Processing Facility. If the use of the proposed alternative Processing Facility is
anticipated to or actually does exceed thirty (30) days in a consecutive twelve (12) month period,
the use of such Processing Facility shall be subject to approval by the City Contract Manager. The
City Contract Manager may, in their sole discretion, approve, conditionally approve, temporarily
approve, or disapprove of the use of the proposed alternative Processing Facility. If the City
disapproves the use of the proposed alternative Processing Facility, the Parties shall meet and
confer to determine an acceptable Processing Facility.
If t he use of an alternative Processing Facility is for reasons within Contractor's, or its Processing
Facility Subcontractor's control, Contractor's Compensation shall not be adjusted for any change
in Transportation and Processing costs associated with use of the alternative Processing Facility.
However, if the use of an alternative Processing Facility is due to reasons beyond Contractor's or
its Subcontractor's control, then City shall adjust, either up or down, Contractor's Compensation
for changes in Transportation and Processing costs associated with the use of the alternative
Processing Facility. The performance of Recyclable Materials commodity markets shall not be
considered an accept able basis for use an alternative Processing Facility nor shall it serve as the
basis for any adjustment in Contractor's Compensation under this Agreement, other than as
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specifically contemplated in Exhibit E to this Agreement. If the change in the Processing Facility
results in increased cost s, City may identify and direct Contractor to an alternative Processing
Facility, without additional compensation to Contractor, which results in less cost than the
Contractor-identified alternative.
Except for the emergency condit ions described in this section, Contractor shall not change its
selection of the Approved Recyclable Materials Processing Facility without City's written approval,
which may be withheld in the City's sole discretion. If Contractor elects to use a Recyclable
Materials Processing Facility that is different than the initial Approved Recyclable Materials
Processing Facility, it shall request written approval from the City Contract Manager sixty (60)
calendar days prior to use of the site and obtain City's written approval no later than ten (10)
calendar days prior to use of the site. Failure to meet the requirements of t his Section shall result
in Liquidated Damage as identified in Exhibit F.
Contractor shall observe and comply with all regulations in effect at the Approved Recyclable
Materials Processing Facility and cooperate with and take direction from the operator t hereof
with respect to delivery of Recyclable Materials. Contractor shall actively work with the Approved
Recyclable Materials Processing Facility operator throughout the Term of this Agreement to
ensure that contamination of the Recyclable Materials Collected under this Agreement and
delivered to the Processing Facility remains below the limits established by Applicable Law
including, without limitation, SB 1383.
Marketing. The Contractor shall be responsible for marketing Recyclable Materials Collected in
City that are delivered for Processing at Contractor's Approved Recyclable Materials Processing
Facility. Contractor's marketing strategy shall promote the highest and best use of materials
presented in the waste management hierarchy established by AB 939. Where practical, the
marketing strategy should include use of local, regional, and domestic markets for Recyclable
Materials.
Residue Disposal. Residue from the Processing of Source Separated Recyclable Materials
Collected under this Agreement at Contractor's Approved Recyclable Materials Processing
Facility, which cannot be marketed, shall be Disposed of by Contractor, or the Processing Facility
Subcontractor. Residue delivered for Disposal shall not include any Excluded Waste.
ORGANIC MATERIALS
Collection. Contractor shall provide Organic Materials Collection services as described in Exhibit
B.
Transfer. Contractor plans to Transport Organic Materials to the Designated Transfer Facility
where the materials will be unloaded from Collection vehicles and loaded into large-capacity
vehicles and Transported to the Approved Organic Materials Processing Facility. Contractor shall
keep all existing permits and approvals necessary for use of the Designated Transfer Facility in full
regulatory compliance.
Processing. Contractor's Proposal includes the development and construction of new Organic
Materials Processing infrastructure that is required for the performance of Contractor's
obligations under this Section 4.2. Contractor recognizes the critical nature of these services to
the City and ratepayers and shall take extraordinary efforts t o secure all necessary permits and
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approvals and to promptly commence the construction and commissioning of the Organic
Materials Processing Facility. Contractor shall provide monthly progress reports to the City
Contract Manager each month from the execution of this Agreement until the operational date
of the Organic Materials Processing Facility. In the event that Contractor is unable to operate the
Processing Facility at the level required to fulfill its obligations under this Agreement by the
Commencement Date of this Agreement, Contractor shall be responsible for securing an alternate
Organic Materials Processing Facility for the Organic Materials Collected in the City until such time
as Contractor's proposed Processing Facility is operational. Contractor shall present such
alternative Organic Materials Processing Facility to the City Contract Manager for approval, which
may be withheld if such facility has a materially concerning permitting status or regulatory history,
will not adequately Recover the Organic Materials delivered for Processing, or does not accept
the Organic Materials as defined in this Agreement. Any cost associated with delivery to such an
alternate Organic Materials Processing Facility shall be borne solely by the Contractor. In the
event that Contractor fails to secure an alternate Organic Materials Processing Facility for the
Organic Materials Collected in the City and those materials are Disposed, Contractor shall be
assessed the Liquidated Damages described in Exhibit F for Disposing of Organic Materials.
1. General. Contractor shall Transport and deliver all Source Separated Organic Materials
placed in Organic Material Containers in the City to the Approved Organic Materials
Processing Facility. All tipping fees and other costs associated with Transporting such
Organic Materials to the Approved Organic Materials Processing Facility and Disposing of
the Residue as required in Section 4.2.E below shall be paid by Contractor.
i. Capacity Guarantee. Contractor guarantees sufficient capacity at the
Approved Organic Materials Processing Facility to Process all Source
Separated Organic Materials Collected by Contractor under this
Agreement throughout the Term of the Agreement.
ii. Compliance with Regulatory Requirements and Applicable Law.
Contractor shall keep all existing permits and approvals necessary for use
of the Approved Organic Materials Processing Facility in full regulatory
compliance. Upon request, Contractor shall provide copies of facility
permits and/or notices of violations (obtained from its Processing Facility
Subcontractor if necessary) to City Contract Manager.
iii. Notification of Emergency Conditions. Each Approved Facility shall notify
the City of any unforeseen operational restrictions that have been
imposed upon the Facility by a regulatory agency or any unforeseen
equipment or operational failure that will temporarily prevent the Facility
from Processing the Discarded Materials Collected under this Agreement.
iv. Approved Facility(ies) Unavailable/Use of Alternative Facility(ies). If
Contractor is unable to use the Approved Organic Materials Processing
Facility due to an event that meets the requirements for excusing
Contractor from performance of this specific obligation as described in
Section 10. 7, Contractor shall use an alternative Processing Facility
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provided that the Contractor provides written notice to City Contract
Manager. Within forty-eight (48) hours of emergency or sudden and
unforeseen closure, the Contractor shall provide a written description of
the reasons the use of the Approved Organic Materials Processing Facility
is not feasible, and the period of time Contractor proposes to use the
alternative Processing Facility. Such a change in Processing Facility shall
be temporarily permitted until such time as the City Contract Manager is
able to consider and respond to the use of the proposed alternative
Processing Facility. If the use of the proposed alternative Processing
Facility is anticipated to or actually does exceed thirty (30) days in a
consecutive twelve (12) month period, the use of such Processing Facility
shall be subject to approval by the City Contract Manager. The City
Contract Manager may, in their sole discretion, approve, conditionally
approve, temporarily approve, or disapprove of the use of the proposed
alternative Processing Facility. If the City disapproves the use of the
proposed alternative Processing Facility, the Parties shall meet and
confer to determine an acceptable Processing Facility.
If the use of an alternative Processing Facility is for reasons within
Contractor's, or its Processing Facility Subcontractor's control,
Contractor's Compensation shall not be adjusted for any change in
Transportation and Processing costs associated with use of the
alternative Processing Facility. However, if the use of an alternative
Processing Facility is due to reasons beyond Contractor's or its
Subcontractor's control, then City shall adjust, either up or down,
Contractor's Compensation for changes in Transportation and Processing
costs associated with the use of the alternative Processing Facility. In the
event that the change in the Processing Facility results in increased costs,
City may identify and direct Contractor to an alternative Processing
Facility, at the Contractor's expense, which results in less cost than the
Contractor-identified alternative.
Except for the emergency conditions described in this section, Contractor shall not change
its selection of the Approved Organic Materials Processing Facility without City's written
approval, which may be withheld in the City's sole discretion. If Contractor elects to use
an Organic Materials Processing Facility that is different than the initial Approved Organic
Materials Processing Facility, it shall request written approval from the City Contract
Manager sixty (60) calendar days prior to use of the site and obtain City's written approval
no later than ten (10) calendar days prior to use of the site. Failure to meet the
requirements of this Section shall result in Liquidated Damage as identified in Exhibit F.
Contractor shall observe and comply with all regulations in effect at the Approved Organic
Materials Processing Facility and cooperate with and take direction from the operator
thereof with respect to delivery of Organic Materials. Contractor shall actively work with
the Approved Organic Materials Processing Facility operator throughout the Term of this
Agreement to ensure that contamination of the Organic Materials Collected under this
Agreement and delivered to the Processing Facility remains below the limits established
by Applicable Law including, without limitation, SB 1383.
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2. Compostable Plastics. Customers may place Compostable Plastics in the Organic
Materials Container for Collection, including Compostable Plastic bags used by Customers
to contain Food Waste prior to placement in the Organic Materials Container for
Collection. Contractor may prohibit use of Compostable Plastics to contain Yard
Trimmings. Contractor shall Collect and Transport such materials for Processing at the
Approved Organic Waste Processing Facility. At least six (6) months prior to the
commencement of the Agreement, and annually thereafter, Contractor shall provide a
written notification to the City authorizing that the Facility has and will continue to have
the capability to Process and recover the Compostable Plastics throughout the Term of
the Agreement; and the Contractor shall not revoke this authorization at any time during
the Term of the Agreement. If the Contractor does not submit such notification, or if at
any time during the Term of the Agreement the Approved Organic Waste Processing
Facility can no longer accept and/or Process Compostable Plastics, the City may assess
Liquidated Damages or deem such failure an event of default of the Contractor under
Article 10. Contractor shall notify the City within seven (7) days of the Facility's inability
to accept the Compostable Plastics. The notification shall, at a minimum, include: the date
and a description of the reasons that the Facility is not able to Process and recover the
Compostable Plastics; the period of time the Facility will not Process and recover these
materials; and the Contractor's proposed plan to find an alternative Facility or
arrangement to Process the Compostable Plastics, subject to City approval. City may
prohibit or restrict the use of Compostable Plastics, with a six (6) month notice to
Contractor, and this shall not constitute a City-Directed Change in Scope or Change in Law
under this Agreement.
Marketing. The Contractor shall be responsible for marketing Organic Materials Collected in the
City that are delivered for Processing at the Approved Organic Materials Processing Facility.
Contractor's marketing strategy shall promote the highest and best use of materials presented in
the waste management hierarchy established by AB 939. Where practical, the marketing strategy
should include use of local markets for Organic Materials.
Residue Disposal. Residue from the Processing of Organic Materials Collected under this
Agreement at the Approved Organic Materials Processing Facility, which cannot be marketed,
shall be Disposed of by Contractor, or the Processing Facility Subcontractor. Residue delivered for
Disposal shall not include any Excluded Waste.
SOLID WASTE
507 Contractor shall offer and provide Solid Waste Collection services as described in Exhibit B.
508 Contractor acknowledges that City is committed to Diverting materials from Disposal through the
509 implementation of source reduction, reuse, Recycling, Composting, and other programs, and that City
510 may implement new programs, with or without the involvement of the Contractor, that may impact the
511 overall quantity or composition of Solid Waste to be Collected by Contractor. Contractor shall not be
512 entitled to any compensation or other relief resulting from a decline in Solid Waste volumes or Tonnage
513 or from a change in the composition of Solid Waste.
514 Contractor plans to Transport Solid Waste to the Designated Transfer Facility where the materials will be
515 unloaded from Collection vehicles and loaded into large-capacity vehicles and Transported to the
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516 Designated Disposal Facility. Contractor shall keep all existing permits and approvals necessary for use of
517 the Approved Transfer Facility in full regulatory compliance. Upon request, Contractor shall provide copies
518 of facility permits and/or notices of violations (obtained from its Transfer Facility Subcontractor if
519 necessary) to City Contract Manager. If the Contractor is unable to use the Designated Transfer Facility,
520 then the Contractor shall be responsible for making other Transportation arrangements. In such event,
521 Contractor shall not be compensated for any additional costs. If the Contractor plans to change its Transfer
522 method, Contractor shall obtain written approval from the City prior to making the change.
523 Contractor shall Transport all Solid Waste Collected in City to the Designated Disposal Facility. Contractor
524 shall pay all costs associated with Transportation and Disposal of Solid Waste including payment of any
525 gate fees charged at the Designated Disposal Facility. Contractor shall observe and comply with all
526 regulations and posted rules in effect at the Designated Disposal Facility and cooperate with and take
527 direction from the operator thereof with respect to delivery of Solid Waste.
528 4.4 BULKY ITEMS AND REUSABLE MATERIALS
529 Contractor shall offer Bulky Item and Reusable Materials Collection services as described in Exhibit 8.
530 Bulky Item and Reusable Materials Collection services shall be provided three (3) times per year, for up to
531 five (5) items, as approved by the City Contract Manager, pursuant to Exhibit B. On-call Bulky Item and
532 Reusable Materials Collection services shall be offered to Customers within one (1) Working Day of
533 Contractor's receipt of such a Customer request for service, pursuant to Exhibit 8. Contractor shall make
534 reasonable efforts to schedule on-call Bulky Item and Reusable Materials Collections on a day that is
535 convenient to the Customer. Contractor shall Transport all Bulky Items or Reusable Materials Collected
536 under this Agreement to the Approved Reusable Materials Processing Facility. Contractor shall pay all
537 costs associated with Transporting and Processing Bulky Items and Reusable Materials. Contractor shall
538 observe and comply with all regulations in effect at the Approved Reusable Materials Processing Facility
539 and cooperate with and take direction from the operator thereof with respect to delivery of Bulky Items
540 and/or Reusable Materials.
541 4.5 SPECIAL EVENTS
542 Contractor shall provide Recyclable Materials, Organic Materials, and Solid Waste services to up to five
543 (5) special events per Rate Period, at no cost to the event or City. Contractor shall provide the special
544 event services to other events that are sponsored by City upon thirty (30) calendar days advance request
545 by the City Contract Manager. Special event services include all of the following unless specifically waived
546 in writing by City Contract Manager.
547 A.
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Event Collection Stations. Contractor shall provide and set-up event Collection stations for
Collection of Recyclable Materials, Organic Materials, and Solid Waste at City-sponsored special
events. Each event Collection station shall include a separate Cart for each of Recyclable
Materials, Organic Materials, and Solid Waste, as appropriate. Contractor shall provide a sufficient
number of event Collection stations of sufficient capacity to meet the needs of the event as
determined by Contractor in cooperation with the event organizer. Collection stations shall utilize
the same Carts used to provide services to Residential Customers, unless alternative Containers
are approved by the City. Contractor shall provide liners/bags for the Carts at the Collection
stations and shall line the Carts as a part of the station set-up. Collection stations shall include
adequate signs and labeling.
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Collection Station Monitors. Upon request, Contractor shall provide up to six (6) Collection
station monitors who shall be present for the duration of each special event. Contractor shall
require Collection station monitors to monitor event Collection stations and educate event
attendees and vendors about what materials are acceptable in each Collection station Cart. The
City shall be responsible for Transporting materials contained in event Collection stations to Drop
Boxes, which will subsequently be Collected by the Contractor. Station monitors will also sort
materials both at the Collection stations and at the Drop Boxes to ensure that they are properly
separated.
Drop Boxes. Upon request, Contractor shall provide Containers for the aggregation of material
removed from event Collection stations during the course of the event. Contractor shall provide
Containers in sufficient number of appropriate type(s) for the needs of the event as determined
by Contractor in cooperation with the event organizer. Contractor shall service Containers, as
agreed-upon with the event organizer, and deliver Collected materials to the appropriate
Approved Facility for Processing and/or Disposal.
Public Education Booth. Upon request of either the City Contract Manager or the event organizer,
Contractor shall staff a booth or exhibit at the event for the purpose of educating the public about
the services and programs provided by Contractor under this Agreement and the benefits of
source reduction, reuse, Recycling, and Composting.
Reporting. Within fourteen (14) calendar days of the end of the event, Contractor shall submit a
report to the City Contract Manager and event organizer. The report should include, at a
minimum: the number of event Collection stations deployed at the event, the number of
Collection station monitors, the Tonnage of each material type (i.e., Recyclable Materials, Organic
Materials, and Solid Waste) Collected, and a description of the public education provided at the
580 event.
581 Contractor may, at its sole discretion and expense, coordinate with local youth, community, or charitable
582 organizations to provide some or all of the required services. Regard less of Contractor's use of such an
583 organization, Contractor shall be responsible for ensuring that service is provided to the Customer in a
584 professional and timely manner.
585 For special events which are not identified in Exhibit BS or otherwise hosted or sponsored by the City,
586 Contractor shall provide the above-described special event services at the request of the event organizer
587 and may negotiate the charges for such services with the event organizer based on the specific needs of
588 the event.
589 4.6 PUBLIC EDUCATION AND OUTREACH
590 The public education and outreach activities included in the scope of services provided by Contractor
591 under this Agreement are described in Exhibit C. Contractor shall produce and distribute public education
592 and outreach materials upon City request and contribute any remaining funds in Contractor's annual
593 public education budget to the City to support the City's public education and outreach efforts.
594 A.
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597
Program Objectives. The City shall be responsible for designing and conducting a public education
and outreach program, and the Contractor shall be responsible for the production and distribution
of all materials under this program in accordance with this Agreement. The City's public education
and outreach strategy shall focus on improving Generator understanding of the benefits of and
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opportunities for source reduction, reuse, and landfill Disposal reduction and supporting
compliance with Applicable Laws and regulations, including, but not limited to AB 341, AB 1826,
and SB 1383. Examples of goals of the City-provided public education and outreach program
include, but are not limited to: (i) informing Generators about the services that are provided under
this Agreement with specific focus on describing the methods and benefits of source reduction,
reuse, Recycling, and Composting; (ii) instructing Generators on the proper method for placing
materials in Containers for Collection and setting Containers out for Collection, with specific focus
on minimizing contamination of Recyclable Materials and Organic Materials; (iii) clearly defining
Excluded Waste and educating Generators about the hazards of such materials and their
opportunities for proper handling; (iv) discouraging Generators from buying products if the
product and its packaging are not readily reusable, Recyclable, or Compostable; (v) informing
Generators subject to Food Recovery requirements under SB 1383 of their obligation to recover
Edible Food and actions they can take to prevent the creation of Food Waste; (vi} encouraging the
use of Compost and recovered Organic Waste products; and, (vii) encouraging Generators to
purchase products/packaging made with Recycled content materials. The cumulative intended
effect of these efforts is to reduce generation of Solid Waste and, ultimately, Disposal of Solid
Waste by each Generator in the City, and Contractor agrees to support and not undermine or
interfere with such efforts.
Contractor Public Education Requirements. Contractor agrees to print, produce, and distribute
education materials and conduct outreach, as required by the City, based on the City's adopted
program, the extent of these requirements may be similar to the example public education and
outreach requirements detailed in Exhibit C.
Contractor acknowledges that they are part of a multi-Party effort to operate and educate the
public about the regional integrated waste management system. Contractor shall cooperate and
coordinate with the City Contract Manager on public education activities to minimize duplicative,
inconsistent, or inappropriately timed education campaigns.
Contractor shall obtain approval from the City Contract Manager on all Contractor-provided
advertising, promotional, or service-related materials used within the City before publication,
distribution, and/or release. The City Contract Manager, in their sole discretion, shall have the
right to deny the use of any materials or content or may request that Contractor include City
identification and contact information on materials and Contractor's approval of such requests
shall not be unreasonably withheld.
BILLING
631 Contractor shall bill all Customers and be solely responsible for collecting billings at Rates set in
632 accordance with Article 8. Billing shall be performed on the basis of services rendered and this Agreement
633 shall create no obligation on the part of any Person on the sole basis of the ownership of property.
634 Individual contracts between Contractor and a Customer for services provided under this Agreement shall
635 be prohibited.
636 Contractor shall bill all Single-Family Residential Customers bimonthly in advance of services provided.
637 Contractor shall bill all Commercial and Multi-Family Customers for scheduled and regularly recurring
638 services on a monthly basis in advance of services provided. Contractor shall bill Customers for any on-
639 call and/or non-recurring services no more frequently than bimonthly and may only bill for services
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640 provided during the previous two (2) months. Contractor shall remit invoices to Customers no earlier than
641 the twentieth (20th) day of the month preceding the period for which service is being billed.
642 Contractor shall develop, maintain, and regularly update a Customer Account Information Database,
643 which shall include but is not limited to:
644
645
646
647
648
i. Customer name;
ii. Phone number;
iii. Service address;
iv. Email address; and,
v. Customer Service Levels, including:
649 a. Customer Service Levels exceptions, and,
650 b. Customer service waivers.
651 Contractor shall make such database available, upon no more than five (5) Working Days request from
652 the City Contract Manager, in accordance with this Section and Section 6.1. Contractor shall additionally,
653 on an annual basis, reconcile all Customer accounts with City's GIS information. Failure to maintain
654 database in accordance with this Section shall result in Liquidated Damages as identified in Exhibit F.
655 Contractor shall bill Customers electronically using paperless invoices, however Contractor shall bill
656 Customers who decline or are otherwise unable to provide email contact information by standard mail,
657 using standard (paper) invoices. Contractor shall permit Customers the ability to pay their bills through an
658 electronic check or credit card and include the ability for Customer billings to be automatically charged
659 on a recurring basis. Contractor shall prepare, mail, and collect bills from Customers who decline to use
660 such internet-based billing system. Contractor shall make arrangements to allow such Customers to pay
661 bills by cash, check, electronic check, money order, and credit card.
662 Up to once per billing cycle, City may direct Contractor to attach inserts to Customer invoices. Contractor
663 shall provide electronic bill inserts to Customers who are billed electronically, and paper bill inserts to
664 Customers who receive paper bills. Electronic bill inserts/attachments must be readily available for the
665 Customer to view upon receipt of the invoice (attachments shall not be provided as links). Upon City
666 request for such attachments, Contractor shall comply with such request during its next billing cycle for
667 the targeted Customer group. Contractor shall perform this service with no additional requirement for
668 compensation.
669 Contractor shall maintain copies of all billings and receipts, each in chronological order, for the Term of
670 this Agreement, for inspection and verification by the City Contract Manager at any reasonable time but
671 in no case more than thirty (30) calendar days after receiving a request to do so.
672 Contractor shall be responsible for collection of payment from Customers with past due accounts ("bad
673 debt") in accordance with this Section 4.7. Contractor shall make reasonable efforts to obtain payment
674 from delinquent accounts through issuance of late payment notices, telephone requests for payments,
675 and assistance from collection agencies.
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April 6, 2021 Item #8 Page 613 of 671
676 Monthly Customer invoices shall be due thirty (30) calendar days from the first day of the billing period.
677 In the event that any account becomes more than thirty (30) calendar days past due, Contractor shall
678 notify such Customer of the delinquency via written correspondence, instructing the Customer that
679 unpaid bills which become more than forty-five {45) calendar days delinquent may be assessed a one and
680 one half percent (1.5%) late fee per month. Contractor shall provide a second written notice of
681 delinquency to any account which becomes more than sixty (60) calendar days past due, and a third
682 written notice of delinquency to any account which becomes more than ninety (90) calendar days past
683 due. Should any account become more than one hundred and twenty (120) calendar days past due,
684 Contractor may discontinue providing service to the Customer. No less than seven (7) calendar days prior
685 to discontinuing service to a Customer, Contractor shall notify the City Contract Manager of the address,
686 Service Level, service frequency, and delinquent billing amount. Contractor may withhold service from a
687 delinquent account until past delinquencies are paid in full. Upon restoring service to a previously
688 delinquent account, Contractor may require a deposit from the Customer not to exceed one (1) month's
689 billings at the Customer's Service Level.
690 If Contractor fails to invoice a Customer, or otherwise under-charges a Customer for services provided for
691 more than six (6) months, Contractor may not subsequently attempt to collect the under-charged amount
692 for more than six months of service. If Contractor over-charges a Customer for a period of more than six
693 (6) months, Contractor shall reimburse or credit the Customer for at least six months of the over-charged
694 service, but is not required by this Agreement to reimburse or credit the Customer for more than six (6)
695 months of overcharges. This Agreement also does not prohibit Contractor from reimbursing or crediting
696 a Customer for more than six (6) months of over-charges.
697 If a Customer reduces or cancels service during a billing cycle, the Customer shall be entitled to a proration
698 of the billing from the date that the service change was requested, in the case of cancellations or
699 reductions in the Customer's bill, or the date the service change was fulfilled, in the case of increases in
700 the Customer's bill.
701 4.8 CUSTOMER SERVICE PROGRAM
702 4.8.1 Program Requirements
703 A. Availability of Representatives. A representative of the Contractor who is knowledgeable of the
704 service area, services, and Rates shall be available from 8 a.m. to 5 p.m. Monday through Friday
705 to communicate with the public by telephone. Contractor shall maintain a local or toll-free
706 telephone number which it shall publicize. Contractor shall also maintain an after-hours
707 telephone number allowing twenty-four (24) hour per day access to Contractor management by
708 City Contract Manager in the event of an emergency involving Contractor's equipment or services
709 including, but not necessarily limited to, fires, blocked access, or property damage.
710 B. Telephone. City shall secure, and Contractor shall use, pay all costs incurred by, and maintain
711 during the Term of this Agreement, a toll-free phone number which shall serve as the primary
712 point of contact between Contractor and the public during normal business hours. Upon
713 expiration or early termination of this Agreement, the City shall retain the control of the toll-free
714 phone number. The Contractor shall provide the City with a separate emergency telephone
715 number for use by the City Contract Manager outside normal business hours. The Contractor shall
716 have contact such representative, available at the emergency telephone number during all hours
717 other than normal office hours.
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Franchise Agreement
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718
719
720
721
722
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733 C.
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Contractor shall maintain a telephone system in operation from 9 a.m. to 7 p.m. and shall have
sufficient equipment in place and staff a representative, or an answering service to available to
handle the volume of calls experienced on the busiest days and such telephone equipment shall
be capable of recording the responsiveness to calls. Contractor's telephone system shall offer
Customers who have been placed on-hold to opt to leave a voice message or email, rather than
remain on-hold. If Contractor's telephone Customer service performance falls below the
performance standards established in Exhibit F, the City shall have the right to require Contractor
to increase its staffing levels and/or call handling capacity without requirement for any additional
compensation to the Contractor. Recording of Contractor's responsiveness to calls shall include,
at a minimum, all items included in the "Service Quality and Reliability" and "Customer Service"
performance standards listed in Exhibit F. An answering machine or voicemail service shall record
Customer calls and voice messages between 7:00 p.m. and 9:00 a.m. Contractor shall provide a
live, not automated, call back on the same day to all Customers who leave voice messages by 5:00
p.m. on a Working Day and shall provide a live call back by noon of the following Working Day for
any voice messages left after 5:00 p.m.
Web Site and Email Access. Contractor shall develop and maintain a web site that is accessible by
the public and solely dedicated to the operations under this Agreement in the City. Contractor's
web site shall include all Rates allowed to be charged under the Agreement, all public education
and outreach materials produced and distributed under this Agreement, and provide the public
the ability to e-mail Contractor questions, service requests, or Complaints. Contractor shall
respond the same day to all Customers who leave e-mail messages by 5:00 p.m. on a Working Day
and shall respond by noon of the following Working Day for any e-mail messages left after 5:00
p.m. Contractor may respond to Customer e-mails either via e-mail or phone.
741 4.8.2 Service Requests, Compliments, Complaints
742 Contractor shall be responsible for the prompt and courteous attention to, and prompt and reasonable
743 resolution of, all Customer service requests and Complaints. Contractor shall record, in its computer
744 system or a separate log, approved as to form by City Contract Manager, all Complaints, noting the name
745 and address of Complainant, date and time of Complaint, nature of Complaint, and nature and date of
746 resolution. The Contractor shall retain this Complaint log for the Term. Contractor shall record and
747 respond to all Complaints as communicated by the Customer, utilizing a "Customer is always right''
748 approach, shall not challenge or dispute the Customer's assertions or Complaints, and shall always
749 prioritize Customer satisfaction. Upon request by the City Contract Manager, Contractor shall compile and
750 submit a summary statistical table of the Complaint log.
751 Contractor shall respond to all Complaints received in accordance with the requirements of Section
752 4.8.1.B, and 4.8.1.C. Complaints related to missed Collections shall be addressed in accordance with
753 Section 4.8.3. Complaints related to repair or replacement of Carts or Bins, shall be addressed in
754 accordance with Section 5.6.
755 4.8.3 Missed Collections
756 A. Missed Collection Complaints. When handling Customer Complaints related to missed or
757 incomplete Collections, Contractor shall not question or contest the Customer's claim that the
758 Collection was missed or incomplete, even in cases where the route driver recorded the
759 Container(s) in question as already "Collected" or "not out." If Contractor believes a Customer has
760 pattern of inaccurately reporting missed Collections, Contractor may submit a request to the City
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Franchise Agreement
April 6, 2021 Item #8 Page 615 of 671
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766 8.
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777 C.
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Contract Manager that the Customer be disqualified from receiving future Missed Collection
Rebates for a period to be determined by the City Contract Manager. Such application shall include,
but not be limited to: a statement explaining why Contractor believes the missed Collections were
inaccurately reported; documentation of the Customer's prior Complaints and resolution thereof;
and, call center notes taken during the Complaint calls.
Schedule for Resolution. Contractor shall resolve every Customer Complaint of a missed or
incomplete Collection by returning to the Customer address and completing the Collection. For all
Complaints related to missed Collections that are received by 3:00 p.m. on a Working Day, the
Contractor shall return to the Customer address and Collect the missed materials on the same
Working Day on which the missed Collection was reported. For those Complaints related to missed
Collections that are received after 3:00 p.m. on a Working Day, the Contractor shall have until the
end of the following Working Day to resolve the Complaint. Contractor shall pay Customer rebates
for late Collections in accordance with Section 5.13. Contractor's failure to comply with this Section
4.8.3 may result in Liquidated Damages, in accordance with Exhibit F.
Contractor shall not be required to return and complete a Collection in response to a Complaint if
the Contractor's driver has left a Non-Collection Notice in accordance with Section 4.11.
Courtesy Collections for Admitted Late Set-Outs. In the event that a Customer: (i) reports that their
Container(s) were placed for Collection after Contractor's Collection vehicle had already passed the
Premises for regularly scheduled Collection; (ii) does not claim that Contractor missed the
Collection; and, (iii) requests that the Contractor return and Collect their Containers, Contractor
shall return to the Customer Premises and provide a courtesy Collection at no charge to the
Customer. Contractor is not required to provide more than three (3) courtesy Collections for
admitted late set-outs per Customer per calendar year. For Residential Customers, one (1) courtesy
Collection represents Collection of up to three (3) Carts (Recyclable Materials, Organic Materials,
Solid Waste) per incident. Contractor shall complete the courtesy Collection by the end of the
following Working Day. Contractor shall not be required to pay Missed Collection Rebates for
courtesy Collections not completed on the scheduled Collection day. The provisions of this Section
shall only apply if the Customer acknowledges, and Contractor documents in writing, that the event
did not constitute a missed or incomplete Collection event by the Contractor.
790 4.8.4 SB 1383 Non-Compliance Complaints
791 For Complaints received in which the Person alleges that an entity is in violation of SB 1383 requirements,
792 Contractor shall document the information listed in Exhibit D. Contractor shall provide this information in
793 a brief Complaint report to the City for each SB 1383-noncompliance Complaint within seven (7) days of
794 receipt of such Complaint, and a monthly summary report of SB 1383-non-compliance Complaints in
795 accordance with Exhibit D.
796 Upon City request, Contractor shall conduct follow-up inspections and/or outreach to the violating entity,
797 and shall document the information in the reports provided pursuant to Exhibit D.
798 4.9 ACCESS TO CUSTOMER SERVICE AND BILLING SYSTEMS
799 Contractor shall provide access and any necessary training to one {1) or more City employee(s) (as
800 designated by the City) regarding the use of Contractor information systems as described in this Section.
801 Contractor shall designate one {1) member of Contractor staff to work directly with such City employee.
Page 20 of 75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 616 of 671
802 Contractor shall provide such City employee with access to Customer service, call center, and operations
803 information systems in order to validate Contractor performance standards, verify that Customer rebates
804 have been issued in accordance with Section 5.13, and recommend changes to Customer Service Levels
805 to resolve service issues or otherwise address Customer needs. If recommended Service Level changes
806 are made, the designated City staff will work with Contractor's route manager to make such changes,
807 which shall not be denied by Contractor except for reasons related to Customer, route driver, and/or
808 equipment safety. Contractor shall also provide access t o Customer contact information (including email
809 addresses) for purposes of City-provided public education and outreach activities. In addition, Contractor
810 shall ensure that the City Contract Manager and any other City staff, as requested by the City, have read-
811 only access to all service order, billing, and Customer service records in Contractor's internal information
812 systems. Such read-only access is intended to provide the City the ability to review notes related to
813 Customer service and/or billing issues.
814 4.10 SERVICE EXEMPTIONS
815 4.10.1 General Exemptions
816 Upon Customer request, and with written approval from the City Contract Manager, Contractor shall
817 cease providing, and collecting payment for, Collection services to a Premises which is anticipated to be
818 vacant for no less than thirty (30) days. In addition, upon written direction from the City Contract
819 Manager, Contractor shall modify or otherwise cease providing Collection services to Customers
820 requesting other service exemptions, provided that such Customers consistently demonstrate the ability
821 to responsibly manage Discarded Materials generated at the Premises in question, in a manner consistent
822 with Applicable Law.
823 4.10.2 Commercial and Multi-Family Customer Waivers
824 A. General. The City may grant waivers described in this Section to Commercial or Multi-Family
825 Generators that impact the scope of Contractor's provision of service for those Customers;
826 provided, the Generator shall continue to subscribe with Contractor for franchised Collection
827 services to the extent such services are not waived by the City. Waivers issued shall be subject to
828 compliance with SB 1383 requirements, pursuant to 14 CCR Section 18984.11, or other
829 requirements specified by the City.
830 B. Types of Generator Waivers
831
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1. De M inimis Waivers. The City may waive a Commercial business' or Multi-Family property's
obligation to comply with some or all of the Recyclable Materials and Organic Materials
requirements set forth in this Agreement, SB 1383, and of the Municipal Code if the Generator
provides documentation or the City has evidence demonstrating one of the following de
minimis conditions:
a.
b.
The Commercial or Multi-Family Generator's total Discarded Materials Collection
service is two (2) cubic yards or more per week, and Organic Waste subject to Collection
in a Recyclable Materials Container or Organic Materials Container comprises less than
twenty (20) gallons per week, per applicable Container, of the Commercial business'
total waste; or,
The Commercial or Multi-Family Generator's total Discarded Materials Collection
service is less than two (2) cubic yards per week, and Organic Waste subject to
Page 21 of 75 City of Carlsbad
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April 6, 2021 Item #8 Page 617 of 671
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853 C.
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2.
Collection in a Recyclable Materials Container or Organic Materials Container comprises
less than ten (10) gallons per week, per applicable Container, of the Commercial
business' total waste.
Physical Space Waivers. The City may waive a Commercial or Multi-Family Generator's
obligation to comply with some or all of the Recyclable Materials and Organic Materials
requirements set forth in this Agreement, SB 1383, and the Municipal Code if the Commercial
or Multi-Family Generator provides documentation, or the City has evidence from its staff,
the Contractor, licensed architect, engineer, or similarly qualified source demonstrating that
the Premises lacks adequate space for Recyclable Materials Containers and/or Organic
Materials Containers.
Contractor Review of Waiver Requests. Generators may submit requests for de minimis waivers
and physical space waivers to the City. The City shall notify Contractor of the request, and
Contractor shall within seven (7) days of receipt of the City's request, inspect the Generator's
Premises to verify the accuracy of the application. Contractor shall provide documentation of the
inspection, including the date of the inspection, Customer name and address, a description of the
Premises, evaluation of each criterion of the relevant waiver type, and photographic evidence. The
Contractor shall send this information and documentation to the City in a timely manner, not to
exceed three (3) days after the date of inspection. The City ultimately retains the right to approve
or deny any application, regardless of the information provided by the Contractor. Contractor shall
report information regarding waivers reviewed within the month, if any, in accordance with this
Section and Exhibit D.
864 D. Service Level Updates. When the City grants a waiver to a Customer, or the Customer's waiver
865 status changes after a re-verification determination, the City shall notify the Contractor within seven
866 (7) days of the waiver approval or status change with information on the Customer and any changes
867 to Service Level or Collection service requirements for the Customer. Contractor shall have seven
868 (7) days to modify the Customer's Service Level, Customer account data, and billing statement, as
869 needed.
870 E. Waiver Re-verification. The City shall be responsible for re-verification of waivers. Upon request of
871 the City, the Contractor shall support the City in this re-verification Process by providing requested
872 Customer information as per Customer database requirements in Section 4.7 In the event that a
873 waiver status changes, Contractor shall update the Customer's information and Service Level in
874 accordance with subsection 4.10.2.D above.
875 4.10.3 Contractor Service Exemptions
876 A. Disaster Waivers. In the event of a disaster, the City may grant Contractor a waiver of some or all
877 Discarded Materials Collection requirements under this Agreement and 14 CCR, Division 7, Chapter
878 12, Article 3 in the disaster-affected areas for the duration of the waiver, provided that such waiver
879 has been approved by CalRecycle. Any resulting changes in Collection requirements shall be
880 addressed as a change In scope in accordance with Section 3.5.
881 B. Removal of Material from Homeless Encampments and Illegal Disposal Sites. The Contractor may,
882 but is not required to, separate or recover Organic Waste that City removes from homeless
883 encampments and illegal disposal sites as part of an abatement activity to protect public health and
Page 22 of 75 City of Carlsbad
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April 6, 2021 Item #8 Page 618 of 671
884 safety. Contractor shall report the amount of Discarded Materials removed for Disposal from
885 homeless encampments and illegal disposal sites, in accordance with Exhibit D.
886 C.
887
888
889
890
891
892
893
Quarantined Waste. If approved by the City, the Contractor may Dispose of, rather than Process,
specific types of Organic Materials and/or Recyclable Materials that are subject to quarantine and
meet the requirements described in 14 CCR Section 18984.B(d) for a period of time specified by
the City or until the City provides notice that the quarantine has been removed and directs
Contractor to Transport the materials to the Approved Facilities for such material.
In accordance with Exhibit D, the Contractor shall maintain records and submit reports regarding
compliance agreements for quarantined Organic Materials and Recyclable Materials that are
Disposed of pursuant to this subsection.
894 4.11 CONTAMINATION MONITORING
895 4.11.1 Annual Route Reviews
896 A.
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Methodology. The Contractor shall, at its sole expense, conduct route reviews of Containers for
Prohibited Container Contaminants in a manner that meets the requirements of this Section; is
approved by the City; and results in all routes being reviewed at least annually.
The Contractor's route review shall include all Container types in service (Recyclable Materials,
Organic Materials, and Solid Waste Containers) for all Customer Types. The Containers shall be
randomly selected prior to beginning the route review through use of a random number
generator; and the minimum number of Containers to be sampled shall be based on weekly route
size, as follows:
1
2.
3.
4.
For weekly routes with less than one thousand five hundred {1,500) Generators, the
Contractor shall sample a minimum of twenty-five (25) Containers;
For weekly routes with one thousand five hundred to three thousand nine hundred
ninety-nine (1,500-3,999) Generators, the Contractor shall sample a minimum of thirty
(30) Containers;
For weekly routes with four thousand to six thousand nine hundred ninety-nine (4,000-
6,999) Generators, the Contractor shall sample a minimum of thirty-five (35)
Containers; and,
For weekly routes with more than seven thousand (7,000) Generators, the Contractor
shall sample a minimum of forty (40) Containers.
Contractor shall develop a specific route review methodology to accomplish the above Container
inspection requirements and such methodology shall comply with the requirements of 14 CCR
Section 18984.5(b). Contractor shall submit its proposed route review methodology for the
coming year to t he City no later than January 15 of each year describing its proposed methodology
for the calendar year and schedule for performance of each route's annual review. Contractor's
proposed route review methodology shall include not only its plan for Container inspections, but
shall also include its plan for prioritizing the inspection of Customers that are more likely to be
out of compliance. The City and/or CalRecycle will review and approve the proposed
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April 6, 2021 Item #8 Page 619 of 671
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B.
c.
methodology. Contractor may commence with the proposed methodology upon approval.
If the City and/or CalRecycle notifies the Contractor t hat the methodology is inadequate to meet
the requirements of 14 CCR Section 18984.5{b), Contractor shall, at its sole expense, revise the
methodology and, after obtaining City or CalRecycle approval, conduct additional route reviews,
increased Container inspections, or implement other changes using the revised procedure. If the
Contractor's proposed methodology meets the requirements of 14 CCR Section 18984.S(b), but
has been deemed inadequate by the City, the Contractor shall, at the expense of the City, revise
the methodology and implement the necessary changes using the revised procedure.
The City's Contract Manager may request, and Contractor shall accept, modifications to the
schedule to permit observation of the route reviews by the City. In addition, Contractor shall
provide an email notice to the City's Contract Manager no less than ten (10) Working Days prior
to each scheduled Route review that includes the specific time(s), which shall be within the City's
normal business hours, and location(s).
Contamination Notification. Upon identification of Prohibited Container Contaminants in a
Customer's Container, Contractor shall provide the Customer with a notice of contamination in
the form of either a Courtesy Pick-Up Notice or a Non-Collection Notice as determined by the
route auditor.
Courtesy Pick•Up Notice. Upon identification of Prohibited Container Contaminants in a
Customer's Container, Contractor shall provide the Customer a Courtesy Pick-Up Notice at the
Customers door or gate; or, subject to City's approval, may deliver the notice by mail, e-mail, or
text message. Contractor shall also attach or adhere Courtesy Pick-Up Notice to Generators
contaminated Containers.
The courtesy pick-up notification shall, at a minimum:
1.
2.
3.
4.
5.
Inform the Customer of the observed presence of Prohibited Container Contaminants;
Include the date and time the Prohibited Container Contaminants were observed;
Include information on the Customer's requirement to properly separate materials
into the appropriate Containers, and the accepted and prohibited materials for
Collection in each Container;
Inform the Customer of the courtesy pick-up of the contaminated materials on this
occasion with information that the Contractor may assess contamination Processing
fees and/or issue a Non-Collection Notice in the future; and,
Include photographic evidence.
The format of the Courtesy Pick-Up Notice shall be approved by the City Contract Manager and
must be a distinct color from the Non-Collection Notices.
Contractor shall Collect the contaminated Recyclable Materials and/or Organic Materials
Containers and either Transport the material to the appropriate Approved Facility for Processing;
or, Contractor may Collect the contaminated materials with the Solid Waste and Transport the
Page 24 of75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 620 of 671
959
960
961
962
963 D.
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973
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975
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contaminated materials to the Approved Disposal Facility. A Courtesy Collection of contaminated
Recyclable Materials or Organic Materials where the materials are sent to the Approved Disposal
Facility may be made with a Solid Waste Collection vehicle, provided that the contaminants may
safely and lawfully be Collected as Solid Waste.
Non-Collection Notices
1.
2.
3.
Non-Collection Notice. Upon identification of Prohibited Container Contaminants in a
Container in excess of standards agreed upon by the Parties or Excluded Waste, Contractor
shall provide a Non-Collection Notice to the Generator.
The Non-Collection Notice shall, at a minimum:
a. Inform the Customer of the reason(s} for non-Collection;
b. Include the date and time the notice was left or issued;
c. Describe the premium charge to Customer for Contractor to return and
Collect the Container after Customer removes the Contamination;
d. Provide a warning statement that a contamination Processing fee may be
assessed; and,
e. Include photographic evidence of the violation(s}.
Communications with Customer. Whenever a Container at the Premises of a Commercial or
a Multi-Family Customer is not Collected, Contractor shall contact the Customer on the
scheduled Collection day or within two (2) hours of the scheduled Collection day by
telephone, email, text message, or other verbal or electronic message to explain why the
Container was not Collected. Whenever a Container is not Collected because of Prohibited
Container Contaminants, a Customer service representative shall contact the Customer to
discuss, and encourage the Customer to adopt proper Discarded Materials preparation and
separation procedures.
Contractor Return for Collection. Upon request from Customer, Contractor shall Collect
Containers that received Non-Collection Notices within one (1) Working Day of Customer's
request if the request is made at least two (2) Working Days prior to the regularly scheduled
Collection Day. Contractor shall bill Customer for the extra Collection service event ("extra
pick-up") at the applicable City-approved Rates only if Contractor notifies Customer of the
premium Rate for this service at the time the request is made by Customer.
Assessment of Contamination Processing Fees. If the Contractor observes twenty percent (20%)
or more Prohibited Container Contaminants and has issued a Courtesy Pick-Up Notice or Non-
Collection notice, as appropriate, the Contractor may impose a contamination Rate approved by
the City for that Customer's Service Level. The intent of Contamination Fees is to provide a
behavioral tool to educate and prevent Customers from placing Source Separated Discarded
Material into the improper designated Container(s). To ensure that assessment of fees are to be
used for the intended purposes and not as a form of revenue generation, Contractor agrees that
Contamination fees shall not exceed one percent (1%) of Contractor's Gross Receipts in any
Page 25 of75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 621 of 671
997
998
999
1000
1001
1002
1003
1004
1005
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1008
1009
1010
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1021 F.
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calendar quarter. In the event that Contamination fees exceed one percent (1%) of Contractor's
Gross Receipts in any calendar quarter, the assessment of Contamination fees shall be suspended
immediately and indefinitely pending a program assessment by the City and Contractor. Upon
program suspension or at the request of the City at any time during the Term of the Agreement,
City and Contractor shall meet and confer regarding the application and effectiveness of
Contamination fees in accomplishing the behavior change. If the program is suspended due to
excessive revenue generation, the City may require Contractor to either: i) modify the program
parameters; ii) modify the amount of the Contamination fee; or, iii) return to the City any funds
generated by the Contamination fee which exceed one percent (1%) of Contractor's Gross
Receipts for a given period of time.
Failure to comply with the requirements of this section shall equate to Liquated Damages in
accordance in Exhibit F.
Cont ractor shall leave a contamination Processing fee notice attached to the Generators'
contaminated Container(s). Contractor must also deliver notice by mail to the bill-payer's address
within twenty-four {24) hours of assessing the contamination fee.
1. Contamination Processing Fee Notice. Contamination Processing Fee Notices shall be in a
format approved by the City Contract Manager. Contractor shall notify the City in its
monthly report of Customers for which contamination Processing fees were assessed per
Section 4.11.l(F).
Each Contamination Processing Fee Notice shall, at a minimum:
i. Describe the specific material(s) of issue;
ii. Explain how to correct future set outs; and,
iii. Indicate that the Customer will be charged a contamination
Processing fee on their next bill.
Reporting Requirements.
1. Container Contaminant Log: The driver or other Contractor representative shall record
each event of identification of Prohibited Container Contaminants in a written log or in the
on-board computer system including, but not limited to: date, time, Customer's address,
type of Container, and maintain photographic evidence.
2. Contaminant Fees Assessment Report: Additionally, on no less than a weekly basis,
Contractor's Contract Administrator shall update the Customer's account records to note
the contaminant event(s) as identified by driver(s). Contractor shall maintain records and
report to the City monthly on contamination monitoring activities and actions taken,
consistent with the submittal timing and content requirements of Exhibit D. Failure to meet
the requirements of this Section 4.11.l(F)(2), shall equate to Liquidated Damages as
identified in Exhibit F.
3. Monthly Report: The monthly report shall include, but is not limited to: list of Customers
that were assessed charges; photographic evidence of each contamination event(s) where
Page 26 of 75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 622 of 671
1035 a fee(s) was assessed; verification processes to assure accurate fee assessment; date of
1036 notification, form(s) of notification given to Customer; list of efforts made in educating the
1037 Customer that was assessed a fee; list of Customer Complaints in response to fee
1038 assessment; Contractor's response and actions taken in response to Customer Complaints;
1039 and, the dollar amount of Contamination Fees assessed during the reporting period. Failure
1040 to meet the requirements of this Section 4.11.l(F)(3), shall equate to Liquidated Damages
1041 as identified in Exhibit F.
1042 4.11.2 Waste Characterization Studies
1043 A.
1044
1045
1046
1047
1048
1049
1050
1051
1052
1053 B.
1054
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Recyclable Materials. Contractor shall, at its sole expense, design and perform a Residue
characterization of the Recyclable Materials Processed at the Approved Recyclable Materials
Processing Facility a minimum of one (1) time per calendar per year. Contractor shall propose a
study methodology that must include separately Processing at least thirty (30) Tons of Recyclable
Materials, stratified across no fewer than three (3) distinct days of service, from the City at the
Approved Recyclable Materials Processing Facility under normal operating conditions for the
facility (i.e. staffing levels, belt speed, burden depth, etc.). The methodology must be approved
by the City Contract Manager in writing prior to Contractor conducting such a study. The results
of that study shall be used to determine the allowable level of Residue Disposal Costs for the
upcoming Rate Period.
Organic Materials. Contractor shall, at its sole expense, design and perform waste
characterization studies for Prohibited Container Contaminants for Organic Materials Collected in
the City. The Contractor shall conduct waste composition studies at least two (2) times per year
and the studies shall occur in two (2) distinct seasons of the year. The Contractor shall submit a
proposed methodology to the City for review and approval, and the methodology must include
the requirements presented below.
The study shall include samples of Organic Materials and Solid Waste taken from Containers
located in different areas of the City that are representative of the City's waste stream. The
minimum number of Containers to be sampled shall be based on weekly route size, as follows:
1.
2.
3.
4.
For weekly routes with less than one thousand five hundred (1,500) Generators, the
Contractor shall sample a minimum of twenty five 25 Containers;
For weekly routes with one thousand five hundred to three thousand nine hundred ninety
nine (1,500-3,999) Generators, the Contractor shall sample a minimum of thirty (30)
Containers;
For weekly routes with four thousand to six thousand nine hundred ninety nine (4,000-
6,999) Generators, the Contractor shall sample a minimum of thirty five (35) Containers;
and,
For weekly routes with more than seven thousand (7,000) Generators, the Contractor shall
sample a minimum of forty (40) Containers.
The Contractor shall Transport all of the material Collected for sampling to a sorting area at an
Approved Facility, where the presence of Prohibited Container Contaminants for each Container
type shall be measured to determine the ratio of Prohibited Container Contaminants present in
Page 27 of 75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 623 of 671
1075
1076
1077
1078
1079
1080
1081
1082
1083
1084
1085
1086
1087
1088
1089 c.
1090
1091
1092
1093
1094
1095
1096 D.
1097
1098
1099 E.
1100
1101
1102
1103 F.
1104
1105
1106
1107
1108
1109
1110
1111
1112
1113
each material stream by weight. To determine the ratio of Prohibited Container Contaminants,
the Contractor shall use the following protocol:
1. The Contractor shall take one sample of at least a two hundred (200) pounds from the
material Collected from each material stream for sampling. For example, Contractor shall
take a two hundred (200) pound sample taken from the combined contents of the Organic
Materials Container samples.
2. The two hundred (200) pound sample shall be randomly selected from different areas of
the pile of Collected material for that material stream.
3. For each two hundred (200) pound sample, the Contractor shall remove any Prohibited
Container Contaminants and determine the weight of Prohibited Container Contaminants.
4. The Contractor shall determine the ratio of Prohibited Container Contaminants in the
sample by dividing the total weight of Prohibited Container Contaminants by the total
weight of the sample.
5. All weights shall be recorded in pounds.
Scheduling and Observation of Studies. Contractor shall, no later than January 15 of each
calendar year, provide the City with a proposed methodology for each type of study and a
schedule of studies for the calendar year for review and approval by the City. The City shall be
notified at least thirty (30) days in advance of each study and the City, or the City's designated
third party, maintains the right to observe all aspects of the study. The studies shall be scheduled
within the City's normal business hours, and the City Contract Manager may request, and
Contractor shall accept, modifications to the schedule to permit observation by the City.
Recordkeeping and Reporting. Contractor shall maintain records of each study conducted and
report results directly to the City within fourteen (14) days of completing the study as well as
include the results in the Contractor's annual report, in accordance with Exhibit D.
General. Pursuant to the requirements of SB 1383, 14 CCR, Division 7, Chapter 12, Article 10, the
City is responsible for developing and implementing a Food Recovery program in the City. The
Contractor shall cooperate with and shall not impede, interfere, or attempt to impede or interfere
with the implementation, expansion, or operation of Food Recovery program efforts in the City.
Identification of Commercial Edible Food Generators. Contractor shall assist the City with
identifying Tier One and Tier Two Commercial Edible Food Generators for the purpose of the Food
Recovery program. No later than six (6) months after the Effective Date of the Agreement, and
annually thereafter, the Contractor shall identify and provide a list to the City of Commercial
Customers that qualify, or appear to qualify, as Tier One or Tier Two Commercial Edible Food
Generators, as defined by this Agreement. The list shall include, at a minimum: the Customer
name; service address; contact information; Tier One or Tier Two classification; and, type of
business as it relates to the categories of entities specified under the definitions of Tier One and
Tier Two Commercial Edible Food Generators. The Contractor shall update this information
annually; maintain an up-to-date database; and include this information in the Contractor's
annual report, in accordance with Exhibit D.
Page 28 of 75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 624 of 671
1114
1115
1116 5.1 GENERAL
ARTICLE 5.
STANDARD OF PERFORMANCE
1117 Contractor shall at all times comply with Applicable Law and provide services in a manner that is safe to
1118 the public and the Contractor's employees. Except to the extent that a higher performance standard is
1119 specified in this Agreement, Contractor shall perform services in accordance with Recyclable Materials,
1120 Organic Materials, and Solid Waste management practices common to the San Diego area.
1121
1122
1123
1124
1125
1126
1127
1128
1129
1130
1131
1132
5.2
A.
1133 B.
1134
1135
1136
1137
1138
1139
1140
1141
1142
1143
1144 c.
1145
1146
1147
1148
1149
1150
1151
1152
OPERATING HOURS AND SCHEDULES
Hours of Collection. Unless otherwise authorized by the City Contract Manager, Contractor's days
and hours for Collection operations shall be as follows:
1.
2.
3.
Residential Premises. Collection from Residential Premises shall only occur between the
hours of 6:00 a.m. and 7:00 p.m., Monday through Friday.
Commercial Premises. Collection from Commercial Premises that are two hundred (200)
feet or less from Residential Premises shall only occur between the hours of 6:00 a.m. and
7:00 p.m., Monday through Saturday. Collection from Commercial Premises more than
two hundred (200) feet from Residential Premises shall only occur between the hours of
5:00 a.m. and 8:00 p.m., Monday through Saturday.
City Facilities. The Collection schedule for City facilities shall be the same as Commercial
Premises specified in subsection 5.2.A.2 above.
Changes in Collection Routes. Prior to Commencement of this Agreement, Contractor shall
provide the City with route maps identifying at a minimum: the type of route (e.g. Single-Family,
Multi-Family, Commercial, etc.) and the service day. City shall either approve or deny proposed
standard Collection routes. If City denies any standard Collection routes, Contractor may request
a meet and confer with the City Contract Manager to discuss potential options. The City Contract
Managers decision shall be final with respect to any routing changes t hat may impact the day of
service of any Customer. Contractor may, at any time during the Term of this Agreement, propose
changes or additional routes, subject to City approval. If a standard Collection route change is
approved, Contractor must notify all affected Customers fourteen (14) days prior to Contractor
implementing the new route. Failure to obtain City approval on route changes resulting in service
day changes for Customers shall be subject to Liquidated damages as identified in Exhibit F.
Holiday Collection. Contractor, at its sole discretion, may choose not to provide Collection
services on a Holiday. In such event, Contractor shall provide Single-Family Collection services on
the day following the Holiday thereby adjusting subsequent work that week with normally
scheduled Friday Collection Services being performed on Saturday; however, Customer service
days shall be returned to the normal schedule within one (1) week of the Holiday. Multi-Family,
Commercial, and City Collection Services shall be adjusted as agreed between the Contractor and
the Customer but must meet the minimum frequency requirement of one (1) time per week. The
Contractor shall provide Customers notice of Holiday-related changes in Collection schedules at
least two (2) weeks prior to the change.
Page 29 of 75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 625 of 671
1153 5.3
1154 A.
1155
1156
1157
1158
1159
1160
1161
1162
1163
1164
1165
1166
1167
1168
1169
1170
1171
1172
1173
1174
1175
1176 B.
1177
1178
1179
1180
1181
1182
1183
1184
1185
1186
1187
1188
1189
1190
1191
1192
1193
COLLECTION STANDARDS
Servicing Containers. Contractor shall Collect and return each Container to the location where
the Occupant placed the Container for Collection. Contractor shall place the Containers upright
with lids properly secured. For Customers other than Single-Family Residential Customers,
Contractor shall, without additional charge to the Customer, pull or push Containers up to twenty-
five (25) feet from the location where the Occupant placed the Container for Collection to the
Collection vehicle for service.
Contractor, at the request of Customers, may provide special services including: (i) unlocking
Containers; (ii) accessing Container enclosures with a key; or, (iii) pulling or pushing Containers
distances greater than twenty-five {25) feet. Contractor may charge Customers for such extra
services at the Rates approved by City for such services.
Contractor shall establish a hard-to-service route for each material type, using smaller Collection
vehicles for the purposes of servicing Single-Family Customers in areas of the City that are difficult
to access, do not have space to make turn-a rounds, or where Contractor is otherwise unable to
provide service meeting the highest safety standards. The City Contract Manager may, within
reason and based on the specific circumstances of the Customer, require the Contractor to
provide service to specific Single-Family Customers on this hard-to-service route, and Contractor
shall ensure that it maintains a sufficient number of smaller Collection vehicles to accommodate
such requests.
Contractor may require Customers on private roads to sign road damage liability waivers prior to
operating on such private streets. If Customers on private roads fail to sign such waivers,
Contractor may, upon approval, which may or may not be conditional, from the City Contract
Manager require them to receive service at the nearest public right of way.
Non-Collection, Courtesy Noticing. Prior to the Commencement Date, Contractor shall develop,
and submit to the City Contract Manager for review and approval, and as per the requirements of
Section 4.11.l(D)
l. A template Non-Collection Notice, for use in instances of acceptable non-Collection of
Discarded Materials; and,
2. A template Courtesy Pick-Up Notice, for use in instances of improper set-out of Discarded
Materials, which the Contractor, at its sole option, elects to Collect as a courtesy to the
Customer.
Per the requirements identified in Section 4.11.1, in the event that Contractor encounters
circumstances at a Customer Premises which prevents the Contractor from Collecting Discarded
Materials which have been placed for Collection, Contractor shall leave a Non-Collection Notice
at the Customer Premises clearly explaining Contractor's reason for refusal to Collect the
Discarded Materials. Contractor shall not be required to Collect Discarded Materials which are
reasonably believed to contain Excluded Waste, pursuant to the requirements of Section 5.8. If
Contractor intentionally refuses to Collect Discarded Materials (including Cardboard overages),
but does not leave a Non-Collection notice, it shall be considered a Missed Collection per Section
4.8.3., and provisions of Section 5.13 shall apply. Contractor may propose an alternative to a paper
Non-Collection Notice left at Customer Premises (e.g. Customer notification via a phone call ore-
Page 30 of 75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 626 of 671
1194
1195
1196
1197
1198
1199
1200
1201
1202
1203
1204
1205
1206
1207
1208
1209
1210
1211
1212
1213
1214
1215 C.
1216
1217
1218
1219
1220
1221
1222
1223
1224
1225
1226
1227
1228
1229
1230
1231
1232
1233
mail) subject to City approval. Such an alternative must involve pro-active communication with
Customer, initiated by Contractor.
In the event that Contractor encounters circumstances at a Customer Premises which allow for
safe Collection of Discarded Materials, but do not otherwise reflect proper set-out procedures
(including, but not limited to spills not caused by the Contractor, Carts placed too close together,
Carts placed in front of one another, and/or Carts placed too close to parked cars), Contractor
shall Collect the material and leave a Courtesy Pick-Up Notice at the Customer Premises clearly
explaining how the Customer failed to comply with proper set-out procedures.
Contractor may educate the public on proper set-out procedures designed to maximize the
efficiency of Collection (e.g. Carts spaced three (3) feet apart). However, Contractor acknowledges
that such procedures are not practical in all circumstances and failure of the Customer to follow
such procedures does not constitute a reason for non-Collection if the Discarded Materials may
be safely and reasonably serviced. Contractor's route drivers shall dismount their Collection
vehicles and reposition Containers as necessary to provide Collection service. Contractor may not
require a Customer to set out the Customer's Containers in such a manner that would block
vehicle access to Customer's driveway. Contractor and Customers may mutually agree to
uncommon service locations if necessary for Collection in specific areas (e.g. setting out all of the
Carts in a court in a line down the middle of the court as opposed to Curbside.)
Contractor may refuse to Collect Recyclable Materials or Organic Materials Containers which are
contaminated in accordance with Exhibit Band Section 4.11, and shall leave an approved Non-
Collection notice informing Customer how to properly separate materials.
Litter Abatement. Contractor shall use due care to prevent spills or leaks of material placed for
Collection, fuel, and other vehicle fluids while providing services under this Agreement. If any
materials are spilled or leaked during Collection and Transportation, the Contractor shall clean up
all spills or leaks before leaving the site of the spill.
Contractor shall not Transfer loads from one vehicle to another on any Public Street, unless it is
necessary to do so because of mechanical failure, combustion of material in the truck, or
accidental damage to a vehicle.
Contractor shall cover all open Drop Boxes at the pickup location before Transporting materials
to the Approved Facility.
Contractor shall conduct public outreach and staff training to Customers on best management
practices for litter abatement at no extra charge. Such best management practices include,
without limitation:
1. Closing Container lids and right sizing service: Contractor staff will tag overfull Containers
with Courtesy Pick-Up Notices, which will serve as outreach and education to the Customer.
Photos of the Container will be taken by drivers, attached to the Customer's account, and
will be available to outreach and Customer service staff in order to demonstrate to the
Cust omer where a problem exists.
2. Outreach to Customer on importance of bagging lightweight materials such as plastic bags,
film plastics, foam peanuts, and other materials that can easily become litter due to their
Page 31 of75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 627 of 671
lightweight nature. 1234
1235
1236
3. Driver tra·ining on litter reduction techniques and litter removal best management
practices.
1237
1238
4. Affixing signage to the back of Contractor trucks which provides a phone number for
residents to report material spills.
1239 D. Development and Review of Collection Specifications. Contractor shall work with the City to
1240 develop standard specifications for Collection Container enclosures at Commercial and Multi-
1241 Family Premises. These specifications shall be developed to ensure that the Collection Container
1242 enclosures are built to provide adequate space for and suitable configuration to allow the
1243 Contractor to safely and efficiently service Recyclable Materials, Organic Materials, and Solid
1244 Waste Containers. Contractor's Operations Manager or other appropriately qualified staff shall,
1245 upon request by the City Contract Manager, provide a review of plans for new Multi-Family and
1246 Commercial development or project design drawings. Contractor shall provide comments and
1247 recommendations resulting from the review in writing within ten (10) Working Days of receipt of
1248 the documents for review. In each review report, Contractor shall comment on the acceptability
1249 of the proposed enclosure arrangements in terms of: i) the adequacy of space for Recyclable
1250 Materials, Organic Materials, and Solid Waste Containers; ii) the accessibility of the Containers for
1251 Collection including whether additional charges (e.g., push/pull, etc.) would apply; and iii) ease of
1252 use by tenants.
1253 E. No Commingling of Materials. Contractor shall Collect materials generated in the City in
1254 Collection vehicles separately from other materials generated outside the City service area, unless
1255 otherwise approved by the City Contract Manager. Contractor shall not commingle materials
1256 which have been Source Separated with other materials types (for example, Source Separated
1257 Recyclable Materials which have been properly placed for Collection shall not be combined with
1258 Solid Waste or Source Separated Organic Materials).
1259 5.4 TRANSFER AND PROCESSING STANDARDS
1260 5.4.1 Equipment and Supplies
1261 Contractor shall equip and operate the Approved Processing Facilities in a manner to fulfill Contractor's
1262 obligations under this Agreement. Contractor is solely responsible for the adequacy, safety, and suitability
1263 of the Approved Processing Facilities. Contractor shall modify, enhance, and/or improve the Approved
1264 Processing Facilities as needed to fulfill Services under this Agreement.
1265 Contractor shall provide all rolling stock, stationary equipment, material storage containers, spare parts,
1266 maintenance supplies, Transfer, Transport, and Processing equipment, and other consumables as
1267 appropriate and necessary to operate the Approved Processing Facilities and provide all services required
1268 by this Agreement. Contractor shall place the equipment in the charge of competent operators.
1269 Contractor shall repair and maintain all equipment at its own cost and expense.
1270 5.4.2 Scales and Weighing
1271 Contractor is solely responsible for ensuring accurate weighing of all materials entering and leaving the
1272 Approved Processing Facilities.
Page 32 of75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 628 of 671
1273 A. Facility Scales. Contractor shall maintain State-certified motor vehicle scales in accordance with
1274 Applicable Law. All scales shall be linked to a centralized computer recording system at the
1275 Approved Processing Facilities to record weights for all incoming and outgoing materials. Contractor
1276 shall provide back-up generator(s) capable of supplying power to the scales in the event of a power
1277 outage. Contractor shall promptly arrange for use of substitute portable scales should its usual
1278 scales not be available for whatever reason. Pending substitution of portable scales, Contractor shall
1279 as necessary estimate the Tonnages of materials delivered to and Transported from the Approved
1280 Processing Facilities, on the basis of delivery vehicle and Transfer trailer volumes, tare weights,
1281 and/or other available facility weight records. These estimates shall take the place of actual weights
1282 while scales are inoperable, and shall be identified as estimates in electronic records and reporting.
1283 B. Tare Weights. No less than thirty (30) calendar days prior to the Commencement Date, Contractor
1284 shall ensure that all vehicles used by Contractor to deliver Recyclable Materials, Organic Materials,
1285 and Solid Waste to the Approved Processing Facilities are weighed to determine unloaded ("tare")
1286 weights. Contractor sh al I electronically record the ta re weight, identify vehicle as Contractor owned,
1287 and provide a distinct vehicle identification number for each vehicle. Contractor shall provide City
1288 with a report listing the vehicle tare weight information upon request. Contractor shall promptly
1289 weigh additional or replacement vehicles prior to placing them into service. Contractor shall check
1290 tare weights at least annually, or within fourteen (14) calendar days of a City request, and shall re-
1291 tare vehicles immediately after any major maintenance or service event.
1292 C. Testing. Contractor shall test and calibrate all scales in accordance with Applicable Law, but at least
1293 one (1) test and recalibration per scale every twelve (12) months or upon City request.
1294 D. Records. Contractor shall maintain computerized scale records and reports that provide
1295 information including date of receipt, inbound time, inbound and outbound weights of vehicles, and
1296 vehicle identification number. Contractor shall also maintain computerized scale records and
1297 reports providing historical vehicle tare weights for each vehicle and the date and location for each
1298 tare weight recorded.
1299 E. Upon-Request Reporting. If vehicle receiving and unloading operations are recorded on video
1300 cameras at the Approved Processing Facilities, Contractor shall make those videos available for City
1301 review during the Approved Processing Facility's operating hours, upon request of the City, and shall
1302 provide the name of the driver of any particular load if available.
1303 5.5
1304 A.
1305
1306
1307
1308
1309
1310
1311
1312
1313
COLLECTION VEHICLE REQUIREMENTS
Vehicle Requirements. Contractor shall provide a fleet of Collection vehicles sufficient in number
and capacity to efficiently perform the work required by the Agreement in strict accordance with
its terms. Contractor shall have available sufficient back-up vehicles for each type of Collection
vehicle used to respond to scheduled and unscheduled maintenance, service requests, Complaints,
and emergencies.
1. All such vehicles shall have watertight bodies designed to prevent leakage, spillage, or
overflow. All such vehicles shall meet On-Road Heavy Duty Vehicle emissions requirements
for model year 2020, regardless of the actual model year of Contractor's vehicles, and
generally comply with all Federal, State, and local laws and regulations. Contractor's vehicles
shall utilize Recycled motor oil to the extent practicable.
Page 33 of75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 629 of 671
1314
1315
1316
1317
1318
1319
1320
1321
1322
1323
1324
1325
1326
1327
1328
1329
1330
1331
1332
1333
2.
3.
4.
Contractor's Proposal does not include the immediate use of RNG due to a lack of availability,
however Contractor acknowledges the importance of this to the City's compliance with SB
1383 Organic Waste product procurement requirements and will continue to review the
potential for this fueling option throughout the Term of the Agreement. Contractor will
annually investigate the ability to procure qualified RNG with their fueling provider and will
implement the use of such fuel to the maximum available extent provided that the premium
cost of qualified RNG does not cause Contractor's total fuel expense to increase by more than
10%. Contractor shall make best efforts to seek and utilize RNG that is purchased through a
wheeling agreement with a party(ies}, provided that the wheeling agreement is for purchase
of gas derived from Organic Waste that has been Diverted from a landfill and Processed at an
in-vessel digestion Facility that is permitted or otherwise authorized by 14 CCR to Recycle
Organic Waste and meets SB 1383 requirements. Contractor shall maintain records of the
amount of RNG purchased and shall report this information in accordance with Exhibit D.
Contractor shall agree to the City the right to report this RNG usage toward the City's
fulfilment of its annual recovered Organic Waste product procurement target in accordance
with 14 CCR Section 18993.1.
Collection vehicles shall have the capacity to Collect and Transport loose Cardboard overages,
to ensure that Contractor is capable of complying with Exhibit B.
Collection vehicles shall present a clean appearance while providing service under this
Agreement.
1334 8. Vehicle Display. Contractor's name and local telephone number shall be displayed on all vehicles in
1335 at least four (4) inch characters. Vehicles shall be equipped with sign board holders or other
1336 hardware to allow public education signage of no less than thirty-six (36} by forty-eight (48} inches
1337 to be displayed on both sides of the vehicle.
1338 C. Vehicle Inspection. Contractor shall inspect each vehicle daily to ensure that all equipment is
1339 operating properly. Vehicles that are not operating properly shall be taken out of service until they
1340 are repaired and operate properly. Contractor shall repair, or arrange for the repair of all its vehicles
1341 and equipment for which repairs are needed because of accident, breakdown or any other cause so
1342 as to maintain all equipment in a safe and operable condition. City Contract Manager may inspect
1343 vehicles at any reasonable time, and within three (3) calendar days of such a request, to determine
1344 compliance with sanitation requirements.
1345 D. Vehicle Operations. All Collection operations shall be conducted as quietly as possible and shall
1346 conform to applicable Federal, State, County, and City noise level regulations, including the
1347 requirement that the noise level during the stationary compaction process not exceed sixty (60)
1348 decibels with the exception of sixty-five (65) decibels for one (1) minute duration. All decibel
1349 readings shall be based on a distance of ten (10) feet from any part of the Vehicle. The City may
1350 request Contractor to check any piece of equipment for conformance with the noise limits in
1351 response to Complaints and/or when the City Contract Manager believes it is reasonable to do so.
1352 5.6 CONTAINER REQUIREMENTS
1353 A. Containers Provided to Customers. On or before the Commencement Date, Contractor shall
1354 provide Customers (including Single-Family, Multi-Family, Commercial, and City facility Customers)
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with new Collection Containers as requested by the Customer to meet its desired Service Level.
Contractor shall provide Containers to new Customers requesting service initiation within three (3)
Working Days of Contractor's first receipt of the Customer request. Contractor-provided Containers
shall be new, and shall comply with the Container standards set forth in the Section. All Containers
shall display the City's name, logo, telephone number described in Section 4.8.1, website, capacity
(yards or gallons) and some identifying inventory or serial number. Contractor shall cooperate with
the previous City Collection contractor to ensure that all existing Containers are replaced with
Contractor-provided Containers within thirty (30) calendar days following the Commencement
Date.
Container Standards
1. All Carts shall be manufactured by injection or rotational molding methods. The Cart handles
and handle mounts may be an integrally molded part of the Cart body or molded as part of
the lid. The Cart handles shall provide comfortable gripping area for pulling or pushing the
Cart or lifting the lid. Pinch points are unacceptable Carts provided to Customer shall have a
useful life of ten (10) or more years or more as evidenced by a manufacturer's warranty or
other documentation acceptable to the City.
2. Carts shall remain durable, and at a minimum, shall meet the following durability
requirements to satisfy its intended use and performance, for the Term of this Agreement:
maintain its original shape and appearance; be resistant to kicks and blows; require no routine
maintenance and essentially be maintenance free; not warp, crack, rust, discolor, or
otherwise deteriorate over time in a manner that shall interfere with its intended use; resist
degradation from ultraviolet radiation; be incapable of penetration by biting or clawing of
household pets (i.e., dogs and cats); the bottoms of Cart bodies must remain impervious to
any damage, that would interfere with the Cart's intended use after repeated contact with
gravel, concrete, asphalt, or any other rough and abrasive surface; all wheel and axle
assemblies are to provide continuous maneuverability and mobility as originally designed and
intended.
3. Carts shall be resistant to common household or Residential products and chemicals; human
and animal urine and feces; and, airborne gases or particulate matter current ly present in the
ambient air of the Service Area.
4. All Containers with a capacity of one (1) cubic yard or more shall meet applicable Federal
regulations for Bin safety and be covered with attached lids.
5. Contractor shall obtain the City's written approval of Container material, design, colors,
labeling, and other specifications before acquisition, painting, labeling, or distribution occurs.
6. When purchasing plastic Collection Containers, Contractor shall purchase Containers that
contain a minimum of thirty percent (30%) post-consumer recycled plastic content, unless
such requirement is waived by the City Contract Manager.
7. Container lids shall be designed such that the follow requirements are met:
a. Prevents the intrusion of rainwater and vectors;
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b. Prevents the emissions on odors;
c. Enables the free and complete flow of material from the Container during the dump
cycle without interference with the material already deposited in the truck body or the
truck body itself and its lifting mechanism;
d. Permits users of the Cart to conveniently and easily open and shut the lid throughout
the serviceable life of the Cart;
e. Hinges to the Cart body in such a manner to enable the lid to be fully opened, free of
tension, to a position whereby it may rest against the backside of the Cart body;
f. Prevents damage to the Container body, the lid itself, or any component parts through
repeated opening and closing of the lid by Generators or in the dumping process as
intended;
g. Remains closed in winds up to twenty-five (25) miles per hour from any direction. All lid
hinges must remain fully functional and continually hold the lid in the original designed
and intended positions when either opened or closed or any position between the two
(2) extremes; and,
h. Designed and constructed such that it prevents physical injury to the user while opening
and closing the Cart.
8. Containers shall be stable and self-balancing in the upright position, when either empty or
loaded to its maximum design capacity with an evenly distributed load, and with the lid in
either a closed or an open position. Containers shall be capable of maintaining upright
position in sustained or gusting winds of up to twenty-five (25) miles per hour as applied from
any direction.
9. Containers shall be capable of being easily moved and maneuvered, if applicable, with an
evenly distributed load equal in weight to its maximum design capacity on a level, sloped or
stepped surface.
10. All such Containers shall be one hundred percent (100%) recyclable at the end of their useful
life.
11. All Containers shall be designed and constructed to be watertight and prevent the leakage of
liquids.
Container Colors. Contractor shall provide all Customers with Collection Containers that comply
with the Container color requirements specified in this Section 5.6, or as otherwise specified in
14 CCR Section 18982; 14 CCR, Division 7, Chapter 12, Article 3; or other Applicable Law. Colors
shall be colorfast and resistant to fading as a result of weathering or ultraviolet degradation; and
the lids and bodies shall be uniform for each Container type, as follows:
1. Recyclable Materials Container bodies and lids shall be blue;
2. Organic Materials Container bodies and lids shall be green; and,
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3. Solid Waste Container bodies and lids shall be grey.
Hardware such as hinges and wheels on the Containers may be a different color than specified
above. All Containers shall comply with these color requirements, including Split-Bins. Each
section of the Split-Bin shall be painted in accordance with the color requirements in this Section
for the applicable Discarded Material type intended for that segregated section of the Bin (e.g., a
Split-Bin for Solid Waste and Recyclable Materials would be half gray and half blue, respectively).
Container Labeling. All markings on the Containers shall be approved by the City in advance of
ordering such Containers. On the lid of each Cart, and the body of each Bin and Drop Box,
Contractor shall label the ultimate destination of such materials as follows: "LANDFILL" for Solid
Waste; "RECYCLE" for Recyclable Materials (including Cardboard, mixed paper, metal, etc.); and,
"COMPOST" for Organic Materials (including Food Waste, Yard Trimmings, wood waste, etc.). On
the body of each Cart, Bin, and Drop Box, Contractor shall label the Container capacity (in gallons
for Carts, and cubic yards for Bins and Drop Boxes). Container body labeling shall be positioned
on the side of each Container so it is visible to the Customer at all times.
Carts shall have positional marking in the form of an arrow (at least three (3) inches by five (S)
inches) hot stamped in white color on the Cart lid, indicating the direction of Cart placement; and,
in character size of no less than 3/16 inches, the phrase: "PLACE CART WITH ARROW FACING
STREET FOR COLLECTION."
All Carts shall include a high-quality educational information label using in-mold technology, such
that all labeling shall be integral to the lid, though the use of injection molding, and shall not be
affixed to any part of the Cart or lid using adhesives. Notwithstanding the provisions of this
Section, or the requirements of SB 1383, the in-mold lid label shall, at a minimum, include for each
Container: primary mat erials accepted; primary materials prohibited; a clear indication of
Prohibited Container Contaminants for that Container type, acceptable materials; prohibited
materials; notification forbidding Hazardous Waste and describing proper Disposal thereof;
notification forbidding scavenging (through words and international symbols) and describing the
penalties therefore under California law or City Resolution; information about the Collection
program; and, the City's name and logo. Subject to City approval, Contractor shall display City's
name, website, and Contractor's designated telephone number using labels, decals, or other
approved method. Upon expiration or early termination of this Agreement, Contractor shall
transfer access and rights of such phone number and website to the City. Contractor shall be
prohibited from including Contractor's name and/or logo on any Containers. utilized in the City.
Repair and Replacement of Containers; Inventory. Contractor shall be responsible for repairing
or replacing Containers when Contractor determines the Container is no longer suitable for
service; or when the City or Customer requests replacement of a Container that does not properly
function, leaks, is damaged, or is otherwise not fit for service. Contractor shall be responsible for
acquiring and providing the replacement Containers. Contractor shall repair or replace all
damaged or broken Containers within three (3) Working Days of Customer or City request. Minor
cracks, holes, and other damages to hinges, wheels, axle, hardware, and other component parts
shall be readily repairable by t he Contractor personnel. All repairs must restore the Cart to its full
functionality to meet the design and performance requirements as set for herein.
Contractor shall maintain a sufficient inventory of Containers to accommodate new Customer
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requests for service, requests for change in Service Levels (size, type, or number of Containers)
from current subscribers, and requests for replacement due to damage.
Contractor shall provide to Single-Family Customers at least one (1) free Cart replacement per any
twelve (12} month period for any reason, upon Customer request. If Customer requests more
than one (1} Cart replacement per any twelve (12) month period, Contractor shall make Carts
available at the City-approved Rate for such services. In addition, Single-Family Customers may
also request one Cart size exchange per Rate Period at no charge. All such Containers shall be
provided within three (3} Working Days of request. Contractor's failure to comply with the
Container requirements may result in assessment of Liquidated Damages pursuant to Section 10.6
and Exhibit F.
Maintenance, Cleaning, Painting. All Containers shall be maintained in a safe, serviceable, and
functional condition, and present a clean appearance. Contractor shall repair or replace all
Containers damaged by Collection operations in accordance with standards specified in Section
5.6.D, unless damage is caused by Customer's gross negligence, in which case, the Customer will
be billed for repair or replacement of Container at a City-approved Rate for such service. All
Containers shall be maintained in a functional condition.
Contractor shall steam clean and/or repaint all Containers as needed (other than Carts) to present
a clean appearance. Contractor shall offer steam cleaning service (or clean Container exchange)
to Customers requesting such service and shall charge Customers for such cleaning (or Container
exchange) at the City-approved Rate for such service.
Contractor shall remove graffiti from Containers within forty-eight (48) hours of identification by
Contractor or notice by City or Customer if such graffiti includes any written or pictorial
obscenities and otherwise within a one (1) week period.
Upon request from the City Contract Manager, Contractor shall provide the City with a list of
Containers and the date each Container was painted and maintained.
City Ownership of Containers at End ofTerm. Upon expiration or early termination of Agreement,
all Containers purchased and put into service at Customer Premises during the Term of the
Agreement shall become property of the City at no cost to the City if such Containers are fully
depreciated. All Containers, and Compactors purchased and put into service at Customer
Premises du ring the Te rm of the Agreement that have not been fu I ly depreciated sh al I be ava ii able
to the City, at the City's option, at a cost reflecting the net book value.
At its sole discretion, the City may elect not to exercise its rights with regards to this Section and,
in such case, the Containers, and Compactors shall remain the property of the Contractor upon
the date of this Agreement's expiration or earlier termination. In such case, Contractor shall be
responsible for outstanding depreciation and for removing all Containers, and Compactors in
service from the Premises within fourteen (14) Working Days of the expiration date or early
termination date of this Agreement or within a different timeframe mutually agreed to by the
Parties. Contractor shall arrange for reuse or Recycling of Containers, and Compactors removed
from the City.
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PERSONNEL
General. Contractor shall furnish such qualified personnel as may be necessary to provide the
services required by this Agreement in a safe and efficient manner.
Contractor shall use its best efforts to assure that all employees present a neat appearance and
conduct themselves in a courteous manner. Contractor shall not permit its employees to accept,
demand, or solicit, directly or indirectly, any additional compensation, or gratuity from Customers
or members of the public.
Hiring of Displaced Employees. Contractor is aware of and shall comply with the requirements of
and duties imposed by Sections 1072 and 1075 of the California Labor Code regarding offers of
employment to any displaced employees resulting from a change in service provider, if any,
resulting from this Agreement or upon the expiration of this Agreement.
The minimum staffing positions to be provided by Contractor to perform the services described
herein to the City are identified in Exhibit H. Failure to consistently maintain these staffing levels,
by position, during the Term of the Agreement shall be considered a material breach.
Driver Qualifications. All drivers must have in effect a valid license, of the appropriate class, issued
by the California Department of Motor Vehicles. Contractor shall use the Class II California
Department of Motor Vehicles employer "Pull Notice Program" to monitor its drivers for safety.
Safety Training. Contractor shall provide suitable operational and safety training for all employees
who operate Collection vehicles or equipment. Contractor shall train its employees involved in
Collection to identify, and not to Collect, Excluded Waste. Upon the City Contract Manager's
request, Contractor shall provide a copy of its safety policy and safety training program, the name
of its safety officer, and the frequency of its trainings.
Designated Staff.
1.
2.
3.
Contractor's Contract Administrator. Contractor shall designate at least one (1) qualified
employee as City's primary point of contact with Contractor who is principally responsible
for Collection operations and resolution of service requests and Complaints. Such individual
shall be empowered to negotiate on behalf of and bind Contractor with respect to any
changes in scope, dispute resolution, compensation adjustments, and service-related
matters which may arise during the Term of this Agreement. Such individual is defined as
Contractor's General Manager.
Field Supervisor. Contractor shall designate one (1) qualified full-time employee as
supervisor of field operations. The designated Field Supervisor will devote at least fifty
percent (50%) of his/her time in the City in the field checking on Collection operations,
including responding to Customer requests, inquiries, and Complaints.
Diversion Coordinators. Contractor shall provide two (2) full-time Diversion Coordinators
who are solely dedicated to the City and shall not perform any work related to other
jurisdictions, proposals, or business functions of Contractor. Contractor shall hire the
Diversion Coordinators in advance of the Commencement Date and the Diversion
Coordinators shall assist in contacting all Multi-Family and Commercial Customers prior to
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the Commencement Date to determine Service Levels. The duties of the Diversion
Coordinators will be focused on public education, community outreach, Commercial and
Multi-Family site visits, and technical assistance, and will be substantially as proposed by
Contractor in Exhibit G, Contractor's Proposal and in Exhibit C, Public Education and
Outreach Requirements. Diversion Coordinators shall be full-time, regular, professional
positions, compensated in accordance with the wages shown in Contractor's Proposal for
such positions. Contractor acknowledges that the Diversion Coordinator role is not intended
to be an internship, or entry-level role. City shall have the option to participate in the hiring
and training process of Contractor's Diversion Coordinators. City may also employ
corresponding staff members who will work in partnership with Contractor's Diversion
Coordinators and Contractor's Diversion Coordinators shall cooperate and share
information openly with such City employee.
In the event that Contractor fails to provide the required number of full-time equivalent
Diversion Coordinators for more than two (2) months, Contractor shall remit to the City
fourteen thousand dollars ($14,000) per un-provided employee for every month (in excess
of two months) such employee is not provided. Such amount shall be adjusted annually by
the same percentage used to adjust Rates in accordance with Exhibit E. Contractor shall
remit such payment within fifteen (15) Business Days of a written request by the City. The
intent of this payment is for the City to utilize the funds to separately procure equivalent
public education services and ensure the contractually agreed upon levels of technical
assistance and outreach to Customers.
Key Personnel. Contractor shall make every reasonable effort to maintain the stability and
continuity of Contractor's staff assigned to perform the services required under this Agreement.
Contractor shall notify the City of any changes in Contractor's key staff to be assigned to perform
the services required under this Agreement and shall obtain the approval of the City Contract
Manager of all proposed key staff members who are to be assigned to perform services under this
Agreement prior to any such performance.
Notwithstanding City's approval of Contractor's personnel, Contractor shall not be relieved from
any liability resulting from the work to be performed under this Agreement, nor shall Contractor
be relieved from its obligation to ensure that its personnel maintain all requisite certifications,
licenses, and the like, and Contractor shall ensure that its personnel at all times fully comply with
Applicable Law.
At any point during the Term of this Agreement, the City may request, in writing, that any of
Contractor's employees be reassigned such that they no longer perform any work relating to this
Agreement, and shall provide a statement describing the reason for such request. Within twenty-
four (24) hours of Contractor's receipt of such request, or such other time agreed to by City in
writing, Contractor shall remove the identified employee(s) from performing any work related to
this Agreement; the vacated position(s) must be filled by Contractor with a suitable replacement
within ten (10) calendar days and Contractor shall immediately fill the vacated position with a
temporary replacement if required to perform, without delay, all services required under this
Agreement.
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HAZARDOUS WASTE INSPECTION AND HANDLING
Inspection Program and Training. Contractor shall develop a load inspection program that
includes the following components: (i) personnel and training; (ii) load checking activities; (iii)
management of wastes; and, (iv) record keeping and emergency procedures.
Contractor's load checking personnel, including its Collection vehicle drivers, shall be trained in:
(i) the effects of Hazardous Substances on human health and the environment; (ii) identification
of prohibited materials; and, (iii) emergency notification and response procedures. Collection
vehicle drivers shall inspect Containers before Collection when practical.
Response to Excluded Waste Identified During Collection. If Contractor determines that material
placed in any Container for Collection is Excluded Waste or presents a hazard to Contractor's
employees, the Contractor shall have the right to refuse to accept such material. The Generator
shall be contacted by the Contractor and requested to arrange proper Disposal. If the Generator
cannot be reached immediately, the Contractor shall, before leaving the Premises, leave Non-
Collection Notice, which indicates the reason for refusing to Collect the material and lists the
phone number of a facility that accepts the Excluded Waste or a phone number of an entity that
can provide information on proper Disposal of the Excluded Waste. Under no circumstances shall
Contractor's employees knowingly Collect Excluded Waste or remove unsafe or poorly
containerized Excluded Waste from a Collection Container.
If Excluded Waste is found in a Collection Container or Collection area that could possibly result
in imminent danger to people or property, the Contractor shall immediately notify the Fire
Department.
Response to Excluded Waste Identified At Processing or Disposal Facility. Materials Collected by
Contractor will be delivered to the Approved Facilities for purposes of Processing or Disposal. In
the event that load checkers and/or equipment operators at such facility identify Excluded Waste
in the loads delivered by Contractor, such personnel shall remove these materials for storage in
approved, on-site, Excluded Waste storage Container(s). Contractor shall arrange for removal of
the Excluded Wastes at its cost by permitted haulers in accordance with Applicable Laws and
regulatory requirements. The Contractor may at its sole expense attempt to identify and recover
the cost of Disposal from the Generator. If the Generator can be successfully identified, the cost
of this effort, as well as the cost of Disposal shall be chargeable to the Generator.
CONTRACT MANAGEMENT
1622 Consistent with Section 12.10, the City Contract Manager shall monitor and administer of this Agreement.
1623 Contractor shall designate an employee to serve as Contractor's Contract Administrator(s), to be
1624 responsible for working closely with the City Contractor Manager in the monitoring and administration of
1625 this Agreement. The Contractor's Contract Administrator shall not be involved in the management,
1626 operations, administration, marketing, or other activities of Contractor other than under this Agreement
1627 and up to one (1) other community's franchise agreement. Contractor shall be responsible for notifying
1628 the City Contract Manager of such other community and any change in assignments.
1629 The Contractor's Contract Administrator shall meet and confer with the City Contract Administrator t o
1630 resolve differences of interpretation and implement and execute the requirements of this Agreement in
1631 an efficient, effective, manner that is consistent with the stated objectives of this Agreement.
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1632 The City Contract Manager and the Contractor's Contract Administrator shall hold contract management
1633 meetings monthly or at such other frequency as designated by the City Contract Manager. This meeting
1634 is intended to review the status of Contractor's implementation of programs and services required under
1635 this Agreement, coordinate shared efforts between the parties, and such other agenda items as are
1636 deemed appropriate by the Parties for such meetings.
1637 From time to time the City Contract Manager may designate other agents of City to work with Contractor
1638 on specific matters. In such cases, those individuals should be considered designates of the City Contract
1639 Manager for those matters to which they have been engaged. Such designates shall be afforded all of the
1640 rights and access granted thereto. In the event of a dispute between the City Contract Manager's
1641 designate and Contractor, the City Contract Manager's determination shall be conclusive.
1642 In the event of dispute between the City Contract Manager and the Contractor regarding the
1643 interpretation of or the performance of services under this Agreement, the City Contract Manager's
1644 determination shall be conclusive except where such determination results in a material impact to the
1645 Contractor's revenue and/or cost of operations. In the event of a dispute between the City Contract
1646 Manager and the Contractor results in such material impact to the Contractor, the provisions of Section
1647 10.9 shall apply. For the purposes of this Section, "material impact" is an amount equal to or greater than
1648 one percent (1%) of Contractor's annual Gross Receipts under this Agreement.
1649 City Contract Manager or their designate shall have the right to observe and review Contractor operations
1650 and Processing Facilities and enter Premises for the purposes of such observation and review, including
1651 review of Contractor's records, during reasonable hours with reasonable notice. In no event shall
1652 Contractor prevent access to such Premises for a period of more than three (3) calendar days after
1653 receiving such a request. City Contract Manager shall be granted access to Contractor's information
1654 systems and Customer service database in accordance with Section 4.9.
1655 5.10 ENVIRONMENTALLY-PREFERABLE PURCHASING
1656 Contractor shall, prior to the Commencement Date, develop and implement an "Environmentally
1657 Preferable Purchasing Policy". The policy shall be subject to review, request for modification, and approval
1658 by the City Contract Manager. The policy shall, at a minimum, include provisions for: (i) purchasing
1659 materials w ith the highest available Recycled content without materially degrading the performance of
1660 the product; (ii) purchasing materials that utilize non-toxic, non-polluting alternative chemistry; (iii) a
1661 twenty percent (20%) price preference, relative to virgin or toxic content products, for purchasing
1662 environmentally preferable materials and supplies; and, (iv) source reduction and pollution prevention
1663 strategies for Contractor's operations. Contractor shall include a summary of their environmentally-
1664 preferable purchasing activities in their Annual Report to City (e.g., volume of Recycled content paper
1665 purchased, source reduction strategies implemented during the year and the quantified results of that
1666 strategy, etc.).
1667 5.11 LOCAL PURCHASING PREFERENCE
1668 Contractor shall, throughout the Term of this Agreement, give preference to purchasing materials and
1669 supplies used in connection with Agreement from local vendors within the County or State; and in that
1670 order of preference. At a minimum, Contractor shall purchase the following items from vendors within
1671 the County: vehicle supplies (e.g., fuel, fluids, tires, parts, etc.); printing and publishing services for any
1672 and all public education and outreach materials; uniforms, safety clothing/equipment, and work boots;
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April 6, 2021 Item #8 Page 638 of 671
1673 and office supplies. Contractor shall submit an annual report to City identifying their compliance with this
1674 Section and as identified in Section 5.12 Diversion Requirements.
1675 Contractor shall perform services under this Agreement in a manner which supports the City's
1676 environmental goals. This includes, but is not limited to, providing services, education, and outreach to
1677 Customers and in the community which promote source reduction, reuse, Recycling, Composting, and
1678 other methods to reduce landfill Disposal. Contractor is expected, during each and every one of its
1679 interactions with Customers, to suggest opportunities for Customers to reduce their Solid Waste
1680 subscription levels and increase the level of Recyclable Materials and Organic Materials service received.
1681 5.12 DIVERSION REQUIREMENTS
1682 Contractor shall maintain at least fifty percent (50%) Diversion of all materials Collected in the City
1683 (including both materials Collected by Contractor under this Agreement, and Commercial Recyclable
1684 Materials, Organic Materials, and C&D Collected by other City-approved service providers in accordance
1685 with Section 1.2). The Diversion percentage shall be calculated as total Tons Diverted divided by total Tons
1686 Collected. Total Tons Diverted does not include Processing Residue that is Disposed. If Contractor achieves
1687 an annual Diversion rate of at least (a) sixty-five percent (65%) or (b) seventy-five percent (75%), this
1688 Agreement shall be automatically extended in accordance with the provision of Section 1.2.
1689 Contractor shall also Divert at least eighty-five percent (85%) of Recyclable Materials Collected in the City
1690 by Contractor and seventy percent (70%) of Commercial/MFD Organic Materials Collected in the City by
1691 Contractor (excluding Source Separated wood and Yard Trimmings Collected in Drop Boxes.) Disposed
1692 Processing Residue must not exceed fifteen percent (15%) for Recyclable Materials or t hirty percent (30%)
1693 for Commercial/MFD Organic Materials, calculated on an annual average.
1694 5.13 CUSTOMER REBATES FOR FAILURE TO PROVIDE SERVICE
1695 A. General. Contractor and City agree that Contractor's failure to provide service in accordance with
1696 Articles 4 and 5 of this Agreement will result in the impacted Customer receiving a lower level of
1697 service than is anticipated by the Customer's subscribed Rate and creates additional burdens on
1698 the impacted Customer. To account for this, Contractor shall issue rebates to Customers for
1699 specific events of non-performance, in accordance with this Section 5.13. Such rebates shall be
1700 assessed for each calendar day the issue remains unresolved. Contractor shall issue such rebates
1701 automatically, regardless of whether the impacted Customer requests a rebate. Rebates as
1702 described in this Section 5.13 shall be in addition to any Liquidated Damages or other remedies
1703 associated with Contractor's failure to perform.
1704 B. Missed Collection Rebate. For each failure to resolve a missed or incomplete Collection on the
1705 scheduled Collection day, Contractor shall remit to the Customer a Missed Collection Rebate. The
1706 Missed Collection Rebate amount shall be five dollars ($5.00) per calendar day in Rate Period Zero
1707 and Rate Period One and shall be adjusted annually thereafter by the same percentage used to
1708 adjust Rates in accordance with Exhibit E. Contractor shall continue to remit the Missed Collection
1709 Rebate each calendar day until the Container(s) in question have been Collected. As an example,
1710 for a Collection scheduled for Friday that Contractor misses and subsequently Collects on the
1711 following Monday, Contractor shall rebate the Customer the current Missed Collection Rebate
1712 rate multiplied by three calendar days. The Missed Collection Rebate applies to missed Collections
1713 of all material types, including but not limited to Bulky Items and Reusable Materials, household
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April 6, 2021 Item #8 Page 639 of 671
1714
1715
1716
1717
1718
1719
1720
1721
1722
1723
1724
1725
1726
1727
1728
1729
1730
1731
1732
1733
1734
1735
1736
1737
1738
1739
C.
D.
1740 6.1
batteries, and Cardboard overages.
Late Container Delivery Rebate. For each failure to deliver a Container to a new or existing
Customer in accordance with the schedule provided in Section 5.6, Contractor shall remit to the
Customer a Late Container Delivery Rebate. The Late Container Delivery Rebate amount shall be
five dollars ($5.00) per calendar day per Container in Rate Period Zero and Rate Period One and
shall be adjusted annually thereafter by the same percentage used to adjust Rates in accordance
with Exhibit E. Contractor shall continue to remit the Late Container Delivery Rebate each calendar
day until the Container(s) in question have been delivered. The Late Container Delivery Rebate
applies to all approved Containers in accordance with Exhibit Bl.
Reporting Requirements:
1. Missed Collection Rebate Report: Additionally, on no less than a weekly basis, Contractor's
Contract Administrator shall update the Customer's account records to note the Missed
Collection Rebate event(s). Contractor shall maintain records and report to the City monthly
on Missed Collection Rebate monitoring activities and actions taken. The monthly report shall
include but is not limited to: list of Customers that were provided rebates, date of rebate,
amount of rebate, list of Customer Complaints relating to missed Collection, and Contractor's
response and actions taken in response to Customer Complaints.
2. Late Container Delivery Rebate Report: Additionally, on no less than a weekly basis,
Contractor's Contract Administrator shall update the Customer's account records to note the
Late Container Delivery event(s). Contractor shall maintain records and report to the City
monthly on Late Container Delivery monitoring activities and actions taken. The monthly
report shall include but is not limited to: list of Customers that were provided rebates, date
of rebate, amount of rebate, list of Customer Complaints relating to Late Container Delivery,
and Contractor's response and actions taken in response to Customer Complaints.
ARTICLE 6.
RECORD KEEPING AND REPORTING
RECORD KEEPING
1741 Contractor shall maintain Customer contact data, Customer service, accounting, statistical, operational,
1742 programmatic, and other records, and associated documentation, related to its performance as shall be
1743 necessary to provide detailed and accurate reports under this Agreement, and to demonstrate compliance
1744 with this Agreement and Applicable Law. Unless otherwise required in this Article, Contractor shall retain
1745 all records and data required to be maintained by this Agreement for the Term of this Agreement plus five
1746 (5) years after its expiration or earlier termination. Records and data shall be in chronological and
1747 organized form that is readily and easily interpreted to facilitate the flexible use of data to structure
1748 reports. Contractor's records shall be stored in one central location, physical or electronic, that can be
1749 readily accessed by Contractor. Upon request, any such records shall be retrieved in a timely manner, not
1750 to exceed five (5) Working Days of a request by the City Contract Manager, and made available to the City
1751 Contract Manager; including any record or documentation that City, in their sole discretion, may deem
1752 necessary, for the City to fulfill obligations under Applicable Law including, but not limited to, AB 939, AB
1753 341, AB 1826, AB 876, AB 901, SB 1383, and other current or future Federal, State, or local regulations, as
1754 amended.
Page 44 of 75 City of Carlsbad
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April 6, 2021 Item #8 Page 640 of 671
1755 Contractor shall maintain adequate record security to preserve records from events that can be
1756 reasonably anticipated such as a fire, theft, and an earthquake. Electronically maintained data and records
1757 shall be protected and backed-up. The City reserves the right to require the Contractor to maintain the
1758 records required herein using a City-selected web-based software platform, at Contractor's expense. To
1759 the extent that Contractor utilizes its computer systems to comply with record keeping and reporting
1760 requirements under this Agreement, Contractor shall, on a monthly basis, save all system-generated
1761 reports supporting those record keeping and reporting requirements in a static format in order to provide
1762 an audit trail for all data required by City, as requested, under this Agreement.
1763 At a mutually agreed upon time during normal business hours, but within five (5) Work Days of a written
1764 request, Contractor shall provide to the City the Contractor's data and records with respect to the matters
1765 covered by this Agreement and Applicable Law. Contractor shall permit the City, or its designee, to audit,
1766 examine, and make excerpts or transcripts from such data and records, and make copies of all data
1767 relating to all matters covered by this Agreement and the Applicable Law. Contractor shall maintain such
1768 data and records in an accessible location and condition for a period of not less than five (5) years
1769 following the City's receipt of final payment under this Agreement unless the City agrees in writing to an
1770 earlier disposition. Contractor agrees that all data regarding business operations, Customer lists, routing,
1771 Tonnage, Service Levels, work orders issued from dispatch, Customer service logs and account notes, and
1772 work force and bargaining agreements, do not constitute Proprietary Information or Trade Secrets and
1773 shall be made available to the City Contract Manager or their designee upon request and within the
1774 timelines required by this Section 6.1. City is subject to the California Public Records Act (Government
1775 Code section 6250, et. seq.) and nothing in this Agreement is intended to impair City's requirements or
1776 obligations under that Act.
1777 City views its ability to defend itself against Comprehensive Environmental Response, Compensation and
1778 Liability Act (CERCLA), and related litigation as a matter of great importance. For this reason, City regards
1779 its ability to prove where Collected Recyclable Materials, Organic Materials, and Solid Waste are taken for
1780 Transfer, Processing, or Disposal. Contractor shall maintain records which can establish where Recyclable
1781 Materials, Organic Materials, and Solid Waste Collected were Transferred, Processed, or Disposed. This
1782 provision shall survive the expiration or earlier termination of this Agreement. Contractor shall maintain
1783 these records for a minimum of ten (10) years beyond expiration or earlier termination of the Agreement.
1784 Contractor shall provide these records to City (upon request or at the end of the record retention period)
1785 in an organized and indexed manner rather than destroying or Disposing of them.
1786 6.2 REPORT SUBMITTAL REQUIREMENTS
1787 Contractor shall submit monthly reports within fourteen (14) calendar days after the end of the calendar
1788 month and annual reports no later than forty-five (45) calendar days after the end of each calendar year.
1789 Monthly and annual reports shall include at a minimum, all data and information described in Exhibit D,
1790 unless otherwise specified under this Agreement.
1791 Contractor may propose report formats that are responsive to the objectives and audiences for each
1792 report. The format of each report shall be approved by the City Contract Manager, in their sole discretion.
1793 City Contract Manager may, from time to time during the Term, review, and request changes to
1794 Contractor's report formats and content and Contractor shall not unreasonably deny such requests.
1795 Contractor shall submit all reports to the City Contract Manager electronically via e-mail using software
1796 acceptable to the City. The City reserves the right to require the Contractor to maintain records and submit
Page 45 of 75 City of Carlsbad
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April 6, 2021 Item #8 Page 641 of 671
1797 the reports required herein through use of a City-selected web-based software platform, at the
1798 Contractor's expense.
1799 City reserves the right to require Contractor to provide additional reports or documents as City Contract
1800 Manager reasonably determines to be required for the administration of this Agreement or compliance
1801 with Applicable Law.
1802 6.3 PERFORMANCE REVIEW AND AUDIT
1803 The City may conduct, and Contractor shall cooperate with, two (2) performance reviews and detailed
1804 financial audits, at any point during the Term of this Agreement in the City Contract Manager's sole
1805 discretion, to verify Contractor has fulfilled its financial and operational obligations under this Agreement.
1806 The purpose of such review and audit shall be, without limitation, to review Complaints, billings, and fee
1807 payments to City, and to determine if Contractor has met the performance standards described in this
1808 Agreement (including, without limitation, direct services provided to Customers as described in Exhibit B,
1809 public education and outreach required in Exhibit C, recordkeeping and reporting as required in Exhibit D,
1810 and performance standards established in Exhibit F). City may choose to enlist professional service
1811 providers to perform such review and audit, and Contractor shall be re.quired to pay City's actual costs for
1812 such services up to ninety thousand dollars ($90,000) per review (such amount shall be adjusted annually
1813 by the annual percentage change in CPI-U, calculated in accordance with Exhibit E). Contractor may not
1814 influence or control the City's selection of professional service providers nor the specific review items
1815 covered by the review. Contractor shall cooperate with the City and its agents during the review and audit
1816 process. If any noncompliance with the Agreement is found, the City may direct the Contractor to correct
1817 the inadequacies in accordance with Article 10 of this Agreement.
1818 At the City's sole option, with at least thirty (30} calendar days written notification to the Contractor, it
1819 may conduct a public hearing at which the Contractor shall be present and shall participate, to review the
1820 Contractor's performance, quality of service, and evaluation of technological and regulatory changes. The
1821 reports required by Exhibit D to this Agreement regarding Customer Complaints may be utilized as a basis
1822 for review as well as any findings from performance review and/or audits. Performance and service quality
1823 review hearings may be scheduled by the City at its discretion throughout the Term of the Agreement.
1824 In addition to the other requirements of this Agreement, the Parties shall be subject to the examination
1825 and audit of the State Auditor for a period of three (3) years after final payment under the Agreement,
1826 per Government Code section 8546. 7.
1821 ARTICLE 7.
1828 CITY REIMBURSEMENT
1829 7.1 FRANCHISE FEE
1830 The Contractor shall pay a Franchise Fee to City each quarter in exchange for the exclusive rights granted
1831 under this Agreement. The amount of the Franchise Fee shall be equal to seven and one-half percent
1832 (7.5%) of Gross Receipts, paid out of Contractor's Profit, for all services performed under this Agreement
1833 and shall be paid in equal quarterly installments, paid in arrears.
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April 6, 2021 Item #8 Page 642 of 671
1834 7.2 AB 939/SB 1183 REIMBURSEMENT
1835 The Contractor shall pay an AB 939/SB 1383 Reimbursement to City each month. The amount of the AB
1836 939/SB 1383 Reimbursement shall be eight-hundred thousand dollars ($800,000) per year in Rate Period
1837 One and shall be paid in equal quarterly installments, paid in arrears. City shall use the AB 939/SB 1383
1838 Reimbursement to refund expenses including but not limited to, staffing costs related to City programs,
1839 pilot studies, education and outreach campaigns, technical assistance to Customers, reporting,
1840 compliance, capacity planning, provision of special Containers, or other activities involved in compliance
1841 with AB 939 and/or SB 1383. The City shall retain the sole right to set priorities for the use of its AB 939/SB
1842 1383 Fee.
1843 7.3 VEHICLE IMPACT MITIGATION REIMBURSEMENT
1844 The Contractor shall pay a Vehicle Impact Mitigation Fee to City each quarter. The amount of the Vehicle
1845 Impact Mitigation Fee shall be zero dollars ($0) per year in Rate Period One. This fee is to reimburse the
1846 City for street maintenance costs incurred from Collection vehicles traveling on City streets.
1847 7.4 STORM WATER REIMBURSEMENT
1848 The Contractor shall pay a Storm Water Reimbursement to the City each month. The amount of the Storm
1849 Water Reimbursement shall equal one million three-hundred thousand dollars ($1,3,000,000) in Rate
1850 Period One and shall be paid in equal quarterly installments, paid in arrears. This payment is to reimburse
1851 the City for the cost of providing certain storm water-related services and programs that are related to
1852 the provision of Solid Waste services.
1853 7.5 ADJUSTMENT TO REIMBURSEMENT
1854 City may set other reimbursement payments or adjust the reimbursement amounts established in this
1855 Article from time-to-time during the Term of this Agreement and such adjustments shall be included in
1856 the adjustment of Rates described in Exhibit E.
1857 The amounts of the AB 939/SB 1383 Fee and Storm Water Reimbursement for subsequent Rate Periods
1858 shall be adjusted annually by the same Annual Percentage Change in the CPI-U, calculated in accordance
1859 with the adjustment method described in Exhibit E.
1860 7.6 PAYMENT SCHEDULE AND LATE FEES
1861 Within twenty (20) calendar days of the end of each calendar quarter, during the Term of this Agreement,
1862 Contractor shall remit to City all fees as described in this Article. Such fees shall be remitted to City and
1863 sent or delivered to the City Contract Manager. If such remittance is not paid to City on or before the
1864 twentieth (20th) calendar day following the end of a calendar quarter, all fees due shall be subject to a
1865 delinquency penalty of one and one-half percent (1.5%), which attaches on the first day of delinquency.
1866 The delinquency penalty shall be increased an additional one and one-half percent (1.5%) for each
1867 additional quarter the payment remains delinquent.
1868 Each quarterly remittance to City shall be accompanied by a statement listing the amount of each fee
1869 paid; calculation of each fee; and statement of Gross Receipts which separately identifies SB 1383 Fee
1870 eligible revenues, by Customer Type for the period collected from all operations conducted or permitted
1871 by this Agreement. City Contract Manager may, at anytime during the Term, request a detailed calculation
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April 6, 2021 Item #8 Page 643 of 671
1872 of Gross Receipts which may include, but is not necessarily limited to, the number of Customers charged
1873 at each Service Level and Rate for each billing period. Contractor shall maintain all supporting documents
1874 and calculations for each payment made to City as required by Section 6.1.
1875 City Contract Manager may, at any time during the Term, perform an audit of Contractor's billings and
1876 payment of fees. Contractor shall cooperate with the City Contract Manager in any such audit. Should City
1877 or its agent perform this review and identify billing errors or other errors in payment of fees valued at one
1878 percent (1%) or more of Gross Receipts for the period reviewed, Contractor shall, in addition to
1879 compensating City for lost fees, reimburse the City's actual cost of the review.
1880 7.7 PROCUREMENT REIMBURSEMENT
1881 Within five (S) Business Days of the Effective Date of this Agreement, Contractor shall pay the City a one-
1882 time reimbursement of three hundred thousand dollars ($300,000) to compensate City for its costs
1883 associated with performing due diligence related to the selection of Contractor for this Agreement.
1884 ARTICLE 8.
1885 CONTRACTOR'S COMPENSATION AND RATE
1886 SETTING
1887 8.1 GENERAL
1888 The Contractor's Compensation for performance of all its obligations under this Agreement shall be Gross
1889 Receipts. Contractor's Compensation provided for in this Article shall be the full, entire and complete
1890 compensation due to Contractor pursuant to this Agreement for all labor, equipment, materials and
1891 supplies, Transfer, Processing and Disposal fees, City Fees, taxes, insurance, bonds, overhead, operations,
1892 profit, and all other things necessary to perform all the services required by this Agreement in the manner
1893 and at the times prescribed. Nothing herein shall obligate City to provide any compensation to Contractor
1894 beyond Gross Receipts.
1895 If Contractor's actual costs, including fees due to City, are more than Gross Receipts, Contractor shall not
1896 be compensated for the difference in actual costs and actual Gross Receipts. If Contractor's actual costs
1897 are less than the actual Gross Receipts, Contractor shall retain the difference provided that Contractor
1898 has paid City Fees pursuant to Article 7.
1899 Under this Agreement, Contractor shall have the right and obligation to charge and collect from
1900 Customers, Rates in Exhibit G3 that are approved by the City for provision of services to Customers. The
1901 Rates for Rate Period One are based on the Contractor's Proposal. Contractor's proposed costs and
1902 operating assumptions for Rate Period Zero and Rate Period One are presented in Exhibit G3. This
1903 Agreement includes references to Contractor's ability to charge Customers for various services provided
1904 and described in this Agreement. Contractor may not charge Customer any Rate which is not approved in
1905 Exhibit G3, as may be amended from time to time. Exhibit G3 includes descriptions of the basis for and
1906 occasions upon which Contractor may charge those Rates. Contractor may not charge a Rate for a service
1907 other than that which is described in Exhibit G3. In the event of a conflict between Exhibit G3 and any
1908 other provision of this Agreement, the description in Exhibit G3 shall control.
1909 The Approved Recyclable Materials Processing Facility shall retain revenues received for the sale of
1910 Recyclable Materials including California Redemption Value revenues. Such revenues have been
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April 6, 2021 Item #8 Page 644 of 671
1911 considered in the establishment of Rates for services provided under this Agreement. Neither Contractor
1912 nor the Approved Recyclable Materials Processing Facility are entitled to funds available through the
1913 Department of Resources Recycling and Recovery (CalRecycle) through its "City/County Payment
1914 Program" pursuant to Section 14581(a)(5)(A) of the California Beverage Container Recycling and Litter
1915 Reduction Act.
1916 8.2
1917 A.
1918
1919
1920
1921
1922
1923
1924
1925 B.
1926
1927
1928
1929
1930
1931
1932
1933
1934
1935
1936
1937
1938
1939
1940
1941
1942
C.
1943 D.
1944
1945
1946
1947
1948
1949
1950
1951
RA TES AND ANNUAL ADJUSTMENTS
General. The City Contract Manager shall be responsible for approving Rates as described in this
Article. If at any time during the Term of the Agreement, the Contractor determines the need for
a Rate that does not appear on the City-approved Rate schedule in Exhibit G3, Contractor shall
immediately not ify the City Contract Manager and request establishment of such Rate. For
example, if a Customer requires Collection of Organic Materials in a fifteen (15) cubic yard
Compactor five (5) times per week and the City-approved Rate schedule does not include this
level of service, the Contractor must request that the City approve a Rate for this level of service.
Approval of Rates described in this Section 8.2 may be made by the City Contract Manager.
Rates for Rate Period One. Rates for Rate Period One, which are presented in Exhibit G3, were
determined by Contractor and City and were approved along with the Agreement. The Rates for
Rate Period One shall be effective from July 1, 2022 through June 30, 2023. Rates shall be adjusted
for any City approved change in Disposal Cost that are effective July 1, 2022 in accordance with
this Section 8.2 and Exhibit E.
Rates for Subsequent Rate Periods. Rates for subsequent Rate Periods shall be adjusted annually
in accordance with this Section 8.2 and Exhibit E.
The index-based adjustment, which is described in Exhibit El, involves use of various cost
adjustment factors (such as the percentage change in the consumer price index and changes in
Tonnage and tipping fees) to calculate adjusted Rates. Such Rate adjustment calculations shall be
performed in strict conformance to the procedures described in Exhibit El.
In Rate Periods Four (4) and/or Eight (8) Rates shall be adjusted using the cost-based methodology
described in Exhibit E2 that involves a review of Contractor's actual costs and revenues and
projection of costs and revenues for the coming Rate Period. This cost-based Rate adjustment will
be performed instead of the index-based Rate adjustment for that Rate Period. The cost-based
adjustment process is intended to provide the City an opportunity to adjust Rates to more
accurately reflect actual revenues and costs of operations. Such Rate adjustment calculations shall
be performed in strict conformance to the procedures described in Exhibit E2.
Rate Structure. The City may, at any time during the Term of this Agreement and in its sole
discretion, change the relationship of individual Rates in comparison with other Rates. Any such
changes would occur in conjunction with the annual Rate adjustment process described in this
Section or in conjunction with a Rate adjustment resulting from an extraordinary Rate adjustment
in accordance with Section 8.3. Changes to the Rates charged under the new structure shall be
calculated in such a way that the revised Rate structure generates at least the same amount of
total revenue when the current number of accounts at each Service Level are multiplied by the
Rates charged for each Service Level and the total for all Service Levels are summed; provided, if
after a 24 month period from the Effective Date of the new Rate structure Contractor can show a
Page 49 of 75 City of Carlsbad
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April 6, 2021 Item #8 Page 645 of 671
1952
1953
1954
1955 8.3
revenue loss has occurred that interferes with Contractor achieving its allowable profit as
identified in Exhibit G, Contractor's Proposal, Contractor shall be entitled to a prospective
extraordinary Rate adjustment to compensate Contractor for such revenue loss.
EXTRAORDINARY RA TE ADJUSTMENTS
1956 It is understood that the Contractor accepts the risk for changes in cost of providing services and the
1957 Service Levels requested by Customers and therefore the extraordinary adjustments to Rates shall be
1958 limited to a Change in Law or a City-directed change in scope. If a Change in Law or City-directed change
1959 in scope (pursuant to Section 3.5) occurs, the Contractor may petition City for an adjustment to the Rates
1960 in excess of the annual adjustment described in Section 8.2.
1961 Contractor shall prepare an application for the extraordinary Rate increase. Such submittal shall be
1962 prepared in compliance with the procedures described in Exhibit E2 and shall provide all information
1963 requested by City Contract Manager specific to the nature of the request being made. Contractor shall
1964 pay all reasonable costs incurred by City, including the costs of outside accountants, attorneys, and/or
1965 consultants, in order determine the reasonableness of the requested Rate adjustment. The application
1966 shall clearly document the reason for the proposed adjustment, include calculation of the proposed Rate
1967 adjustments, and provide supporting documentation.
1968 In the event of such an application for extraordinary Rate increase, it is understood that the Contractor
1969 shall have the burden of demonstrating to the reasonable satisfaction of the City Contract Manager that
1970 the failure of City to adjust the Rates will result in the Contractor's financial loss or failure to achieve
1971 reasonable profitability due to the Change in Law or City-directed change in scope. The Contractor will
1972 have to demonstrate financial loss or a failure to achieve reasonable profitability by allowing for City
1973 Contract Manager review of financial statements and supporting documentation.
1974 The City Contract Manager shall have the right to request any other information that they, in their sole
1975 judgment, determine is necessary to establish the reasonableness or accuracy of Contractor's request for
1976 an extraordinary Rate increase. Contractor's failure to fully cooperate in a timely manner with any
1977 reasonable request for information by the City Contract Manager may result in either the denial of or a
1978 delay in the approval of the request for an extraordinary Rate increase. If the Contractor reasonably
1979 carries its burden of showing a failure to achieve its operating ratio as originally described in Contractor's
1980 Proposal in its petition to the City under this section, the City shall grant Contractor a reasonable
1981 adjustment in its Rates to fully compensate Contractor.
1982
1983
1984
1985 9.1
1986 A.
1987
1988
1989
1990
1991
ARTICLE 9.
INDEMNITY, INSURANCE, AND PERFORMANCE
BOND
INDEMNIFICATION
General. Contractor shall indemnify, defend with counsel acceptable to City, and hold harmless
(to the full extent permitted by law) City and its officers, officials, employees, volunteers, and
agents from and against any and all claims, liability, loss, injuries, damage, expense, and costs
(including without limitation costs and fees of litigation, including attorneys' and expert witness
fees) (collectively, "Damages") of every nature arising out of or in connection with Contractor's
performance, and the performance of any Subcontractor, or agent of Contractor, under this
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1992
1993
1994
1995
1996
1997 B.
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016 C.
2017
2018
2019
2020
2021 D.
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
Agreement, or its failure to comply with any of its obligations contained in the Agreement, except
to the extent such loss or damage was caused by the negligence or willful misconduct of City. This
Section 9.1 shall survive the expiration or termination of this Agreement and shall not be
construed as a waiver of City's legal and/or equitable rights as defined herein and permitted under
Applicable Law.
Excluded Waste. Contractor acknowledges that it is responsible for compliance during the entire
Term of this Agreement with all Applicable Laws. Contractor shall not store, Transport, use, or
Dispose of any Excluded Waste except in strict compliance with all Applicable Laws.
If Contractor negligently or willfully mishandles Excluded Waste in the course of carrying out its
activities under this Agreement, Contractor shall at its sole expense promptly take all investigatory
and/or remedial action reasonably required for the remediation of such environmental
contamination. Prior to undertaking any investigatory or remedial action, however, Contractor
shall first obtain City's approval of any proposed investigatory or remedial action. Should
Contractor fail at any time to promptly take such action, City may undertake such action at
Contractor's sole cost and expense, and Contractor shall reimburse City for all such expenses
within thirty (30) calendar days of being billed for those expenses, and any amount not paid within
that thirty (30) calendar day period shall thereafter be deemed delinquent and subject to the
delinquent fee payment provision of Section 7.6. These obligations are in addition to any defense
and indemnity obligations that Contractor may have under this Agreement.
Notwithstanding the foregoing, Contractor's duties under this subsection shall not extend to any
claims arising from the Disposal of Solid Waste at the Designated Disposal Facility, including, but
not limited to, claims arising under Comprehensive Environmental Response, Compensation and
liability Act (CERCLA) unless such claim is a direct result of Contractor's negligence or willful
misconduct.
Environmental Indemnity. Contractor shall defend with counsel acceptable to City, indemnify,
and hold City harmless against and from any and all claims, suits, losses, penalties, damages, and
liability for damages of every name, kind and description, including attorneys' fees and costs
incurred, attributable to the negligence or willful misconduct of Contractor in handling Excluded
Waste.
Electronic and Web based Information Indemnity. Contractor shall defend with counsel
acceptable to City, indemnify, and hold City harmless against and from any and all -related claims,
including but not limited to, suits, losses, penalties, damages, responsibility for costs, regulatory
fines, penalties, credit monitoring expenses, and liability for damages of every name, kind and
description, including attorneys' fees and costs incurred, attributable to the negligence or willful
misconduct of Contractor and any Subcontractors used in performance of this Agreement in
handling or protecting Customer information over which Contractor has control, including but not
limited to billing details, electronic payment(s), and Customer account information that is not
readily available to the general public. Contractor shall maintain electronic files and Contractor's
website in accordance with the industry best practices for maintaining such information as safely
and securely as possible. Nothing in this Section 9.l(D) shall prevent or restrict Contractor's
obligation and responsibility to provide City with information required under this Agreement.
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2033 E.
2034
2035
2036
2037
2038
2039
2040 F.
2041
2042
2043
2044
2045
2046
2047
2048
2049
2050
2051
2052
2053
2054
2055
2056
2057
2058
2059
2060
2061
2062
2063 G.
2064
2065
2066
2067
2068
2069
2070
2071
2072
2073
2074
2075
Related to AB 939, AB 341, AB 1826, and SB 1383. Contractor's duty to defend and indemnify
herein includes all fines and/or penalties imposed by CalRecycle, if the requirements of AB 939,
AB 341, AB 1826, and/or SB 1383 are not met by the Contractor with respect to the Contractor's
obligations under this Agreement, and such failure is: (i) due to the failure of Contractor to meet
its obligations under this Agreement; or, (ii) due to Contractor delays in providing information
that prevents Contractor or City from submitting reports to regulators in a timely manner. This
indemnity is subject to the provisions of Public Resources Code§ 40059.1.
Related to Proposition 218. Should there be a Change in Law or a new judicial interpretation of
Applicable Law, including, but not limited to, Article XIII C and D of the California Constitution
(Commonly Proposition 218), which impacts the Rates for the Collection services established in
accordance with this Agreement, Contractor agrees to meet and confer with City to discuss the
impact of such Change in Law on either Party's ability to perform under this Agreement.
If, at any time, a Rate adjustment determined to be appropriate by both City and Contractor to
compensate Contractor for increases in costs as described in this Agreement cannot be
implemented for any reason, Contractor shall be granted the option to negotiate with City, in
good faith, a reduction of services equal to the value of the Rate adjustment that cannot be
implemented. If City and Contractor are unable to reach agreement about such a reduction in
services, then Contractor may terminate this Agreement upon one (1) year's prior written notice
to City, in which case the Contractor and City shall each be entitled to payment of amounts due
for contract performance through the date of termination but otherwise will have no further
obligation to one another unless this Agreement specifically states otherwise, after the date of
such termination. Should a court of competent jurisdiction determine that the Contractor cannot
charge and/or increase its Rates for charges related to Franchise Fees and governmental fees and
charges, Contractor shall reduce the Rates it charges Customers a corresponding amount,
providing said fees, reimbursements, Rates and/or charges disallowed by the court are not related
to the cost of providing service hereunder and had been incorporated in the Rates charged by
Contractor to its Customers.
Nothing herein is intended to imply that California Constitution, Articles XIIIC or XIIID, apply to the
Rates established for services provided under this Agreement; rather this Section is provided
merely to allocate risk of an adverse judicial interpretation between the Parties.
CalPERS Eligibility Indemnification. Contractor's employees, agents, or Subcontractors providing
service under this Agreement shall not: (i) qualify for any compensation and benefit under
CalPERS; (ii) be entitled to any benefits under CalPERS; (iii) enroll in CalPERS as an employee of
City; (iv) receive any employer contributions paid by City for CalPERS benefits; or (v) be entitled
to any other CalPERS-related benefit that would accrue to a City employee. Contractor's
employees, agents, or Subcontractors hereby waive any claims to benefits or compensation
described in this Section 9.1. This Section 9.1 applies to Contractor notwithstanding any other
agency, State or Federal policy, rule, regulation, law, or ordinance to the contrary.
If Contractor's employees, agents, or Subcontractors providing services under this Agreement
claim, or are determined by a court of competent jurisdiction or the California Public Employees
Retirement System ("CalPERS") to be eligible for enrollment in Cal PERS of the City, Contractor
shall indemnify, defend, and hold harmless City for the payment of any employer and employee
contributions for CalPERS benefits on behalf of the employee as well as for payment of any
Page 52 of 75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 648 of 671
2076
2077
2078
2079
2080
2081
2082
2083
2084
2085
2086
2087
2088
2089
2090 9.2
2091 A.
2092
2093 B.
2094
2095
2096
2097
2098
2099
2100
2101
2102
2103
2104
2105
2106
2107
2108
2109
2110
2111
2112
2113
penalties and interest on such contributions which would otherwise be the responsibility of the
City.
Contractor's Compensation under this Agreement shall be the full and complete compensation to
which Contractor and Contractor's officers, employees, agents, and Subcontractors are entitled
for performance of any work under this Agreement. Neither Contractor nor Contractor's officers,
employees, agents, and Subcontractors are entitled to any salary or wages, or retirement, health,
leave or other fringe benefits applicable to City employees. The City will not make any Federal or
State tax withholdings on behalf of Contractor. The City shall not be required to pay any workers'
compensation insurance on behalf of Contractor.
Contractor agrees to defend and indemnify the City for any obligation, claim, suit, or demand for
tax, retirement contribution including any contribution to CalPERS, social security, salary or
wages, overtime payment, or workers' compensation payment which the City may be required to
make on behalf of (1) Contractor, (2) any employee of Contractor, or (3) any employee of
Contractor construed to be an employee of the City, for work performed under this Agreement.
INSURANCE
General Requirements. Contractor shall, at its sole cost and expense, maintain in effect at all times
during the Term of this Agreement not less than the following coverage and limits of insurance:
Coverages and Requirements. During the Term of this Agreement, Contractor shall at all times
maintain, at its expense, the following coverages and requirements. Failure to maintain the
identified insurance requirements during the entire Term of this Agreement shall constitute an
event of default subject to Section 10.l(C). The comprehensive general liability insurance shall
include broad form property damage insurance.
1. Minimum Coverages. Insurance coverage shall be with limits not less than the following:
Comprehensive General Liability-$10,000,000 combined single limit per occurrence for
bodily injury, personal injury, and property damage.
Automobile Liability -$10,000,000 combined single limit per accident for bodily injury
and property damage (include coverage for Hired and Non-owned vehicles).
Workers' Compensation -Statutory Limits/Employers' Liability -$1,000,000/accident
for bodily injury or disease.
Employee Blanket Fidelity Bond -$500,000 per employee loss covering dishonesty,
forgery, alteration, theft, disappearance, and destruction (inside or outside).
Pollution Liability-$10,000,000 per loss and annual aggregate applicable to bodily injury;
property damage, including loss of use of damaged property or of property that has not
been physically damaged or destroyed; clean-up costs, including first party cleanup of the
City's property and third-party cleanup, and bodily injury costs if pollutants impact other
properties; and defense, including costs, fees and expenses incurred in the investigation,
defense, or resolution of claims. Coverage shall include completed operations and shall
apply to sudden and non-sudden pollution conditions. Coverage shall apply to acts, errors
Page 53 of 75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 649 of 671
2114
2115
2116
2117
2118
2119
2120
2121
2122
2123
2124
2125
2126
2127
2128
2129
2130
2131
2132
2133
2134
2135
2136
2137
2138
2139
2140
2141
2142
2143
2144
2145
2146
2147
2148
2149
2150
2151
2152
2153
2154
2155
2.
3.
4.
5.
6.
or omissions arising out of, or in connection with, Contractor's scope of work under this
Agreement. Coverage shall also apply to non-owned deposit sites ("NODS") that shall
protect against, for example, claims regarding bodily injury, property damage, and/or
cleanup costs involving NODS. Coverage is preferred by the City to be occurrence based.
However, if provided on a claims-made basis, Contractor warrants that any retroactive
date applicable to coverage under the policy precedes the Effective Date of this
Agreement, and that continuous coverage shall be maintained, or an extended discovery
period will be exercised through completion or termination of this Agreement for a
minimum of five (5) years. This provision does not limit or alter any rights or remedies to
City allowable under this Agreement and/or Applicable Law in perpetuity.
Technology Professional Liability Errors and Omissions Insurance (Cyber Liability)
appropriate to the Contractor's profession and industry practice, with limits not less than
$2,000,000 per occurrence. Coverage for cyber risks shall be sufficiently broad to respond
to the duties and obligations as are undertaken by Contractor under this Agreement and
shall include, but not be limited to claims involving infringement of intellectual property,
including but not limited to infringement of copyright, trademark, trade dress, invasion
of privacy violations, information theft, damage to or destruction of electronic
information, release of private information, alteration of electronic information,
extortion, and network security. The policy shall provide coverage for breach response
notification and remediation costs, regulatory fines and penalties, credit monitoring
expenses, electronic funds transfer losses, electronic data restoration expenses, and
business interruption costs with limits sufficient to respond to these obligations, in the
sole discretion of the City's Risk Manager.
Additional Insured. City, its officers, agents, employees, and volunteers shall be named as
additional insured on all but the workers' compensation and professional liability
coverages.
Said policies shall remain in force through the life of this Agreement and, with the
exception of professional liability coverage, shall be payable on a "per occurrence" basis
unless City's Risk Manager specifically consents in writing to a "claims made" basis. For all
"claims made" coverage, if the Contractor changes insurance carriers Contractor shall
purchase "tail" coverage or otherwise provide for continuous coverage covering the Term
of this Agreement and not less than three (3) years thereafter, except for the five (5} year
tail of Pollution Liability Coverage as described above. Proof of such "tail" or other
continuous coverage shall be required at any time that the Contractor changes to a new
carrier prior to receipt of any payments due.
The Contractor shall declare all aggregate limits on the coverage before commencing
performance of this Agreement, and City's Risk Manager reserves the right to require
higher aggregate limits to ensure that t he coverage limits required for this Agreement as
set forth above are available throughout the performance of this Agreement.
The deductibles or self-insured retentions are for the accou.nt of Contractor and shall be
the sole responsibility of the Contractor.
Each insurance policy shall provide or be endorsed to state that coverage shall not be
Page 54 of 75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 650 of 671
2156
2157
2158
2159
2160
2161
2162
2163
2164
2165
2166
2167
2168
2169
2170
2171
2172
2173 C.
2174
2175
2176
2177
2178 D.
2179
2180
2181
2182
2183 E.
2184
2185
2186 F.
2187
2188 9.3
suspended, voided, canceled by either Party, reduced in coverage or in limits except after
thirty (30) calendar days prior written notice by certified mail, return receipt requested,
has been given to City Contract Manager ten (10) Business Days for delinquent insurance
premium payments).
7. Insurance must be placed with insurers with a current A.M. Best's rating of no less than
A-VII, or with a surplus line carrier appearing on the List of Approved Surplus Line Insurers,
("LASLI") with a Best's Key Rating Guide of at least A: X. Insurers, and corresponding
policies required by this Section, must also comply with all other aspects of City Council
Policy# 70.
8. The policies shall cover all activities of Contractor, its officers, employees, agents and
volunteers arising out of or in connection with this Agreement.
9. For any claims relating to this Agreement, the Contractor's insurance coverage shall be
primary, including as respects City, its officers, agents, employees, and volunteers. Any
insurance maintained by City shall apply in excess of, and not contribute with, insurance
provided by Contractor's liability insurance policy.
10. The Contractor shall waive all rights of subrogation against City, its officers, employees,
agents, and volunteers.
Endorsements. Prior to the Effective Date pursuant to this Agreement, Contractor shall furnish
City Contract Manager with certificates or original endorsements reflecting coverage required by
this Agreement. The certificates or endorsements are to be signed by a Person authorized by that
insurer to bind coverage on its behalf. All certificates or endorsements are to be received by, and
are subject to the approval of, City Risk Manager before work commences.
Renewals. During the Term of this Agreement, Contractor shall furnish City Contract Manager
with certificates or original endorsements reflecting renewals, changes in insurance companies,
and any other documents reflecting the maintenance of the required coverage throughout the
entire Term of this Agreement. The certificates or endorsements are to be signed by a Person
authorized by that insurer to bind coverage on its behalf.
No Cap on Indemnity. The minimum amounts of coverage described in this Section 9.2 will not
constitute any limitations or cap on Contractor's indemnification obligations under this
Agreement.
Workers' Compensation. Contractor shall provide workers' compensation coverage as required
by State law and shall comply with Section 3700 of the State Labor Code.
PERFORMANCE BOND
2189 Within seven (7) calendar days of the City's notification to Contractor that the City has executed this
2190 Agreement, Contractor shall file with the City a bond, payable to the City, securing the Contractor's
2191 performance of its obligations under this Agreement and such bond shall be renewed annually if
2192 necessary, so that the performance bond is maintained at all times during the Term. The principal sum of
2193 the bond shall be six million seven-hundred thousand dollars ($6,700,000) and shall be adjusted every
2194 three (3) years, commencing with Rate Period Three, to equal three (3) months of the prior Rate Period's
Page 55 of 75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 651 of 671
2195 annual Gross Receipts. The bond shall be executed as surety by a corporation authorized to issue surety
2196 bonds in the State of California that has a rating of A or better in the most recent edition of Best's Key
2197 Rating Guide, and that has a record of service and financial condition satisfactory to the City. The bond
2198 shall be in the form approved by the City's Risk Manager.
2199 ARTICLE 10.
2200 DEFAULT AND REMEDIES
2201 10.1 EVENTS OF DEFAULT
2202 All provisions of the Agreement are considered material. Each of the following shall constitute an event
2203 of default.
2204 A.
2205 B.
2206
2207 C.
2208
2209
2210 D.
2211
2212
2213
2214
2215 E.
2216
2217 F.
2218
2219
2220 G.
2221
2222
2223
2224 H.
2225
2226
2227
2228
2229
2230 I.
Fraud or Deceit. Contractor practices, or attempts to practice, any fraud or deceit upon the City.
Insolvency or Bankruptcy. Contractor becomes insolvent, unable, or unwilling to pay its debts, or
upon listing of an order for relief in favor of Contractor in a bankruptcy proceeding.
Failure to Maintain Coverage. Contractor fails to provide or maintain in full force the workers'
compensation, insurance coverage required by Section 9.2, or indemnification coverage as
required by this Agreement.
Violations of Regulation. Contractor violates any orders or filings of any regulatory body having
authority over Contractor relative to this Agreement, which violation the City reasonably
determines is material. If Contractor contests any such orders or filings by appropriate
proceedings conducted in good faith, and the regulatory body determines no violation occurred,
no breach or default of this Agreement shall be deemed to have occurred.
Violations of Applicable Law. Contractor violates Applicable Law relative to this Agreement,
which violation the City reasonably determines is material.
Failure to Perform Direct Services. Contractor ceases to provide Collection, Transportation, or
Processing services as required under this Agreement for a period of two (2) consecutive calendar
days or more, for any reason within the control of Contractor.
Failure to Pay or Report. Contractor fails to make any payments to City required under this
Agreement including payment of City Fees or Liquidated Damages and/or refuses to provide City
with required information, reports, and/or records in a timely manner as provided for in the
Agreement.
Acts or Omissions. Any other act or omission by Contractor which violates the terms, conditions,
or requirements of this Agreement, or Applicable Law and which is not corrected or remedied
within the time set in the written notice of the violation. Additionally, an event of default occurs
if Contractor cannot reasonably correct or remedy the breach within the time set forth in a notice
of violation, or if Contractor fails to commence to correct or remedy such violation within t he time
set forth in such notice and diligently effect such correction or remedy thereafter.
False, Misleading, or Inaccurate Statements. Any representation or disclosure made to the City
Page 56 of 75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 652 of 671
2231
2232
2233
2234
2235
2236
2237
2238 J.
2239
2240
2241 K.
2242
2243
2244
2245 L.
2246
2247
2248 M.
2249
2250
2251 N.
2252
2253
2254 0 .
2255
2256 P.
2257
2258
2259 Q.
2260
2261
2262 R.
2263
2264
2265 s.
2266
2267
2268
by Contractor in connection with or as an inducement to entering into this Agreement, or any
future amendment to this Agreement, which proves to be false or misleading in any material
respect as of the time such representation or disclosure is made, whether or not any such
representation or disclosure appears as part of this Agreement. Additionally, a default occurs if
any Contractor-provided report contains a misstatement, misrepresentation, data manipulation,
or an omission of fact or content explicitly defined by the Agreement, excepting non-numerical
typographical and grammatical errors.
Seizure or Attachment. There is a seizure of, attachment of, or levy on, some or all of Contractor's
operating equipment, including without limits its equipment, maintenance or office facilities,
Approved Facility(ies), or any part thereof.
Suspension or Termination of Service. There is any termination or suspension of the transaction
of business by Contractor related to this Agreement, including without limit, due to labor unrest
including strike, work stoppage or slowdown, sick-out, picketing, or other concerted job action
lasting more than two (2) calendar days.
Criminal Activity. Contractor, its officers, managers, or employees are found guilty of criminal
activity related directly or indirectly to performance of this Agreement or any other agreement
held with the City.
Assignment without Approval. Contractor transfers or assigns this Agreement without the
expressed written approval of the City unless the assignment is permitted without City approval
pursuant to Section 12.6.
Failure to Provide Proposal or Implement Change in Service. Contractor fails to provide a
proposal for new services or changes to services or fails to implement a change in service as
requested by the City as specified in Section 3.5.
Failure to Complete Transition. Contractor fails to complete the tasks identified in Contractor's
Implementation Plan as specified in Exhibit G4.
Failure to Implement Collection Program. Contractor fails to implement a Collection program
that complies with the requirements of Article 4 and Exhibit B, which is essential for the City to
achieve compliance with SB 1383.
Failure to Provide Processing Capacity. Contractor fails to provide adequate Processing capacity
in accordance with Articles 4 and 5, which is essential for the City to achieve compliance with SB
1383.
Failure to Achieve Processing Standards. Contractor fails to achieve the Processing standards
specified in Articles 4 and 5 including achievement of minimum Organic Waste recovery rates,
which are essential for the City to achieve SB 1383 compliance.
Failure to Comply with Other Requirements of SB 1383. Contractor fails to comply with other
requirements of the Agreement including, but not limited to, public education, reporting,
contamination monitoring, record keeping and reporting, or other obligations of this Agreement
that delegate the City's responsibility and/or authority under SB 1383 to the Contractor.
Page 57 of 75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 653 of 671
2269 T.
2270
Failure to Perform Any Obligation. Contractor fails to perform any obligation established under
this Agreement, which the City reasonably determines is material.
2271 City shall provide Contractor written notice of default within seven (7) calendar days of the City's first
2272 knowledge of the Contractor's default.
2273 10.2 CONTRACTOR'S RIGHT TO CURE; RIGHT TO TERMINATE UPON EVENT OF
2274 DEFAULT
2275 Contractor shall be given ten (10) Business Days from written notification by the City Contract Manager
2276 to cure any default which, in the City Contract Manager's sole opinion, creates a potential public health
2277 and safety threat.
2278 Contractor shall be given ten (10) Business Days from written notification by the City Contract Manager
2279 to cure any default arising under subsections C, E, F, I, J, and Kin Section 10.1. However, the City shall not
2280 be obligated to provide Contractor with a notice and cure opportunity if the Contractor has committed
2281 the same or similar breach/default within a twenty-four (24) month period.
2282 Contractor shall be given thirty (30) calendar days from written notification by the City Contract Manager
2283 to cure any other default (which is not required to be cured within ten (10) Business Days). Furthermore,
2284 if Contractor cannot reasonably cure a default within the applicable period described in this section,
2285 except for defaults that create a potential health and safety threat, and Contractor promptly commences
2286 the cure or remedy within the initial cure period and thereafter diligently pursues the cure or remedy to
2287 completion, Contractor shall not be in default of this Agreement. However, the City shall not be obligated
2288 to provide Contractor with a notice and cure opportunity if the Contractor has committed the same or
2289 similar breach/default within a twenty-four (24) month period.
2290 10.3 CITY'S REMEDIES IN THE EVENT OF DEFAULT
2291 Upon Contractor's default, City has the following remedies in the event of Contractor default:
2292 A.
2293
2294
2295
2296 B.
2297
2298
2299 c.
2300
2301 D.
2302
2303
2304
2305
2306
Waiver of Default. City may waive any event of default or may waive Contractor's requirement
to cure a default event if City determines that such waiver would be in the best interest of the
City. City's waiver of an event of default is not a waiver of future events of default that may have
the same or similar conditions.
Suspension of Contractor's Obligation. City may suspend Contractor's performance of its
obligations if Contractor fails to cure default in the time frame specified in Section 10.2 until such
time the Contractor can provide assurance of performance in accordance with Section 10.8.
Liquidated Damages. City may assess Liquidated Damages for Contractor's failure to meet specific
performance standards pursuant to Section 10.6 and Exhibit F.
Termination. The City Contract Manager may, in their sole discretion, set a public hearing for the
City Council to determine whether to terminate this Agreement. Subject to Contractor's right to
cure as described in Section 10.2, such termination hearing must be set if a default remains
uncured thirty (30) calendar days after receipt of written notice of default from the City. Such
termination hearing must also be set if a Contractor's default is not cured within ten (10) calendar
days and the default:
Page 58 of 75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 654 of 671
2307
2308
2309
2310
2311
2312
2313
2314
2315
2316
2317
2318
2319
2320
2321
2322
2323
2324
2325 E.
2326
1. Creates a potential public health and safety threat; or
2. Arises under Section 10.1.C, E, F, I, J, or K.
If the City terminates this Agreement based on the adopted findings of the termination hearing,
the City Contract Manager shall first provide written notice to the Contractor twenty (20) calendar
days before the date of termination. The Contractor shall thereafter be relieved on a going-
forward basis of all liabilities and obligations required by this Agreement, except for Section 9.1
and any other provisions specifically identified to survive termination of this Agreement. Upon
expiration of the twenty (20) day notice, the City may, in its sole discretion:
1. Directly undertake performance of the services; or
2. Arrange with other Persons to perform the services with or without a written
agreement; or
3. Permit Contractor to continue operating under this Agreement including
Contractor's Compensation until such time that City is able to find substitute
services.
This right of termination is in addition to any other rights upon a failure of Contractor to perform
its obligations under this Agreement.
Contractor shall not be entitled to any further revenues from Collection operations authorized
hereunder from and after the date of termination.
Other Available Remedies. City's election of one (1) or more remedies described herein shall not
limit the City from any and all other remedies at law and in equity including injunctive relief, etc.
2327 10.4 POSSESSION OF RECORDS UPON TERMINATION
2328 In the event of termination for an event of default, the Contractor shall furnish City Contract Manager
2329 with immediate access to all of its business records, including without limitation, Proprietary Contractor
2330 computer systems, related to its Customers, Collection routes, and billing of accounts for Collection
2331 services.
2332 10.5 CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE
2333 City's rights to terminate the Agreement under Section 10.2 and to take possession of the Contractor's
2334 records under Section 10.4 are not exclusive, and City's termination of the Agreement and/or the
2335 imposition of Liquidated Damages shall not constitute an election of remedies. Instead, these rights shall
2336 be in addition to any and all other legal and equitable rights and remedies which City may have.
2337 By virtue of the nature of this Agreement, the urgency of timely, continuous, and high-quality service; the
2338 lead time required to effect alternative service; and, the rights granted by City to the Contractor, the
2339 remedy of damages for a breach hereof by Contractor is inadequate and City shall be entitled to injunctive
2340 relief (including but not limited to specific performance).
2341 10.6 PERFORMANCE STANDARDS AND LIQUIDATED DAMAGES
2342 A. General. The Parties find that as of the time of the execution of this Agreement, it is impractical,
2343 if not impossible, to reasonably ascertain the extent of damages which shall be incurred by City
Page 59 of 75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 655 of 671
2344
2345
2346
2347
2348
2349
2350
2351
2352
2353
2354
2355
2356 B.
2357
2358
2359
2360
2361
2362
2363
2364
2365
2366
2367
2368
2369
2370
2371
2372
2373
2374
2375
2376
2377
2378
2379
2380
2381
2382
2383
2384
2385 C.
2386
2387
as a result of a breach by Contractor of its obligations under this Agreement. The factors relating
to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i)
substantial damage results to members of the public who are denied services or denied quality or
reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of
the benefits of the Agreement to individual members of the general public for whose benefit this
Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of
measurement in precise monetary terms; (iii) that exclusive services might be available at
substantially lower costs than alternative services and the monetary loss resulting from denial of
services or denial of quality or reliable services is impossible to calculate in precise monetary
terms; and, (iv) the termination of this Agreement for such breaches, and other remedies are, at
best, a means of future correction and not remedies which make the public whole for past
breaches.
Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The Parties
further acknowledge that consistent, reliable Collection services are of utmost importance to City
and that City has considered and relied on Contractor's representations regarding its quality-of-
service commitment in awarding the Agreement to it. The Parties recognize that some quantified
standards of performance are necessary and appropriate to ensure consistent and reliable service
and performance. The Parties further recognize that if Contractor fails to achieve the performance
standards or fails to submit required documents in a timely manner, City and its residents and
businesses will suffer damages, and that it is, and will be, impractical and extremely difficult to
ascertain and determine the exact amount of damages which City will suffer. Therefore, without
prejudice to City's right to treat such non-performance as an event of default under this Section,
the Parties agree that the Liquidated Damages amounts established in Exhibit F of this Agreement
and the Liquidated Damage amounts therein represent a reasonable estimate of the amount of
such damages considering all of the circumstances existing on the Effective 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.
Contractor agrees to pay (as Liquidated Damages and not as a penalty) the amounts set forth in
the Performance Standards and Liquidated Damages, Exhibit F.
Before assessing Liquidated Damages, City Contract Manager shall give Contractor notice of City's
intention to do so. The notice will include a brief description of the incident(s) and non-
performance. City Contract Manager may review (and make copies at City's own expense} all
information in the possession of Contractor relating to incident(s} and/or non-performance. City
Contract Manager may, within ten (10) Business Days after issuing the notice, request a meeting
with Contractor. City Contract Manager may present evidence of non-performance in writing and
through testimony of City's employees and others relevant to the incident(s) and non-
performance. City Contract Manager will provide Contractor with a written explanation of their
determination on each incident(s) and non-performance prior to authorizing the assessment of
Liquidated Damages under this Section 10.6. The decision of City Contract Manager may be
appealed by Contractor to the Deputy City Manager.
Amount. City Contract Manager may assess Liquidated Damages for each calendar day or event,
as appropriate, that Contractor is determined to be liable in accordance with this Agreement in
the amounts specified in Exhibit F subject to annual adjustment described below.
Page 60 of 75 City of Carlsbad
Franchise Agreement
April 6, 2021 Item #8 Page 656 of 671
2388 D. Timing of Payment. Contractor shall pay any Liquidated Damages assessed by City Contract
2389 Manager within ten (10) Business Days of the date the Liquidated Damages are assessed. If they
2390 are not paid within the ten (10) Business Day period, City Contract Manager may proceed against
2391 the performance bond required by the Agreement, order the termination (subject to the
2392 provisions of Section 10.2) of the rights granted by this Agreement, or all of the above.
2393 10.7 EXCUSE FROM PERFORMANCE
2394 The Parties understand and agree herein that the seNices provided under this Agreement are critical to
2395 the protection of public health and safety and that Contractor is expected to perform these seNices
2396 despite the occurrence of events that may otherwise give rise to Force Majeure conditions. The Parties
2397 herein agree that the obligations for excuse from performance under this Agreement should and do have
2398 a higher standard than the general law understanding of Force Majeure. In particular, a Party shall be
2399 excused from performing their obligations hereunder and from any obligation to pay Liquidated Damages
2400 if they are prevented from so performing by reason of floods, earthquakes, other acts of nature, war, civil
2401 insurrection, riots, acts of any domestic government (including judicial action), and other similar
2402 catastrophic events which are beyond the control of and not the fault of the Party claiming excuse from
2403 performance hereunder. However, performance shall only be excused If the Party requesting relief from
2404 performance can specifically demonstrate that the performance of a specific obligation is impossible and
2405 shall only be excused from those requirements which are demonstrated to be impossible. All other
2406 performance obligations that remain possible, shall be required to continue.
2407 In the case of labor unrest or job action directed at a third party over whom Contractor has no control,
2408 the inability of Contractor to provide seNices in accordance with this Agreement due to the unwillingness
2409 or failure of the third party to: (i) provide reasonable assurance of the safety of Contractor's employees
2410 while providing such seNices; or, (ii) make reasonable accommodations with respect to Container
2411 placement and point of Delivery, time of Collection, or other operating circumstances to minimize any
2412 confrontation with pickets or the number of Persons necessary to make Collections shall, to that limited
2413 extent, excuse performance. The foregoing excuse shall be conditioned on Contractor's cooperation in
2414 performing Collection services at different times and in different locations. Further, in the event of labor
2415 unrest, including but not limited to strike, work stoppage or slowdown, sickout, picketing, or other
2416 concerted job action conducted by the Contractor's employees or directed at the Contractor, or a
2417 subsidiary, the Contractor shall not be excused from performance. In such case, Contractor shall continue
2418 to provide a reasonably satisfactory level of performance during the pendencythereof, but the Contractor
2419 shall not be required to adhere strictly to the specific requirements of this Agreement regarding routes,
2420 Collection times or similar matters; provided, however, that in no event shall more than seven (7) calendar
2421 days elapse between pickups for Residential and Commercial Customers. Any labor action initiated by
2422 Contractor, including but not limited to a lock-out, shall not be grounds for any excuse from performance
2423 and Contractor shall perform all obligations under this Agreement during the pendency of such
2424 Contractor-initiated labor action.
2425 The Party claiming excuse from performance shall, within two (2) calendar days after such Party has notice
2426 of such cause, give the other Party notice of the facts constituting such cause and asserting its claim to
2427 excuse under this Section.
2428 If either Party validly exercises its rights under this Section, the Parties hereby waive any claim against
2429 each other for any damages sustained thereby.
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2430 The partial or complete interruption or discontinuance of Contractor's services caused by one (1) or more
2431 of the events described in this Article shall not constitute a default by Contractor under this Agreement.
2432 Notwithstanding the foregoing, however, if Contractor is excused from performing its obligations
2433 hereunder for any of the causes listed in this Section for a period of thirty (30) calendar days or more, City
2434 shall nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten (10)
2435 Business Days' notice to Contractor, in which case the provisions of Section 10.4 shall apply.
2436 10.8 RIGHT TO DEMAND ASSURANCES OF PERFORMANCE
2437 The Parties acknowledge that it is of the utmost importance to City and the health and safety of all those
2438 members of the public residing or doing business within City who will be adversely affected by interrupted
2439 waste management service, that there be no material interruption in services provided under this
2440 Agreement.
2441 If Contractor: (i) is the subject of any labor unrest including work stoppage or slowdown, sick-out,
2442 picketing or other concerted job action; (ii) appears in the reasonable judgment of City to be unable to
2443 regularly pay its bills as they become due; or, (iii) is the subject of a civil or criminal judgment or order
2444 entered by a Federal, State, regional or local agency for violation of an Applicable Law, and City believes
2445 in good faith that Contractor's ability to perform under the Agreement has thereby been placed in
2446 substantial jeopardy, City may, at its sole option and in addition to all other remedies it may have, demand
2447 from Contractor reasonable assurances of timely and proper performance of this Agreement, in such form
2448 and substance as City believes in good faith is reasonably necessary in the circumstances to evidence
2449 continued ability to perform under the Agreement. If Contractor fails or refuses to provide satisfactory
2450 assurances of timely and proper performance in the form and by the date required by City, such failure or
2451 refusal shall be an event of default for purposes of Section 10.1.
2452 10.9 DISPUTE RESOLUTION
2453 In the event of dispute between the City Contract Manager and the Contractor regarding the
2454 interpretation of or the performance of services under this Agreement which results in a material impact
2455 to the Contractor's revenue and/or cost of operations, as defined in Section 5.9, the provisions of Section
2456 10.9 shall apply.
2457 A.
2458
2459
2460
2461 B.
2462
2463
2464
2465 C.
2466
2467
2468
2469 D.
Meet and Confer. In the event of disputes regarding the performance of any obligation under this
Agreement which results in a material impact to the Contractor's revenue and/or cost of
operations, the City and Contractor agree that they promptly will meet and confer to attempt to
resolve the matter between themselves.
Mediation. If disputes which arise under this Agreement cannot be resolved satisfactorily
between the Parties in accordance with Section 10.9.A, the City and Contractor agree that such
disputes shall be submitted to mandatory, non-binding mediation by a mutually agreed upon
independent third party.
Period of Time. Insofar as allowed by Applicable Law, the period otherwise applicable for filing
claims against the City under Applicable Law shall be tolled during the period of time for which
meet and confer or mediation procedures are pending, in accordance with Sections 10.9.A and
10.9.B.
Litigation. Litigation may be commenced only after all reasonable efforts to resolve the dispute(s)
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2470 pursuant to Sections 10.9.A, 10.9.B, and 10.9.C have failed and any necessary claim(s) have been
2471 denied.
2472 ARTICLE 11.
2473 REPRESENTATIONS AND WARRANTIES OF
2474 THE PARTIES
2475 The Parties, by acceptance of this Agreement, represents and warrants the conditions presented in this
2476 Article.
2477 11.1 CONTRACTOR'S CORPORA TE STATUS
2478 Contractor is a corporation duly organized, validly existing and in good standing under the laws of the
2479 State. It is qualified to transact business in the State and has the power to own its properties and to carry
2480 on its business as now owned and operated and as required by this Agreement.
2481 11.2 CONTRACTOR'S CORPORATE AUTHORIZATION
2482 Contractor has the authority to enter this Agreement and perform its obligations under this Agreement.
2483 The Board of Directors of Contractor (or the shareholders, if necessary) has taken all actions required by
2484 law, its articles of incorporation, its bylaws, or otherwise, to authorize the execution of this Agreement.
2485 The Person signing this Agreement on behalf of Contractor represents and warrants that they have
2486 authority to do so. This Agreement constitutes the lega l, valid, and binding obligation of the Contractor.
2487 11.3 AGREEMENT WILL NOT CAUSE BREACH
2488 To the best of Contractor's and City's knowledge after reasonable investigation, the execution or delivery
2489 of this Agreement or the performance by either Party of their obligations hereunder does not conflict
2490 with, violate, or result in a breach: (i) of any Applicable Law; or, {ii) any term or condition of any judgment,
2491 order, or decree of any court, administrative agency or other governmental authority, or any agreement
2492 or instrument to which Contractor or City is a party or by which Contractor or any of its properties or
2493 assets are bound, or constitutes a default hereunder.
2494 11.4 NO LITIGATION
2495 To the best of Contractor's and City's knowledge after reasonable investigation, there is no action, suit,
2496 proceeding or investigation, at law or in equity, before or by any court or governmental authority,
2497 commission, board, agency or instrumentality decided, pending or threatened against either Party
2498 wherein an unfavorable decision, ruling or finding, in any single case or in the aggregate, would:
2499 A.
2500 B.
2501 C.
2502
Materially adversely affect the performance by Party of its obligations hereunder;
Adversely affect the validity or enforceability of this Agreement; or,
Have a material adverse effect on the financial condition of Contractor, or any surety or entity
guaranteeing Contractor's performance under this Agreement.
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2503 11.5 NO ADVERSE JUDICIAL DECISIONS
2504 To the best of Contractor's and City's knowledge after reasonable investigation, there is no judicial
2505 decision that would prohibit this Agreement or subject this Agreement to legal challenge.
2506 11.6 NO LEGAL PROHIBITION
2507 To the best of each Party's knowledge, after reasonable investigation, there is no Applicable Law in effect
2508 on the date that Party signed this Agreement that would prohibit the performance of either their
2509 obligations under this Agreement and the transactions contemplated hereby.
2510 11.7 CONTRACTOR'S ABILITY TO PERFORM
2511 Contractor possesses the business, professional, and technical expertise to perform all services,
2512 obligations, and duties as described in and required by this Agreement including all Exhibits thereto.
2513 Contractor possesses the ability to secure equipment, facility, and employee resources required to
2514 perform its obligations under this Agreement.
2515 ARTICLE 12.
2516 OTHER AGREEMENTS OF THE PARTIES
2517 12.1 RELATIONSHIP OF PARTIES
2518 The Parties intend that Contractor shall perform the services required by this Agreement as an
2519 independent Contractor engaged by City and neither as an officer nor employee of City, nor as a partner
2520 or agent of, or joint venture with, City. No employee or agent of Contractor shall be, or shall be deemed
2521 to be, an employee or agent of City. Contractor shall have the exclusive control over the manner and
2522 means of performing services under this Agreement, except as expressly provided herein. Contractor shall
2523 be solely responsible for the acts and omissions of its officers, employees, Subcontractors and agents.
2524 Neither Contractor nor its officers, employees, Subcontractors, and agents shall obtain any rights to
2525 retirement benefits, workers' compensation benefits, or any other benefits which accrue to City
2526 employees by virtue of their employment with City.
2527 12.2 COMPLIANCE WITH LAW
2528 Contractor shall at all times, at its sole cost, comply with all Applicable Laws, permits and licenses of the
2529 United States, the State, County, and City and with all applicable regulations promulgated by Federal,
2530 State, regional or local administrative and regulatory agencies, now in force and as they may be enacted,
2531 issued or amended during the Term.
2532 12.3 GOVERNING LAW
2533 This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the
2534 State.
2535 12.4 JURISDICTION
2536 Any lawsuits, at law or in equity, between the Parties arising out of this Agreement shall be filed in a court
2537 of competent jurisdiction in the County. With respect to venue, the Parties agree that this Agreement is
Page 64 of 75 City of Carlsbad
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2538 made in and will be performed in the County. The Parties waive all provisions of law providing for a change
2539 of venue in these proceedings to any other county.
2540 12.5 BINDING ON SUCCESSORS
2541 The provisions of this Agreement shall inure to the benefit to and be binding on the successors and
2542 permitted assigns of the Parties.
2543 12.6 ASSIGNMENT
2544 Neither Party shall assign its rights nor delegate or otherwise transfer its obligations under this Agreement
2545 to any other Person without the prior written consent of the other Party. Any such assignment made
2546 without the consent of the other Party shall be void and the attempted assignment shall constitute a
2547 material breach of this Agreement.
2548 For purposes of this Section, "assignment'' shall include, but not be limited to: (i) a sale, exchange or other
2549 transfer of substantially all of Contractor's local, regional, and/or corporate assets dedicated to service
2550 under this Agreement to a third party; (ii} a sale, exchange or other transfer of ten (10) percent or more
2551 of the local, regional, and/or corporate assets, stock, or ownership of Contractor to a Person (other than
2552 a transfer of shares in Contractor by the owner of such shares to a revocable trust for the benefit of his
2553 family or to another owner of shares in Contractor} except that no cumulative sale, exchange, or transfer
2554 of shares may exceed twenty percent (20%) during the Term of the Agreement (other than a transfer of
2555 shares in Contractor by the owner of such shares to a revocable trust for the benefit of his family or to
2556 another owner of shares in Contractor); (iii) any reorganization, consolidation, merger, recapitalization,
2557 stock issuance or re-issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other
2558 transaction to which Contractor or any of its shareholders is a party which results in a change of ownership
2559 or control often percent (10%) or more oft he value or voting rights in the local, regional, and/or corporate
2560 stock of Contractor; (iv) divestiture of an Affiliate (e.g., trucking company, materials recovery facility,
2561 transfer station, etc.) used by Contractor to fulfill its obligations under this Agreement; and, (v) any
2562 combination of the foregoing (whether or not in related or contemporaneous transactions) which has the
2563 effect of any such transfer or change of local, regional, and/or corporate ownership and/or control of
2564 Contractor. For purposes of this Section, the term "proposed assignee" shall refer to the proposed
2565 transferee(s) or other successor(s) in interest pursuant to the assignment.
2566 Notwithstanding any of the foregoing, Contractor may assign this Agreement without the City's consent
2567 to another wholly owned subsidiary of Allied Waste Services, Inc. provided that the transferee subsidiary
2568 receives substantially all the assets, management, and personnel of Contractor and such assignment is
2569 not part of a planned merger with or conveyance to a party that is not a wholly owned subsidiary of Allied
2570 Waste Services, Inc.
2571 Contractor acknowledges that this Agreement involves rendering a vital service to City's residents and
2572 businesses, and that City has selected Contractor to perform the services specified herein based on: (i}
2573 Contractor's experience, skill, and reputation for conducting its Recyclable Materials, Organic Materials,
2574 and Solid Waste management operations in a safe, effective, and responsible fashion, at all times in
2575 keeping with applicable waste management laws, regulations, and good waste management practices;
2576 and, (ii) Contractor's financial resources on a local, regional, and/or corporate level to maintain the
2577 required equipment and to support its indemnity obligations to City under this Agreement. City has relied
2578 on each of these factors, among others, in choosing Contractor to perform the services to be rendered by
Page 65 of 75 City of Carlsbad
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2579 Contractor under this Agreement.
2580 If Contractor requests City's consideration of and consent to an assignment, City may deny or approve
2581 such request in its sole discretion at a regularly scheduled meeting of the City Council. No request by
2582 Contractor for consent to an assignment need be considered by City unless and until Contractor has met
2583 requirements A -E below. The City may, in its sole discretion, waive one (1) or more of the following
2584 requirements:
2585 A.
2586
2587
2588 B.
2589
2590
2591
2592
2593
2594
2595 C.
2596
2597 D.
2598
2599
2600
2601
2602
2603
2604
2605
2606
2607
2608
2609
2610
2611 E.
2612
2613
On the date the Contractor submits a written request for the City's written consent of an
assignment, Contractor shall pay the City a Transfer fee in the amount of one percent (1%) of the
Gross Receipts for the most-recently completed Rate Period.
Contractor shall pay City its actual expenses for attorneys', consultants', accountants' fees, staff
time, and investigation costs necessary to investigate the suitability of any proposed assignee,
and to review and finalize any document required as a condition for approving any such
assignment. Such payment shall be required regardless of the ultimate determination of the City
regarding the approval or denial of the assignment. Upon submittal of Contractor's request for
assignment to City, Contractor shall submit an initial deposit of one hundred thousand dollars
($100,000) for this purpose.
Contractor shall furnish City with reviewed financial statements of the proposed assignee's
operations for the immediately preceding three (3) operating years.
Contractor shall furnish City with satisfactory proof: (i) that the proposed assignee has at least ten
(10) years of Recyclable Materials, Organic Materials, and Solid Waste management experience
on a scale equal to or exceeding the scale of operations conducted by Contractor under this
Agreement; (ii) that in the last five (5) years, the proposed assignee has not suffered any citations
or other censure from any Federal, State or local contractor having jurisdiction over its waste
management operations due to any significant failure to comply with State, Federal or local waste
management laws and that the assignee has provided the City with a complete list of such
citations and censures; (iii) that the proposed assignee has at all times conducted its operations
in an environmentally safe and conscientious fashion; (iv) that the proposed assignee conducts its
operations and management practices in accordance with sound waste management practices in
full compliance with all Federal, State, and local laws regulating the Collection, Transportation,
Processing and Disposal of Recyclable Materials, Organic Materials, and Solid Waste including
Hazardous Waste; and, (v) that any other information required by City demonstrates that the
proposed assignee can fulfill the terms of this Agreement in a timely, safe and effective manner.
Contractor shall provide the City with any and all additional records or documentation which, in
the City Contract Manager's sole determination, would facilitate the City's review of the proposed
assignment.
2614 Under no circumstances shall any proposed assignment be considered by City if Contractor is in default at
2615 any time during the period of consideration. If, in the City Contract Manager's sole determination, there
2616 is any doubt regarding the compliance of the Contractor with the Agreement, City Contract Manager may
2617 require an audit of the Contractor's compliance and the costs of such audit shall be paid by Contractor in
2618 advance of the performance of said audit.
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2619 12.7 NO THIRD-PARTY BENEFICIARIES
2620 This Agreement is not intended to, and will not be construed to, create any right on the part of any third
2621 party to bring an action to enforce any of its terms.
2622 12.8 WAIVER
2623 The waiver by either Party of any breach or violation of any provisions of this Agreement shall not be
2624 deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach of
2625 violation of the same or any other provision. The subsequent acceptance by either Party of any monies
2626 which become due hereunder shall not be deemed to be a waiver of any pre-existing or concurrent breach
2627 or violation by the other Party of any provision of this Agreement.
2628 12.9 NOTICE PROCEDURES
2629 All notices, demands, requests, proposals, approvals, consents, and other communications, which this
2630 Agreement requires, authorizes or contemplates, shall be in writing and shall either be personally
2631 delivered to a representative of the Parties at the address below or deposited in the United States mail,
2632 first class postage prepaid, addressed as follows:
2633 If to City:
2634 City of Carlsbad
2635 Attn: City Manager
2636 1200 Carlsbad Village Drive
2637 Carlsbad, CA 92008
2638
2639 City of Carlsbad
2640 Attn: Deputy City Manager, Public Works
2641 1635 Faraday Avenue
2642 Carlsbad, CA 92008
2643 City of Carlsbad
2644 Attn: Environmental Manager, Public Works
2645 1635 Faraday Ave
2646 Carlsbad, CA 92008
2647 With a copy to:
2648 City of Carlsbad
2649 Attn; City Attorney
2650 1200 Carlsbad Village Drive
2651 Carlsbad, CA 92008
2652 If to Contractor:
2653 General Manager
2654 Allied Waste Systems, Inc.
2655 8364 Clairemont Mesa Blvd.
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2656
2657
2658
San Diego, CA 92111
(858) 576-5715
2659 With a copy to:
2660 General Counsel's Office
2661 Chief Legal Officer
2662 18500 North Allied Way
2663 Phoenix, Arizona 85054
2664
2665 The address to which communications may be delivered may be changed from time to time by a notice
2666 given in accordance with this Section. Notice shall be deemed given on the day it is personally delivered
2667 or, if mailed, three (3) calendar days from the date it is deposited in the mail. Either Party may choose to
2668 provide email notification to the other Party that notice has been deposited in the mail, however such
2669 email notification shall not constitute official notice.
2670 12.10 REPRESENTATIVES OF THE PARTIES
2671 References in this Agreement to the "City" shall mean the City's elected body and all actions to be taken
2672 by City except as otherwise provided in this Section 12.10. Each reference to an act performed by, or
2673 obligation of the City Contract Manager in this Agreement is itself a delegation of authority from the City.
2674 The City may delegate, in writing, further authority to the City Contract Manager and/or to other City
2675 officials and may permit such officials, in turn, to delegate in writing some or all of such authority to
2676 subordinate officers. The Contractor may rely upon actions taken by such delegates if they are within the
2677 scope of the authority properly delegated to them.
2678 The Contractor shall, by the Effective Date, designate in writing a responsible officer who shall serve as
2679 the representative of the Contractor in all matters related to the Agreement and shall inform City in
2680 writing of such designation and of any limitations upon his or her authority to bind the Contractor. City
2681 may rely upon action taken by such designated representative as actions of the Contractor unless they
2682 are outside the scope of the authority delegated to him/her by the Contractor as communicated to City.
2683 ARTICLE 13.
2684 MISCELLANEOUS AGREEMENTS
2685 13.1 ENTIRE AGREEMENT
2686 This Agreement is the entire agreement between the Parties with respect to the subject matter hereof
2687 and supersedes all prior and contemporaneous oral and written agreements and discussions. Each Party
2688 has cooperated in the drafting and preparation of this Agreement and this Agreement shall not be
2689 construed against any Party on the basis of drafting. This Agreement may be amended only by an
2690 agreement in writing, signed by each of the Parties hereto.
2691 13.2 SECTION HEADINGS
2692 The article headings and section headings in this Agreement are for convenience of reference only and
2693 are not intended to be used in the construction of this Agreement nor to alter or affect any of its
2694 provisions.
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2695 13.3 REFERENCES TO LAWS
2696 All references in this Agreement to laws and regulations shall be understood to include such laws as they
2697 may be subsequently amended or recodified, unless otherwise specifically provided herein.
2698 13.4 AMENDMENTS
2699 This Agreement may not be modified or amended in any respect except in writing signed by the Parties.
2700 13.5 SEVERABILITY
2701 If any non-material provision of this Agreement is for any reason deemed to be invalid and unenforceable,
2702 the invalidity or unenforceability of such provision shall not affect any of the remaining provisions of this
2703 Agreement, which shall be enforced as if such invalid or unenforceable provision had not been contained
2704 herein.
2705 13.6 COUNTERPARTS
2706 This Agreement may be executed in counterparts, each of which shall be considered an original.
2707 13.7 EXHIBITS
2708 Each of the Exhibits identified as Exhibit "A" through 'T' is attached hereto and incorporated herein and
2709 made a part hereof by this reference. Except as described in Section 8.1 related to Exhibit G3, in the event
2710 of a conflict between the terms of this Agreement and the terms of an Exhibit, the terms of this Agreement
2711 shall control. In the event of a conflict between Exhibit Gl or G6, and any other Exhibit(s), such other
2712 Exhibit(s) shall control.
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2713 IN WITNESS WHEREOF, this Agreement is entered by the Parties hereto in San Diego County, California on
2714 the day and year first above written.
2715
City of Carlsbad
A Municipal Corporation "CITY"
Matt Hall
Mayor
Scott Chadwick
City Manager
Date
The Foregoing Agreement Has been
Reviewed and Approval Is Recommended:
Paz Gomez Date
Deputy City Manager, Public Works
APPROVED AS TO FORM:
Celia Brewer
City Attorney
ATTEST:
Barbara Engelson
City Clerk
Date
Date
"CONTRACTOR"
-[gt~ Date S /; o/:z}
Sc otf=S te.r n e:r
Print Name of Signatory T~~S~n~L t1 .ilfJa_g er
_City_ Business License#
Resolution Number XXXX-XXX
Approved by City Council
Page 70 of 75 City of Carlsbad
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