HomeMy WebLinkAbout2021-12-14; City Council; Resolution 2021-290RESOLUTION NO. 2021-290
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, APPROVING AMENDMENT NO. 5 TO EXTEND AND AMEND THE
AGREEMENT FOR TRANSFER STATION AND DISPOSAL SERVICES WITH
PALOMAR TRANSFER STATION, INC. FOR OPERATION OF THE PALOMAR
TRANSFER STATION; AND AUTHORIZING THE CITY MANAGER OR DESIGNEE
TO EXECUTE ALL FUNCTIONS OF THE "CITY CONTRACT MANAGER" AS
DESCRIBED IN AMENDMENT NO. 5
EXHIBIT 1
WHEREAS, the City of Carlsbad is responsible for providing safe transport and disposal of solid
waste to ensure the safety, health and general welfare of the community; and
WHEREAS, an agreement dated June 1, 2002, was executed betweeri the City of Carlsbad and
Palomar Transfer Station, Inc., a wholly-owned subsidiary of Republic Services, Inc., or Republic, for
transfer station and disposal services, or PTS Agreement; and
WHEREAS, the city requires the continued services of Republic to operate the Palomar Transfer
Station; and
WHEREAS, on June 16, 2020, the City Council adopted Resolution No. 2020-111, authorizing
staff to negotiate with Republic to extend the term of the PTS Agreement for approximately five years;
and
WHEREAS, staff negotiated with Republic and prepared Amendment No. 5 to the PTS
Agreement, which extends the agreement term for approximately five years (effective July 1, 2022 and
expiring on May 31, 2027) and provides other services and programs that benefit the city and its
residents; and
WHEREAS, Amendment No. 5 is coterminous with the city's property lease with the County of
San Diego for the Palomar Transfer Station.
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NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL
COVENANTS, CONDITIONS, AND CONSIDERATION CONTAINED
HEREIN, CITY AND CONTRACTOR HEREBY AGREE AS
HEREINAFTER SET FORTH:
ARTICLE 1. CHANGES TO AGREEMENT
The Agreement shall be modified as follows:
1. Recitals. The above recitals are incorporated herein by reference and are made a part of
the Agreement.
2. Article 1, Definitions. The following additions or modifications are made to the definitions
listed in Article 1:
i. “AB 901” is hereby added to Article 1, Definitions as follows:
““AB 901” means Assembly Bill approved by the Governor of the State of California
on October 10, 2015, which amended Section 41821.5 of, amended, renumbered
and added Section 41821.6 of, and added Sections 41821.6 to, the Public
Resources Code, relating to solid waste, as amended, supplemented, superseded,
and replaced from time to time.”
ii. "Buyback/Drop-Off Center" is hereby removed and replaced in its entirety with
the following:
““Buyback/Drop-Off Center” means an area located at the Transfer Station
where the Contractor provides Self Haulers the opportunity to Divert Source
Separated Recyclable Materials from Disposal. Such Facility shall specifically
operate as a California Redemption Value buy-back center compliant with all
applicable laws. Contractor shall also Accept E-Waste, used Motor Oil and Filters,
used Cooking Oil, Batteries, and Cell phones from Self Haulers.”
iii. “Change in Law” is hereby added to Article 1, Definitions as follows:
““Change in Law” means any of the following events or conditions that has a
material and adverse effect on the performance by the Parties of their respective
obligations under this Agreement (except for payment obligations):
a. The enactment, adoption, promulgation, issuance, modification, or
written change in administrative or judicial interpretation of any Applicable
Law on or after the Effective Date; or,
b. The order or judgment of any governmental body, on or after the
Effective Date, to the extent such order or judgment is not the result of willful
or negligent action, error or omission or lack of reasonable diligence of City
or of the Contractor, whichever is asserting the occurrence of a Change in
Law; provided, however, that the contesting in good faith or the failure in good
faith to contest any such order or judgment shall not constitute or be
construed as such a willful or negligent action, error or omission or lack of
reasonable diligence.”
iv. "City Source Separated Organic Materials" is hereby removed and replaced in
its entirety with the following:
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““Organic Materials” means Yard Trimmings and Food Waste, individually or
collectively. No Discarded Material shall be considered Organic Material, unless it
is separated from Recyclable Material and Solid Waste.”
v. “Compostable Plastics” is hereby added to Article 1, Definitions as follows:
““Compostable Plastics” means plastic materials that meet the ASTM D6400
standard for Compostability.”
vi. “Construction and Demolition Debris (C&D)” is hereby added to Article 1,
Definitions as follows:
““Construction and Demolition Debris (C&D)” means discarded building
materials, packaging, debris, and rubble resulting from construction, alteration,
remodeling, repair, or demolition operations on any pavements, excavation
projects, houses, Commercial buildings, or other structures excluding Excluded
Waste. Construction and Demolition Debris also includes rocks, soils, tree
remains, and other Yard Trimmings which results from land clearing or land
development operations in preparation for construction “Construction and
Demolition Debris” includes Source-Separated C&D.””
vii. “City Contract Manager” is hereby added to Article 1, Definitions as follows:
““City Contract Manager” means the Person, or his designee, designated by the
City to administer and monitor the provisions of this Contract. The City Contract
Manager shall assume all duties of the “City official” for purposes of contract
administration as described in Section 16.11(A)”
viii. "Designated Hauler(s)" is hereby removed and replaced in its entirety with the
following:
““Designated Hauler(s)” means the entity or entities that, separate from this
Agreement, are contracted, licensed, permitted, or otherwise designated by the
City to collect Discarded Materials within the City.”
ix. “Discarded Materials” is hereby added to Article 1, Definitions as follows:
““Discarded Materials” means Recyclable Materials, Organic Materials, and
Solid Waste placed by a Generator in a receptacle and/or at a location for the
purposes of Collection by Contractor, excluding Excluded Waste.
x. “Diversion Guarantee” is hereby removed.
xi. “Divert (or Diversion)” is hereby removed and replaced in its entirety with the
following:
““Divert (or any variation thereof)” means to prevent Discarded Materials from
Disposal at landfill or transformation facilities, (including facilities using
incineration, pyrolysis, distillation, gasification, or biological conversion methods)
through source reduction, reuse, Recycling, Composting, anaerobic digestion or
other method of Processing, subsequent to the provisions of AB 939. Diversion is
a broad concept that is to be inclusive of material handling and Processing
changes that may occur over the Term including, but not limited to, changes in
standard industry practice or implementation of innovative (but not necessarily fully
proven) techniques or technology that reduce Disposal risk, decrease costs and/or
are for other reasons deemed desirable by the City. City requested changes in the
Diversion programs described in this Agreement are subject to 3.30.A.”
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xii. “Electronic Waste (E-Waste)” is hereby added to Article 1, Definitions as follows:
““Electronic Waste (E-Waste)” means discarded electronic equipment including,
but not limited to, televisions, computer monitors, central processing units (CPUs),
laptop computers, computer peripherals (including external hard drives,
keyboards, scanners, and mice), printers, copiers, facsimile machines, radios,
stereos, stereo speakers, VCRs, DVDs, camcorders, microwaves, telephones,
cellular telephones, and other electronic devices. Some E-Waste or components
thereof may be Hazardous Waste or include Hazardous Substances and thus
require special handling, Processing, or Disposal.”
xiii. “Emissions Standards” is hereby added to Article 1, Definitions as follows:
““Emissions Standards” means heavy duty vehicles, including subcontractors
fleet, must comply with California Air Resources Board (CARB) – Certified Best
Available Control Technology (BACT).”
xiv. “Food Scraps” is hereby added to Article 1, Definitions as follows:
““Food Scraps” means those Discarded Materials that will decompose and/or
putrefy including: (i) all kitchen and table Food Waste; (ii) animal or vegetable
waste that is generated during or results from the storage, preparation, cooking or
handling of food stuffs; (iii) fruit waste, grain waste, dairy waste, meat, and fish
waste; and, (iv) vegetable trimmings, houseplant trimmings and other
Compostable Organic Materials. Food Scraps are a subset of Food Waste.”
xv. “Food-Soiled Paper” is hereby added to Article 1, Definitions as follows:
““Food-Soiled Paper” means Compostable paper material that has come in
contact with Food Scraps or liquid, such as, but not limited to, Compostable paper
plates, paper coffee cups, napkins, pizza boxes, and milk cartons. Food-Soiled
Paper is a subset of Organic Materials.”
xvi. “Food Waste” is hereby added to Article 1, Definitions as follows:
““Food Waste” means Food Scraps, Food-Soiled Paper, and Compostable
Plastics. Food Waste is a subset of Organic Materials.”
xvii. “Force Majeure” is hereby deleted in its entirety and replaced with the following:
““Force Majeure” means an act of god (i.e. floods, earthquakes, tornadoes, and
other acts of nature), war, civil insurrection, riots, acts of any domestic government
(including judicial action), and other similar catastrophic events which are beyond
the Control of and not the fault of the Party claiming excuse from performance
whereby such unforeseen event makes it materially impossible or infeasible to
accomplish to fulfil the obligations of this Agreement. Performance shall only be
excused if the Party requesting relief from performance can specifically
demonstrate that the performance of a specific obligation is materially impossible
or infeasible to accomplish, and which are demonstrated to be impossible. All other
performance obligations that remain possible and feasible to accomplish, shall be
required to continue. Any event that makes contractual obligations (1) more
difficult, (2) more expensive, or (3) less profitable are not considered materially
impossible and force majeure is not applicable to such events.”
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xviii. "Fuel Baseline" is hereby amended as follows:
““Fuel Baseline” is the amount that the Contractor and City have agreed upon
and will be the value of the Fuel Component as of July 1, 2022, in accordance with
Exhibit A.
xix. “Generator” is hereby added to Article 1, Definitions as follows:
““Generator” means any Person whose act or process produces Discarded
Materials as defined in the Public Resources Code, or whose act first causes
Discarded Materials to become subject to regulation.”
xx. “Guarantor” is hereby added to Article 1, Definitions as follows:
““Guarantor” means the person or entity that is bound to fulfill the engagement
he has entered into.”
xxi. “Household Hazardous Waste (HHW)” is hereby added to Article 1, Definitions
as follows:
““Household Hazardous Waste (HHW)” means Hazardous Waste generated at
Residential Premises within the City. HHW includes: paint, stain, varnish, thinner,
adhesives, auto products such as old fuel, Used Motor Oil and Filter, Used Oil
Filter, batteries, fluorescent bulbs, tubes, cleaners and sprays, pesticides,
fertilizers and other garden products, needles, syringes, and lancets.”
xxii. “Mixed C&D” is hereby added to Article 1, Definitions as follows:
““Mixed C&D” means different types of C&D materials which are commingled in
the same container and intended to be delivered to a processing facility specifically
designed to separate the various material types from one another in order to create
homogeneous marketable commodities (e.g. metal, aggregate, wood, etc.) for
sale.”
xxiii. “Non-Source Separated C&D” is hereby added to Article 1, Definitions as follows:
““Non-Source Separated C&D” means a load consisting primarily of C&D that
has been delivered to Contrator by transfer station users and was not identified by
the deliverer as C&D.”
xxiv. “Organic Material(s)” is hereby added to Article 1, Definitions as follows:
““Organic Material(s)” means Yard Trimmings and Food Waste, individually or
collectively. No Discarded Material shall be considered to be Organic Materials,
however, unless it is separated from Recyclable Material and Solid Waste. Organic
Materials are a subset of Organic Waste.”
xxv. “Permitted Materials” is hereby deleted in its entirety and replaced with the
following:
““Permitted Materials” means all materials that the Facilities may receive under
their Permits and Applicable Law, including nonhazardous Solid Wastes, Sharps,
Recyclable Materials, Organic Materials, construction and demolition waste, and
other materials that may be Accepted and safely handled, Recycled, Reused, or
Disposed if such material cannot be diverted.”
xxvi. “Processing” is hereby added to Article 1, Definitions as follows:
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““Processing” or “Process” means to prepare, treat, or convert through some
special method in a manner that produces a marketable product or commodity.”
xxvii. “Processing Facility” is hereby added to Article 1, Definitions as follows:
““Processing Facility” means any plant or site used for the purpose of sorting,
screening, cleansing, treating, composting, and/or reconstituting Discarded
Materials for the purpose of making such material available for productive
economic uses including the production of commodities, aggregates, soils, or other
resources.”
xxviii. “PTS Construction and Demolition Fee” is hereby added to Article 1, Definitions
as follows:
““PTS Construction and Demolition Fee” is the per-Ton compensation due to
the Contractor from the Designated Hauler(s) for Acceptance of Designated
Hauler(s) Construction and Demolition Debris, and for Construction and
Demolition Debris from Self Haulers, during the Initial PTS Operating Period,
Subsequent Operating Period, and CTS Contractor Operating Period. The PTS
Construction and Demolition Fee is comprised in total of the Base Component, the
Fuel Component, and the Governmental Fee Component.”
xxix. "PTS Organic Fee - Alternative Daily Cover" is is hereby deleted in its entirety
from Article 1, Definitions.
xxx. "PTS Organic Fee - Compost" is hereby deleted in its entirety from Article 1,
Definitions.
xxxi. “PTS Organic Fee(s)” is hereby deleted in its entirety and replaced with the
following:
““PTS Organic Fee(s)” means the per-Ton compensation due to the Contractor
from the Designated Hauler(s) for the Acceptance of City Source Separated
Organic Material during the Initial PTS Operating Period, Subsequent Operating
Period, and CTS Contractor Operating Period. The PTS Organic Fees also include
the Base Component, the Fuel Component, and the Governmental Fee
Component.”
xxxii. “PTS Solid Waste Fee" is hereby deleted in its entirety and replaced with the
following:
““PTS Solid Waste Fee" is the per-Ton compensation due to the Contractor from
the Designated Hauler(s) for Acceptance of City Franchise Solid Waste during the
Initial PTS Operating Period, Subsequent Operating Period, and CTS Contractor
Operating Period. The PTS Solid Waste Fee is comprised in total of the Base
Component, the Fuel Component, and Governmental Fee Component.”
xxxiii. “Recovered Materials” is hereby deleted in its entirety and replaced with the
following:
xxxiv.““Recovered Materials” means any Discarded Material that has been Recovered
at the Transfer Station from Discarded Materials.”
xxxv. “Recovery (or Recover, Recovered or other variations thereof)” is hereby
deleted in its entirety and replaced with the following:
““Recovery (or any variation thereof)” means the picking, pulling, sorting,
separating, classifying, and recovery of any material which may be Diverted from
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landfilling from Permitted materials whether by manual or mechanical means; at
the Transfer Station or Processing Facility, after Acceptance of Permitted Materials
and before marketing of Recovered Materials.”
xxxvi. “Recycle (or Recycling, or other variations thereof)” is hereby added to Article
1, Definitions as follows:
““Recycle (or any variation thereof)” means the Process of sorting, cleansing,
treating, and reconstituting at a Recyclable Materials Processing Facility materials
that would otherwise be Disposed of at a landfill for the purpose of returning such
materials to the economy in the form of raw materials for new, reused, or
reconstituted products. Recycling includes Processes deemed to constitute a
reduction of landfill Disposal pursuant to 14 CCR, Division 7, Chapter 12, Article
2. Recycling does not include gasification or transformation as defined in Public
Resources Code Section 40201.
xxxvii. “Recyclable Material(s)” is hereby added to Article 1, Definitions as follows:
““Recyclable Materials” means those Discarded Materials that: the Generators
set out in Recyclables Containers for Collection for the purpose of Recycling by
the Contractor and that exclude Excluded Waste. No Discarded Materials shall be
considered Recyclable Materials unless such material is separated by the
generator or Customer from Organic Materials and Solid Waste. Recyclable
Materials shall include, but not be limited to: newspaper (including inserts,
coupons, and store advertisements); mixed paper (including office paper,
computer paper, magazines, junk mail, catalogs, brown paper bags, brown paper,
paperboard, paper egg cartons, telephone books, grocery bags, colored paper,
construction paper, envelopes, legal pad backings, shoe boxes, gabletop
beverage containers, cereal, and other similar food boxes yet excluding paper
tissues, paper towels, paper with plastic coating, paper contaminated with food,
wax paper, foil-lined paper and cartons, and Tyvex non-tearing paper envelopes);
chipboard; corrugated Cardboard; glass containers of any color (including brown,
clear, and green glass bottles and jars); aluminum (including beverage containers
and small pieces of scrap metal); steel, tin, or bi-metal cans; mixed plastics such
as plastic containers (no. one (1) to seven (7)), except expanded Polystyrene
(EPS); bottles including containers made of HDPE, LDPE, or PET; film plastic
(when clean, dry, and contained inside of a plastic bag); and, those materials
added by the Contractor from time to time.”
xxxviii. “SB 1383” is hereby added to Article 1, Definitions as follows:
xxxix. ““SB 1383” means Senate Bill 1383 of 2016 approved by the Governor on
September 19, 2016, which added Sections 39730.5, 39730.6, 39730.7, and
39730.8 to the Health and Safety Code, and added Chapter 13.1 (commencing
with Section 42652) to Part 3 of Division 30 of the Public Resources Code,
establishing methane emissions reduction targets in a statewide effort to reduce
emissions of short-lived climate pollutants as amended, supplemented,
superseded, and replaced from time to time. For the purposes of this Agreement,
SB 1383 specifically refers to the Short-Lived Climate Pollutants (SLCP): Organic
Waste Reductions regulations developed by CalRecycle that created Chapter 12
of 14 CCR, Division 7 and amended portions of regulations of 14 CCR and 27
CCR.”
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xl. “Solid Waste” is hereby deleted in its entirety and replaced with the following:
““Solid Waste” means Solid Waste as defined in California Public Resources
Code, Division 30, Part 1, Chapter 2, §40191 and regulations promulgated
hereunder. Excluded from the definition of Solid Waste are Excluded Waste, C&D,
Source Separated Recyclable Materials, Source Separated Organic Materials, and
radioactive waste. Notwithstanding any provision to the contrary, Solid Waste may
include de minimis volumes or concentrations of waste of a type and amount
normally found in Residential Solid Waste after implementation of programs for the
safe Collection, Recycling, treatment, and Disposal of Household Hazardous
Waste in compliance with Section 41500 and 41802 of the California Public
Resources Code as may be amended from time to time. Solid Waste includes
salvageable materials only when such materials are included for Collection in a
Solid Waste Container not Source Separated from Solid Waste at the site of
generation.
xli. “Solid Waste Franchise Agreement” is hereby added to Article 1, Definitions as
follows:
““Solid Waste Franchise Agreement” means the fully-executed Franchise
Agreement between Allied Waste Systems, Inc., and City, dated April 6, 2021.”
xlii. “Source Separated C&D” is hereby added to Article 1, Definitions as follows:
““Source Separated C&D” means C&D that is separated by the generator and/or
deliverer into homogeneous material types (e.g. metals, aggregate, wood, drywall,
etc.) and separate from other types of C&D materials. Source Separated C&D is a
subset of C&D.”
xliii. “Sustainable Materials Management Program Fee” is hereby added to Article
1, Definitions as follows:
““Sustainable Materials Management Program Fee” means the amount
charged by City to Customer, and payable by Customer to City for use of Palomar
Transfer Station (PTS). As used in this definition, “Customer” means Self Haulers
and other commercial haulers and does not include Designated Hauler(s).”
xliv. "Uncontrollable Circumstance" is hereby removed and replaced in its entirety
with the following:
““Uncontrollable Circumstance” means any act, event, or condition, which
could not reasonably have been anticipated and prevented, outside either Party's
control and not the result of willful or negligent action or inaction on the part of such
Party, whether affecting the Facilities or either Party, which materially and
adversely Affects the ability of either Party to perform any of its obligations
hereunder, including:
1. The failure of any appropriate federal, State, City or local public agency or
private utility having operational jurisdiction in the area in which the Facilities
are located, to provide and maintain utilities, services, sewer or power
transmission lines to the Facilities, or to grant governmental Permits, consents
and/or approvals despite the best efforts of Contractor, which are required for
Facility operation or capital improvements.
2. A Change in Law other than a Change in Law excluded under subsection a) of
this definition;
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3. A Force Majeure event that temporarily or permanently interrupts Facility
operations or capital improvements; but excluding:
a) Adverse changes in the financial condition of either Party or any
change in law with respect to any taxes based on or measured by net
income, or any unincorporated business, payroll, franchise or
employment taxes;
b) The consequences of grossly negligent errors in Facility operation or
capital improvements on the part of the Contractor, its employees,
agents, subcontractor or Affiliates, including grossly negligent errors in
plans and specifications for capital improvements that should
reasonably have been identified by the Contractor, or the Operations
and Maintenance Manual or failure to comply therewith;
c) The failure of the Contractor to secure Permits, patents, technical
licenses, trademarks, and the like necessary for Facility operations or
capital improvements, if due to the Contractor’s failure to use best
efforts.
d) Labor actions of the Contractor's employees or subcontractors,
including, but not limited to, labor dispute or labor unrest such as a
strike, work stoppage or slowdown, sick-out, picketing, or other
concerted job action.”
xlv. “Yard Trimmings” is hereby added to Article 1, Definitions as follows:
““Yard Trimmings” means those Discarded Materials that will decompose and/or
putrefy, including, but not limited to, green trimmings, grass, weeds, leaves,
prunings, branches, dead plants, brush, tree trimmings, dead trees, small pieces
of unpainted and untreated wood, and other types of Organic Materials resulting
from normal yard and landscaping maintenance. Yard Trimmings does not include
items herein defined as Excluded Waste. Yard Trimmings are a subset of Organic
Materials.”
3. Section 2.04, PTS Operating Period.
Section 2.04(A-C) is hereby removed in their entirety and replaced with the following:
“On the Effective Date of this amendment, any reference to Section 2.04(A-C) including
Initial PTS Operating Period, Subsequent Operating Period, and City Use Period, shall
refer to Section 2.04, “PTS Operating Period” as defined herein. The PTS Operating
Period shall run concurrently with the Term of the PTS Lease, by and between the Parties,
with a current expiration date of May 31, 2027.
City / PTS Sublease Term. The parties acknowledge that Section 3 of the City / PTS
Sublease provides that the term of the PTS Sublease shall continue for such period of
time as Contractor is permitted to occupy the Premises as contemplated under this
Transfer Station Agreement.
County Master Lease Term. The parties further acknowledge that the Initial Term of the
City / County Master Lease (as defined therein) is scheduled to expire on May 31, 2027.
Pursuant to Section 3.1 of the Master Lease, the City has certain Option Periods to extend
the Term of the Master Lease.
The Contractor shall continue to lease the Transfer Station from the City pursuant to the
“Sublease Agreement for Palomar Transfer Station” between the City and Contractor
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dated June 1, 2002 (“PTS Lease”), for the Term of this Transfer Station and Disposal
Agreement, and as it may be extended by mutual agreement of the parties.
At least one year before the expiration of the Master Lease and PTS Lease, if requested
by Contractor, the City and Contractor shall meet and confer to discuss: (a) whether the
City will exercise options to extend the Master Lease with the County for additional
periods; and (b) whether the parties will mutually agree to extend the Term of this
Agreement and the PTS Lease between the City and Contractor for the Palomar Transfer
Station.
The PTS Operating Period is the time period when the Contractor operates and maintains
the Transfer Station and the City guarantees Delivery of City Solid Waste by or on behalf
of the City and its Designated Hauler(s) to the Transfer Station. City has the sole option
to direct Construction and Demolition (C&D) material (including Self-Haul material) and
Organic Material by or on behalf of City Designated Hauler to the Transfer Station.”
If C&D material is Disposed of (without approval from the City), the hauler (including Self-
Haulers) shall be charged an additional fee equal to the Service Fee defined herein.”
4. 3.01, General.
Section 3.01 is hereby removed and replaced in its entirety with the following:
“The Contractor shall provide, in accordance with Standard Industry Practices, Transfer
Station Services described in this Section during the Initial PTS Operating Period,
Subsequent Operating Period, and CTS Contractor Operating Period. The Contractor's
obligations with regard to Transfer Station services during the Initial PTS Operating
Period, Subsequent Operating Period, and CTS Contractor Operating Period shall be the
same unless otherwise noted in this Article or elsewhere in this Agreement or unless
required by a Permit including any Permit issued by the City associated with its land use
regulatory responsibilities.
The Contractor shall retain all payments from the City’s Designated Hauler for Contractor’s
services provided under this agreement.”
5. 3.02, Palomar Transfer Station Capital Improvements.
i. (C) Monthly Progress Report.
Section 3.02(C) is hereby deleted in its entirety and replaced with the following:
“Following the Effective Date, upon the inception of any new capital improvement
projects described below, and, in either case, until all capital improvement projects
are completed, the Contractor shall provide a monthly written progress report to
the City describing commenced, on-going, and all, if any, completed capital
improvement projects since previous reports; and compare such progress with the
completion dates provided in Exhibit E, if applicable. Upon the City's request, the
Contractor shall meet with the City to discuss the status of the capital improvement
projects.
Any current and future capital improvement projects not currently listed in Exhibit
E shall first be presented, in writing, to and approved by, the City Contract Manager
before Contractor applies for any Permit issued by the City associated with its land
use regulatory responsibilities. The presentation to the City Contract Manager for
future capital improvement projects must include: (1) Contractor’s timeline for
completion; (2) verifiable, documented cost; and (3) a yearly amortization schedule
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showing the total number of years necessary to amortize the capital improvement
project.
The requirements of this Section shall also apply to any current capital
improvement project for which Contractor has already applied to the City for a
Permit for land use related review.”
6. 3.05, General Description of Operating Requirements.
Section 3.05 is hereby retitled “Operations and Maintenance Standards”.
i. (D):
Section 3.05(D) is hereby amended to read as follows:
“Recovering Non-Source Separated C&D from self-haul loads in the manner described
in Section 3.30(E) and Transferring Recyclable Materials, Organic Materials, C&D
Debris, and any other materials that have been source separated by generators or
customers prior to delivery to the PTS facility for the purpose of Diversion from City
Waste;”
ii. (E):
Section 3.05(E)is hereby amended to read as follows:
“Transferring Solid Waste and any material that cannot be diverted, into large-capacity
Transport trailers or containers”
iii. (F):
Section 3.05(F) is hereby amended to read as follows:
“Transferring Recyclable Materials, Organic Materials, and C&D.”
iv. (H):
“Utilizing Best management Practices (BMPs) related to managing dust, odors, litter,
vectors, and other potential nuisances in addition to complying with any and all Storm
Water Requirements imposed by the City, local and regional enforcement agencies,
and the National Pollutant Discharge Elimination System (NPDES) requirements
under federal law.”
7. Section 3.12, Litter and Vectors
Section 3.12 is hereby retitled “Litter, Vectors and Stormwater Controls” and is
amended to add:
“In accordance with the stormwater trash amendments to the City’s National Pollutant
Discharge Elimination System Permit and the City’s stormwater regulations, the
Contractor shall implement and maintain a litter control program that effectively prevents
all litter greater than 5mm from entering the stormwater conveyance system to achieve
full capture system equivalency. The Contractor shall diligently monitor and remove litter
and debris that accumulates on site and along major arterial roads as specified by the
conditional use permit, due to operations of the facility (including litter which may have
blown from the site or resulted from the operations at the site). Where compliance cannot
be consistently maintained, the City may require installation of full litter capture systems
consistent with the Trash Amendments.”
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8. Section 3.25, (G) Records.
Section 3.25(G) is hereby deleted in its entirety and replaced with the following:
““(G) Records.”
In accordance with Article 13, the Contractor shall maintain scale records for all material
types and all account types, and shall record information such as, but not limited to,
inbound and outbound weights of vehicles, vehicle identification number, jurisdiction of
origin of materials received, type of material, hauler identification and/or classification,
type, weight, and destination of outbound materials. All such records shall be available for
inspection and/or provided to the City upon five (5) days’ request .”
9. 3.27, Vehicle Turnaround Time.
Section 3.27 is hereby deleted in its entirety and replaced with the following:
““Section 3.27, Vehicle Turnaround Time.”
The Contractor shall operate the Transfer Station so that all City and Designated Hauler
Delivery vehicles Delivering Permitted Materials are processed from the scale house
weighing operation, including time from unload to exiting the facility, in no more than thirty
(30) minutes (Maximum Vehicle Turnaround Time) during the normal course of business
and operations. For example, this time limit will not apply to driver rest breaks, vehicle
breakdowns and other similar occurrences. Contractor shall also prohibit any Designated
Hauler vehicles from regularly queuing into the street. The burden of proving that the
Maximum Vehicle Turnaround Time has been exceeded will be on the City’s Designated
Hauler. Should the Contractor fail to meet the Maximum Vehicle Turnaround Time, it shall
pay liquidated damages stated in Section 15.04.
Should the waiting times at the Transfer Station for Self Haulers exceed current levels
described in this Section 3.27, at the request of either party, the Contractor and City shall
meet and confer to discuss possible measures to reduce waiting times for Self Haulers.”
10. Section 3.28, Buy-Back/Drop-Off Center is hereby removed in its entirety and replaced
with the following:
“A. Operations. The Contractor shall operate and staff the Buy-Back/Drop-Off
Center 8:00 a.m. to 4:00 p.m., Monday through Saturday. The Buy-Back/Drop-Off
Center shall Accept Source Separated Recyclable Materials and additional
materials from Self-Haulers as described in Section 3.28 (B –D) below.
B. Buy-Back Center. Contractor shall Accept Recyclable Materials and shall
operate a Certified California Redemption Value Buy-Back Center, open to the
public, at the days and hours of operation identified in Section 3.28(A). Acceptable
Recyclable Material, absent mutual approval by the Parties to include additional
materials as described in Section 3.28 (D) below, shall be Source Separated
California Redemption Value beverage containers, mixed paper, corrugated
cardboard, newspaper, and white ledger paper. The Contractor shall Deliver the
Recyclable Materials received to a Processing Facility and may retain any
revenues from the sale of such materials.
C. Drop-Off Center. Contractor shall Accept Source Separated non-redemption
value glass containers and other Source Separated Recyclable Material Delivered
by Self-Haulers, which may be purchased at the Contractor’s discretion. The
Contractor shall Deliver the Recyclable Materials received at the Drop-Off Center
to a Processing Facility and may retain any revenues from the sale of such
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materials.
D. Additional Materials. The Contractor shall additionally Accept E-Waste,
Sharps, used Motor Oil and Filters, used Cooking Oil, Batteries, and Cell phones,
which shall be prioritized for Recycling or, where Recycling is not possible,
Disposed of in accordance with Applicable Law. These services shall be offered to
City Residents at no charge. The City and Contractor may meet and confer
whenever either party believes Additional Materials can be feasibly Recycled or
Diverted. Any additions to the accepted materials list for any of the programs
described in this Section 3.28 shall be approved in writing by the City Contract
Manager and Contractor’s Contract Administrator. In the event that such changes
result in a change in Rates charged by Contractor under this Agreement, such
changes must be approved by the City ContractManager.”
11. Section 3.30, Material Recovery Activities is replaced in its entirety with the
following:
“A. Diversion Goals. The Contractor acknowledges the City’s goal of resource
conservation, which prioritizes management of the waste stream using the
following hierarchy: waste reduction, reuse, Recycling, composting, and Disposal.
The Contractor acknowledges that the City, its residents, and businesses must
achieve or exceed compliance with State solid waste and recycling requirements,
including but not limited to AB 939, AB 341, AB 1826, SB 1383, and all current and
future related regulations. Contractor further acknowledges that Contractor’s
material Recovery activities performed at the Transfer Station, as specifically
defined in this Section 3.30 of this amendment, are intended to assist the City in
meeting its Diversion Goals. Further, Contractor will comply with applicable
provisions of SB 1383, especially related to the modifications to Title 14 and AB
901, as they directly pertain to Contractor’s obligations under this Agreement
and/or the operation of the PTS.
City may direct C&D and/or Bulky Goods to a different facility if said facility will
produce a higher Diversion rate for any or all such material types, provided that, at
the request of either party, Contractor’s rates shall be adjusted to reflect any
increased or decreased transportation, processing and/or disposal costs
associated with the City’s direction to Contractor to use any such different facility.
Contractor agrees to meet and confer with the City, as described in subsection G
below, regarding expanding and/or enhancing diversion opportunities for residents
and businesses in the City as opportunities to increase diversion through statewide
programs or policy, regional cooperation, or economic conditions allow.
B. White Goods. The Contractor shall Accept and Divert all White Goods
Delivered to the Transfer Station, regardless of whether they have been separated
by Transfer Station users. The Contractor shall handle, Recover, Process, and
market such White Goods in accordance with Applicable Law. The Contractor may
seek reimbursement from the Transfer Station Users Delivering White Goods by
establishing Service Fees for Acceptance of White Goods.
C. Brown Goods. The Contractor shall Accept and Divert all Brown Goods
Delivered to the Transfer Station, regardless of whether they have been separated
by Transfer Station users. The Contractor shall handle, Recover, Process, and
market such Brown Goods in accordance with Applicable Law. The Contractor may
seek reimbursement from the Transfer Station Users Delivering Brown Goods by
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establishing Service Fees for Acceptance of Brown Goods.
D. Bulky Goods. The Contractor shall Accept Bulky Goods Delivered to the
Transfer Station and may charge the same rate for such Bulky Goods as the
Disposal Rate. Contractor shall make every effort to direct Facility Users that have
Bulky Goods first to a separate drop off area for those Bulky Goods. If Facility
Users refuse or otherwise fail to Deliver them to a separate area, Contractor shall
use best efforts to Recover the Bulky Goods prior to any mechanical interaction
with the Bulky Goods or the pile of materials that the Bulky Goods are in or adjacent
to. Contractor shall establish a designated storage area at the site for staging Bulky
Goods that are of a quality suitable for Reuse. Contractor shall coordinate with one
or more Reuse partners (e.g., Goodwill, Salvation Army, St Vincent De Paul, DAV,
etc.) to provide them opportunity, at a regular frequency convenient to them, to
review and take Bulky Goods placed in the storage area. Contractor shall
specifically identify frequent types of Bulky Goods and seek out Reuse partners
that have uses or markets for those materials. When Bulky Goods are not good
candidates for Reuse, Contractor may Deliver these materials to a mixed C&D
Processing Facility in an effort to Recover metals, wood, and other valuable
materials. Contractor shall not Dispose of Bulky Goods without first using best
efforts to have them Reused or Processed.
E. Construction & Demolition. The Contractor shall Accept Mixed C&D and
Source Separated C&D Delivered to the Transfer Station by all Facility Users.
Contractor shall establish a designated loading bay for C&D, store C&D separate
from other Discarded Materials, and transport and Deliver all C&D to a C&D
Processing Facility approved by the City, and ensure that such Processing Facility
Processes the C&D. Contractor shall make every effort to direct Facility Users that
have C&D to the separate receiving area for C&D. The designated loading bay for
C&D may rotate in location based on Contractor’s operational needs, however
Contractor must receive C&D through an individual loading bay and not some other
receiving area at the Palomar Transfer Station.
If Facility Users refuse or otherwise fail to Deliver C&D to the designated area,
Contractor shall use its best efforts to Recover the non-Source Separated and
Mixed C&D using a loader or excavator prior to any mechanical interaction with
the C&D or the pile of materials that the C&D is in or adjacent to. Contractor must
use photographic evidence to demonstrate amounts of C&D that could not be
Diverted and shall promptly produce such photographic evidence to the City
Contract Manager upon request. Such Recovered C&D shall be placed by
Contractor in the designated receiving area for C&D and delivered with other C&D
to the C&D Processing Facility. Contractor may charge rates for such services,
however such rate may not exceed the Disposal Rate and Contractor shall offer a
ten dollar ($10.00) per ton discount, relative to the Mixed C&D Rate, to Customers
Delivering clean, Source-Separated, loads of an individual type of C&D material
(e.g. rock, wood, metal, drywall, etc.).
F. Measurement of Diversion. The Contractor shall document the quantity of
White Goods, Brown Goods, Bulky Goods, Recyclable Materials, Organic
Materials, Carpet, Mattresses, and C&D Debris that have been Recovered or kept
separated from Discarded Materials Transported by Self-Haulers and Designated
Hauler(s) and commercial haulers at the Transfer Station, and shall document the
quantity of Diverted material from Disposal. The Diversion reporting shall
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separately report the Disposal and Diversion for the following types of users: i)
City’s Designated Hauler; ii) Self-Haulers originating from the City; iii) Non-City
originating commercial haulers; iv) Commercial haulers originating from the City;
and v) Non-City originating Self-Haulers. The Contractor will calculate and
measure Diversion on a monthly basis using a methodology acceptable to the City
and shall report thereon in accordance with reporting requirements in Article 13.
G. City-Requested Diversion Programs. In the event that City identifies
opportunities to implement new stewardship programs to increase diversion and/or
expand the list of Accepted materials in the programs identified herein Section
3.30, City may request a proposal from Contractor to implement such new or
expanded Diversion programs. City’s request shall identify the specific desired
stewardship program elements including targeted materials, anticipated methods
of Delivery to Contractor, and any information available to City regarding how
similar stewardship programs are operated elsewhere or sources of available
funding for the program. Contractor shall provide a proposal to the City within sixty
(60) days of City’s request and such proposal shall describe: i) Contractor’s
approach to implementing the new or expanded stewardship program including
any operational and/or safety considerations; ii) Contractor’s estimates of the
quantities of targeted materials Recovered through the stewardship program; iii)
anticipated Processing Facility for or disposition of the targeted materials; iv)
Contractor’s anticipated changes to labor and or equipment requirements, if any;
and, v) Contractor’s anticipated incremental changes to Contractor’s direct
operating costs. Contractor shall also calculate and include in the proposal an
“incremental cost per ton” by calculating the dividend of: the Contractor’s
incremental changes to direct operating costs, divided by the total Tonnage of all
materials received by the Transfer Station in the prior calendar year. The City shall
review the proposal and may request additional supporting documentation,
calculations, or other information necessary to evaluate the reasonableness of
Contractor’s proposal. In the event that the incremental cumulative cost per ton
agreed upon by the City and Contractor for all current and anticipated stewardship
programs is estimated to be less than twenty five cents ($0.25), Contractor shall
implement the program at no additional cost to City and without any adjustment to
Rates charged under this Agreement. In the event that the cumulative, incremental
cost per ton for all current and anticipated stewardship programs is estimated to
be equal to or greater than twenty five cents ($0.25), the City shall be required to
make an adjustment to Contractor’s Compensation under this Agreement in the
amount of the incremental cost per ton. However, the adjustment to Contractor’s
Compensation under this Agreement shall be limited to those rates regulated
under this Agreement and Contractor will have the option of adjusting other rates.
H. Carpet Recycling. The Contractor shall Accept all carpet Delivered to the
Transfer Station at no charge, except as provided below. Contractor shall make
every effort to direct Facility Users that have carpet first to a separate area.
Contractor shall use best efforts to Recover the carpet prior to any mechanical
interaction with the carpet. Contractor shall establish a designated storage area at
the site for staging carpet. Contractor shall seek out and coordinate with Carpet
America Recovery Effort (CARE), a statewide recycling program designed and
implemented by carpet manufacturers with CalRecycle oversight. Contractor and
the CARE program will coordinate to select a partner to implement a carpet
recycling program. If carpet cannot be Recovered by the carpet recycling program
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except at a cost to Contractor, Contractor will meet and confer with the City. Prior
to such a charge, City must agree in writing on an appropriate fee to be charged
to Customers for the recycling of carpet materials.
I. Mattress Recycling. The Contractor shall Accept all mattresses Delivered to the
Transfer Station at no charge. Contractor shall make every effort to direct Facility
Users that have mattresses first to a separate drop off area for those mattresses.
If Facility Users refuse or otherwise fail to Deliver them to a separate area,
Contractor shall use best efforts to Recover the mattresses prior to any mechanical
interaction with the mattresses or the pile of materials that the mattresses are in or
adjacent to. Contractor shall establish a designated storage area at the site for
staging mattresses. Contractor shall seek out and coordinate with the Mattress
Recycling Council (MCR), a statewide recycling program designed and
implemented by mattress manufacturers with CalRecycle oversight.”
12. Section 3.34, Ownership of Permitted Materials.
Section 3.34 is hereby removed in its entirety and replaced with the following:
“Once Discarded Materials are Delivered to the Transfer Station, ownership and the right
to possession of such material shall Transfer directly from the Person Delivering such
material to the Contractor. The Contractor is hereby granted the right to retain, Recycle,
Process, or Dispose of this material subject to:
A. The Contractor’s required performance as specifically described herein to
assist the City in meeting its Diversion goals subject to Section 3.30; and,
B. City’s right to direct the Contractor to Process Discarded Materials at a
particular Processing Facility, upon City providing thirty (30) day notice to
Contractor.
Subject to the provisions of this Agreement, the Contractor shall have the right to retain
any benefit resulting from its right to retain, Recycle, Process, Dispose of, or Reuse the
Discarded Materials which it receives subject to the provision of this Agreement. Solid
Waste, or any part thereof, which is Disposed of at a Disposal site or sites shall become
the property of the owner or operator of the Disposal site(s) once deposited there by the
Contractor.”
13. Section 3.35, Contractor Operational Area.
Section 3.35 is hereby retitled “Designated Hauler Operational Area” and the language
is replaced in its entirety with the following:
“Throughout the Term, Contractor and the City may agree that the City’s Designated
Hauler (if other than Contractor) shall have exclusive rights to an operational area at the
Transfer Station Site for the purpose of providing parking sufficient for use as a trucking
terminal to support Discarded Material Collection operations, for storage space, fueling of
trucks with Compressed Natural Gas (CNG), and for other uses associated with the
Designated Hauler Collection operations. The right to use the designated operational area
shall be subject to the provisions of a sub-sublease approved by both the City and
Contractor. If a new sub-sublease agreement is agreed upon by the City, Contractor, and
the Designated Hauler, that sub-sublease agreement shall replace Exhibit B.”
14. Section 4.01, General.
i. Section 4.01, Paragraph 1 is hereby removed in its entirety and replaced with the
following:
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“The Contractor shall provide, in accordance with Standard Industry Practices,
Transportation services to the City and/or its Designated Hauler(s) during the PTS
Operating Period.”
ii. Section 4.01, Paragraph 3 is hereby removed in its entirety and replaced with the
following:
“During the Initial PTS Operating Period and CTS Contractor Operating Period, the
Contractor shall Transport and Deliver to the Designated Organics Processing
Facility all City Organic Materials Accepted at the Transfer Station. Delivery of City
Organic Materials to the Designated Organics Processing Facility shall occur
during the receiving hours of the Designated Organics Processing Facility. The
date, time, vehicle identification number, and weight of all vehicles Transporting
Organic Materials shall be recorded when the vehicle leaves the Transfer Station
Site. The City shall select the Designated Organics Processing Facility.”
15. Section 4.04, Prohibition of Disposal of Recovered Materials is hereby removed in its
entirety and replaced with the following:
“The Contractor shall not Transport materials that are Delivered to PTS as Recyclable
Materials, Organic Materials or C&D that have been Source Separated by a Customer or
which are Recovered by Contractor pursuant to Section 3.30 of this Agreement to a
Disposal Facility for the purpose of Disposal, without the prior consent of the City.”
16. Section 4.11 is added to read as follows:
“Section 4.11 Notification of Complaints. The City and Contractor shall meet and
confer to develop a system of providing notice to the other party when any complaints
regarding the operation of the PTS are received, by either the City or Contractor, from
Self-Haulers, the City’s Designated Hauler, other non-City franchised haulers or the public.
The system may include a web-based system. At a minimum, the City shall promptly notify
the Contractor by email as soon as the City’s receives ten (10) complaints during any
given month during the Term. The purpose of this email notification is to allow the
Contractor to respond to complaints by corrective action, public education or other
measures before Liquidated Damages can be assessed on Contractor due to an
excessive number of complaints.In the event the Contractor receives more than ten (10)
complaints during a given month, the Contractor shall meet with the City. The purpose of
this meeting is to allow the Contractor to explain why excessive complaints were received
and present a proposed mitigation plan to reduce the likelihood of excessive complaints
from reocurring, prior to the City’s assessment of Liquidated Damages pursuant to Section
15.04. Any meeting between City and Contractor described in this Section 4.11 shall not
preclude the City from assessing Liquidated Damages against Contractor pursuant to
Section 15.04.”
17. Section 6.05, Transfer Station Throughput Guarantee and Waste Receiving Priority
is hereby removed in its entirety and replaced with the following:
“The Contractor shall guarantee its ability to Accept and Transfer all Discarded Materials
Delivered by the City or its Designated Hauler(s) to the Transfer Station, subject to the
remaining terms and conditions of this Agreement.”
18. Section 6.06, Materials Recovery Activities is hereby removed in its entirety and
replaced with the following:
“The Contractor shall perform material Recovery activities in accordance with Section
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3.30. In the event the Contractor Recovers Recyclable Materials, the Contractor shall
market Recovered Materials using best efforts and the Contractor shall retain all
Recovered Materials Revenues. If potentially Divertible material cannot be Diverted
despite Contractor’s best efforts, Contractor shall notify the City and the parties shall meet
and confer whether to not require Diversion of the material or, alternatively, on a fee to be
charged by Contractor for the receipt and Recovery of such material.”
19. Section 6.07, Transportation, Disposal, and Processing Services is hereby removed
in its entirety and replaced with the following:
“Upon City Contract Manager direction, the Contractor shall be solely responsible for
providing Transportation and Disposal or Processing services for Discarded Materials
Accepted at the Palomar Transfer Station including all Discarded Materials from the City
and its Designated Hauler(s), subject to the terms and conditions in this Agreement. The
City shall select the Disposal and Processing facilities; provided, however, that if the City
designates a Disposal or Processing facility other than one operated by Contractor or its
affiliate, the City and Contractor shall meet and confer to mutually agree in writing on the
pricing for the transloading, transportation, and disposal of the materials in question. When
providing Transport services during the Subsequent PTS Operating Period for Transfer
Station Users, the Contractor shall comply with requirements specified in Article 4.”
20. Section 8.03, PTS Solid Waste Fee is hereby removed in its entirety and replaced with
the following:
““A. General.” The PTS Solid Waste Fee includes compensation for Transfer Station
services, Transportation of City Waste to Designated landfills, Disposal Services, Fuel,
and all applicable Governmental Fees. The PTS Solid Waste Fee shall be effective during
the Initial PTS Operating Period, Subsequent Operating Period, and CTS Contractor
Operating Period. The PTS Solid Waste Fee is separated into three components: The
Base Component, the Fuel Component, and Governmental Fee Component. The
adjustment process for the PTS Solid Waste Fee is presented in Section 8.04.
“B. Base Component.” The initial Base Component is that portion of the PTS Solid Waste
Fee comprised of the Contractor's fixed and variable costs, excluding the Fuel
Component. The Base Component shall be adjusted annually during the Initial Operating
Period, Subsequent Operating Period, and CTS Contractor Operating Period, to reflect
90% of the change in the CPI values as specified in Section 8.04.B, but will not otherwise
be adjusted except as the result of a modification to the scope of services as provided in
Section 16.15. The initial Base Component, which will be effective on July 1, 2022, is
included in “Exhibit "A", Article 1”.
“C. Governmental Fee Component.” The Governmental Fee Component is that portion
of PTS Solid Waste Fee comprised of the Contractor's Governmental Fees. The
Governmental Fee Component is subject to adjustment only as necessary to reflect
changes in Governmental Fees required by third parties as provided in Section 8.04.C.”
“D. Fuel Component.” The Fuel Component is the portion of the PTS Solid Waste Fee
that contains the elements of the Contractor's costs relative to the purchase of fuel for
transportation services. The initial Fuel Component, which will be effective on July 1, 2022,
is included in Exhibit "A", Article 1.
21. Section 8.04, Adjustment of PTS Solid Waste Fee is hereby removed in its entirety and
replaced with the following:
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““A. General.” The intent of this Agreement is to provide for an annual adjustment to the
PTS Solid Waste Fee during the Initial PTS Operating Period, Subsequent Operating
Period, and CTS Contractor Operating Period. The first annual adjustment to the Base
Component of the PTS Solid Waste Fee will be effective June 1, 2023. A change in any
fees shall-be effective in accordance with the provisions of this section.
“B. Base Component Annual Adjustment.” The annual change to the Base Component
of the PTS Solid Fee shall be calculated using ninety percent (90%) of the percentage
change in the value of the CPI. If the Base Component Annual Adjustment calculation
exceeds five (5) percent, the adjustment of the Base Component will be limited to five (5)
percent. The specific adjustments shall be rounded to the nearest cent per ton. The
adjustments to the Base component shall be made as shown in “Exhibit “A", Article 2.”
“C. Governmental Fee Component Annual Adjustment.” The initial PTS Solid Waste
Fee, per “Exhibit “A”, Article 1”, includes all applicable Governmental Fees as of the
Effective Date. The annual net change to the Governmental Fees shall be made to reflect
any adjustment (either increase or decrease) in Governmental Fees subsequent to the
Effective Date. The following steps shall be used to determine if an adjustment in
Governmental Fee Component should be made:
1. No later than March 1, the Contractor shall provide written verification and
documentation of the specific Governmental Fees to be included in the PTS Solid
Waste Fee (listed separately) comprising the then-current Governmental Fee
Component and present the amount by which they have increased, decreased, or
remained the same by comparing Governmental Fees to those included in the PTS
Solid Waste Fee on the Effective Date.
2. Based on the information submitted by the Contractor, and any additional
information the City may reasonably request and/or separately collect for its
independent verification, the City shall adjust the Governmental Fee Component
to reflect any verified net increases or decreases. The specific adjustments shall
be rounded to the nearest cent per Ton.
3. The annual adjustment provided for in this Section shall not occur until the City
has, to its reasonable satisfaction, verified the then-current Governmental Fees,
except that the City shall not unreasonably delay an adjustment of the PTS Solid
Waste Fee.
4. In the event any Governmental Fee, or increase therein, becomes effective at a
time other than the time for the annual adjustment in the Governmental Fee
Component, the Contractor shall provide not less than ninety (90) days prior written
notice thereof to the City and, subject to the City's verification thereof, an
adjustment for such new or increased Governmental Fee shall become effective
as of the expiration of such ninety (90) day period.
“D. Fuel Adjustment.” The Contractor shall have the right to an adjustment of those
portions of the PTS Solid Waste Fee which contain the elements of the Contractor's costs
relative to the purchase of fuel for transportation services. Contractor and City agree to
annually adjust (increase or decrease) the Fuel Baseline portion of the PTS Solid Waste
Fee by the 12-month trailing change in the Weekly Retail On-Highway Diesel Prices,
California Index provided by the
1. U.S. Energy Information Administration. If for practical business reasons, the
Contractor or its provider of transportation services were to change its vehicles
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from diesel to some other form of energy, the Contractor and City will meet and
mutually agree on a new index to replace the Weekly Retail on-Highway Diesel
Prices Index and a new Fuel Baseline. The first adjustment to the Fuel Baseline
shall be made on July 1, 2023.
The Contractor shall prepare and submit to the City its calculation of the adjusted Fuel
Baseline component in accordance with the provisions of Section 8.04.E. The 12-month
trailing change will be based on the 12-months in the calendar year preceding the
proposed July 1 rate adjustment (January-December).
“E. Adjustment Schedule.” The Contractor shall prepare and submit to tbe City its
calculation of the adjusted PTS Solid Waste Fee on or before March 1 of each year during
the Initial PTS Operating Period, Subsequent Operating Period, and CTS Contractor
Operating Period. The Contractor's submittal shall present the calculation of adjusted PTS
Solid Waste Fee and all supporting documentation needed to verify the calculation, CPI
indices, and Governmental Fees. City staff will review the Contractor's submittal within
fourteen (14) calendar days of receipt and acknowledge the City's acceptance of the
adjusted PTS Solid Waste Fee or shall provide comments describing any exceptions to
the Contractor's calculations. If City staff does not accept tbe Contractor's calculation of
PTS Solid Waste Fee, the Contractor and the City shall meet within seven (7) calendar
days of the Contractor's receipt of the City's comments to resolve outstanding issues. In
the event tbe City and the Contractor cannot agree on the adjusted PTS Solid Waste Fee
within sixty (60) calendar days of Contractor's submittal of its calculation of the adjusted
PTS Solid Waste Fee, the matter shall be resolved through the dispute resolution
procedures described in Section 16.14. The City will give notice to the Contractor of any
change in tbe PTS Solid Waste Fee no later than thirty (30) calendar days prior to the
effective date of the new PTS Solid Waste Fee.
“F. Adjusted PTS Solid Waste Fee.” The Adjusted Solid Waste Fee shall be calculated
as shown in Exhibit "A”, Article 2.”
22. 8.05 PTS Organic Fee is hereby removed in its entirety and replaced with the following:
““A. General.” The initial PTS Organic Fee includes compensation for Transfer Station
services, Fuel, and applicable Governmental Fees. The PTS Organic Fee is separated
into three components: the Base Component, the Fuel Component, and the Governmental
Fee Component such that the PTS Organic Fee equals the sum of the three components.
The adjustment process for the PTS Organic Fee is presented in Exhibit “A”, Article 2.
Contractor may only charge the PTS Organic Fee if Contractor delivers the Discarded
Materials that are charged the PTS Organic Fee for Processing at the approved Organic
Materials Processing Facility. In the event that the PTS Organic Fee is applied to tonnage
that is Delivered to an another facility or is Disposed prior to Processing, Contractor shall
refund the incorrectly charged amount and ensure accurate classification and allocation
of such Discarded Materials in Contractor’s station reports to the County and/or
CalRecycle. If contractor is unable, after three (3) documented unsuccessful attempts, to
refund an incorrectly charged amount to a Customer, PTS shall return those funds to the
City for exclusive use in the City’s Sustainable Materials Management Program.”
“B. Base Component.” The initial Base Component is that portion of the PTS Organic
Fee comprised of the Contractor's fixed and variable costs, excluding fuel and are included
in Exhibit "A", Article 1. The Base Component shall be adjusted annually during during the
Initial PTS Operating Period, Subsequent Operating Period, and CTS Contractor
Operating Period to reflect the change in the CPI values as specified in Section 8.06.B.,
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but will not otherwise be adjusted except as the result of a modification to the scope of
services as provided in Section 16.15.
“C. Governmental Fee Component.” The Governmental Fee Component is that portion
of PTS Organic Fee comprised of the Contractor's Governmental Fees. The
Governmental Fee Component is subject to adjustment only as necessary to reflect
changes in Governmental Fees required by third parties as provided in Section 8.06.C.”
“D. Fuel Component.” The Fuel Component is the portion of the PTS Organic Fee that
contains the elements of the Contractor's costs relative to the purchase of fuel for
transportation services. The initial Fuel Component, which will be effective on July 1, 2022,
is included in Exhibit "A", Article 1.
“E. Adjustment of PTS Organic Fee.” The Adjusted PTS Organic Fees shall be
calculated as shown in Exhibit "A", Article 2.
23. 8.06 Adjustment of PTS Organic Fee is hereby removed in its entirety and replaced with
the following:
““8.06 PTS Construction and Demolition Fee.”
“A. General.” The PTS Construction and Demolition Fee includes compensation for
Transfer Station services, Transportation of PTS Construction and Demolition, Disposal
Services, Fuel, and all applicable Government Fees. The minimum diversion rate shall be
65%. The PTS Construction & Demolition Fee shall be effective during shall be effective
during the Initial PTS Operating Period, Subsequent Operating Period, and CTS
Contractor Operating Period. The PTS Construction & Demolition Fee is separated into
three components: The Base Component, the Fuel Component, and Government Fee
Component. The initial rates, which will be effective on July 1, 2022, are included in Exhibit
"A", Article 1. Contractor may only charge the PTS Construction and Demolition Fee if
Contractor delivers the Discarded Materials that are charged the PTS Construction and
Demolition Fee for Processing at the Approved Construction and Demolition Processing
Facility. In the event that the PTS Construction and Demolition Fee is applied to tonnage
that is Delivered to an another facility or is Disposed prior to Processing, Contractor shall
refund the incorrectly charged amount and ensure accurate classification and allocation
of such Discarded Materials in Contractor’s station reports to the County and/or
CalRecycle. If contractor is unable, after three (3) documented unsuccessful attempts, to
refund an incorrectly charged amount to a Customer, PTS shall return those funds to the
City for exclusive use in the City’s Sustainable Materials Management Program.”
“B. Base Component.” The initial Base Component is that portion of the PTS
Construction and Demolition Fee comprised of the Contractor's fixed and variable costs,
excluding the Fuel Component. The Base Component shall be adjusted annually during
the Initial Operating Period to reflect 90% of the change in the CPI values, but will not
otherwise be adjusted except as the result of a modification to the scope of services as
provided in Section 16.15. The initial Base Component, which will be effective on July 1,
2022, is included in Exhibit "A", Article 1.
“C. Governmental Fee Component.” The Governmental Fee Component is that portion
of the PTS Construction and Demolition Fee comprised of the Contractor's Governmental
Fees. The Governmental Fee Component is subject to adjustment only as necessary to
reflect changes in Governmental Fees required by third parties as provided in Section
8.06.C. The initial Governmental Fee Component, which will be effective on July 1, 2022,
is included in Exhibit "A", Article 1.
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“D. Fuel Component.” The Fuel Component is the portion of the PTS Construction and
Demolition Fee that contains the elements of the Contractor's costs relative to the
purchase of fuel for transportation services. The initial Fuel Component, which will be
effective on July 1, 2022, is included in Exhibit "A", Article 1.
24. “E. Adjustment of PTS Construction and Demolition Fee.” The intent of this
Agreement is to provide for an annual adjustment to the PTS Construction and Demolition
Fee during the Initial PTS Operating Period, Subsequent Operating Period, and CTS
Contractor Operating Period. The first annual adjustment to the Base Component and the
Fuel Component of the PTS Construction and Demolition Fee will be effective July 1, 2023.
The Adjusted PTS Construction and Demolition Fees shall be calculated as shown in
Exhibit "A", Article 2.”Section 12.08 is added to read as follows:
“Section 12.08, Sustainable Materials Management Program Fee.”
A Sustainable Materials Management Program Fee shall be due the City on the 20th day
following the end of each Calendar month starting with the month of July 2022, through
the expiration of this Agreement. The City shall use the revenues generated from this fee
to support the City’s Sustainable Materials Management Program. The Contractor’s
monthly remittance report to the City shall document the calculation of the Sustainable
Materials Management Program Fees due to the City. Sustainable Materials Management
Program Fees due to the City shall be calculated to equal the Tonnage of material
delivered from the Transfer Station to a Landfill, less those Tons of City Franchise Solid
Waste collected in the City and delivered by the City’s Designated Hauler, times the per
Ton Sustainable Materials Management Program Fee amount, in accordance with Exhibit
“A”, Section 1. At the request of either party, the City and Contractor shall meet and confer
to consider an adjustment in the Sustainable Materials Management Program Fees if
Contractor believes it is experiencing reduced Solid Waste, Recyclable Material, and/or
Organic Waste receipts, due to the City’s Sustainable Materials Management Program
Fees. However, neither party may request an adjustment as described in this Section
12.08 for a one (1) year period, beginning with the Effective Date of this Amendment, in
which the Sustainable Materials Management Program Fee shall remain constant.”
B. Base Component.” As of the Effective Date of this Amendment, the base component
of the Sustainable Materials Management Program Fee shall be equal to two dollars
($2.00) per Ton. The Base Component shall be adjusted annually to reflect 90% of the
change in the CPI values, but will not otherwise be adjusted except as the result of a
modification to the scope of services as provided in Section 16.15. The initial Base
Component, which will be effective on July 1, 2022, is included in Exhibit "A", Article 1.
“E. Adjustment of Sustainable Materials Management Program Fee.” The intent of
this Agreement is to provide for an annual adjustment to the Sustainable Materials
Management Program Fee during the Initial PTS Operating Period, Subsequent Operating
Period, and CTS Contractor Operating Period. The first annual adjustment to the Base
Component of the Sustainable Materials Management Program Fee will be effective July
1, 2023. The Adjusted Sustainable Materials Management Program Fee shall be
calculated as shown in Exhibit "A", Article 2.”
25. Section 13.01(B) is hereby deleted in its entirety and is replaced with the following:
“Section 13.01(B).”
Evaluate past and expected progress towards achieving AB 901, AB 939, SB 1383 and
City goals and objectives; determine and set Rates and evaluate the financial efficacy of
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operations; evaluate past and expected progress towards achieving the Contractor’s
Diversion operations and objectives; provide concise and comprehensive program
information and metrics for use in fulfilling reporting requirements under Applicable Law;
determine needs for adjustment to programs; and evaluate Facility User service and
Complaints.”
26. Section 13.03, City Review and Inspection of Records. is hereby deleted in its entirety
and replaced with the following:
““Section 13.03, City Record Request, Review, and Inspection of Records.”Upon
twenty-four (24) hours’ prior written notice, the City, and its agents, shall have the right,
during regular business hours, to conduct on-site inspections of the records and
accounting systems of the Contractor and to make copies of documents relevant to this
Agreement, provided that upon arrival at the Premises, the City or its designated
representative shall immediately contact the Facility/Site manager or his/her designee.
The City reserves the right to request an independent review of the Contractor’s
operational and financial records with respect to calculation of any Fee noted herein and
to verify the Contractor’s compliance with Sections 3.30.F (Diversion), 3.31.C (Marketing
Records), and 8.07 and 9.06 (Most Favored Customer). If the findings from such
independent review identify any underpayment of fees to the City valued at one percent
(1%) or more of the total of all annual fees owed the City for any given calendar year,
Contractor shall, in addition to compensating City for any underpaid fees, reimburse the
City’s actual cost of the independent review.
In the event the City submits a written request to the Contractor for certain records, the
Contractor shall deliver requested records to the City within fourteen (14) calendar days
of receipt of such request. In the event the Contractor discontinues providing services to
the City, the Contractor shall provide all records of all services requested to the City within
thirty (30) days of discontinuing service. Any and all records provided to the City shall be
in Microsoft Excel format, with all formulas and calculations intact and readily and easily
interpreted. Failure to meet the requirements of this section equates to Liquidated
Damages as identified in Section 15.04.”
27. “Section 13.05 Quarterly Report Requirements.” With the exception of Section
13.05(A), Section 13.05 is hereby deleted and replaced with the following:
““Section 13.05 Monthly Report Requirements.” Monthly reports shall be submitted by
Contractor to the City and shall include the following information pertaining to the most
recently completed calendar month. In addition, each monthly report shall include a year-
to-date summary page that includes the data submitted from the monthly report(s)
submitted in the calendar year prior to the submittal of the current monthly report. The
information listed in this Section shall be the minimum information reported by the
Contractor to City on a calendar monthly basis in accordance with the requirements of this
Agreement.”
28. Section 13.05(B), Recyclable Material and Organic Material Services is hereby
deleted in its entirety and replaced with the following:
““Section 13.05, (B) Discarded Materials Reports”
Solid Waste, Recyclable Materials, Organic Materials, Bulky Goods, White Goods, Brown
Goods, Carpet, Mattresses, and Construction & Demolition Debris (C&D) that are
Accepted at the Transfer Station. At a minimum, the following information shall be
included:
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1. Monthly Reports:
a. Tonnage delivered to Transfer Station by Material Type (including each
type of Discarded Material and each program performed by Contractor
under Section 3.28 and 3.30 of this Agreement) and Customer Type,
subtotaling and clearly identifying those Tons that are Diverted and
those that are Disposed.
b. Category of person delivering the material (e.g. City, Designated
Hauler, Self-Hauler, Transfer Station Users, commercial hauler, etc.)
c. Percentage of Discarded Materials Diverted from the total quantity of
Discarded Materials Accepted at the Transfer Station.
2. Diversion Report: Contractor shall report the Diversion level for each month
and the cumulative year-to-date Diversion Level, where Diversion level shall
be calculated as: (Discarded Materials received minus Solid Waste Disposed
minus Processing Residue Disposed) divided by Discarded Materials received.
a. Solid Waste Tonnage received and Solid Waste Tonnage Disposed by
jurisdiction of origin.
b. Monthly Diversion rate by Customer Type and in aggregate for all
Customer Types under this Agreement.
c. Bulky Items and Reusable Materials Tonnage Marketed and Tonnage
Disposed from non-Divertible materials and Processing Residue
d. Units of Used Oil, Used Oil Filters, E-Waste, U-Waste, Mattress,
Sharps, White Goods, Brown Goods, Carpet, C&D, and and Bulky
Items Collected by Customer Type.
e. Recyclable Materials Tonnage Marketed (by commodity) and
Processing Residue Tonnage Disposed with specific and separate
identification of tonnage received and marketed from drop-off, buy-
back, and curbside collection.
3. Diversion Programs Report: For each program required under Section 3.30
provide activity related and narrative reports on goals, milestones, and
accomplishments. Describe problems encountered, actions taken, and any
recommendations to facilitate progress. Describe vehicles, personnel, and
equipment utilized for each program.
4. Annual Reports: The annual report shall be the final monthly report, including
annual totals, summary pages, and a compilation of any materials required by
the monthly reports, plus the following additional information.
a. Summary Assessment: Provide a summary assessment of the
programs performed under this Agreement from Contractor's
perspective relative to the status of the program. The summary
assessment shall reflect how well the program is operating in terms of
efficiency, economy, and effectiveness in meeting all the goals and
objectives of this Agreement, particularly the Contractor’s Diversion
goals. Provide recommendations and plans to improve and highlight
significant accomplishments and problems. Results shall be compared
to other similarly-sized communities served by the Contactor in the
State.
b. Processing Report: A record of all compliance agreements for
quarantined Organic Material that are Disposed of, including the name
of Generator, date issued, location of final disposition, and the amount
of quarantined Organic Material that was required to be Disposed at a
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landfill and written notification that the Approved Organic Material
Processing Facility(ies) has, and will continue to have the capabilities
to Process, and recover the Compostable Plastics, in accordance with
Section 6.07 of the Agreement..
c. Vehicle Inventory:
i. A list of all vehicles, including subcontractor vehicles used in
performing services under this Agreement including the license
plate number, VIN, make, model, model year, purchase date,
engine overhaul/rebuild date (if applicable), and mileage at
December 31.
ii. The total amount of RNG procured by the Contractor for use in
Contractor vehicles, in diesel gallon equivalents (DGE),
including copies of any receipts, invoices, or other similar
documentation evidencing procurement. In addition to the
amount procured, Contractor shall include the total amount
actually used in Contractor vehicles in the calendar year, if
these values are different.
iii. The name, physical location, and contact information of each
entity, operation, or facility from whom the Contractor procured
RNG for Collection vehicles.
d. Recyclables and Organics Markets: Contractor shall provide a report
describing its marketing of Recyclable Materials. The marketing report
shall include: 1) quantities of each accepted Recyclable Material
marketed during the prior year; 2) actual prior year and estimated
coming year per unit or per-ton market values for each; and 3) brokers,
markets, and end uses for each.
5. Additional Reports:
a. Customized Reports. The City reserves the right to request Contractor
to prepare and provide customized reports from records Contractor is
required to maintain; or require a specified format or submission
system, such as the use of a web-based software platform.
b. AB 901 Reporting. Contractor shall provide the City copies of
Contractor’s AB 901 reports within ten (10) Business Days of
Contractors submittal of such reports to CalRecycle.
c. Upon Incident Reporting. City reserves the right to request additional
reports or documents in the case of unforeseen events or additional
requirements imposed upon the City. The Contractor shall provide the
requested reports, documents, or information within ten (10) Business
Days upon receipt of the request or within a timeframe determined by
the City Contract Manager, which shall not to exceed ten (10) days.”
29. Section 13.05(C), Other Programs is hereby deleted in its entirety and replaced with the
following:
““Section 13.05(C), SB 1383 and AB 901 Obligations”,
Contractor specifically acknowledges Contractor’s obligation, in performing Contractor’s
services in this Agreement, to comply with all Applicable Law at the time this Amendment
was considered. Contractor acknowledges the City’s intent to comply with SB 1383 and
AB 901 insofar as these laws pertain to Contractor’s services and operations under this
Agreement. Contractor agrees that it has considered all of the obligations of SB 1383,
especially including the changes to Title 14 and AB 901, placed upon Contractor in
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operating the PTS as a transfer/processor and in meeting the specific obligations under
this Agreement.
Contractor’s performance of services described in this Agreement shall be in accordance
with those provisions of the final draft of SB 1383 and AB 901 regulations, which is
incorporated herein by reference, that pertain to Contractor’s services. In accordance with
this Agreement, Contractor shall provide notice to City of any new permits, and/or
proposed permit modifications affecting Contractors services and/or Operations under this
Agreement. In addition, Contractor shall provide to the City any and all reports provided
to other governmental agencies regarding the operation of PTS, including reports required
to be provided to the City, local enforcement agency, or CalRecycle, under SB 1383 and
AB 901. Notwithstanding any other provision in this Agreement and for the purposes of
clarity, this Amendment does not obligate Contractor to convert the PTS facility to a
materials recovery facility (MRF) or a High Diversion Facility, as this latter term is defined
in the SB 1383 regulations.
30. Section 15.04, Liquidated Damages is amended to include the following:
Item
Specific Performance
Measure Definition
Acceptable
Performanc
e Level
Liquidated Damage
Amount
1. Failure to meet Vehicle
Turnaround Time
For each Designated
Hauler vehicle, which is
unable to depart from
the Transfer Station
within the Maximum
Vehicle Turnaround
Time due to conditions
at or within the Transfer
Station.
>30 minute
Turnaround
time
$100/Vehicle /day
2. Late Submittal of
Reports to City
Any report shall be
considered late until
such time as a correct
and complete report is
received by the City.
No
acceptable
failure level
$250/day
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Item
Specific Performance
Measure Definition
Acceptable
Performanc
e Level
Liquidated Damage
Amount
3. Failure to implement
and/orcontinue to
operate Diversion
programs described in
Section 3.30 of this
Agreement.
For each month that the
Contractor fails to
implement and continue
to operate the Diversion
programs stated in
Section 3.30 at the
Transfer Station,
Contractor shall be liable
for either this Liquidated
Damage #3 or
Liquidated Damage #6,
whichever is more. City
Contract Manager shall
determine whether
Contractor failed to
satisfy Diversion
program requirements
by reviewing
photographic or other
documentary evidence
required in Section 3.30.
No
acceptable
failure level
City’s actual cost of
performing or
contracting for
replacement services,
plus $250 per program
per day.
4. Failure to maintain the
Transfer Station in
accordance with the
maintenance provisions
of the Master Lease
and/or PTS Lease.
For each month that the
Contractor is in violation
of standard maintenance
requirements under the
Master Lease and/or
PTS Lease.
No
acceptable
failure level
$1,000/event/day
5. Excessive Complaints
For more than ten (10)
complaints received
about PTS operations
during a given month
from a number of
unrelated Persons. In
the event the Contractor
receives more than ten
(10) complaints during a
given month, the
Contractor shall meet
with the City.
>10
complaints
received per
month
$150 for each
complaint received
above ten (10)
complaints
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Item
Specific Performance
Measure Definition
Acceptable
Performanc
e Level
Liquidated Damage
Amount
6. Failure to meet C&D
diversion rate
For each ton per month
that the Contractor fails
to meet the Diversion
requirements for C&D
Material, Contractor
shall be liable for either
this Liquidated Damage
#6, or Liquidated
Damage #3, whichever
is more. City Contract
Manager shall
determine whether
Contractor failed to
satisfy Diversion
program requirements
by reviewing
photographic and/or
other documentary
evidence required in
Section 3.30, or by
conducting site visits to
applicable Contractor
Facilities.
C&D
Material:
Diversion
rate <65%
$50/ton/month
7. Failure to Deliver
Recovered Materials to
a Processing Facility or
other facility for
Diversion.
For each load of
Recovered material that
is not Delivered to a
Processing Facility or
other facility for
Processing, and which is
Disposed of.
No
acceptable
failure level
$1,000/load
City wishes to establish standards of performance under the Agreement in each of the
“Performance Areas” listed. The City Contract Manager may monitor Contractor’s performance in
each of those areas based on the “Specific Performance Measures” within that performance area.
If the City Contract Manager determines that Contractor has failed to meet the performance
standard established for any “Specific Performance Measure,” the City Contract Manager shall
notify Contractor in writing. If Contractor is able to cure the failure to perform within five (5) Working
Days, then the relevant Liquidated damage(s) shall be waived. If the failure to perform is
impossible to cure, and/or the Contractor fails to cure the default within five (5) Working Days,
City may assess Liquidated Damages without further opportunity to cure. Liquidated Damages, if
assessed, shall only be assessed for the number of events, days, or other measure in excess of
the acceptable performance level beginning with the first date of Contractor failing to perform.
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ARTICLE 2. FURTHER AMENDMENT
No modification, amendment, or supplement to this Fifth Amendment or the Agreement as
modified by this Fifth Amendment will be binding on the Parties unless it is made in writing, duly
authorized by Contractor and City, and signed by both Parties.
ARTICLE 3. ENTIRE AMENDMENT; NO OTHER MODIFICATIONS; INSURANCE
This Fifth Amendment contains the entire understanding of the Parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous agreements and commitments with
respect thereto. Except as expressly modified by this Fifth Amendment, all the terms and
conditions of the Agreement, as it may have been amended from time to time, shall remain in full
force and effect, unmodified, and apply to this Fifth Amendment as though set forth herein,
including, but not limited to, disputes, Applicable Law, and venue provisions. All requisite
insurance policies to be maintained by Contractor pursuant to the Agreement, as may have been
amended from time to time, will include coverage for this Amendment.
ARTICLE 4. HEADINGS
Headings in this document are for convenience of reference only and are not to be considered in
any interpretation of this Fifth Amendment.
ARTICLE 5. LEGAL REPRESENTATION
Each of the Parties has received the advice of legal counsel prior to signing this Fifth Amendment.
The Parties agree that no provision or provisions may be subject to any rule of construction based
upon any Party being considered the Party “drafting” this Fifth Amendment.
ARTICLE 6. SEVERABILITY/PARTIAL INVALIDITY
If any term or provision of this Fifth Amendment, or the application of any term or provision of this
Fifth Amendment to a particular situation, shall be found to be void, invalid, illegal, or unenforceable
by a court of competent jurisdiction, then notwithstanding such determination, such term or provision
shall remain in force and effect to the extent allowed by such ruling, and all other terms and provisions
of this Agreement or the application of this Agreement to other situations shall remain in full force
and effect.
Notwithstanding the foregoing, if any material term or provision of this Fifth Amendment or the
application of such material term or condition to a particular situation is found to be void, invalid,
illegal, or unenforceable by a court of competent jurisdiction, then the Parties hereto agree to work
in good faith and fully cooperate with each other to amend this Fifth Amendment to carry out its intent.
ARTICLE 7. EFFECTIVE DATE
This Fifth Amendment shall become effective on the Effective Date when this Amendment
becomes fully executed by City and Contractor.
ARTICLE 8. COUNTERPARTS
This Fifth Amendment may be executed in counterparts with each counterpart being interpreted
as an original, and all of which, taken together, shall constitute one and the same instrument.
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EXHIBIT A
The following are the initial rates for each component that become effective on July 1,
2022.
Component
Per Ton Charges (1)
PTS Solid
Waste Fee
PTS Organic
Fee
PTS
Construction &
Demolition Fee (2)
Sustainable Materials
Management
Program Fee (3)
Base $45.93 $74.36 $69.77 $2.00
Fuel $1.01 $1.01 $1.01 N/A
Government Fees $4.11 $2.50 $2.50 N/A
Total Per Ton Charge $51.05 $77.87 $73.28 $2.00
(1) PTS responsible for transfer transport and disposal of all tons delivered to PTS.
(2) PTS staff will be responsible for load inspection to ensure loads are sufficiently free of trash to warrant C&D
classification
(3) The SMM Program fee does not have a fuel component or a governmental fees component.
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Article 2. Adjustment of City Regulated Service Fees
The rates shall be adjusted for July 1, 2023, using the base components in the table below.
Component
Per Ton Charges – Base for July 1, 2023, Rate Setting
PTS Solid
Waste Fee
PTS
Organic
Fee
PTS
Construction &
Demolition Fee
Sustainable Materials
Management Program
Fee
Base $45.93 $74.36 $69.77 TBD (based on CPI)
Fuel $1.01 $1.01 $1.01 N/A
Government Fees $4.11 $2.50 $2.50 N/A
Total Per Ton Charge $51.05 $77.87 $73.28 TBD
The Per Ton Charges in the table above are each comprised of a Base
Component, a Fuel Component (excluding the SMM Program Fee), and
Government Fees (excluding the SMM Program Fee). Adjustment of each
component is detailed below. The adjustment of each Rate Component shall be
rounded to the nearest cent.
Base Component Adjustments
The annual Base Component adjustment for all City-Regulated Service Fees
shall be calculated as follows:
Adjusted Base Component = Base Component of the Fee x 90% of
percentage change comparing the most recent annual CPI value to the
previous annual CPI value
The CPI means the Consumer Price Index, All Urban Consumers, all items,
not seasonally adjusted San Diego Carlsbad Area compiled and published
by the U.S. Department of Labor, Bureau of Labor Statistics.
For example, assume:
1) Date of first annual rate adjustment is July 1st, 2023
2) Current base component of PTS Organic fees = 74.36
3) The most recent annual CPI value = 303.932
4) Previous annual CPI value = 299.433
5) Base component will be calculated as follows
6) $74.36 x (1+((303.932-299.433)/299.433)*0.9)=$75.37
In this example the year over year CPI is 1.503%x.9=1.352%
If the Adjusted PTS Fee Base Component Annual Adjustment calculation
exceeds five (5) percent, the adjustment of the Base Component will be
limited to five (5) percent.
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Fuel Component Adjustments
The annual Fuel Component adjustment (increase or decrease) shall be the
12-month trailing change of the Weekly California No 2 Diesel Retail Prices
(Source Key: EMD_EPD2D_PTE_SCA_DPG) published by the U.S. Energy
Information Administration based on the 12-months in the calendar year
Note : July 1, 2023 fuel component adjustment will be based on January 2021
Diesel retail price of $ 3.404
Government Fee Adjustments
The annual net change to the Governmental Fees shall be made to reflect
any adjustment (either increase or decrease) in Governmental Fees
subsequent to the Effective Date.
EXAMPLE 1: Adjustment of PTS Solid Waste Fee
The following example shows how to adjust the PTS Solid Waste Fee Per Ton Charge
effective July 1, 2023. CPI presented in this example is used for illustrative purposes only
-
Component
PTS Solid Waste Fee (Per Ton)
July 1, 2022 One Time
Adjustment Adjustment July 1, 2023
Base $45.93 $3.43 $49.36 X 1.352% $50.02
Fuel $1.01 $1.01 x (1+0.0131) $1.02
Government
Fees $4.11 Current Fees $4.11
Total Per Ton
Charge $51.05 $55.15
- Annual Percentage Change in Fuel Index estimate (calculation not shown) = 0.0131
- Current Government Fees = $4.11
Note: The one-time adjustment of $ 3.43 is only for the July 1, 2023 solid waste fee
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EXAMPLE 2: Calculation of Sustainable Materials Management
Program Fee
Total Monthly PTS Tons to Landfill
- City Solid Waste Franchise Monthly Tons to Landfill
= Non-City Disposal Tons
Non-City Disposal Tons
x Sustainable Materials Management Program Fee (@ $2.00) Per Ton
= TOTAL AMOUNT DUE TO CITY
EXAMPLE
Total Monthly Tons to Landfill 20,000
City Solid Waste Franchise Monthly Tons to Landfill - 5,000
Monthly Tonnage Subject to SMM Program Fee = 15,000
Monthly Tonnage Subject to SMM Program Fee 15,000
Fee per Ton x $2.00
Total SMM Program Fees Due to City = $30,000
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Dec. 14, 2021 Item #17 Page 41 of 44